N8581
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (COMM) NO. 659 OF 2019

BETWEEN:
PATRICK PAWA as President of MT BEE AKOM HTL ASSOCIATION INCORPORATED
First Plaintiff

AND:
MT BEE AKOM HTL ASSOCIATION INCORPORATED
Second Plaintiff

V

BARRICK (NIUGINI) LIMITED
Defendant

Waigani:  Anis J
2020: 5th & 16th October

NOTICE OF MOTION – 2 applications – one for dismissal of proceeding and the other for defence to be struck out and judgment be entered – application for dismissal heard first in time – dismissal based on want of capacity or proper name, ambiguity in pleadings, statute bar claim under section 16(1) and (2) of the Frauds and Limitations Act 1988, and want of due disclosure of discovery – exercise of discretion

Counsel:

Mr. A Token, for the Plaintiffs
Mr. T Kuma, for the Defendant 

RULING

16th October, 2020

1.	ANIS J:  Two applications were argued before me on 5 October 2020.  One was by the defendant seeking to dismiss the proceeding.  The other was by the plaintiffs seeking to strike out the defendant’s defence and for judgment to be entered in their favour.

2.	Both applications were heard together on the basis that the application for dismissal will be determined first in time and subject to the Court’s ruling, the Court will proceed to hear the plaintiff’s application.  I heard and reserved my ruling to a date to be advised.

3.	Parties have been notified so I will rule on it now.

BACKGROUND

4.	The plaintiffs claim that they are customary landowners of certain land area between Hides in the Hela Province and Porgera in the Enga Province.  The exact description and location of their tradition land is not pleaded in the Statement of Claim (SoC).  But they claim that where their customary land is situated, the defendant constructed power pylons and ran lines over them, from Hela to the Porgera Gold mine.  Again, there is no clarity on the allege customary land boundaries, the number of power pylons that were built on their land and the description or name that describes their customary land and boundaries.

5.	They claim that the defendant constructed the power pylons sometimes in the 1990’s.  They claim that the defendant failed to comply with the requirements under the Mining Act 1992 and other laws of the country.  The also claim that the defendant failed to conduct clan vetting and landowner identification over their customary land.  They seek damages including a liquidated claim of K332,900,000.  Their claim is based on alleged negligence and breaches of their various constitutional rights and provisions under the Constitution.

NOTICE OF MOTION

6.	The defendant’s application is made pursuant to Order 12 Rule 40(1)(a), (b) and (c) of the National Court Rules and the inherent jurisdiction of the National Court in controlling proceedings that are before it.

ISSUES

7.	The main issues are, (i), whether the plaintiffs are correctly named and have the capacities to maintain the proceeding, (ii), whether the claim is frivolous, vexatious or ambiguous and (iii), whether the claim is time or statute bar pursuant to s. 16(1) and (2) of the Frauds and Limitations Act 1988.  

PLEADING/PLAINTIFFS’ CAPACITIES

8.	The first plaintiff, as named, is suing in his capacity as the president of the second plaintiff.  But I note that in the SoC, he states that he also sues in his personal capacity.  The second plaintiff (or the association) is said to be an association that is incorporated under the Associations Incorporation Act Chapter No. 142 (the AI Act).  The plaintiffs plead that members of the association comprise of landowners of the land where the power pylons and the lines are said to occupy.

9.	I note the submissions of counsel, and I begin by looking at the SoC.  I notice that the SoC has various flaws or anomalies.  The first anomaly, I observe, is the capacity of the first plaintiff.  His stated capacity to his name, as a party in the proceeding, is inconsistent with his capacities as pleaded in the SoC.  As a party to the proceeding, he says he is suing in his capacity as the president of the association.  However, in paragraph 1 of the SoC, he states that he is suing both in his personal capacity as well as in his capacity as the president of the association.  The next anomaly is this.  The pleadings in the SoC state or portray the first plaintiff as a purported landowner together with the members of the association.  But the pleadings, with respect, become confusing at paragraph 8 of the SoC.  It reads:

At all material times the Plaintiffs are customary land owners whose consents were not prior to the execution of PTL and the PTT from Hides to Porgera for purposes of installing power pylons on their customary land supply power to the giant Porgera Gold mine in the Enga Province.  (Underlining mine).

10.	And all the pleadings thereafter in the SoC, refer only to plaintiffs as in plural without any distinctions made.  In my view, that cannot be the case as the association cannot be a landowner or a physical person who would own customary land.  It seems that the plaintiffs or should I say their then lawyers, fail to appreciate or clarify the capacities and legal distinctions of the first plaintiff, the association, and the members of the association, in the SoC.  With these discrepancies, it makes the pleadings senseless, ambiguous and frivolous.

11.	I also note this.  The association is said to be incorporated under the AI Act.  Let me begin by looking at some of the provisions of the said Act.  Section 1 for example, defines various terms.  The terms, association, and the prescribed qualification for incorporation, are defined as follows:

"association" means an association, society, club, institution, Christian mission or other body in the country;
……
"the prescribed qualifications for incorporation" in relation to an association, means—
(a)	that the association—
(i)	is formed; or
(ii)	is being formed; or
(iii)	is operating,
for the purpose of—
(iv)	providing recreation or amusement; or
(v)	promoting commerce, industry, art, science, religion, charity, pension or superannuation schemes or other objects useful to the community; and
(b)	that the association will apply its profits (if any) or other income in promoting its objects; and
(c)	that the association will prohibit the payment of any dividend or payment in the nature of a dividend to its members;
(Underlining mine)

12.	With these in mind and when I consider the SoC, I note the following.  It is the plaintiff and members of the association who are asserting their individual rights of ownership of their customary land which they refer to in the pleading.  Their land is not registered to or held by the association which they claim to be members of.  So where does the second plaintiff or the association fit into this claim?  That, in my view, appears to be a fundamental anomaly that exists in the pleading as it is.  The next anomaly I see given the above quoted phrases is this.  I note that the constitution of the association is not adduced in evidence.  But regardless of that, its prescribed purpose or qualification would have been express or certain, as required under an Act of Parliament, in this case, under s. 1 of the AI Act.  The activities that are prescribed under sub-paragraphs (a), (b) and (c) under the definition of the prescribed qualifications for incorporation, are the only purposes or reasons that shall be required, for setting up of an association under the AI Act.  Nowhere there does it state that an association may be set up to represent landowners over their customary land rights or interests over their land, or to represent landowners with customary land rights in commercial transactions or dealings who may earn profits over their customary land dealings.  To me, this is again another significant anomaly I see in the pleading or the SoC.  The activities or dealings by the association, as pleaded, appear to be in direct breach of its prescribed purposes and functions as regarded or prescribed by the AI Act.  

13.	The other matter that was contested by the defendant is this.  It says that the association is not correctly named as a legal person.  This fact was not disputed at the hearing.  Counsel for the plaintiff admits that the association is wrongly named in the proceeding.  The correct name, counsel submits, should be Mt Bee Akoma HTL Association Incorporated.  So as it is, the association is not a recognized legal person.  

SUMMARY

14.	For these reasons, I find that the proceeding should be dismissed.  The pleadings are also incontestably bad.  It cannot be simply cured by amendments.

15.	For these reasons, it is not necessary for me to deal with the other issues as well as the plaintiff’s notice of motion.

COST

16.	The cost order is discretionary.  I see no reason why I should not award cost to follow the event applying the standard part/party cost scale.

ORDERS OF THE COURT

17.	I make the following orders:

(i)	The proceeding is dismissed in its entirety.

(ii)	The plaintiffs shall pay the defendant’s cost of the proceeding, on a party/party basis which may be taxed if not agreed.

(iii)	Time for entry of these orders is abridged to the date of settlement by the Registrar which shall take place forthwith.

The Court orders accordingly. 
_______________________________________________________________
Public Solicitor: Lawyer for the Plaintiffs
Bradshaw Lawyers:  Lawyers for the Defendant