N7568

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 716 of 2013

BETWEEN:
CLIVE WAGIRA EAKA for his
own behalf and for and on behalf
of his ILG LAND GROUP
Plaintiff

AND:

PACIFIKA HOLDINGS
LIMITED
Defendant

Waigani: Hartshorn J
2014: 22nd August
2015: 10th June

Application pursuant to Order 12 Rule 40 (1) National Court Rules

Cases Cited: 

Malewo v. Faulkner (2009) SC960
Simon Mali v. State (2002) SC690
21 ILG’s Gobe Project Area Incorporated Land Groups v. The State (2006) N3096

Counsel:

Ms. F. Lalo, for the Defendant

10th June, 2015
1.    HARTSHORN J: This is an application by the defendant for the statement of claim filed herein to be struck out or the proceeding to be dismissed.

2.  The notice of motion of the defendant by which the application is made was adjourned on 11th August 2014 at 1:35 pm, to 9.00 am 22nd August 2014 for hearing. At that time on 11th August 2014, counsel for the plaintiff, Mr. Putupen was present and so the plaintiff, through his counsel is aware that the defendant’s motion was to be heard at 9.00am 22nd August 2014 for hearing. Further, an affidavit of service has been filed in which it is deposed that the motion and two affidavits in support have been served upon the lawyers for the plaintiff.

3.  Given this, notwithstanding that there was no representation on behalf of the plaintiff when the defendant’s motion was called at 9.06am on 22nd August 2014, I permitted the hearing of the motion to proceed.

4.  The hearing of the defendant’s motion was subject to an affidavit being filed evidencing that a notice of change of lawyer for the defendant had been served upon the lawyers for the plaintiff, by 18th August 2014. Counsel for the defendant has referred this court to an affidavit of Kivia Lalatute sworn and filed on 15th August 2014. In this affidavit, it is deposed that a sealed notice of change of lawyer filed 11th March 2014 was personally served at the offices of the lawyers for the plaintiff on Tuesday, 11th March 2014 at about 12:30pm. There is annexed to the affidavit a signed acknowledgement of service by a “Bernard Popeu Lawyer” who it is deposed is an employed lawyer who accepted service of the notice.

5.  Consequently, as I was satisfied that the requisite affidavit had been filed, I permitted the hearing of the defendant’s motion to proceed.

6.  I will consider the defendant’s application for the proceeding to be dismissed first, as clearly if it is successful, it will be determinative.

7.  The defendant submits that the proceeding is frivolous, vexatious and an abuse of process and should be dismissed pursuant to Order 12 Rule 40(1) National Court Rules. This is because the plaintiff has brought this claim as a representative claim and the requirements to bring a representative claim have not been complied with.

8.  The plaintiff in the writ of summons is described as, “Clive Wagira Eaka for his own behalf and for and on behalf of His ILG Land Group”. In the statement of claim the plaintiff is described as, “Clive Wagira Eaka for his own behalf and for and on behalf of Momiri ILG Land Group”.

9.  In the statement of claim paragraph 1, it is pleaded that, “The Plaintiff at all material times is a natural person of mature personality and the Chairman of Momiri ILG Land Group and of course is a citizen of Papua New Guinea by Koiari Customary Land Group, Central Province/NCD and as such, he has the capacity to sue and be sued in his own name and style.”

10.  The defendant submits that because of the manner in which this proceeding has been brought, it is a representative action by Mr. Eaka for and on behalf of the members of Mr. Eaka’s ILG Group. As a consequence Mr. Eaka should have provided the written consent and authority from the landowners or members of the Momiri ILG. The defendant submits that Order 5 Rule 13 National Court Rules has not been complied with. Reliance is also placed upon the Supreme Court cases of Simon Mali v. State (2002) SC690 and Malewo v. Faulkner (2009) SC960.

11.  In Simon Mali (supra), the Supreme Court stated amongst others, that in all actions or proceedings of a representative nature, all of the intended plaintiffs must be named and duly identified in the originating process and pursuant to Order 5 Rule 8 National Court Rules, each and every intending plaintiff must give specific instructions evidenced in writing to their lawyers to act for them. Malewo (supra) confirmed the representative principles stated in Simon Mali (supra).
12.  In this instance, there is no evidence of the Momiri ILG having given specific instructions either to Mr. Eaka or Mr. Putupen to act for them in this proceeding.

13.  Further, in 21 ILG’s Gobe Project Area Incorporated Land Groups v. The State (2006) N3096, Davani J specifically considered the position of an Incorporated Land Group in legal proceedings. At para 46, Her Honour said:

“46.       Section 13 of the Land Groups Incorporation Act chap. 147 (‘LGIA’) sets out the powers of ILGs.  Section 13 (1) (b) of the LGIA states that the powers of ILGs “shall be regulated and exercised, in accordance with and subject to any conditions or limitations imposed by its Constitution and any relevant custom; and 
(c) shall be exercised  in the manner specified by its Constitution or any relevant custom”.
47.       Each ILG should have before the Court a certificate signed by committee members certifying that “…at a meeting of the Land Group held on …………….a decision was taken to ………..” (see Schedule to LGIA), file court action against, in this case, the MRDC and Petroleum Resources Gobe Limited.  Ideally, the certificate should be in that form.  Again, such certificates are not before me.”

14.  Davani J, found that given these provisions of the Land Groups Incorporation Act it was necessary that there be evidence before her of the committee members of the ILG certifying that at a meeting of the ILG a decision was taken to file specific court proceedings. I respectfully agree with Her Honour’s decision in this regard.

15.  In this case, there is no evidence of there being a meeting of the Momiri ILG and that at such a meeting, it was agreed that this court proceeding be instituted, and that Mr. Eaka and Mr. Putupen be authorised to act on behalf of the ILG in this proceeding.

16.  In this regard I take into account that the lawyers for the plaintiff have been put on notice that the defendant would challenge the adequacy of compliance with the representative proceeding requirements by virtue of the affidavits in support of this motion being served upon them, yet there was no appearance on behalf of the plaintiff at the hearing of this motion to argue the plaintiff’s position and no evidence before the court that the plaintiff has complied with the requisite representative requirements.

17.  Consequently, pursuant to the authority of Simon Mali (supra) and Malewo (supra), and 21 ILG’s Gobe Project Area (supra), because of the failure of the plaintiff in meeting the representative requirements referred to, this proceeding should be dismissed as being an abuse of the process of the court. Given this, it is not necessary for me to consider the other submissions of counsel.

Orders

18.   It is ordered that:

a) 	This proceeding is dismissed;
b)	The plaintiff shall pay the defendant’s costs of and incidental to the proceeding;
c)	Time is abridged.

_____________________________________________________________
Putupen & Associates Lawyers: Lawyers for the Plaintiff                            
Albatross Lawyers:  Lawyers for the Defendant