N3978

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 721 OF 2005

BETWEEN:

JOSEPH PUGMA FOR AND ON BEHALF OF HIMSELF AND THE 
KUTUMB-ETEMB CLAN OF TAMBUL DISTRICT, WESTERN HIGHLANDS PROVINCE
Plaintiff

AND:

ALPHONSE NIGGINTS,
Secretary for Works & Supply Department
First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Salika, DCJ
2010: 08 April

CIVIL PRACTICE AND PROCEDURE – cause of action – landowner seeks compensation from State for tort of trespass – whether the proceedings are time barred – s.16 of Frauds and Limitations Act.

Cases Cited:

Yorem Investments Limited v Commander of PNG Defence Force and the State, OS 194 of 2006.
Otto Benal Migiten v Ela Motors & 2 Ors, Unreported National Court Judgment N2179

Counsel:

Mr J Napu, for the Plaintiffs
Mr T Tanuvasa, for the Defendants

08 April, 2010

1. SALIKA DCJ: By an amended notice of motion filed on 6 August, 2009 the defendant moved the court for the following orders.

1. The entire proceedings be dismissed for:

(a) Non –compliance of the mandatory requirements of Sections 5 and 21 of the Claims By and Against the State Act 1996.

(b) Being time-barred pursuant to Section 16(1) of the Frauds & Limitations Act 1988.

(c) Want or lack of consent authority and representative capacity pursuant to O.5 r.8(2) of the National Court Rules and O.4 r.20 of the National Court Rules.

(d) Disclosing no reasonable cause of action, being frivolous and vexatious and being an abuse of the Court process pursuant to Order 12 Rule 40(1) of the National Court Rules.

2. In the alternative, pursuant to Section 10 of the Claims By & Against the State Act 1996 and Order 14 Rule 25(1)(b) of the National Court Rules 1983 an amount of K50,000.00 be deposited with the Registrar of the National Court as Security for Costs with respect to this proceeding.

3. Costs of the entire proceedings on Solicitor-Client Basis if any or all of the Orders enumerated under Order 1 is granted.

4. Any other Orders this Honourable Court deems fit.

2. The application is supported by affidavits filed by Kisolel Kiapin filed on 24 July 2009 and Tanuvasa Tanuvasa filed on 24 July, 2009.

3. The primary issue before the court is whether this claim is Statute barred pursuant to s.16 of the Frauds and Limitations Act.

4. In order for the court to determine the issue the facts as stated in the statement of claim are:

"STATEMENT OF CLAIM"

1. The plaintiff is a natural person and an adult member of the above named Clan, and therefore can sue in his own personal name, style and capacity as well as that of a representative capacity for his Clan, hence sues.

2. The First Defendant is the Secretary for the Department of Works and Supply, the Government agent or Department charged with statutory duties to construct, and maintain roads and bridges among other duties and therefore can be sued in is personal name, style and capacity, hence is sued.

3. The Second Defendant is the ultimate employer and the principal for which the First Defendant is the agent, and therefore can be vicariously liable for the wrongful act and/or omission by the First Defendant, in the course of executing its official duties. It is thus sued pursuant to s.2 of the Claims By and Against the State Act.

4. In or around the year 1961 the Defendants, either by themselves or through their hired contractors started a quarry gravel mining activity, in and around Pinja area of Tambul District for extraction of gravel resources to seal various parts of Highlands Highway, between Western Highlands, Southern Highlands and Enga Provinces.

5. The quarry and gravel mining activity went on and off between 1961 and ceased in 1990, and occasionally in between the stated years, as and when the defendants saw fit and necessary.

6. In the course of the mining of gravel resources/quarry activities in the stated area, the Defendant and or their agents, caused massive destructions to the social and ecological environment and in particular:

Particulars of Destruction

(a) A large area of arable land has lost its fertility and vitality, following the disappearance of the topsoil, which are all replaced by the limestone gravel.

(b) The width and depth of the gravel pit created in the course of the quarry/activity renders to pose real and eminent danger to livestock and people, in and around the Pinja area in that, so many domesticated animals fell into the gravel pit and lost their lives.

(c) As a result of the creation of the gravel pit, the Plaintiff lost the use of the road which runs across the gravel pit hence renders the Plaintiff to take strenuous, tedious and stressful efforts to get around longer paths, and occasionally with loads of firewood, harvest and other items.

(d) Destruction of Kulaigomugu river which runs through the quarry area, through sedimentation and changing of the river course saw the loss of use of enjoyment of the river, as well further erosion of arable land.

7. The Plaintiff says that in the course of effecting their statutory duties, the Defendants owe to the plaintiff, as they would to the public in similar circumstances both a fiduciary/statutory duty and duty of care to ensure among others.

Particulars of Duty

(a) Consciouable and equitable royalties, based on mutually agreed price, between the parties herein, with reference to normal market price subject to variations from time to time be paid to the Plaintiff, for the extraction of gravel resources.

(b) Environmental plan to ensure that environmental destruction, which may occur in the course of the quarry/gravel mining activity, and the consequences of which is natural and probable, is minimized, is put in place, prior to the mining and extraction of the gravel resources by the Defendants.

(c) An environmental impact assessment is commissioned by the Defendants, and that equitable, just and fair compensation pursuant to relevant provisions of the National constitution is paid to the Defendant, after the gravel mining activity ceases.

(d) Efforts to rehabilitate and restore the vitality of the ecological social environment of the affected area is commissioned.

8. Particulars forming the basis and substance of the Plaintiffs’ capacity and claim:

(a) The plaintiff sues for and on behalf of himself and as the representative of his Kutubu Etemb clan in custom.

(b) Plaintiff becomes aware of the cause of action pleaded herein paragraphs 6 and 9 of this Statement of Claim in custom.

(c) The land upon which the quarry/gravel mining takes place is a traditional land, owned by the Plaintiff(s) herein.

(d) The said land was at all material time, prior to the extraction of the gravel mining and or quarry activities, was a prime arable land, used for subsistence gardening/farming and was able to supply the food needs of the Plaintiffs Clan all year round.

(e) In our present times, the said affected area has a vast wasted potential for commercial agriculture usage.

(f) The unpaid and/or underpaid royalties of the extraction of gravel resources in the Pinja area; and for the loss of quality of life and consequential economic loses occasioned as the result of the quarry/gravel mining.

9 The Plaintiff says that the Defendant had in the course of extracting the gravel resources for the sealing of the highway, had been negligent and/or have failed to exercise care and diligence, hence are in breach of both their common law duty of care and their fiduciary/statutory duty, in that, the Defendant had.

Particulars of Negligence/Breach of Duty of Care

(a) Failed to pay equitable amount of royalties to the Plaintiff for the extraction of the gravel resource.

(b) Failed to put in place and execute an environmental plan relating to the said quarry/gravel mining activities, to ensure environmental destruction which are natural and probable during and after the gravel mining activity is minimized.

(c) Failed to take affirmative measures to commission environmental and social impact assessment. In order to rehabilitate and restore the vitality of the ecological and social environment of the affected area and to verify and quantify the extent of damages arose both socially and economically for the purpose of compensation is commissioned.

10. Consequent to the destruction caused including negligence and breach of the various duties stated herein, the Plaintiff suffered physical, mental and economic losses and injuries:-

Particulars of Loss and Damages

(a) Loss of royalties in equitably computed sum for extraction of gravel resources;

(b) Loss of use of gardening/arable land;

(c) Loss of livestock over time, which fell in the gravel pit.

(d) Hardship and frustration caused by loss of right of way

(e) Loss of use and enjoyment of water resources

(f) Collateral damages caused by the changing course of the river; and

(g) Further economic losses.

11. And the Plaintiff claims:

(a) Equitable, just and fair compensation pursuant to relevant provisions of the National Constitution for loss of royalties for the extraction of gravel to be assessed.

(b) Economic loss consequent to loss of arable land, for potential commercial use, livestock; including future economic loss to be assessed.

(c) Collateral damages, consequent to particulars of loss and damages stated in paragraph 10 herein; and

(d) Cost and interest pursuant to law.

5. The plaintiffs filed this action on 16 May 2005.

6. The defendants submitted that the action is statute barred pursuant to s.16(1) of the Frauds and Limitations Act in that paragraphs 4 and 5 of the statement of claim says that from about 1961 to 1990 the defendants servants and agents quarried their land which caused massive destruction to the social and ecological environment. The defendants submitted that the time for the plaintiffs’ cause of action accrued from 1990 and by 1996 their time ran out.

7. In paragraph 8 (b) of the statement of claim the plaintiffs claim they became aware of the cause of action after various enquiries in 2005 and therefore they filed their action on time. The defendants in reply submitted that, that could not be so because from 1961 to 1991, the plaintiffs were demanding compensation from the Department of Works and the Department of Western Highlands..

8. Section 16 (1) of the Frauds and Limitations Act provide:

Limitation of actions in contract, tort, etc.

(1) Subject to Sections 17 and 18, an action—

(a) that is founded on simple contract or on tort; or

(b) to enforce a recognisance; or

(c) to enforce an award, where the submission is not by an instrument under seal; or

(d) to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture,

shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.

9. The law according to the provision of the Act is that the time limitation for actions in tort in this country is 6 years. As to when a cause of action arises or accrues depends and varies on a case by case basis.

10. In this case the defendants contend that the plaintiffs’ cause of action accrued from 1990 when the defendants and agents stopped quarrying on their land. The plaintiffs on the other hand contend that their cause of action accrued from the time they became aware of the cause of action in late 2004 and early 2005.

11. The issue immediately before the Court is when did the plaintiffs’ cause of action begin to accrue from. Is it from 1990 or 2004 or at some other time?

12. Counsel have usefully referred the court to a few unreported National Court decisions as no Supreme Court decision on s.16 of the Frauds and Limitations Act could be found. The first one referred to is the matter of Yorem Investments Limited v Commander of PNG Defence Force and the State, OS 194 of 2006. In that case Injia DCJ (as he then was) was dealing with the issue of whether the plaintiffs cause of action was statute barred pursuant to s.16 of the Frauds and Limitations Act. The cause of action in that matter arose from the Bougainville conflict and the plaintiff sought to recover damages he said he suffered during that period when his wholesale supermarket business was damaged by the PNG Defence Force soldiers. In dealing with the issue his honour said:

"There is only one case in which the Supreme Court has considered the meaning of s.16(1). In MVIL v Samage Kuri (2006) SC 825, that was a case involving notice of claim under s.54 of the Motor Vehicles (Third Party) Insurance Act. Under that Act, the giving of notice is a pre-condition to institution of an action for damages. The Supreme Court said "the cause of action accrues prior to the notice". To be more specific the cause of action accrues from the date upon which the events giving rise to the claim occurred."

13. His Honour in the end found that future contemplated action was statute barred as there was a specific date alleged when the alleged tort was committed and which is pleaded in the Originating Summons. He dismissed the plaintiffs application.

14. In the case of Otto Benal Migiten v Ela Motors & 2 Ors Unreported National Court Judgment, N2179, Sawong J when considering s.16(1) of the Frauds and Limitation Act and what "cause of action accrued" or "accrued" meant said:

"The expression "cause of action accrued" or "accrued" is not defined in the Act. Nor are these expressions defined in the Interpretations Act. However, the Oxford Advanced Learner’s Dictionary, 6th Edition, defines the expression "accrued" to mean (1) to increase over a period of time, (2) to allow a sum of money or debt to grow over a period of time."

15. In that case, Sawong, J was dealing with a contract entered into by the parties for the defendants to repair the plaintiffs motor vehicle on 3 February 1995. The defendants breached the contract at the end of February 1995. The Finance Company repossessed the plaintiffs vehicle in May of 1995. The Defendants argued that the cause of action accrued from 3 February when it entered into the contract with the Defendants to repair the vehicle. The plaintiff on the other hand argued that the cause of action accrued from the time the Finance company repossessed the vehicle – May 1995. His Honour in that case ruled that the cause of action accrued when the defendants breached the terms of the contract at the end of February 1995 and found in the end that the plaintiffs cause of action was time barred pursuant to s.16(1) of the Frauds and Limitation Act.

16. I am inclined to accept the dictionary meaning of what "cause of action accrued" means and what the word "accrued" means as referred to under s.16(1) of the Frauds and Limitations Act. I will therefore apply that meaning in this case.

17. In this case the plaintiffs claim for damages arising out of quarrying carried out by state agencies between 1961 and 1990. The plaintiffs claim that as a result of the quarrying, damage was done to their gardening land and that people and domesticated animals fell into the pit that was created as a result of the quarrying and either lost lives or received serious injuries. Their action for the purpose of this application therefore is based on tort. Thus their claim must come under the scrutiny of s.16(1) (a) of the Frauds and Limitations Act. 

18. The plaintiffs alleged through their pleadings in the statement of claim and affidavit of Joseph Pugma filed on 3 August 2009, that the quarry commenced from about 1960 or 1961 and ceased in either 1990 or 1991. From their pleadings, it is clear that the plaintiffs had tried to get compensation through the Department of Works and the Western Highlands District Administrator at that time during the quarrying work but the administration neglected to pay. From this pleading it is clear to me that the plaintiffs were aware they had a claim for compensation during the operation or life of the quarry. Their cause of action therefore accrued from 1961 onwards. But for the purpose of this claim because the quarry ceased in 1991 and for equality and justice the cause of action accrued from 1991 for 6 years to 1997. This is because the plaintiffs have always been aware that they could ask or claim compensation and they did through the Department of Works and the Western Highlands Administration. At the time they had the opportunity to file a suit in Court to claim for damages or compensation for the tort. They did not and left it too late. It was not until 16 May 2005 that they finally filed a claim in Court. By then they were past the time allowed for claiming such damages.

19. Their claim therefore is now time barred pursuant to s.16(1) of the Frauds and Limitations Act. I am mindful of the fact that the tort of trespass, is most often an ongoing or continuous one but at the same time in most cases, parties affected are aware of their rights to claim some form of compensation right from the start, as has happened in this case. I do no accept the submission that the plaintiffs were not aware that they had not been compensated for the quarry on their land. Their pleadings to me is clear that they had been making claims to the Department of Works and the Department of Western Highlands. Even if the current plaintiffs were not aware as they were still infants then, but their fathers and elders of the clan did make or state their claims and were aware of their right to compensation from the State agencies.

20. Since 1960s up to the 1990s and up to now, the word "compensation" has been on everybody’s lips and will continue to be so.

21. This leads me to now address the Section 5 Notice under the Claims By and Against the State Act. Section 5(1) and (2) provides:

5. Notice of claims against the State.

(1) No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this Section by the claimant to—

(a) the Departmental Head of the Department responsible for justice matters; or

(b) the Solicitor-General.

(2) A notice under this Section shall be given—

(a) within a period of six months after the occurrence out of which the claim arose; or

(b) where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach; or

(c) within such further period as—

(i) the Principal Legal Adviser; or

(ii) the court before which the action is instituted,

on sufficient cause being shown, allows.

22. In this case, because no specific date is mentioned in 1991 when the quarry ceased operations, let us say the quarry ceased operations on or about 31 December, the last day in 1991. The plaintiffs were required to give the s.5 Notice by 30 June 1992. However the Claims by and Against the State Act was then non existent. The Claims by and Against the State Act 1996 came into effect on 20 February 1997. By then the plaintiffs had not commenced any action in court over this matter. When the Claims By and Against the State Act 1996 came into being, Section 5 of the Act made it a condition precedent or a pre-requisite for anyone who had an intention to make a claim against the State to give notice of such an intention to the Departmental head responsible for justice mattes or to the Solicitor General.

23. The Claims By and Against the State Act s.21 took into account situations where proceedings had already been instituted and situations where no proceedings had yet been issued. Section 21 (2) is relevant here. It provides:-

Section 21. Prior and pending claims

(2) Where upon the coming into operation of this Act no action to enforce a claim against the State has been commenced in respect of an occurrence which took place before that coming into operation, notice shall be given in accordance with Section 5(1) within a period of six months after that coming into operation, or within such further period as—

(a) the Principal Legal Adviser; or

(b) the court before which the action is instituted,

on sufficient cause being shown, allows.

24. In this case it is clear that when the Claims By and Against the State Act 1996 came into operation on 20 February 1997, the plaintiffs were required to give notice of intention to make a claim against the State within 6 months of the coming into operation of the said Act. They had up to 20 August 1997 to give notice of intention to make a claim. They did not until 15 February 2005. The notice the plaintiff gave on 15 February 2005 was not a proper and valid notice firstly because it did not comply with s.21(2) of the Act and secondly the notice does not state specific particulars of when the claim arose.

Decision:

25. After having discussed the position and the nature of the claim in law, I find that the plaintiffs are time barred under s.16(1) of the Frauds and Limitations Act and secondly that the plaintiffs have not complied with the requirements for notice under Sections 5 and 21(2) of the Claims By and Against the State Act 1996. Accordingly, I order the dismissal of proceedings in WS 721 of 2005. I order costs for the defendants on a Solicitor/Client basis.

Napu & Company Lawyers: Lawyer for the Plaintiffs
Solicitor-General: Lawyer for the Defendants