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Kalex Investment Ltd v China Harbour Engineering Co [2021] PGNC 476; N9337 (24 September 2021)

N9337

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 297 0F 2021

KALEX INVESTMENT LIMITED
Plaintiff

V

CHINA HARBOUR ENGINEERING COMPANY
First Defendant

AND:
JBS CONSULTANTS
Second Defendant

Mt. Hagen: Eliakim AJ
2021: 21^st & 24^th September

PRACTICE & PROCEDURE – CIVIL JURISDICTION – Competency of the proceedings commenced by Originating Summons – Pleading of Primary Relief - Primary Relief and consequential relief – Whether restraining Order is a primary relief – Primary Relief not pleaded – Proceedings incompetent - Application and proceedings is dismissed pursuant to O.12 R.40(1) of NCR.

Cases Cited:
Brothers Rugby Football Union INC -v- Port Moresby Rugby Football Union Inc [2004] N2537
Kiee Toap v The State and Others (2004) N2766
Robinson -v- National Airline Commission [1983] PNGLR 476

Counsel:
Mr. Paiya, for the Plaintiff
No Appearance, for the Defendant

RULING

24^th September, 2021

1. ELIAKIM AJ: Before me was an urgent ex parte application for a restraining order. In refusing the plaintiff's application on 24 September 2021, I said I would provide my full reasons at a later date. These are my reasons.
   

Background

2. The applicant re-filed these proceedings in the afternoon of the same day, after withdrawing, with leave of court, the earlier proceedings in the morning due to defects highlighted by the court.
   
3. The applicant has decided not to include the Department of Works and the Independent State of Papua New Guinea in this new proceeding.
   
4. The applicant is a distributor of alcohol and coke beverages and fuel. The managing Director of the company Mr. Arnold Kuk deposes in his Affidavit sworn and filed on 21 September 2021, that ten (10) containers and 100,000 litres of fuel are delivered every week and as such, if access is blocked off, it will jeopardize the Plaintiff’s operations and will be difficult for the big trucks to deliver.
   
5. The applicant therefore requests that the defendants create an entrance or excess for the trucks to deliver, when they are putting up barriers in the middle of the double lane road. Counsel reiterated that if the defendants put up the barriers in the middle of the road then it will be difficult for the big trucks to maneuver to turn in or drive out.
   
6. There is no evidence of when the barriers in the middle of the road will be constructed or whether they will be constructed.
   

Notice of Motion

7. At the same time of filing the originating summons, a motion for the urgent application for the restraining orders, was also filed together with a Supporting Affidavit of Arnold Kuk, and an Undertaking as to Damages.
   
8. The following is sought in the applicant’s Notice of Motion:
   1. Leave be granted to the Plaintiff/ Applicant to dispense with the requirements for service pursuant to Order 155(4) of the Constitution.
   2. Until further Orders Restraining the Defendants and their employees, servants, agents and associates restraining from blocking the Entrance and exit road for the plaintiff.
   3. Costs be settled by the Defendant,
   4. Any other further Orders.
      
9. The main order sought by the applicant in the motion is for restraining orders.
   
10. Order 4 Rule 49 (8) of the NCR states; “All Motions must contain a concise reference to the Court’s jurisdiction to grant the orders being sought. Motions not containing such reference will not be accepted for filing. If accepted by the Registry staff without such reference, and it goes before the motions judge, the Court may strike out the motion for being incompetent and for lack of form.”
    
11. The applicant has failed to cite any law or rules, invoking the court’s jurisdiction to grant the restraining orders sought.
    
12. The motion is therefore incompetent.
    
13. Given my finding, it is now not necessary to consider the merits of the application.
    

Originating Process

14. In the course of hearing the urgent application for restraining orders which is now dismissed, I formed the view that the originating summons itself was incompetent and in the exercise of my inherent powers dismissed the whole proceedings on that basis as well. In delivering my ruling on the dismissal of the proceedings, I also promised to publish my reasons later. These are my reasons.
    
15. The Applicant re-instituted proceedings in the National Court in an Originating Summons filed on 21 September 2021. It’s pleading is as follows:

“The Plaintiff seeks orders that:

(i) A Restraining Order restraining the defendants from blocking off the entrance and exit road at Plaintiff’s wholesale distribution Ware house at Kalakai, Kimininga, Okuk Highway.
(ii) The defendants to create an access road for the heavy trucks to turn into the plaintiffs wholesale distribution warehouse at Kalakai Kimininga, Okuk Highway.
(iii) Costs be settled by the Defendant;
(iv) Any other further Orders.”

16. The applicant sought only one remedy in the Originating Summons which was a restraining order.
    
17. I am of the view that an application seeking restraining orders is similar to an application seeking declaratory reliefs. Accordingly, I am of the further view that the considerations held in the case Brothers Rugby Football Union INC -v- Port Moresby Rugby Football Union Inc [2004] N2537 are applicable to an application for restraining orders.
    
18. In Rugby Football Union INC -v- Port Moresby Rugby Football Union Inc (supra) Injia DCJ (as he then was) stated; “A declaratory relief is available as declaratory of a right under law, which is the primary relief. The primary relief must be pleaded first in the Originating Summons before any consequential relief is pleaded.”
    
19. The applicant in the present case did not indicate in the Originating Summons filed, whether he is seeking a permanent or interim restraining orders.
    
20. Having noted that, the court at the outset, directed counsel to address it on the competence of the Originating Summons which included the pleading of a reasonable cause of action.
    
21. The basis of that direction is that, the court has the general discretion to determine issues of competency at the outset. In this case I am of the view, the applicant has not clearly pleaded whether the only relief it’s seeking is permanent or otherwise, nor has it pleaded the jurisdiction of the court.
    
22. Mr. Paiya submitted that the restraining order was the only relief sought in the Originating Summons and it was a primary relief. This was repeated throughout his submissions.
    
23. Counsel further submitted that the cause of action is to restrain the defendant from partially blocking his client’s access road and that in the event the court grants the interim orders “and the defendant complies with it then the proceeding automatically dissolves.” Counsel failed to assist the court on the relevant law supporting this contention.
    
24. The court went further by trying to draw counsel’s attention to the court rules governing the pleadings under the National Court Rules, particularly Order 4 Rule 3, however counsel responded that he didn’t have his court rules with him and he was not able to assist the court.
    
25. Order 4 Rule 3(2) provides the tests which qualifies filing of an Originating Summons.
    
26. A cause of action is a plaintiff’s substantive legal right. Relevant facts giving rise to a cause of action must be adequately set out in the originating process.
    
27. In considering whether to initiate a proceedings through the filing of a Writ of Summons or an Originating Summons, O.4 R.3 of the NCR clearly set out the tests.
    
28. This is clearly articulated in the case of Kiee Toap v The State and Others (2004) N2766. The originating document must demonstrate that the plaintiff has a cause of action. The document must clearly set out:
    

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

- the facts that support each element of the claim.

29. I went further by posing the question to counsel on whether or not there is a difference between a primary or substantive relief and a consequential relief. There was no assistance from counsel on this issue.
    
30. I have considered counsel’s submissions and am not satisfied that a reasonable cause of action has been pleaded.
    
31. Consequently, pursuant to my inherent powers and also pursuant to my powers under Order 12, Rule 40(1) of the National Court Rules, which state:
    

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.

32. I dismiss the Originating Summons filed on 21 September 2021 as being incompetent in that it failed to plead a reasonable cause of action.
    

ORDERS

1. The application for a restraining order is refused.
2. Pursuant to O.12 R.40(1) of the NCR, the proceedings is dismissed, in its entirety, for failing to disclose a reasonable cause of action.
3. No orders as to costs.
4. Time shall be abridged to time of settlement to take place forthwith.

________________________________________________________________

Paiya Lawyers: Lawyers for the Plaintiff