N8111

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 966 OF 2019

ROSEWYN NOMBE STEVEN and her 7 children (whose names are appended) for the Estate of DICK STEVEN Deceased of Vadavada Settlement Portion 68, National Capital District
Plaintiff

-V-

MICAH PAULI
Defendant

Waigani: Kariko, J
2019:17th&18th September

CIVIL PRACTICE & PROCEDURE – application to dismiss proceedings – whether reasonable causes of action disclosed– whether claims are tenable 

Cases Cited:

Christian Life Centre v Associated Mission Churches of PNG & Ors (2002) N2261
Thomas Taiya Ambi v Exxon Mobil Ltd (2012) N4844

Legislation:

Constitution
Frauds & Limitations Act
Interpretation Act, Ch.2
Wrongs (Miscellaneous Provisions Act) Chapter No. 297

Counsel:

Mr F Unage, for the Plaintiff
Mr G Bon, for the Defendant

RULING
18th September, 2019

1.	KARIKO, J:Two motions are before me:

(1)	The return for hearing inter partes, the plaintiff’s application for interim injunctive orders pending determination of the proceeding; and
(2)	An application by the defendant for the proceeding to be dismissed for disclosing no reasonable cause of action, for being frivolous and vexatious, and for being an abuse of process.

2.	It is agreed that the defendant’s application be first heard.

Brief background
.
3.	The plaintiff is the widow of one Dick Steven (Deceased) who died intestate on 1st December, 2018. 

4.	By way of a Deed of Agreement dated 1st June 2010, the Deceased purchased customary land at Vadavada along the Taurama Road, NCD (the Property) from the Madi Geita Land Group Inc.

5.	As a result of not being able to settle a debt of some K268,100 being monies owed by the Deceased to the defendant for vehicle hire, a Deed of Release was entered into between the two parties on 6th April 2016 that resulted in the Property being transferred to the defendant in full settlement of the debt (Deed of Release). 

6.	The Madi Geita Land Group Inc. consequently approved the transfer.

7.	The dispute giving rise to this proceeding is a claim by the plaintiff that the Property was transferred as a result of fraud by the defendant, that is to say that the Deed of Release should be set aside on the ground of fraud. 

Issues

8.	The following issues have arisen from the defendant’s application:

(1)	Does the plaintiff  have standing to commence this proceeding?
(2)	Is a proper cause of action disclosed?
(3)	Is the claim tenable?
(4)	Is the proceeding an abuse of process?

Standing

9.	The plaintiff pleads in her Statement of Claim that her claims are brought pursuant to Sections 27,32 and 34(5) of the Wrongs (Miscellaneous Provisions Act) Chapter No. 297 (the Wrongs Act) for and on behalf of both the dependents of the Deceased and the Estate. She also bases the action on Section 19 of the Frauds & Limitations Act (the Frauds Act) and Schedule 2.2 of the Constitution. 

10.	The defendant opposes the plaintiff’s application mainly arguing that the plaintiff does not have standing to commence this suit. If that proposition is upheld, then the argument is that no reasonable cause of action is disclosed; Thomas Taiya Ambi v Exxon Mobil Ltd (2012) N4844.

11.	The defendant bases his submission on two main limbs:

•	The statutory jurisdictional bases for this proceeding cited by the plaintiff have no application;
•	The plaintiff is not a party privy to the Deed of Release that is sought to be nullified.   

12.	Section 27 of the Wrongs Act is found in Part IV (Wrongful Act or Neglect Causing Death). That provision must necessarily be read together with Sections 25 and 26. Section 25 provides among other things that a person who has caused the death of another person through negligence may be sued for damages arising from the death. Section 26(1) allows for the executor or administrator of the estate of  a deceased person to make a dependency claim for the benefit of certain described-relatives of the deceased person, and they include the spouse, parents, children, siblings and uncle of the deceased person. Where the deceased person is an automatic citizen (being the meaning to be accorded the term “native” under the Interpretation Act, Ch.2), the action may be brought for the benefit of persons who by custom were dependents of the deceased person; Section 26(2). Pursuant to Section 27, where there is no executor or administrator or the action has not been commenced within 6 months after the death of the deceased person, any or all of the persons or dependents described in Section 26 may bring the action.

13.	The relief claimed in these proceedings includes:

•	A declaration that the Deed of Release is null and void based on fraud
•	Vacant possession of the Property
•	General and exemplary damages

14.	The declaratory order is the principle relief sought, while the others are consequential to that relief. The plaintiff has not pleaded particulars of the damages claimed but the damages sought are not the type referred to in Section 25. This means therefore that Section 27 has no application. 

15.	Section 32 of the Wrongs Act states that full particulars of the claim must be provided while section 34 addresses survival of action. Section 19 of the Frauds Act sets out time limits within which to commence actions in relation to the personal estate of a deceased person. Schedule 2.1 of the Constitution provides that custom may be applied and enforced in certain circumstances. In my view, these provisions do not assist the plaintiff and do not grant her standing to initiate this proceeding. The plaintiff has not advanced any arguments to convince me otherwise.

Privity of contract

16.	A deed of release is an agreement and according to the law on contract, a person cannot sue or be sued on a contract unless he or she is a party to it; Christian Life Centre v Associated Mission Churches of PNG &Ors (2002) N2261. 

17.	The plaintiff is not a party to the Deed of Release. Her counsel conceded as much. Accordingly, I find she has no standing to challenge the validity of the deed. 

18.	I consider it rather telling against the plaintiff, that there is no evidence of the Deceased having raised any issues regarding the Deed of Release (certainly not the claims now being raised by the plaintiff) in the 20 months from when he signed the Deed of Release to when he passed away. The present dispute only arose after his death. 

Conclusion

19.	As the plaintiff has no standing, the proceeding must be dismissed for disclosing no reasonable cause of action. It is clearly an action that is untenable.  I do not consider it necessary to decide the other arguments of the defendant in his application.

20.	As to costs, I am not satisfied I should order costs other than party-party costs.

Order 

21.	Accordingly, I order as follows:

(1)	The defendant’s application to dismiss the proceeding is upheld.
(2)	The proceeding is dismissed in its entirety.
(3)	The plaintiff shall pay the defendant’s costs of and incidental to the proceeding on a party-party basis.
(4)	The interim orders of 21st August 2019 are forthwith discharged.
(5)	Time is abridged.

________________________________________________________________
Unages Lawyers: Lawyer for the Plaintiff
Gibson Bon Lawyers: Lawyer for the Defendant