N7431
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 592 of 2014

BERNARD BATARI, MATHEW TORI, MARK HAWAI & MARTIN BUBU for themselves & on behalf of Keveloho, Kablingo, Kekea, Hie & Mari Clan of Gaongo and Mosa Villages
Plaintiffs

V
WILLIAM KING-Project Manager Covec (PNG) Limited
First Defendant

AND
COVEC (PNG) LIMITED
Second Defendant

AND
PETER YIU-General Manager Stettin Bay Lumber Co. Ltd
Third Defendant

AND
STETTIN BAY LUMBER COMPANY LIMITED
Fourth Defendant

Kimbe: Miviri AJ
2018: 10th August

PRACTISE & PROCEEDURE – Notice of Motion – Application for dismissal of proceedings Or 12 r 40 NCR – frivolous and vexatious – abuse of process – without merit – discretionary – facts in favour of exercising – nothing apparent or identifiable to deny – motion granted.

Cases Cited:

PNG Deep Sea fishing Ltd v Critten [2010] PGSC 53; SC1126 
Rimbunan Hijau (PNG) Ltd v Enei [2017] PGSC 36; SC1605 
Gramgari v Crawford [2013] PGNC 14; N4950 
Philip Takori v Simon Yagari (2008) SC905
Kumbe v Motor Vehicles Insurance Ltd [2005] PGNC 110; N2860
Kerry Lero trading as Hulu Hara Investments Ltd v Philip Stagg (2006) N3950

Counsel:

F Kua, for Plaintiffs
P Mokae, for Third & Fourth Defendants 
A, Kumbari, for Cross Claimant
					
RULING
 24th August, 2018 
1.	MIVIRI, AJ: The Third and Fourth Defendants by Notice of Motion invoking Order 12 Rule 40 of the National Court Rules, “the rules” seeks that the amended Writ of Summons by the Plaintiffs discloses no reasonable cause of action, or is frivolous and vexatious, or being an abuse of process. Alternatively pursuant to Order 8 Rule 27 that the entire proceedings be dismissed for being improper without merit and an abuse of process of Court. Costs by Plaintiffs and any other orders. 

2.	It is also preliminary at this juncture to state a motion of withdrawal of motion for joinder as a party and cross claimant by Thomas Baiba who has filed an affidavit in support sworn the 10th August, 2018 filed the 13th August, 2018. Effectively he has asked to open the door and close it without entering by reliance on Order 8 Rule 61 (c) of the National Court Rules. It reflects that he does not know what he is doing where he is going in the dispute. Where he fits into the dispute how the dispute affects him. To so do and persist as he does here is an abuse of process. Because a party seeking to be joined has and must have sufficient interest in the proceedings and joinder is necessary for an effective determination of the issues raised.  And here also it is important to have regard to the cause of action. Pleadings or supporting affidavit material must connect the party seeking to be joined as having an interest in the proceedings: PNG Deep Sea fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010). The Plaintiffs and Beli Tribe dispute over the Kapiura River and its bed and the third and fourth defendants are not parties to that dispute. So the joinder sought and now sought to be withdrawn is an abuse of court process. It is granted in the terms sought with costs.

3.	Going back to the other matter Order 12 is headed Judgements and Orders and rule 40  Frivolity, etc. is in this terms, “(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings-

(a)	No reasonable cause of action is disclosed; or
(b)	The proceedings are frivolous or vexatious; or
(c)	The proceedings are an abuse of the process of court,
(d)	The court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

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

4.	The Plaintiffs have filed this Writ of Summons, “the writ” since the 05th June, 2014 for Compensation for illegal extraction of gravel and aggregates from the Kapiura River banks against the defendants including third and fourth defendants. Which up to today’s date would be 4 years 2 months and nothing concrete has eventuated if indeed it is a genuine claim against the third and fourth defendants or the action as a whole. Looking at the history of the file it appears that the matter has simply being carried on to the next call over and the like up to now. There appears to be nothing constructive taken to bring the litigation to a finality by the Plaintiffs who are deemed to have suffered at the hands of the defendants. No one sleeps over his rights or an action at law glaring on his behalf. Four years 2 months is more than ample time to bring the matter to an end in law and the defendants third and fourth have been dragged along by the plaintiffs without due diligence in bringing this matter to finality.

5.	The facts are clear that it is the First and Second Defendants who ferried out the stones and aggregates for the purposes of works on the redevelopment of the Hoskins airport. A National project no doubt the Independent State of Papua New Guinea is involved and which would have been one of the immediate parties that comes to mind in the matter. A next door neighbour cannot be responsible for what happens adjacent unless it can be shown he had knowledge and did part take in what the other is doing and that he is a direct beneficiary either monetary or otherwise. That is the situation here with the third and fourth defendants and the plaintiffs. Because they are on next they must have been part of that national project by allowing their lease to be used by the trucks to take out the gravel and therefore benefit with income from it. There is no affidavit material primae facie to keep the action here above water. As to how the Third and Fourth Defendants are parties to the proceedings and have a cause of action against the Plaintiff remains to be seen. Conversely it is rebuttable that the land is customary of the Plaintiff’s remains to be seen by the material filed. This is an important observation because the tort of trespass requires possession by the landlord it is an essential element for so finding. Here it would be the customary owner and from the materials filed and relied on that does not seem to be in favour of the Plaintiffs.

6.	The Affidavit of Martin Bubu dated the 30th March, 2016 filed the 31st March, 2016 relied upon by the Plaintiffs to sustain the amended Writ bears no evidence to sustain that the Kapiura River and its bed are owned customarily by his people. The annexure to his affidavit do not bring solution on this issue. What is clear though is that there is dispute over customary ownership of the Kapiura River and bed between the Plaintiffs and another in these proceedings Thomas Baiba by his affidavit sworn 10th August 2018 filed the 13th August 2018.  That affidavit shows that there is dispute over Kapiura River and its bed between the deponent and the Plaintiff. It is only proper that that is brought to finality before an appropriate forum which is not this proceeding and the parties named. Which also means that the motion by Thomas Baiba is granted for leave to exit the proceedings with costs.

7.	The Third and Fourth Defendants do not argue with the Plaintiffs that the Kapiura river and its bed is customarily owned. They accept it as not theirs and have filed the affidavit of Peter Yiu sworn the 19th June, 2018 filed the 25th June, 2018. Where Special purposes lease Portion 78 milinch Dagi Fourmil Talasea area 8262 WNB is set as forty years in the name of Stettin Bay Lumber Company Proprietary Limited. A survey plan and map of the subject lease is also set out including the boundaries. Then further District Land Court Order at Kimbe West New Britain dated the 26th February 2007 DLC: 06/2007, parties to the proceedings were Naiki Evesovul Clan of Ru village, Thomas Baeba of Keveloho Clan, Patrick Hue of Kakea Clan, Lamalibuko Incorporated Land Group Umbrella ILG of Beli Tribe –Complainants and Mosa Clan –defendant. The order is not clear as to which piece of land the order relates to. Presiding magistrate is Luke Vava. It is also uncertain as to whether or not the plaintiffs are linked to this order. So to tie as Trespass against the third and fourth defendants will not stand without the ownership to the subject land. It also does not measure as to damages upon them how have they gained from the trespass what are the key factors to measure these damages. What resources have been extracted by the third and fourth defendants to make them liable is also not clear. Essentially maintaining a cause of action against the third and fourth defendants.

8.	Simply put Are the Third and Fourth Defendants responsible for the actions of the First and Second Defendants in the removal of stone gravel and aggregates from the Kapiura River and its bed. In my view a reasonable cause of action would emanate and materialize	 if ownership and title to the subject river and its bed is settled warranting the life of the writ of summons against the third and fourth defendants. Because that is what the law is where trespass is pleaded, there ought to be ownership or title before a person is said to be trespassing on the property of another, Rimbunan Hijau (PNG) Ltd v Enei [2017] PGSC 36; SC1605 (25 September 2017). Plaintiffs are effectively contending that the Third and Fourth Defendants had no authority to get the First and Second defendants to get stones and aggregates from the Kapiura River. To extend this contention there must be evidence of this fact.  In so doing they committed trespass and that they were negligent obviously invoking that the third and fourth defendants had a duty which they were negligent in discharging particulars set out therein: Gramgari v Crawford [2013] PGNC 14; N4950 (30 January 2013). 

9.	What then is the evidence relied upon that there is ownership in the Plaintiffs upon the subject river and its bed. Counsel has pointed the court to the Affidavit of Martin Bubu dated the 30th March 2016 filed the 31st March 2016. The highest his evidence makes is pointed out above suffice to say not enough to establish beyond the balance of probabilities ownership of the subject river and its bed in his favour.

10.	Further there is no plea of fraud pleaded in the Statement of Claim of the Plaintiffs upon and against the third and fourth defendants because bona fide the title is in dispute. It is unclear as to the allowance or authority given by the fourth defendant for the extraction of the aggregate and stones let alone the third defendant for the same. Nor is there a cause of action for breaches of the Constitution by the third and fourth defendants. An innocent by stander is not an active participant of a criminal action in similar fashion a duty of care arises if it is reasonably foreseeable: Kumbe v Motor Vehicles Insurance Ltd [2005] PGNC 110; N2860 (28 July 2005). Would the third and fourth defendants bear a duty of care towards the plaintiffs and in what way are they negligent therefore a cause of action.

11.	An authoritative restatement of principles relevant to summary dismissal of claims alleged to be frivolous or vexatious is in Philip Takori v Simon Yagari (2008) SC905. In that case the Supreme Court approved the following principles explained earlier in Kerry Lero trading as Hulu Hara Investments Ltd v Philip Stagg (2006) N3950:
“Our judicial system should never permit a plaintiff or a defendant to be 'driven from the judgment seat' in a summary way, 'without a Court having considered his right to be heard'. A party has a right to have his case heard, as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the Court. That right cannot be lightly set aside. At the same time however, the law, such as the Rules under consideration, provide for and the Court has an inherent jurisdiction to protect and safeguard against any possible abuse of the processes of the Court. The object of these rules are therefore 'to stop cases which ought not to be launched — cases which are obviously frivolous or vexatious or obviously unsustainable'. In other words 'the object of the rule was to get rid of frivolous actions'. A claim may be frivolous if it can be characterized as so obviously untenable that, it cannot possibly succeed or that, the claim or defence is bound to fail, if it proceeds to trial. A claim or defence may be vexatious, if the case amounts to a sham or one which, cannot succeed and is one that amounts to harassment of the opposing party who is unnecessarily put to the trouble and expenses of defending or proving the claim. With regard to the issue of disclosing a reasonable cause of action or defence, the Court must be clear that, there are two parts to the phrase 'cause of action'. First, it entails a right given by law, such as an entitlement to reasonable damages for breach of human rights under s. 58 of the Constitution, commonly referred to as, the 'form of action'. Secondly, it entails the pleadings disclosing all the necessary facts which give rise to the form of action.The phrase 'cause of action' could thus be defined in terms of a legal right or form of action known to law with: 'every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise of every piece of evidence which is necessary to prove each fact, but every fact is necessary to be proved.' A statement of claim or a defence (as the case may be) must therefore, clearly plead the form of action by pleading the necessary legal elements or ingredients of the action and the relevant and necessary facts (not the evidence) giving rise to the form of action. It follows therefore that, where a statement of claim or a defence is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified, and instead leaves it to guess work, it should be struck out. These rules provide a summary judgment procedure or remedy which is available to a plaintiff or a defendant, and one which vests and calls for an exercise of a discretion by the Court. The discretion must be exercised sparingly and only in a case where the statement of claim or the defence (as the case might be) is 'obviously and almost incontestably bad.' In other words this discretion can be exercised only in cases that 'are plain and obvious so that the master or Judge can say at once that the statement of claim [or defence] as it stands, is insufficient, even if proved, to entitle the plaintiff [or defendant] to what he asks' for.
12.	This is not the same situation by its facts and circumstances as in Joe Koroma & 3 Ors v Mineral Resources Authority & 3 Ors [OS 280 of 2009] (10 July 2009) the third and fourth defendants cannot be made liable to the plaintiffs for merely providing access to the first and second defendant to take gravel and aggregates to service a State contract to upgrade the Hoskins airport. That is a national project that must not be held to ransom over an allegation that will not sustain against the third and fourth defendants. A right to be heard against the defendant arises not on remote but real damages suffered. It is not academic a right is involved there is tangible interest in pursuing. In this regard there must be pleaded clearly all legal elements and facts not the evidence giving rise to the form of action. In my view the facts and circumstances here do not warrant allowing the amended writ as it is against third and fourth defendants. Given all set out above the basis for granting the motion to declare as frivolous and vexatious has been made out. Further no reasonable cause of action has been made out against the third and fourth defendants. The proceedings naming them as third and fourth defendants are an abuse of the process of court and are therefore struck out and dismissed as frivolous and vexatious and an abuse of court process.

13.	Motion of the Third and Fourth Defendants is granted in accordance with the terms sought.

14.	The cost will follow the event. 

Orders Accordingly.
__________________________________________________________________
Felix Kua Lawyers: Lawyer for the Plaintiff Applicant		
Justin Talopa Lawyers: Lawyer for the Defendant
Kumbari & Associate Lawyers: Lawyer for Joinder Cross Claimant