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Kiap (trading as El Roi Hire Cars) v Wari [2022] PGNC 354; N9749 (8 July 2022)

N9749

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 513 OF 2017

BETWEEN
PETER KIAP trading as EL ROI HIRE CARS
Plaintiff

AND
DR PAUL WARI as the CHIEF EXECUTIVE OFFICER OF GULF PROVINCIAL HEALTH AUTHORITY
First Defendant

AND
GULF PROVINCIAL HEALTH AUTHORITY
Second Defendant

Waigani: Makail, J
2022: 11^th May & 8^th July

PRACTICE & PROCEDURE – Application to dismiss proceeding – Grounds of dismissal – Abuse of process – Lack of capacity to sue – Business name – Trading name – Hire care business – Application misconceived – Application dismissed – National Court Rules – Order 12, rule 40(1)(c)

Cases Cited:

John Kami v. Department of Works & The State (2010) N4144

Counsel:
Mr. S. Malaga, for Plaintiff
Mr. L. Baida, for Defendants

RULING

8^th July, 2022

1. MAKAIL, J: At the centre of the motion seeking an order to have the proceeding dismissed as being an abuse of process is the lack of capacity of the plaintiff to sue. The ground relied upon is that the business name of El Roi Hire Cars did not exist at the date of the accrual of the cause of action.

2. The motion was filed by the defendants on 25^th April 2022 and cited, amongst others, Order 12, rule 40(1)(c) of the National Court Rules as the jurisdictional basis of the dismissal of proceeding.

3. According to the further amended writ and statement of claim filed 28^th September 2021, the plaintiff was operating a hire car business. On 16^th December 2016 or thereabout, the defendants entered into an agreement with the plaintiff to use one of his motor vehicles to transport a patient from Kerema General Hospital to Port Moresby General Hospital to receive urgent medical treatment for a consideration of K1,000.00 per day. On the return journey the motor vehicle was involved in an accident at a bridge between Port Moresby and Kerema town. The motor vehicle sustained extensive damage and was rendered unusable. The defendants replaced the damaged motor vehicle with a brand new one. The plaintiff sought damages for loss of business for the period he was out of business.

4. It is the defendants’ assertion that the plaintiff was not registered as a business entity at the date of accrual of cause of action which was the date of accident of 7^th or 16^th December 2016. The business name was registered on 14^th March 2022 which was after the plaintiff commenced the proceeding on 24^th May 2017.

5. The plaintiff does not deny this assertion but countered that the legal capacity of the plaintiff is not decided on its business name and the motion is misconceived. The plaintiff’s submission is upheld. The motion is misconceived. The plaintiff Peter Kiap has legal capacity to sue and be sued and may sue for damages for loss of business because of damage to his motor vehicle. Peter Kiap operates a business in the form of hire car business. Section 1 of the Business Names Act 1963.

6. The fact that the business name of Peter Kiap’s business is El Roi Hire Cars and that it was registered after the date of accrual of cause of action does not displace the legal capacity of Peter Kiap to sue. As Peter Kiap is engaged in the hire car business, the defendants engaged one of his motor vehicles to transport a patient in urgent medical need to Port Moresby and on its return, was damaged in an accident. Peter Kiap is entitled to sue for damages for the loss of business as a result of the loss of the said motor vehicle.

7. Finally, the defendants relied on the case of John Kami v. Department of Works & The State (2010) N4144 to show that a registered business entity has legal capacity to sue. This submission is without merit. A registered business entity as opposed to an incorporated business entity such as a company, association or incorporated body does not have capacity to sue or be sued. It is the person behind the name of the business entity who has the capacity to sue or be sued. It is for the convenience and completeness of the proceeding that a better description of the party suing under a business name may be described in the way as the plaintiff has been described in this proceeding, this being “Peter Kiap trading as El Roi Hire Cars”.
8. The end result, suing in the name of the plaintiff as described above does not render this proceeding an abuse of process. The motion is misconceived and dismissed with costs, to be taxed, if not agreed.

Ruling and orders accordingly.
________________________________________________________________
Samol Malaga Lawyers: Lawyers for Plaintiff
Nelson Lawyers: Lawyers for Defendants