Alai v Holy Ghost Mission Property Trust [2014] PGNC 266; N5722 (8 September 2014)

N5722

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 64 OF 2013

FELIX ALAI
ON BEHALF OF THE ANOSOS CLAN OF TUMLEO ISLAND
Plaintiff

V

THE HOLY GHOST MISSION PROPERTY TRUST, MADANG
First Defendant

DIVINE WORD MISSIONARIES
Second Defendant

QUINTINE SOLMIEN ALAI
Third Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Madang: Cannings J
2014: 15 May, 17 July, 8 September

LAND – orders sought re production of documents as to transfer of interests in customary land – commencement of proceedings by originating summons – whether rules as to commencement of representative proceedings complied with – whether originating process disclosed cause of action – obligation of plaintiff to provide specific description of land

The plaintiff sought orders, against two church entities (the first and second defendants), for production of documents as to transfer of interests in customary land which the plaintiff claimed had been acquired from his clan many years ago. He also sought orders that would require, if the relevant documents could not be produced, the plaintiff's father (the third defendant) and representatives of the first and second defendants, to swear and file in court affidavits deposing to their knowledge of the whereabouts of such documents. The originating summons did not state the jurisdictional basis of the orders sought but at the trial the plaintiff argued that the Court had power to make the orders under Order 3 (discovery before suit) of the National Court Rules. All defendants, including the State (the fourth defendant) opposed the relief sought on the basis that the plaintiff lacked standing and authority to commence the proceedings and that the originating process failed to disclose a cause of action or a legal basis for the relief sought.

Held:

(1) The plaintiff, who held himself out as the leader of his clan for the purpose of the conduct of any litigation concerning clan matters, failed to comply with the rules as to commencement of representative proceedings in that: (a) no clan members other than the plaintiff were named in the originating summons, (b) there was evidence that only a handful of clan members authorised the plaintiff to act for them, (c) there was an abundance of evidence presented by the third defendant to demonstrate that the plaintiff lacked authority to represent the clan. In these circumstances the prosecution of the case by the plaintiff, without adherence to the practice and procedure of the National Court and without proper authority of his clan and contrary to the wishes and demands of the proper clan leader (his father, the third defendant) was an abuse of process and for that reason alone the proceedings should be dismissed.

(2) The originating summons failed to disclose any cause of action: no legal basis for the orders being sought was revealed. Even when the evidence at the trial was considered, the plaintiff failed, through submissions, to establish a cause of action that would make him entitled to or at least eligible for the relief sought. Furthermore, the land in respect of which the orders were sought was not described in sufficient detail to make the orders sought meaningful and effective. These were also sufficient reasons to dismiss the proceedings.

(3) The originating summons could not properly be regarded as an application for orders under Order 3, Rule 1 of the National Court Rules as the orders were not being sought for the purpose of identifying any person; and if they were so regarded, an essential precondition for the Court making such orders was not satisfied: the plaintiff had failed to establish a prima facie claim for relief against any person.

(4) The entire proceedings were dismissed as an abuse of process and the plaintiff was ordered to pay the defendants' costs of the proceedings.

Cases cited

The following cases are cited in the judgment:

Eliakim Laki and 167 Others v Maurice Alaluku and Others (2002) N2001)
Felix Alai of Anosos Clan of Tumleo Island v Nakot Waina & 3 Others (2012) N4773
Kiee Toap v The State and Others (2004) N2766
Simon Mali v The State (2002) SC690
Tigam Malewo & Ors v Keith Faulkner, Ok Tedi Mining Ltd & 3 Ors (2009) SC960

ORIGINATING SUMMONS

This was a trial in which the plaintiff on behalf of his clan sought orders that would compel the defendants to produce documents and information as to the transfer of interests in the clan's customary land.

Counsel

F Alai, the plaintiff, in person
T M Ilaisa, for the first & second defendants
W Akuani, for the third defendant
S Phannaphen, for the fourth defendant

8th September, 2014

1. CANNINGS J: The plaintiff, Felix Alai, seeks orders for production of documents against two church entities regarding the transfer of interests in three areas of his clan's customary land in the Aitape District of West Sepik Province. The plaintiff says that these areas of land were acquired from his clan many years ago by the German colonial administration and then transferred to agencies of the Roman Catholic Church. He wants to know how and when the Church entities acquired the land. He wants to see the land returned to his clan.

2. The plaintiff's clan is Anosos Clan of Tumleo Island. One area of land the plaintiff is concerned about is on Tumleo Island. The other two areas are on the mainland, known as "St Anna" and "Tadji". The church entities are described in the originating summons as "the Holy Ghost Mission Property Trust Madang" (the first defendant) and "Divine Word Missionaries" (the second defendant). If those entities are unable to produce the documents he is seeking, the plaintiff seeks orders that would require representatives of the first and second defendants, together with the third defendant, his father, Quintine Solmien Alai, to file affidavits deposing to their knowledge of the whereabouts of such documents.

3. The originating summons does not state the jurisdictional basis of the orders being sought but at the trial the plaintiff, appearing in person, argued that the Court had power to make the orders under Order 3 (discovery before suit) of the National Court Rules.

4. All defendants, including the State (joined on its application as the fourth defendant) opposed the orders sought on the grounds that the plaintiff lacked standing and authority to commence the proceedings and that the originating process failed to disclose a cause of action.

5. The issues are:

1. Does the plaintiff have standing and authority to commence the proceedings?
   
2. Are the proceedings defective due to a failure to disclose a reasonable cause of action?
   
3. Can the orders sought by the plaintiff be granted under Order 3 of the National Court Rules?
   
4. What orders or declarations should the Court make?
   
1. DOES THE PLAINTIFF HAVE STANDING AND AUTHORITY?
   

6. I uphold the defendants' argument that the plaintiff lacks standing and authority to commence the proceedings on behalf of the Anosos Clan.

7. As the plaintiff commenced the proceedings in the name of his clan these are representative proceedings. The rules of practice and procedure about such proceedings, affirmed by the Supreme Court in Tigam Malewo & Ors v Keith Faulkner, Ok Tedi Mining Ltd & 3 Ors (2009) SC960 (developing the requirements spelt out in earlier cases such as Simon Mali v The State (2002) SC690 and Eliakim Laki and 167 Others v Maurice Alaluku and Others (2002) N2001) apply in this case. That is:

(a) all intended plaintiffs must be named in the originating process,

(b) each and every intended plaintiff must give specific instructions (evidenced in writing) to their lawyers (or in this case, the plaintiff) to act for them,

(c) 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.

8. The plaintiff has held himself out as the leader of his clan for the purpose of the conduct of any litigation concerning clan matters. However, he has failed to comply with the rules as to commencement of representative proceedings in that:

(a) no clan members other than the plaintiff are named in the originating summons,

(b) there is evidence that only a handful of clan members have authorised the plaintiff to act for them,

(c) there is an abundance of evidence that has been presented by the third defendant, the plaintiff's father, which demonstrates that the plaintiff lacks actual authority to represent the clan.

9. The plaintiff's father has given evidence that he is the leader of the Clan and the proper person to, in accordance with custom, represent the Clan in all court matters, particularly those concerning customary land. The third defendant states that the plaintiff is his fourth born child and his second born son and that the plaintiff has no authority at all to commence these proceedings. He deposes that a recent case involving customary land that the plaintiff initiated in the National Court at Madang was commenced in the name of Anosos Clan but the plaintiff lacked authority to take that case to Court. (This was an application for leave to seek judicial review of a decision of the Provincial Land Court, which was refused by the National Court due to undue delay in making the application: Felix Alai of Anosos Clan of Tumleo Island v Nakot Waina & 3 Others (2012) N4773.)

10. I uphold the position of the third defendant. The plaintiff lacks authority to commence these proceedings. He therefore has no standing before the Court. Furthermore he has not adhered to the rules of practice and procedure regarding the commencement of representative proceedings. In these circumstances these proceedings are an abuse of process.

2. ARE THE PROCEEDINGS DEFECTIVE DUE TO A FAILURE TO DISCLOSE A REASONABLE CAUSE OF ACTION?
   

11. Whenever a person brings a case to court, 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. If the plaintiff's originating document does that, there is a reasonable cause of action. If not, it does not disclose a reasonable cause of action (Tigam Malewo & Ors v Keith Faulkner, Ok Tedi Mining Ltd & 3 Ors (2009) SC960; Kiee Toap v The State and Others (2004) N2766).

12. I uphold the defendants' argument that the originating summons fails to disclose any cause of action. No legal basis for the orders being sought has been revealed. Furthermore, the land in respect of which the orders are sought is not described in sufficient detail to make the orders meaningful and effective. Even when the evidence adduced by the plaintiff at the trial is considered, the plaintiff has failed to establish a cause of action that would make him entitled to, or at least eligible for, the relief sought. The proceedings are defective and misconceived.

3. CAN THE ORDERS SOUGHT BY THE PLAINTIFF BE GRANTED UNDER ORDER 3 OF THE NATIONAL COURT RULES?
   

13. The plaintiff submitted that, though it might not have been made expressly clear in the wording of the amended originating summons, the application for production of documents that he is making, is being made under Order 3 (discovery before suit) of the National Court Rules. He argues that this is the most appropriate procedure for a person to invoke when he is facing difficulty obtaining documents that he should be granted access to and which are needed to prosecute a civil claim.

14. I find no merit in this argument. The purpose of Order 3 is to allow a person who wishes to commence proceedings against a particular person or group of persons, but who is having difficulty identifying and describing accurately the proposed defendant, to obtain an order from the Court that a person attend before the Court and/or produce documents to the Court. The amended originating summons cannot properly be regarded as an application for orders under Order 3, Rule 1 as the orders are not being sought for the purpose of identifying any person. If they were so regarded, an essential precondition for the Court making such orders, set out in Order 3, Rule 1(a) has not been satisfied. The plaintiff has failed to establish a prima facie claim for relief against any person.

15. The Court cannot grant the orders sought by the plaintiff under Order 3 of the National Court Rules.

4 WHAT ORDERS OR DECLARATIONS SHOULD THE COURT MAKE?

16. The entire proceedings are misconceived. The plaintiff lacks authority to commence the proceedings and he has failed to disclose a reasonable cause of action. I find that in these circumstances the proceedings are an abuse of process and require dismissal in their entirety. I will exercise the discretion of the Court to wholly dismiss the proceedings under Order 12, Rule 40(1)(a) and (c) of the National Court Rules: the proceedings fail to disclose a reasonable cause of action and are an abuse of process.

17. It is evident that the plaintiff has commenced these proceedings against the strong wishes of his father, who has tried on a number of occasions to convince his son to pursue the grievances he has regarding land matters by means other than bringing his grievances to the National Court. The orders sought by the plaintiff have been vigorously opposed. In these circumstances it is fair and appropriate that costs of the proceedings, including this trial, follow the event: the plaintiff will pay all the defendants' costs.

REMARKS

18. I note in passing that the plaintiff might be better advised to seek a court order as to the production of the documents that he is seeking, by filing an application for enforcement of human rights – in particular the right of reasonable access to official documents under Section 51 (right to freedom of information) – by filing a Human Rights Enforcement Application under Rule 7 of the Human Rights Rules (Order 23 of the National Court Rules).

ORDER

(1) The proceedings are wholly dismissed.

(2) The plaintiff shall pay the defendants' costs of the proceedings on a party-party basis, which shall, if not agreed, be taxed.

Judgment accordingly.
______________________________________________________________
Thomas More Ilaisa Lawyers: Lawyers for the 1st & 2nd Defendants
William Akuani Lawyers: Lawyers for the 3rd Defendant
Solicitor-General: Lawyer for the 4th Defendant