Nilkare v PNG Power Ltd [2018] PGNC 528; N7669 (23 November 2018)

N7669

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1209 of 2015

BETWEEN:
LUCAS NILKARE
Plaintiff

AND:
PNG POWER LIMITED
Defendant

Waigani: Hartshorn J.,
2018: 23^rd November

Trial

Cases Cited:

Paul Tohian v. Tau Liu (1998) SC566
William Ekip Wii v. Gari Baki (2009) N5898
PNG Power Ltd v. Augerea (2013) SC1245
Public Curator of Papua New Guinea v. Kara (2014) SC1420

Counsel:

Mr. J. Simbala, for the Plaintiff

23^rd November, 2018

1. HARTSHORN J: The plaintiff, Mr. Lucas Nilkare, sues PNG Power Ltd in respect of power pylons and transmission lines erected upon and passing over his property. Mr. Nilkare seeks amongst others, a mandatory injunction and damages. The defendant, PNG Power Ltd denies Mr. Nilkare’s claim.

2. When the trial of this matter came before this court for hearing, there was no representation on behalf of PNG Power Ltd. I permitted the trial to proceed as I was satisfied that the lawyer for PNG Power Ltd had appeared when the hearing date and time of the trial was set by this court.

Preliminary

3. In regard to PNG Power Ltd, the Supreme Court case of PNG Power Ltd v. Augerea (2013) SC1245 which was followed by Public Curator of Papua New Guinea v. Kara (2014) SC1420 in essence revisited what entities are to be included in the definition of “State” in the Claims By and Against the State Act (Claims Act). PNG Power Ltd would now be included in the term “State” and so a notice of intention to make a claim pursuant to section 5 Claims Act is required to have been given before this proceeding was commenced.

4. In this regard I refer to the Supreme Court case of Paul Tohian v. Tau Liu (1998) SC566 which held that the requirement to comply with s. 5 Claims Act is a condition precedent that must be complied with before a proceeding is issued.

5. This s. 5 Claims Act issue has not been pleaded in the statement of claim or defence and was not referred to in the submissions made on behalf of the plaintiff at trial.

6. This does not preclude this court from dealing with the matter summarily. In William Ekip Wii v. Gari Baki (2009) N5898, I said at [8]-[9]:

“8. The Plaintiffs however, are claiming for acts of trespass that occurred since 1980. As a consequence, the issue is raised as to whether this court has jurisdiction to consider such a claim given s. 16 Frauds and Limitations Act. The issue was not argued before me. One of the arguments would have been that the Defendants should have pleaded the “limitation” defence. The Supreme Court in The State v. Brian Josiah (2005) SC792, said the following concerning the non-pleading of a “limitation” defence:

“We therefore cannot accept Mr. Dataona’s submission’s that it is a statutory defence which should have been raised in the pleading. If a claim is not sustainable at law....... what difference would pleading of statute of frauds and limitations make? Can failure to plead cure a clear defect in law? Certainly not”

This decision is binding on this court.

9. I note the following comments of Injia J. (as he then was) in Karl Paul v. Awai Kispe (2001) N2085 which were cited with approval in Brian Josiah’s case (supra):

“there is a wide discretion vested in the Court by the NCR to screen and weed out claims which do not disclose a reasonable cause of action, are frivolous and vexatious or an abuse of process of the Court, (O12 r40) or the documents filed in Court are scandalous, irrelevant or otherwise oppressive (O2 r29), or on the ground of irregularity. That discretion is normally exercised upon application by an interested party. Nevertheless, it goes without saying that the Court may exercise that discretion on its own initiative. It is open to the Court to raise and determine questions covering the regularity (O1 r1-9) or competency of proceedings at any stage of the proceedings with or without application by an interested party.””

7. In this instance there is no evidence that the requisite s. 5 notice was given. It is not pleaded that such notice was given. The giving of such a notice is a condition precedent that must be complied with before a proceeding is commenced. The court may conclude that such notice was not given and that it should have been. Consequently the plaintiff’s claim is not sustainable at law. No reasonable cause of action is disclosed and the claim may be categorised as frivolous and vexatious. In such circumstances, I am satisfied that this court may exercise its discretion on its own initiative and dismiss this proceeding for the reasons given.

Orders

a) This proceeding is dismissed;

b) No order as to costs;

c) Time is abridged.
_____________________________________________________________
Harvey Nii Lawyers: Lawyers for the Plaintiff
PNG Power Limited: Lawyers for the Defendant