N4696

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 695 OF 2010

BETWEEN

JOE MAIVA for himself and on behalf of 235 Others
of Maus Markham Settlement whose names appear
in schedule "A" and "B" and who have consented
to be represented by JOE MAIVA
Plaintiffs

AND

ILA MARI as the Project Manager of the Lae Wharf
Tidel Basin Project
First Defendant

AND

INDEPENDENT PUBLIC BUSINESS CORPORATION
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Lae: Gabi, J
2012: 15 & 24 May

CIVIL – Practice and Procedure – National Court Rules 08 r27 and O12 r40 – no reasonable cause of action – meaning of – National Court Rules O4 r20 – requirement for endorsement to sue in a representative capacity; National Court Rules O5 r3, 8 and 13 – joint proceedings by persons with same interest 

WRONGS (MISCELLANEOUS PROVISIONS) ACT – requirements for pleading a party is vicariously liable.

Facts

The State proposed to expand the Lae wharf area on land owned by PNG Ports Ltd, which was occupied by over 500 squatters. The project funder, Asian Development Bank, arranged for and had implemented a generous re-settlement scheme for the squatters, based on an amount for each household. The plaintiffs in this action claim that they were evicted from the land and should have, but did not, benefit from the scheme; in addition they were the victims of an unlawful police raid, and claim damages against the defendants. The policemen were not named, the losses suffered not pleaded and the defendants responsible for particular damage not identified. A number of the plaintiffs signed a document phrased as a 'suggestion' but not a consent or authority that the plaintiff Joe Maiva act for them in the action. There was nothing signed by the balance of the plaintiffs. The defendants sought to strike out the proceedings on the bases that (1) there was no reasonable cause of action and (2) there was no authority for the plaintiff Joe Maiva to act for the other 235 plaintiffs.

Held

1.	In proceedings involving multiple defendants, the statement of claim must demonstrate what each defendant has done which is said to given rise to liability and how defendants are vicariously liable for acts of others, at [11];

2.	In a class action the principal plaintiff must obtain consent from all of the plaintiffs in writing before the proceeding is instituted, at [24];

3.	Proceedings dismissed.

Cases Cited

Anave Megaraka Ona vs. NHC (2009) N3623
Eliakim Laki vs. Maurice Alaluku & Others [2000] PNGLR 392
Gabriel Apio Irafawe vs. Yaume Riyong (1999) N1915
Kiee Toap vs. The Independent State of Papua New Guinea (2004) N2731
Kuk Kuli vs. The State (2004) N2592
Patterson Lowa and Others vs. Wapula Akipe and Others [1992] PNGLR 399
Pius Nui vs. Senior Sergeant Mas Tanda (2004) N2765
PNG Forest Products Pty Ltd and Another vs. The State and Genia [1992] PNGLR 85
Simon Mali vs. Independent State of Papua New Guinea (2002) SC690
Tigam Malewo vs. Keith Faulkner (2009) SC960

Counsel

M. R. Mugarenang, for the plaintiffs
R. G. Otto, for first & second defendants
E. Geita, for the third defendant 

RULING

24 May, 2012

1. GABI, J: Introduction: By a notice of motion, the defendants are seeking dismissal of the proceedings for being frivolous and vexatious or disclosing no reasonable cause of action and/or that the principal plaintiff lacks the consent and authority to act in a representative capacity. The application is made pursuant to Order 12 Rule 40 and Order 8 Rule 27 of the National Court Rules. 

Evidence 

2. The parties have filed the following affidavits: (i) affidavit of Ila Mari dated 16th August 2011; (ii) affidavit of Jack Stanley dated 18th July 2011; 
(iii) two affidavits of Roger Gileng Otto dated 12th September 2011 and 
7th October 2011 respectively; and (iv) two affidavits of Joe Maiva dated 
22nd September 2011 and 13th December 2011 respectively. 

Facts

3. The brief facts were that the National Government decided to expand the Lae Wharf into one of its vacant portions of land known as portion 508 Milinch of Markham Morobe Province. The land is owned by PNG Ports Corporation Limited. Illegal settlers had been squatting on the land for some time at Maus Markham, Sodas, Waratas and Sodas Northeast settlements. In an effort to evict the settlers, the Asian Development Bank, the financiers of the project, decided to provide some cash assistance to the squatters so that they return home and resettle. A re-settlement program was devised and implemented for the squatters from the four settlements. The program was called "Re-Settlement Implementation Plan 2009 – 2010." Under the program an identification study was carried out to identify the owner of each house and the number of people living in it in all the settlements. The exercise was carried out with the assistance of the community leaders in each of the settlements. The owner of each house was identified as the Household Head ("HH"). A list of houses together with the owners and the number of occupants was compiled. The total number of houses came to 543. An identification card for each HH was made and their photographs were taken in front of their houses. The identification cards for each HH enabled them to deal with the Bank and access their funds. After the exercise was completed, a Deed of Release and Indemnity was signed with each HH, indemnifying the Independent Public Business Corporation ("IPBC") and the State from further liability in regards to the re-settlement program.

Cause of action 

4. The application is made pursuant to Order 8 Rule 27 and Order 12 Rule 40 of the National Court Rules, which provide that proceedings may be dismissed for failure to disclose a reasonable cause of action. Order 8 Rule 27 is in these terms:

"(1) Where a pleading-

(a)	discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(b)	has a tendency to cause prejudice, embarrassment or delay in the proceedings; or
(c)	is otherwise an abuse of the process of the Court,
(d)	the Court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleading be struck out.
 
(2)The Court may receive evidence on the hearing of an application for an order under Sub-rule (1)."

Order 12 Rule 40 states:

"(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings-

(a)	no reasonable cause of action is disclosed; or
(b)	the proceedings are frivolous or vexatious; or
(c)	the proceedings are an abuse of the process of the Court,
(d)	the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.
 
(2) The Court may receive evidence on the hearing of an application for 
an order under Sub-rule (1)."

5. In Patterson Lowa and Others v Wapula Akipe and Others [1992] PNGLR 399, Kapi DCJ (as he then was) said at pages 428 and 429:

"The phrase 'cause of action' has been used in many pieces of legislation and has been the subject of judicial consideration in other jurisdictions. In Read vs. Brown 22 QBD 128, the Court of Appeal considered the meaning of the phrase 'cause of action'. Lord Esher MR, with whom Fry LJ and Lopes LJ agreed, at p131 said:

'It has been defined in Cooke v Gill to be this: every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved. It has been suggested today in argument that this definition is too broad, but I cannot assent to this, and I think that the definition is right.'

The phrase 'cause of action' has two components. First, there must be a right which is given by a law, such as, entitlement to reasonable damages for breach of human rights under s 58 of the Constitution. This is what is referred to as the form of action. Secondly, the pleadings must disclose all the necessary facts which give rise to the form of action." 

6. Recently in Pius Niu vs. Senior Sergeant Mas Tanda (2004) N2765, Cannings J said:

"I recently reviewed the law on applications to strike out proceedings for not disclosing a reasonable cause of action, in Kiee Toap vs. The State and Others (2004) N2731. The following principles emerged: 

•	If it is plain and obvious that the statement of claim, even if proved, will not entitle the plaintiff to what he is asking for, it is appropriate to strike out the proceedings on the ground that no reasonable cause of action is disclosed. But the procedure should be confined to cases where the cause of action is obviously and almost incontestably bad. The plaintiff should not be driven from the judgment seat unless the case is unarguable. (PNG Forest Products Pty Ltd and Another vs. The State and Genia [1992] PNGLR 85, National Court, Sheehan J.)
•	If the statement of claim is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified, it should be struck out. (Gabriel Apio Irafawe vs. Yauwe Riyong (1996) N1915, National Court, Kirriwom J.)
•	If the statement of claim just leaves a defendant guessing as to what the plaintiff's allegations are, it should be struck out. (Eliakim Laki and 167 Others vs. Maurice Alaluku and Others (2002) N2001, National Court, Sevua J.)

In Toap I also pointed out that whenever a person brings a case to court, the originating document – in the present case, the writ of summons and statement of claim – must demonstrate that the plaintiff has a 'cause of action'. The document must clearly set out:

•	the legal ingredients or the elements of the claim; and 
•	the facts that support each element of the claim.

The plaintiff does not have to say what evidence there is of the facts being alleged. In fact, the National Court Rules prohibit that. But the plaintiff must outline the claim and demonstrate that it has a clear legal basis. If the plaintiff's originating document does that, there is a reasonable cause of action. If not, it does not disclose a reasonable cause of action."

7. The basis for the plaintiffs' claim are paragraphs 10, 11, 12, 14, 15 and 16 of the statement of claim. I set out below the relevant paragraphs in full:

"10. The Plaintiffs say that during the times of the various audits and assessments the servants, agents and employees of the First, Second and the Third Defendants advised and informed the settlers that the Second and the Third Defendants would pay each settler who owned a house or property of value on the land they had settled in exchange for vacant possession based on a payment criteria approved by the Second and Third Defendants.

Particulars of payment criteria

a)	That every owner of a house was entitled to be paid a sum of K31, 116.00
b)	That every person occupying the position of house hold status was to be paid a sum of K31, 116.00
c)	That every affected person within a household was to be paid a sum of K31, 116.00

11. The Plaintiffs in Schedule "A" say that they fall under the eligible criteria for payment as pleaded in paragraph 10 of the statement of claim but have not been paid to date. The Plaintiffs further say that their forceful eviction without payment of the K31, 116.00 amounts to the breach of their rights to protection from unjust deprivation of property guaranteed by section 53 of the Constitution.

12. The Plaintiffs in Schedule "B" say that they fall under the eligible criteria for payment as pleaded in paragraph 10 of the statement of claim but have not been paid to date. The Plaintiffs further say that their forceful eviction without payment of the K31, 116.00 amounts to the breach of their rights to protection from unjust deprivation of property guaranteed by section 53 of the Constitution...

14. On or about 18th January 2010 the Morobe Provincial Government on behalf of the Second and the Third Defendants issued a 7 days eviction notice for the Plaintiffs to leave the Maus Markham area between Monday 25 and Sunday 31st January 2010 without each of the Plaintiffs being paid their promised and agreed sum of K31, 116.00.

15. On or about 19th January 2010 the Defendants organised with the members of the police force to conduct the forceful eviction of the Plaintiffs from the Maus Markham area by burning down the remaining houses and properties owned by the Plaintiffs in breach of Section 53 of the Constitution as pleaded in paragraphs 11 and 12 of the statement of claim.

16. By reason of the matters pleaded in paragraphs 14 and 15 of the statement of claim, the Plaintiffs and their respective family members have suffered pain, injuries, mental trauma, anxiety, humiliation, loss and damages. Further particulars will be provided at the trial as if pleaded herein."

8. It is obvious that the plaintiffs' complaints arise from the re-settlement program (paragraphs 10, 11and 12) and the unlawful police raid (paragraphs 14, 15 and 16). I have had the benefit of reading the affidavits of Joe Maiva and find that much of the evidence is hearsay. 

9. With respect to the claim arising from the re-settlement program, it is clear from Schedule "A" that the 220 claimants are dependents of the household heads while the 14 claimants in Schedule "B" are purported household heads. The 220 claimants, who are dependents, have not demonstrated who their household head was or who they are dependents of and their house number. They claim to be forcefully evicted but have not pleaded how and when they were evicted and by whom and the loss suffered by each of them. As for the fourteen (14) purported household heads, they have not pleaded matters such as their identification and household numbers nor have they stated whether they own houses. They also complain of forceful eviction but have not pleaded how or when they were evicted and by whom and the loss suffered by each of them.

10. As for the claim of unlawful police raid, matters such as the names of the policemen involved, the number, type and value of houses alleged to have been destroyed in the raid, the names of the owners of the houses and the person(s) alleged to have authorised such raid have not been pleaded.
 
11. In proceedings involving multiple defendants, the statement of claim must demonstrate what each defendant has done which is said to give rise to liability against the defendant. For example, the State's servants or agents have not been identified and it is not shown how the State is liable. Secondly, the first and second defendants are not servants or agents of the State and it has not been demonstrated how the State can be vicariously liable for their conducts under s. 1(1) Wrongs (Miscellaneous Provisions) Act. Finally, the second defendant is a separate corporate entity and may not be part of the State for purposes of the Claims By and Against the State Act. 

12. Counsel for the defendants referred me to Patterson Lowa v Wapula Akipe [1992] PNGLR 399, Anave Megaraka Ona v NHC (2009) N3623, Gabriel Apio Irafawe v Yaume Riyong (1999) N1915, Kiee Toap v The Independent State of Papua New Guinea (2004) N2731, Kuk Kuli v The State (2004) N2592, Pius Nui v Senior Sergeant Mas Tanda (2004) N2765, Eliakim Laki v Maurice Alaluku & Others [2000] PNGLR 392.

13. In Eliakim Laki v Maurice Alaluka (supra), on the question of sufficiency of pleadings, Sevua J said:

"Secondly, if Eliakim Laki properly represents the other 167 block holders, their pleadings are quite inadequate. If the Court accepts that there are 168 different plaintiffs, their pleadings ought to reflect what each of them is claiming against each of the three defendants.

What the plaintiffs' lawyers have done was, they have filed a writ with a statement of claim, which pleaded general allegations against the defendants. There are no details or particulars of each plaintiff's claim against each of the three defendants. It has been said many times in many cases that the purpose of pleadings is to give the defendant and the Court a precise nature of the plaintiff's claim. In this case, the plaintiffs' statement of claim does not do that.

For instance, in paragraph 11 of the statement of claim, the plaintiffs alleged that they were forced to abandon their land in 1992, but what exact date did this occur? For all we know, this claim could be statute barred by s.16 of the Frauds and Limitations Act, 1988. Which of the three defendants forcefully terminated the leases? And which plaintiff suffered loss and what is his loss? There must be allegations or facts put to each defendant in the statement of claim so each can have the opportunity to respond. It is unfair, in my view, for a defendant to be left guessing as to what a plaintiff's allegations against him entails. The plaintiff has a duty to plead his claim fully so that a defendant is given the opportunity to either admit or deny each allegation and to state facts to counter the allegations.

It is my view that the plaintiffs' pleadings are too general in nature that they do not give each of the defendants the opportunity to adequately and properly respond to each allegation. I am of the view that the plaintiffs, or each plaintiff for that matter, must be able to identify which defendant did what specific act constituting the tort or breach of contract he is alleging. It is quite unfair and improper for this type of pleadings to be permitted by the Court to proceed this far."

14. Order 8 rule 29 of the National Court Rules states that a plaintiff shall give particulars of his claim. It is a mandatory requirement. In this case, the pleadings are inadequate and too general. Both counsel for the defendants argue that the pleadings as they are, do not disclose a reasonable cause of action against their clients. I am inclined to agree that due to the vagueness of the pleadings, the proceeding is not properly before the Court. 

Consent and Authority

15. Order 4 Rule 20 and Order 5 Rules 3, 8 and 13 of the National Court Rules are relevant. Order 4 Rule 20 provides:

"20. Endorsement as to capacity. (UK 6/3)

(1) Before a writ of summons is issued it must be endorsed-

(a)where the plaintiff sues in a representative capacity-with a statement of the capacity in which he sues; and

(b) where a defendant is sued in a representative capacity-with a statement of the capacity in which he is sued..."

16. Order 5 Rules 3, 8 and 13 provide:

"3. Joint right. (8/3)

(1) Where, in any proceedings, the plaintiff claims relief to which any other person is entitled jointly with him-

(a) all persons so entitled shall be parties to the action; and

(b) any of them who do not consent to being joined as a plaintiff shall be made a defendant...

8. Addition of parties. (8/8)

(1) ...

(2) A person shall not be added as plaintiff without his consent...

13. Representation; Current interests. (8/13)

(1) Where numerous persons have the same interest in any proceedings the proceedings may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.

17. In Simon Mali v Independent State of Papua New Guinea (2002) SC690, the Supreme Court said:

"... in all actions or proceedings of a representative nature, all the intended plaintiffs must be named and duly identified in the originating process, be it Writ of Summons, Originating Summons or Statement of Claim endorsed on a writ. In this respect, pursuant to the Rules each and every intending plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them. There are good reasons for this, one being where costs of the litigation are concerned, if awarded against the plaintiffs. Some of the problems or consequences in a representative action are anticipated in the various sub-rules under O. 5, r. 13 NCR (Representation: Current interests)."

18. More recently, the Supreme Court summarised the procedural requirements for commencement of proceedings in a representative capacity in Tigam Malewo v Keith Faulkner (2009) SC960. They are: (i) all intended plaintiffs must be named in the originating process; (ii) each and every intended plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them; and (iii) any person in whose name proceedings are commenced and who claims to represent other intended plaintiffs must produce an authority to the court to show that he was authorised by them to file proceedings as a class representative.

19. In paragraph 2 of the statement of claim, Joe Maiva, the principal plaintiff pleads that he "brings this action for himself and on behalf of all the plaintiffs who suffered loss and damages as a result of relocation and eviction..." The plaintiffs "...whose names appear in Schedule 'A' and Schedule 'B' are adult citizens and are ordinary residents of the Maus Markham settlement..." 
(See paragraph 1). Schedule "A" contains 220 names while Schedule "B" contains names of 14 owners of houses.

20. In his affidavit dated 13th December 2011, Joe Maiva deposed that in respect of the house owners they had consented for him to act as the lead plaintiff in "various meetings held at various times. These times were 26th August 2009, 25th January 2010 and 9th August 2010. Unfortunately no minutes of any of these meetings were kept." As for the plaintiffs in Schedule "A", Joe Maiva annexed a number of documents purporting to be consent forms. The purported consent document reads: 

"I, ..................., suggest that Mr. Joe Maiwa should stand before the Court on behalf of Maus Markham affected youths on Lae Basin Project Sited Area.

........................................
Maus Markham Youth."

21. A total of 115 youths signed the document. The 235 plaintiffs were named in the originating process. Did they consent and authorised Joe Maiva to act for them?

22. Counsel for the plaintiffs submitted that the document signed by the youths is the consent form. As for the other plaintiffs their consents were given in a series of meetings held on 26th August 2009, 25th January 2010 and
9th August 2010 respectively.

23. Counsel for the first and second defendants submitted that the purported consent form is not a proper consent and authority document. It is only an undated "suggestion" that Joe Maiva should act and was signed by only 115 persons out of the total of 235 plaintiffs.

24. This is a class action. There is no evidence that every intended plaintiff had given specific instructions in writing to their lawyer to act for them. Secondly, the principal plaintiff has not produced an authority to the Court to demonstrate that he was authorised by the plaintiffs to file the proceeding. I agree with counsel for the defendants that in a class action the principal plaintiff must obtain consent of all the plaintiffs in writing before the proceeding is instituted. It was not done in this case and Joe Maiva has no authority to act for the plaintiffs.

25. For all the above reasons, I dismiss the proceeding with costs. 

_____________________________
Muromu Lawyers: Lawyer for the Plaintiffs
Kuman Lawyers: Lawyer for the First & Second Defendants
Solicitor-General: Lawyer for the Third Defendant