22 Occupants of Badili Police Barracks v Royal Papua New Guinea Constabulary [2017] PGDC 26; DC3039 (16 March 2017)

DC3039

IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION

DC 66 OF 2015

BETWEEN:
22 Occupants of Badili Police Barracks
Complainant

AND:

Royal Papua New Guinea Constabulary
First Defendant

AND:

The Commissioner of the Royal Papua New Guinea Constabulary
Second Defendant

AND:

THE METROPOLITAN SUPRITENDENT
Third Defendant

AND:

THE COMMANDER NCD BARRACKS
Fourth Defendant

Port Moresby: A.KAJIR
2017: March 16

CIVIL – Practice and Procedure – dismissal of proceedings, joinder of parties, whether representative action – procedural requirements for representative action, – pleadings - reasonable cause of action.

Cases cited. SC960 Tigam Malewo v Keithe Faulker (2009) SC960
Evara v Gulf Provincial Administration [2007] PGDC 131; DC699 (3 May 2007) l

References.
Law applicable Order 5 Rule 13(1), Order 8 Rule 27 - National Court Rules, Section 155 of Constitution

Counsel: Immanuel Tanda (Mr)
Complainant:
Counsel:
Defendant: In person

08 March 2015

Judgement

1. By the Court: This case involves twenty two occupants of the Badili Police Barracks who were given a week’s eviction noticeat the institutional housing there. They have not been named individually in this proceeding.
   
2. A complainant, summons to a person upon complaint attaching a statement of complaint, Notice of Motion and an Affidavit in Support of Samuel Aipe were filed on 23^rd February 2017.
   
3. The Notice of Motion dated 23^rd February 2017,relying on the Affidavit of Samuel Aipe soughta temporary restraining order against the defendants, its servants and agents from evicting and demolishing the properties housing the complainants, alternatively that the second defendant provide alternate accommodation for all the complainants and costs of this proceeding.
   
4. Arestraining order was granted on the 24^th of February 2017, and it expires today.
   
5. In granting the temporary restraining order, the court applied the ruling in Evara v Gulf Provincial Administration [2007] PGDC 131; DC699 (3 May 2007) where the court ruled that even if an applicant fails to qualify for a restraining order yet on purely humanitarian grounds a temporary restraining order should be granted.
   
6. There is no appearance today by any of the parties.
   
7. Where the District Court Act is silent on practice and procedure, The National Court Rules are adopted. I have done so in this case.
   
8. Having reviewed this file, I dismissed this case on the basis that:
   
   • (1) The proceeding is representative in nature requiring strict compliance with rules and practice of the Court.
     
   • (2) The pleadings do not disclose a reasonable cause of action and is otherwise an abuse of the court’s process.
     
9. This proceeding need not continue firstly for want of the proper naming of parties. There should be no need for me to even discuss representative actions or joinder of parties and how to proceed but I have considered same and make the following observations.
   
10. Where there is more than one plaintiff or complainant but who all have the same interest to be represented by one of them, Order 5 Rule 13 (1) of the National Court Rules provides the appropriate and convenient procedure for persons having the same interest to be represented by one of them in litigation. It reads:

“Representation; Current interests. (8/13)

(1) Where numerous persons have the same interest in any proceedings the proceedings may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.”

11. The law in relation to representative proceedings was also summarised in the case of:Tigam Malevo v Keith Faulkner (2009) SC 960 and that is:
    
    • (1) All intended plaintiffs must be named in the originating process;
    • (2) Each and every intended plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them; and
    • (3) Any person in whose name proceedings are commenced and who claims to represent other intended plaintiffs must produce an authority to the Court to show that he was authorised by them to file proceedings as a class representative.
      
12. In the present case the questions to be answered are:
    
    • (1) Is Simon Aipe the plaintiff or complainant and has he been named in the Originating Summons?
    • (2) If so, has each and every intended plaintiff or complainant or the twenty two occupants given specific instructions (evidenced in writing) to their lawyers to act for them; and
    • (3) Has any person in whose name proceedings are commenced and who claims to represent other intended plaintiffs produced an authority to court to show that he was authorised by them to file proceedings as a class representative?
      
13. In relation to question one, Simon Aipe is not named in the originating process as a party. The complainants are named as Twenty two occupants of Badili Police Barracks. No names are given to identify the twenty two occupants.
    
14. There is no need for me now to answer questions two and three obviously.Paragraph 1 of Simon Aipe’s affidavit states, “I am a police officer assisting my fellow colleagues...” As a matter of practice and procedure, the twenty two occupants or complainants should have given specific instructions to their lawyers to act for them and where so the intended complainant.
    

What is the reasonable cause of action?

15. Order 8, Rule 27 of the National Court Rules reads,

“27. Embarrassment, etc. (15/26)

(1) Where a pleading—

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; or

(c) is otherwise an abuse of the 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 pleading be struck out.

(2) The Court may receive evidence on the hearing of an application for an order under Sub-rule (1).”

16. The pleadings in the statement of claim indicate that a relationship between an employer and its employee exists with housing as part of the package.The relief sought as pleaded in the statement of claim is that: “the Defendants, its servants and agents be restrained from evicting and demolishing the properties, alternatively the Second Defendant provides alternate accommodation for all the complainants and the costs of this proceeding. There is no supporting affidavit disclosing that such a relationship exists and on what terms. Thus the court is not assisted.
    
17. In eviction matters, the question to determine immediately is who has legal title to the property? In this case, institutional housing is being provided by the Royal Papua New Guinea Constabulary, the First Defendant. The question hasn’t been raised here but if eviction was to be effected by the Defendants under the Summary Ejectment Act Chapter No 202, the District Court would have jurisdiction where there is clear title. The Defendants have exercised an administrative function as a government body.
    
18. Here the complainants if identified properly by name are police officers affected by the administrative act (issuing of eviction notice) of their employer. Theeviction notice by the Defendants is administrativein nature and so the reasonable cause of action would be to institute judicial review proceedings and have the decision of the Defendants in evicting them heard by the National Court. Section 155 of the Constitution gives inherent jurisdiction to the National Court to review administrative actions of government or statutory bodies not the District Court. It is an abuse of the court’s process to come to the District court seeking orders that can’t be granted for want of jurisdiction.
    
19. For the above reasons, this case is dismissed.