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Goru v Simo [2018] PGNC 380; N7462 (14 September 2018)

N7462

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS No. 491 of 2018


ANTON GORU of ARI CLAN FOR HIMSELF & ON BEHALF OF HIS CLAN MEMBERS OF NATOKO INCORPORATED LAND GROUP & 6 OTHERS
Plaintiffs


V


JOSEPH SIMO CHAIRMAN OF NATOKO INCORPORATED LAND GROUP & 7 OTHERS
Defendants


Kimbe: Miviri AJ
2018: 23 August, 14 September


PRACTISE & PROCEEDURE – originating summons – notice of motion – Order 12 r 40 – frivolity vexatious – Order 4 r 36 – dismissal for want of prosecution – abuse of process – Land Groups Incorporation Act 1974 – Land Groups Incorporation (Amendment) Act 2009 – process of law not without – motion upheld –orders granted terms sought–costs in cause.


Cases Cited:


Dent v Kavali [1981] PNGLR 488
Ipara v Mineral Resources Authority [2011] PGNC 15; N4216
Kerry Lero trading as Hulu Hara Investments Ltd v Philip Stagg (2006) N3950
NCDIC v Bogibada Holdings Pty Ltd and Continental Trading Pty Ltd [1987] PNGLR 135
Philip Takori v Simon Yagari (2008) SC905
Puaituk v Hagen [2007] PGNC 96; N3204
Review Pursuant to Constitution Section 155(2) (b); Application by Herman Joseph Leahy [2006] PGSC 21; SC855
Somare, Re [1981] PNGLR 265
United States of America v WR Carpenters (Properties) Ltd [1992] PNGLR 185
Wamena Trading Company Limited v Civil Aviation Authority of PNG [2006] PGNC 57; N3058


Counsel:


D Kari, for Plaintiffs
P Mokae, for Defendants

RULING
14th September, 2018


  1. MIVIRI AJ: This is the Ruling of the Court pursuant to a Notice of Motion filed by the Defendants 15th August, 2018 whereby the following orders are sought:

Plaintiff’s case


  1. The Motion of the Plaintiffs is derived from Order 12 Rule 1 which is a general relief upon which they seek declaration that the Natoko Incorporated Land Group has been deregistered under the provisions of the Land Groups Incorporated Amendment Act 2009 current operational is illegal. And the Defendants who occupy positions there do so illegally. And that they should be barred from further holding any management Committee positions within and related entities. That the District Administrator Talasea Mr. Robert Dau conduct special general meeting of Natoko for new management Committee to be reappointed. And for the defendants to disclose details of income and expenditure from the sale of 50,000 freehold shares held in New Britain Palm Oil Limited including all investments and that any matters arising out of the disclosure that warrant further investigation be referred to appropriate authorities such as police to deal with further. And in this regard and related for the defendants to provide a listing of all Natoko Incorporated land Group Bank Operations Accounts, Investment Accounts and list of Assets and liabilities of both Natoko Incorporated Land Group and its business arm, Natoko Investment Corporation Limited.
  2. And that New Britain Palm Oil Limited withhold all income payments due to Natoko Incorporated Land Groups for Valupai Plantation operation until the Natoko Incorporated Land Group is properly re-incorporated under the new Land Groups Incorporation (amendment) Act 2009.
  3. The Natoko Incorporated Land Group Operation Account number 311-10008-76003 held with Bank of South Pacific Kimbe Branch and any related accounts held in other banks be temporally frozen until the completion of proper re-incorporation of Natoko Incorporated Land Group under the new Land Groups Incorporation (amendment) Act 2009. Natoko Incorporated land Group pays the costs.

Facts


  1. The Natoko Incorporated Land Group Incorporated, “Natoko” is a creation of law under the Land Groups Incorporation Act 1974, “Act” and now amended by the Land Groups Incorporation (Amendment) Act 2009, “Amendment”. It is a legal entity set up following procedures set out under that Act and will be dismantled in accordance with law under that Act. Including persons who are administrators under that Act who are the first avenue even before the matter reverts to this court to invoke the jurisdiction of the courts. The court is not responsible for the internal administration and running of Natoko. There are officials set up under the Act who are responsible for the internal administration and running of Natoko. These are acknowledged by the plaintiffs as the defendants who are named in the proceedings in their official designation under that Act.
  2. One such person by the Act is the Registrar designated under section 3 appointment of Registrar who recognizes and issues a certificate of recognition of an incorporated land group under section 5 manner of recognition of that Act. There is now an amendment by that Act 2009, section 5A determination of Dispute by Registrar that where it appears that there is internal disputes relating to the identity of the group’s representatives, officers or membership, the Registrar shall determine whether to reject the application, (b) withhold the processing of the application until he is satisfied based on subsequent evidence that the internal dispute has settled can he process and incorporate. This will be the case should an application to be recognized is now lodged.
  3. The Registrar of Incorporated Land Groups keeps under Section 7 register containing copies of application for recognition, certificates of recognition and all related documents pertaining set out under that section. In this regard for the purposes of the present proceedings it is his evidence that will tell whether an Incorporated Land Group is no longer recognized as such. Because under section 7 (3) the production of a register or document purporting to be , or to be a copy of a extract from, a register of incorporated land Group is prima facie evidence of the matters contained in it” That is not the status of the plaintiffs material in support. Anton Goru principle plaintiff and the others are not the registrar appointed and do not hold that office. Their affidavits do not add in this regard.
  4. There is no evidence in support of the Originating Summons that this has been done. It seems that the Plaintiffs have simply come to this Court without any supporting material to invoke the jurisdiction of the court which is not the law. Nor is this a case where section 5B of the Amendment Act 2009, Registrar to cause notice of applications is the case. That an application has been made publication of which has appeared in the National Gazette and that copies have been forwarded to the District Administrator here Talasea and village court official. There is no evidence in support here.
  5. Dispute Settlement is also in accordance with the Act because a dispute settlement Authority is set up under Part IV of the Act which is charged with duties relating to the subject now before the court in this proceedings section 20 of that Act and section 21 setting up the dispute settlement Authority. And section 23 Jurisdiction of Courts specifically addresses that a court does not have jurisdiction unless and until all parties agree that it should be referred to court. That is not the evidence here. Further the decision of the dispute settlement authority is not open to challenge in court Section 23 (2) of the Act. And in the event of a referral to court it is to a village court or a district court. Where there is disagreement in the decision of the dispute settlement authority there is no appeal but a review not by court but an ad hoc dispute settlement authority appointed. This is clear dictate of the Act which purpose is not to bring this matter into a commercial dispute as here now intended and pursued. It is custom upon land and reverts there and this is not the authority under that Act for the matter now.

Invoking Law without evidence


  1. The Affidavit of the Principle Plaintiff Anton Goru dated the 10th July 2018 recites the law under the Act from the original Act 1974 to the present amendment under 2009. It is not evidence and cannot be relied on in support of the Originating summons or of the motion particulars set out above. Imploring invoking seeking the jurisdiction of the Court is not in a vacuum and will fail where there is no material properly substantiating and tangible. The law is as good as the facts that are pleaded in support of it. It is upon the basis of the facts that what the law sets out is made out. A controversy between the plaintiffs and the defendants, that the former are invoking instituting the action seeking declaration because of a right tangible and not academic for it to be subjected to the court’s jurisdiction: Ipara v Mineral Resources Authority [2011] PGNC 15; N4216 (2011). What is sought by the Originating summons and the motion stemming underlies extensive facts and would not be appropriate in and by way of a declaration. It would not solve the issues raised: NCDIC v Bogibada Holdings Pty Ltd and Continental Trading Pty Ltd [1987] PNGLR 135 (24 July 1987).
  2. The subject of the proceedings relate to the Natoko Incorporated Land Group its administration functions which are by law in the hands designation of the defendants in their respective offices within. There is no material in support filed that internal processes to address the subject of the proceedings have been addressed at that level before subjecting this proceeding. In this regard the affidavit and additional affidavit dated the 22nd August 2018 of Anton Goru does not move the status of the proceedings any further for the reasons set out above. The same is so of the attachment to his affidavit of persons giving consent. Which is the same for the affidavit of Jack Huri, Gerard Reu, Alphonse Tuka, Mike Vucho, Casper Gambu, and Buku Waka all dated the 22nd August 2018.
  3. Natoko is a creature of Statute and the jurisdiction of the court must be properly invoked with material supporting it is not free for all. In similar way that the door is open in Judicial Review the Governing creating Statute lays the basis for the jurisdiction of the Court. By its nature an integrated land group as here is governed in its operation by the Land Groups Incorporation Act 1974 which has now had amendments to it by the Land Groups Incorporation (Amendment) Act 2009.
  4. This will show the door in for the plaintiffs not without. In this regard that is clear by the naming of the 8 defendants with their official position in the land group set out. They are still legally in the chairs by that Act that it has gone through the process under that Act internally without any solution hence filing now before the court. His position must also come by that Act including the Amendment and no provision evidenced properly lawfully stands him in this court. There are administrative processes within that Act and officers set out by that Act who must be the first call before coming to Court. He has no locus Standi from the material he relies in support: Somare, Re [1981] PNGLR 265 (3 August 1981) is relevant in this regard. The Leader of the Opposition Honourable Michael Somare was petitioning under section 18 (1) of the Constitution to determine whether an Act of Parliament the Defence Force (Presence Abroad) Act 1980 was invalid as being Unconstitutional. The Supreme Court held that he had standing both as a Member of Parliament and a citizen to challenge the Act.
  5. Standing or “locus Standi” must be properly settled in law before coming into court as it will be fatal to an action so set out: United States of America v WR Carpenters (Properties)Ltd [1992] PNGLR 185 (29 June 1992). In an action seeking declaratory relief by originating summons the defendant moved to strike out the name of the plaintiff for miss description. In granting the motion of the defendant the court held amongst others, capacity to sue is depended on procedural laws and substantive laws of Papua New Guinea. The Embassy of the USA is not a legal person or an “entity in Law” and is therefore not a proper party to an action. Proceedings by way of originating summons are unsuitable where there are substantial dispute of facts to be determined and issues to be defined. Where the justice of the case so requires (where prejudice to a party is shown) when the mode of instituting proceedings precludes the opportunity to identify the issues in dispute the National Court may dismiss the suit; Constitution section 155 (4). Invoking is discretionary not mandatory and therefore proper material must be basis to sway not without Dent v Kavali [1981] PNGLR 488 (27 November 1981) It is not the basis here and so section 155 (4) cannot assist the plaintiffs.
  6. This is not a review as was done in Review Pursuant to Constitution Section 155(2) (b); Application by Herman Joseph Leahy [2006] PGSC 21; SC855 (15 December 2006) where points of law were referred to the Supreme Court for its determination on the powers of the Public Prosecutor to indict ex officio after refusal to commit the applicant for trial. It is an originating summons and precludes where there are substantial issues of fact because proceeding by way of originating summons is unsuitable where there are substantial disputes of facts to be determined and issues to be defined: United States of America (supra).
  7. But the Court has power to make declaratory orders according to the principles of equity adopted under schedule 2.2 of the Constitution which derive from section 155 (4) of the Constitution. This is a wide discretion not confined to the terms of the rules of court. Pursuant to the discussion set out above even to accord in this way would not settle the dispute between the parties and in the way set out by the plaintiffs.

Defendant’s case


  1. They still hold position under law which must be within that entity and in compliance of that law resolved there before eventually coming into court as here. To come straight to court is an abuse of process and taking frivolous and vexatious action which must be discharged pursuant to the rules invoked set out above.

Order 12 rule 40.


Order 12 rule 40 (1) is in the following terms; “40. Frivolity, etc. (13/5)


(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,

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).”


  1. Plaintiffs have not come by proper originating process and the matter cannot proceed as it is and must be the parties who chose not the court imposing, Wamena Trading Company Limited v Civil Aviation Authority of PNG [2006] PGNC 57; N3058. And as here proceedings commenced by originating summons will not allow the parties to raise and rely on principles of law nor resolve all of the issues between the parties, the mode of proceeding does not allow it to stand as it is: Puaituk v Hagen [2007] PGNC 96; N3204.
  2. It follows that principles relevant to summary dismissal of claims alleged to be frivolous or vexatious within Philip Takori v Simon Yagari (2008) SC905, approved by the Supreme Court explained earlier in Kerry Lero trading as Hulu Hara Investments Ltd v Philip Stagg (2006) N3950 is relevant and applicable here:

“Our judicial system should never permit a plaintiff or a defendant to be 'driven from the judgment seat' in a summary way, 'without a Court having considered his right to be heard'. A party has a right to have his case heard, as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the Court. That right cannot be lightly set aside. At the same time however, the law, such as the Rules under consideration, provide for and the Court has an inherent jurisdiction to protect and safeguard against any possible abuse of the processes of the Court. The object of these rules are therefore 'to stop cases which ought not to be launched — cases which are obviously frivolous or vexatious or obviously unsustainable'. In other words 'the object of the rule was to get rid of frivolous actions'. A claim may be frivolous if it can be characterized as so obviously untenable that, it cannot possibly succeed or that, the claim or defence is bound to fail, if it proceeds to trial. A claim or defence may be vexatious, if the case amounts to a sham or one which, cannot succeed and is one that amounts to harassment of the opposing party who is unnecessarily put to the trouble and expenses of defending or proving the claim. With regard to the issue of disclosing a reasonable cause of action or defence, the Court must be clear that, there are two parts to the phrase 'cause of action'. First, it entails a right given by law, such as an entitlement to reasonable damages for breach of human rights under s. 58 of the Constitution, commonly referred to as, the 'form of action'. Secondly, it entails the pleadings disclosing all the necessary facts which give rise to the form of action. The phrase 'cause of action' could thus be defined in terms of a legal right or form of action known to law with: '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 of every piece of evidence which is necessary to prove each fact, but every fact is necessary to be proved.' A statement of claim or a defence (as the case may be) must therefore, clearly plead the form of action by pleading the necessary legal elements or ingredients of the action and the relevant and necessary facts (not the evidence) giving rise to the form of action. It follows therefore that, where a statement of claim or a defence 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, and instead leaves it to guess work, it should be struck out. These rules provide a summary judgment procedure or remedy which is available to a plaintiff or a defendant, and one which vests and calls for an exercise of a discretion by the Court. The discretion must be exercised sparingly and only in a case where the statement of claim or the defence (as the case might be) is 'obviously and almost incontestably bad.' In other words this discretion can be exercised only in cases that 'are plain and obvious so that the master or Judge can say at once that the statement of claim [or defence] as it stands, is insufficient, even if proved, to entitle the plaintiff [or defendant] to what he asks' for.
Issue


  1. Is there reasonable cause of action disclosed in the proceedings filed?
  2. Whether the action filed by the Plaintiffs is frivolous and vexatious and should be discharged forthwith in accordance with this rule?
  3. Whether the proceedings are an abuse of process of court?

Ruling


  1. What has been set out above is clear that the originating summons and motion of the plaintiffs are 'obviously and almost incontestably bad and the particulars are set out above. It is sufficient to hold given all above that the notice of motion of the defendants are granted that there is no reasonable cause of action disclosed by the proceedings that have been filed.
  2. And further the proceedings are frivolous and vexatious for the reasons set out above and are an abuse of process of court. The proceedings in its entirety is dismissed pursuant.
  3. Costs will be on Solicitor Client basis.

Orders Accordingly.
__________________________________________________________________
Public Solicitors : Lawyer for the Plaintiff/Applicant
Justin Talopa Lawyers: Lawyer for the Defendant

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