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Lakoro v Project 50 Ltd [2019] PGNC 451; N8224 (15 August 2019)

N8224

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 428 OF 2017

BETWEEN:
ROY LAKORO & 248 Ors
Plaintiffs

AND:
PROJECT 50 LIMITED
First Defendant

AND:
CATHOLIC MISSION KAVIENG PROPERTY TRUST
Second Defendant

AND:
NEW IRELAND PROVINCIAL GOVERNMENT
Third Defendant

Kavieng: Kangwia J
2019: 22^nd May & 15^th August

CIVIL JURISDICTION – Practice and procedure - Notice of Motion to dismiss proceedings for disclosing no cause of action - Lack of capacity – Failure to give notice under s 5 of the Claims Act

-Claims for various declaratory orders, restraining orders and repatriation costs - Claims over use of land under State lease to Catholic Church – Whether lease extended to portion of land resident on.

-Whether eviction orders issued by Provincial Administrator ultra vires.

Cases Cited:

Jack Livinai Patterson v NCDC (2001) N2145
Kiee Toap v the State (2004) N2731
Kuk Kuli v the State [2004] N2592
Pius Nui v Sergeant Mas Tanda (2004) N2765
Ronny Wabia v BP Exploration Operating Co Ltd (1998) PNGLR 8 N1697

Counsel:

M. Titus, for the Plaintiffs
V. Maraleu, for the First and Second Defendant
No appearance, for the Third Defendants

15^th August, 2019

1. KANGWIA J: The First and Second Defendants by a Notice of motion moved for the following orders:
   

(i) The whole proceedings be dismissed;

(a) For disclosing no cause of action in law pursuant to Order 12 rule 40 and Order 8 rule 27 of the National Court Rules (NCR).
(b) On the grounds that the Plaintiffs have no legal capacity to initiate these proceedings.
(c) On the grounds of the Plaintiffs failure to give notice under section 5 of the Claims by and Against the State Act of its intention to join and sue the New Ireland Provincial Government.
(d) Alternatively, for leave to extend time to file their Defence out of time.

2. In their Originating Summons the Plaintiffs claimed the following relieves:
   

(a)A declaration that the Plaintiffs occupation of any piece or parcel of land presently occupied by him is valid and has not been determined and or terminated by the registered proprietor.

(b)A declaration that the First Defendant is not the registered proprietor of any piece or parcel of land presently occupied by the Plaintiffs.

(c) A declaration that the purported eviction exercise against the Plaintiffs pursued by the First Defendant and based upon the Notice to quit signed by the Provincial Administrator dated 23 March is wrong, unlawful and null and void from the very beginning.

(d) a declaration that the Second Defendants claim to the registered proprietorship of portion 50, Kavieng does not extend to and include the piece of land presently occupied by the Plaintiffs.

(e) An interim restraining order against the Defendants from entering the land occupied by the Plaintiffs until further orders of the Court.

(f) Further or in the alternative:

(a) An order that the registered proprietor give notice to vacate to the Plaintiffs
(b) An order that the Plaintiffs vacate the pieces and parcels of land that they now occupy within 12 months after the notice to vacate is served on them.
(c) An order that Second Defendant pay the Plaintiffs costs
(d) An order that in default of payment of the Plaintiffs repatriation costs the Defendant are restrained from further evicting the Plaintiff until the repatriation costs are paid to the plaintiff

(g) Damages for loss and destruction to the Plaintiffs properties and assets

(h) All such other accounts, inquiries directions or other relief as may be necessary.

1. Background
   

3. The land in issue is owned by the Catholic Mission Kavieng Property Trust. Through arrangement with Church representatives some of the named Plaintiffs were given permission to live on the land on a temporary basis.
   
4. One of the conditions was that the occupants would leave the property when the Church wanted to develop the land. The arrangements were deposed to in the affidavit of Steven Lavarabin who is the Chairman of the board of directors of the First Defendant that was tasked by the Church council of priests to develop the land. Ms Anna Ko-ou who was a former church employee also deposed to the interim arrangement with the church. As time passed the population there increased.
   
5. The First Defendant is a Company owned by the Catholic Mission Kavieng Property Trust which was entrusted the authority to develop the land. The First Defendant commenced awareness with the Plaintiffs on their intention to develop the land and for the Plaintiffs to cease occupancy.
   
6. After a number of awareness campaigns, the Plaintiffs continued to occupy the land. The First and Second Defendants consulted the Third Defendant who was the Provincial Administrator. The Provincial Administrator issued an eviction notice under s 145 of the Land Act. The Police with the help of others executed the eviction and commenced with removal of crops on the land.
   
7. The Plaintiffs on 01 June 2019 obtained restraining orders against the Defendants from evicting them. Following the restraining orders, the First Defendant sought the views of a surveyor. The affidavit of Simon Konkas deposed to requesting a surveyor to do a survey of the land in issue and the results therefrom were relied on. The Surveyor found that the road passed through portion 50; that the land on each side of the road were not separate portions.
   
8. In submissions the Defendants argued that the proceedings did not disclose a reasonable cause of action and should be dismissed. It was submitted that the proceeding was confusing as to what the cause of action was; whether it was a breach of contract, breach of duty or whether it was a claim on something they did for the Defendants. They have failed to identify the legal basis on which they sued or whether they had capacity to sue.
   
9. Secondly pursuant to s 2 of the Frauds and Limitation Act the Defendants had not created or disposed of an interest in the land in question with or to the Plaintiffs and therefore the Plaintiffs had no capacity to sue in relation to the land. Therefore, the claims in the Originating Summons had no basis to proceed and the proceeding should be dismissed.
   
10. Thirdly, the proceeding should be dismissed since the Plaintiffs had failed to comply with Notice requirements under the Claims Act after adding the Provincial Administrator as the Third Defendant.
    
11. The affidavits of Steven Lavarab filed on the 30^th of October and Ms Anna Ko-ou filed on the 2^nd of November 2018 referred to prior arrangements where church officials entered into agreements with conditions for the Plaintiffs to reside on the Land. One of the conditions was for the Plaintiffs to vacate the land when they were ready to develop it. When the Plaintiffs failed to vacate the premises when asked to do so, eviction action was taken against them through the Provincial Administrator who issued eviction notice under s 145 of the Lands Act.
    
12. The Plaintiffs contend that all the Plaintiffs named in the Originating Summons were occupants of the land in question which gave them an ownership right to sue; that the First Defendant was not the registered proprietor or owner of the land and was exercising a right they did not have. They also submitted that the Defendants failed to produce any evidence to show that the Plaintiffs lacked capacity to sue.
    
13. Secondly the Plaintiffs submitted that the Third Defendant was added as a party at the Courts own volition as the eviction notice was issued by them when they were not the proprietors. They further submitted that the proceeding being an Originating Summons did not require the Claims Act requirements. This claim they submitted was misconceived.
    
14. As to the claim for extension of time to file a defence the Plaintiffs submitted that it was misconceived and should be dismissed as the rules do not provide for extension of time to file a defence in an originating summons.
    
15. The issues that needs determination are:
    

1. Whether the Plaintiffs claim discloses a reasonable cause of action.

2.Whether the Plaintiffs have standing to sue.

3. Whether the Provincial Administrator had powers under s 145 of the Land Act to issue the eviction notice.

4. Whether the Plaintiffs failed to comply with the requirements of the Claims Act.
   
16. I consider it appropriate that I deal with the issue on the cause of action first as a determination on that issue will determine whether the other issues should be dealt with.
    

B. Cause of action.

17. It is trite law that a person who makes a claim against another must show that there is a reasonable cause of action for the claim. Simply put a Plaintiff cannot sue another for no reason or cause. The law on disclosing no cause of action is as provided under Order 8 Rule 27 and Order 12 Rule 40 of the National Court Rules. The rules are set out as follows:
    
    18. Order 08 Rule 27: Embarrassment
        
        • (1) Where a pleading-
          • (a) discloses no reasonable cause of action or defence or other case appropriate to the pleading; or
            
          • (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; or
            
          • (c) is otherwise an abuse of process of the Court, the Court may at any stage of the proceedings, on terms or otherwise order that the whole or any part of the pleadings be struck out.
            
    19. Order 12 Rule 40. Frivolity, etc
        

(b) 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,

20. The Court may order the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.
    
21. There are numerous case authorities on the principles governing issues of failing to disclose a cause of action.
    
22. In the case of Pius Nui v Sergeant Mas Tanda (2004) N2765 his Honour Cannings J while referring to the case of Kiee Toap v the State (2004) N2731 identified principles governing issue of reasonable cause of action. I set out the following for purposes of this proceeding:
    
    • - Whenever a person brings a case to Court, the original document must demonstrate that the Plaintiff has a cause of action. The document must set out;

- the legal ingredients or the elements of the claim and;

-the facts that support each element of the claim.

- The plaintiff must outline the claim and demonstrate that it has a clear legal basis. If that is not demonstrated it does not disclose a reasonable cause of action.

- If the statement of claim leaves a defendant guessing what the Plaintiffs claims are it should be struck out.

- If a statement of claim is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings which would enable the issue to be identified it should be struck out.

23. In the case of Jack Livinai Patterson v NCDC (2001) N2323 it was held that:
    

“by reason of the Plaintiff not meeting the requirements of the Public Finance Management Act the contract was illegal and therefore he had no reasonable cause of action.”

24. In Kuk Kuli v the State [2004] N2592 the Court stated that “In a statement of claim sufficient particulars of the cause of action must be pleaded.

The duty imposed upon a Defendant must be sufficiently particularised. The nature of any breach must be particularised.”

25. It is generally accepted that the Court has an inherent power to protect its processes. It must ensure that its processes are not abused by litigants instituting vexatious or frivolous proceedings.
    
26. The inherent powers of the court were as stated in the case of Ronny Wabia v BP Exploration Operating Co Ltd in this way:
    

“The inherent powers of the Court are essential to the existence, dignity and functions of the Court... Essential to these inherent powers is the Court’s duty to protect its process by ensuring vexatious litigants do not abuse the court’s process by instituting frivolous or vexatious suits.

If proceedings are considered an abuse of the Court’s process the court has a duty to protect its dignity and integrity can use its inherent powers to dismiss such frivolity, vexation or abuse.”

27. From the affidavit evidence the facts are not in issue. The Second Defendant as the proprietor of portion 50 gave permission for the Plaintiffs to occupy part of the land on a temporary basis. One of the conditions was that they would leave when the church wanted to develop the land. They engaged the First Defendant to develop the land. The First Defendant proceeded with the development plan and did awareness for the Plaintiffs to vacate the land. Upon the Plaintiffs failure to vacate the Defendants proceeded with the eviction exercise. The present proceeding arises from the eviction exercise.
    
28. The question is whether the proceeding discloses a reasonable cause of action.
    
29. It is accepted that pleadings lay the foundation of a cause of action. Upon a perusal of the documents on file the pleadings in the originating summons are unclear and inadequate. They appear to be vague and lacking in particulars. The claim is unclear as to what it is that that the Plaintiffs are claiming and what it is that they are seeking. The Plaintiffs have not demonstrated in the proceedings that they have a clear legal claim or a right from which the claim was mounted.
    
30. There is no pleading as to the duty whether statutory or otherwise that the Defendants owed them and any breach there from. The facts are clear that the representatives of the Second Defendant as owners of the land permitted the Plaintiffs to reside on the land pending future developments. They became tenants at will having lived there at the will of the landlord at no cost to them.

Tenants at will have no right or interest over and above the rights and interest of the landlord. The rights and interest of the landlord cannot be overridden by the limited equitable interest of a tenant at will. (See Koitaki Farms Limited v Kemoko Kenge & Ors (2001) N2143.

31. I fail to see the duty owed by the Second Defendant in circumstances where a permissive residency was granted without any cost to the Plaintiffs. At the outset the Plaintiffs were not the owners of the land in issue. The Second Defendant was the owner. The Plaintiffs therefore lacked capacity to make claims over land that belonged to the Second Defendant.
    
32. The Plaintiffs have also failed to plead whether an interest in the land was created or disposed of by the Second Defendant in their favour pursuant to s 11 of the Frauds and Limitations Act. This failure enhances the view that the Plaintiffs lack capacity and standing to sue over land that belonged to the Second Defendant.
    
33. The Plaintiffs further claimed that the land they were residing on was not within portion 50. However, they have failed to plead the particulars of the land they alleged to be occupying.
    
34. There is evidence contrary to their claim. A surveyor who was engaged by the First Defendant reported that the land on both sides of the road were within portion 50. This claim cannot be sustained.
    
35. The Plaintiffs also claimed that the First Defendant was not the owner of the land and did not have authority to evict them. The facts are also clear that the First Defendant is the Business arm of the Second Defendant who authorised the First Defendant to proceed with development of the land. The actions of the First Defendant were authorised and therefore lawful.
    
36. In view of the shortfalls identified on the part of the Plaintiffs the Court is of the view that the Defendants were put to trouble, time loss and expenses of defending the proceedings which cannot possibly succeed. Under the circumstances the claim fails to disclose a reasonable cause of action. The case must be dismissed as disclosing no cause of action.
    
    100. Standing
         
37. From the material before the Court it is apparent that the land described and referred to in argument is a State lease currently registered under Catholic Mission Kavieng Property Trust. Therefore, the Plaintiffs, the First Defendant and the Third Defendant are not the proprietors or owners under law. The Plaintiffs are permissive residents; having been given permission by responsible persons on behalf of the Second Defendant to reside on the land with various conditions.
    
38. There is nothing in writing as to the permissive residency but what the Plaintiffs have alleged in their claim stands unchallenged. The affidavits of Steven Lavarabin, Ms Anna Ko-ou and Simon Konkas affirm this. As stated earlier the Plaintiffs have an equitable interest as far as it relates to residency by permission only. When the time comes for the Plaintiffs to move out of the land at the behest of the Second Defendant as the proprietor any equitable right of the Plaintiff ceases to have effect. The Plaintiffs nonetheless have standing to sue.
    
    4. Application of s. 145 of the Land Act
       
39. The Provincial Administrator could only issue eviction notices under s145 of the Land Act over State land. The current land the subject of this proceedings is not State Land and s 145 does not apply. The eviction notice issued by the Provincial Administrator was void ab initio and has no legal effect.
    
40. Police can evict the Plaintiffs through eviction issued by the Church as the proprietor or through an agent directed by the church. In this instance Project 50 Limited had authority from the church to proceed with the development of the land. They had lawful authority to evict through notice or ejectment proceedings in Court and not under s 145 of the Land Act.
    
    5. Compliance of claims Act
       
41. It is a requirement under s 5 of the Claims Act that where a State body or instrumentality is sued a notice must be given to the State. Section 5 provides as follows:
    

Notice of claims against the State.

(1) No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this Section by the claimant to—

(a) the Departmental Head of the Department responsible for justice matters; or

(b) the Solicitor-General.

(2) A notice under this Section shall be given—

(a) within a period of six months after the occurrence out of which the claim arose; or

(b) where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach; or

(c) within such further period as—

(i) the Principal Legal Adviser; or

(ii) the court before which the action is instituted,

on sufficient cause being shown, allows.

42. The Provincial Administrator was named as the Third Defendant in the Plaintiffs amended Statement of claim for issuing the eviction notice.
    
43. The Court on the perusal of the statement of claim advised the Plaintiffs that since the Provincial Administrator was named as the source of the eviction notice he had to be sued in his capacity as the head of the Provincial Government which was a body belonging to the State.

Therefore, the requirements under the Claims Act applied. The Court cannot add a party on its own volition. The case belonged to the Plaintiffs and they were reminded of the requirements.

44. The Plaintiffs later added the Provincial Administrator as a Defendant. However, there is no evidence that the Plaintiffs have complied with the Claims Act. Section 5 of the Claims Act is in mandatory terms and a failure to comply with it also renders the Plaintiffs claim as an abuse of process.
    
45. Finally, it is also law that the form of the action is that there must be a right given by law that entitled the Plaintiff to what is being claimed. The Pleadings must therefore disclose all the necessary facts which give a right to the form of action.
    
46. In the case of Kiee Toap v the State & Ors (2004) N2731 it was held that:
    

If it is plain 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; that the legal ingredients or the elements of the claim or the facts that support each element of the claim are not disclosed.

47. I adopt those statements to the circumstances of the present case.
    
48. In view of all the shortfalls identified on the part of the Plaintiffs pleadings and submissions I am of the strong view that the Defendants were put to trouble, loss of time and expenses of defending the proceedings which cannot possibly succeed. Under the circumstances the claim fails to disclose a reasonable cause of action. The case must be dismissed as disclosing no cause of action.
    

Formal Orders

49. It is ordered that:
    
    1. The proceeding in OS 428 of 2017 is dismissed in its entirety.
    2. The interim restraining orders dated 07 June 2018 are set aside and discharged forthwith.
    3. The District Court Orders directing the Plaintiffs to move out of the land is extended by another three months from the date of this order.
    4. The Plaintiffs shall bear the costs.

___________________________________________________________
Titus Lawyers: Lawyers for the Plaintiff
Maraleu Lawyers: Lawyers for the First and Second Defendants