SC2099
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA. NO. 84 OF 2016

BETWEEN
KUK KULI
Appellant

AND
SENIOR CONSTABLBE NICHOLAS TANDE
First Respondent

AND
JOE SIMBRANTAO
Second Respondent

AND
SENIOR CONSTABLE TONY KURE
Third Respondent

AND
SENIOR CONSTABLE JESSIE AMALKWON
Fourth Respondent

AND
SQUAD COMMANDER MATHEW KAWA
Fifth Respondent

AND
CHRIS GALE
Sixth Respondent

AND
JOHN VUE
Seventh Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Eighth Respondent

Waigani: Salika CJ, Makail & Anis, JJ
2021: 29th & 30th April

SUPREME COURT APPEAL – Appeal against dismissal of proceeding – Action based on tort of trespass and negligence – Destruction of property – Proper plaintiff to sue – Owner of property – Property owned by company – Separate legal entity of company – No right or interest in property by plaintiff – Proper exercise of discretion to dismiss proceeding – Appeal dismissed – Companies Act – Section 16

Cases Cited:
Papua New Guinea Cases

Nil

Overseas Cases

Salmon v. Salmon [1897] AC 22

Counsel:

Ms. P. Tamutai, for the Appellant
No appearance, for the First to Seventh Respondents
Mrs. R. Gelu, for the Eighth Respondent

30th April, 2021

1.	BY THE COURT: Having heard submissions of counsel for the Appellant and counsel for the Eighth Respondent (First to Seventh Respondents having shown no interest) and having considered the documents including the written judgment of the learned trial judge of 12th May 2016 in the Appeal Book, we consider that the appeal can be decided on three main issues:
(a)	first, on the question of whether the Appellant is the owner of the service-station, convenient shop and its goods;

(b)	Secondly, whether the Appellant has pleaded in the amended statement of claim that he owned the land on which evidence had been led at trial to establish that members of the Police comprising of the First to Seventh Respondents had entered without lawful authority; and

(c)	Thirdly, whether the trial judge properly exercised his discretion to reopen the case and invited submissions on the issue of proper Plaintiff. 

2.	In the National Court, the Appellant sued the Respondents for trespass and negligence for loss of “service-station”, “convenient shop” and its “goods” allegedly committed by the members of the Police comprising of the First to Seventh Respondents. 

3.	A trial on liability and assessment of damages was conducted after a long delay of almost twenty-one years since the date of the alleged tort of 13th May 1995.  After the trial was completed, judgment was reserved.  On 12th May 2016 the learned trial judge recalled the matter and invited counsel for both parties to address the issue of whether the Appellant was a proper Plaintiff to sue the Respondents.  He did that because in the course of preparing his judgment, he came across a claim for loss which was submitted to an insurance company called Southern Pacific Insurance in the name of “Kindeng Service Station trading as Rama Enterprises Pty Ltd”.  This company was the proprietor and operator of a “service-station” and a “convenient shop” on a piece of land which the Appellant asserted was owned by him.

4.	After hearing counsel, the learned trial judge dismissed the action on the ground that the Appellant was not a proper Plaintiff.  His Honour held that the Appellant was not the owner of the “service-station”, “convenient shop” and “goods”.  It was “Rama Enterprises Pty Ltd”.

5.	One of the elements of trespass to property is that it must be proved that the injured party had a right to lawful possession of the property and the other is that the injured party’s enjoyment of the property was interfered with. In this case, it was conceded at the further hearing before the learned trial judge and before us that Rama Enterprises Pty Ltd was the owner of the Kindeng service station and convenient shop.  

6.	According to Section 16 of the Companies Act 1997 a company is a separate legal entity from its shareholder and has the capacity to sue and be sued.  The legal position was reaffirmed in the English Court of Appeal decision which his Honour referred to in Salmon v. Salmon [1897] AC 22.  As conceded by the Appellant and consistent with the law under Section 16 of the Companies Act 1997 the rightful party who is being aggrieved by the tortious actions of the Respondents is Rama Enterprises Pty Ltd and not the Appellant.  This was a fundamental defect in the proceedings which goes to the heart of the proceedings.

7.	The Appellant attempted to correct the defect by first asserting that he is the owner of the land on which the service station and convenient shop were located.  He relied on a document which was titled “Private Land Dealings Local Land Purchase” dated 1st May 1986 to show that he had made payments in the form of cash and kind (pigs and cartons of beer) to number of individuals and submitted that it is evidence of his ownership of the land.  As the owner, he also owned the service station and convenient shop and its goods and they formed part and partial of his land.  

8.	When the service station and convenient shop and its goods were destroyed, he asserted that he was entitled to recover the losses from the Respondents for the land and buildings.  However, the Appellant has failed to plead as an allegation of fact that he purchased the land from the traditional owners and that he owned it.  Such pleading will lay the foundation for him to lead evidence to prove ownership and entitlement to recover damages for the Respondents’ entry without lawful authority and interference with his quiet enjoyment.  

9.	As far as we can see from the pleadings in the amended statement of claim, the primary claim was for loss of the service-station and convenient shop and its goods.  It was never about trespass by the Respondents to the Appellant’s land.  This gave the learned trial judge no option but to find that the Appellant was not a proper Plaintiff.

10.	The requirement of a proper Plaintiff underpins the very essence of a cause of action such as trespass or negligence.  The success or otherwise of an action depends on the naming of a proper Plaintiff and if, proven.  That is why the learned trial judge formed a strong view that he could not simply overlook it after he came across the claim in the name of Rama Enterprises Pty Ltd to the insurance company for the loss of the service station and convenient shop.  

11.	Notwithstanding that it was very late (21 years), that trial had been completed, a decision was pending and that the Respondents failed to pick this issue up at the early stages of the proceedings, he had to recall and reopen the case.  This issue must be addressed, which the learned trial judge did when he gave parties the opportunity to address it prior to giving his decision on 12th May 2016.

12.	The second attempt by the Appellant to correct the defect was when his counsel sought leave to further amend the amended statement of claim to include Rama Enterprises Pty Ltd as a Plaintiff.  It was refused.  Despite the Appellant’s assertion to the contrary, that he was not given leave by the learned trial judge to further amend the statement of claim to include Rama Enterprises Pty Ltd, the reopening of the case and invitation to counsel to make submissions was the fairest thing the trial judge could do under the circumstances.  For we consider that it is the duty of counsel to identify and name the proper Plaintiff prior to commencing legal proceedings.

13.	In any event, to grant leave to further amend would not improve the Appellant’s case and also it would be a futile exercise because as pointed out by the learned trial judge and verified by the company extract, Rama Enterprises Pty Ltd has been deregistered (removed) as at 21st January 2009.  By law, the property of the company vests in the Registrar of Companies.  Unless approved by the Registrar, the Appellant will have no say over the property including commencement of proceedings in the name of the company.

14.	The Appellant has failed to demonstrate that the learned trial judge wrongly exercised his discretion to dismiss the action in its entirety for want of a proper Plaintiff. 

15.	The appeal is dismissed.

16.	Finally, the Appellant shall pay the Eighth Respondent’s costs of the appeal on a party/party basis, to be taxed, if not agreed.

Judgment and orders accordingly.
_______________________________________________________________
Tamutai Lawyers:	Lawyers for Appellant
Solicitor General:  Lawyers for Eighth Respondent