Mapiso v Enga Provincial Government [2018] PGNC 559; N7722 (7 August 2018)

N7722

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 607 OF 2017(CC1)

BETWEEN
ERIC MAPISO & 16 SUB CALN REPRESENTATIVES OF YOPONDA TRIBES IN ENGA PROVINCE WHOSE NAMES APPEAR ON THE SCHEDULE ATTACHED TO THIS WRIT REPRESENTING YOPONDA TRIBE IN ENGA PROVINCE
Plaintiffs

AND
ENGA PROVINCIAL GOVERNMENT
Defendant

WAIGANI: Dingake J
2018 : 14 June & 7 August

Counsel:

Mr. Jack Pupu, for Plaintiffs
Mr. Laias Kandi, for Defendant

EX TEMPO RULING

7^th August, 2018

1. DINGAKE J: This is my ex tempore ruling, in this matter, the defendant/applicant has by way of notice of motion filed on 21^st May, 2018, document 7, filed on record, moved this Court for the following orders:
   • (1) That pursuant to Order 12 Rule 40(1) (a), (b) and (c) of the National Court Rules and of the Court’s inherent power, the entire proceedings herein be dismissed as no reasonable cause of action is disclosed, the proceedings are frivolous and vexatious or the proceedings are an abuse of the process of the Court;
   • (2) Alternatively, the entire proceedings be dismissed for want of notice under Section 5 of the Claims By and Against the State Act 1996 and the Enga Provincial Law on Claims Against the Enga Provincial Government and failing to plead condition precedents as required by Order 5 Rule 8(2) of the National Court Rules, Order 8 Rule 12 of the National Court Rules, Order 8 Rule 33 of the National Court Rules.
   • (3) In the further alternative, the entire proceedings be dismissed as being time barred pursuant to Section 16 of the Frauds and Limitations Act 1998;
   • (4) The plaintiffs pay the defendant’s costs and incidental to this application and the entire proceedings on a solicitor/client scale. Any further or other order the Court deems appropriate; the time of entry of these orders be abridged to the date of settlement by the Registrar which shall take place forthwith. The application relies on the affidavit of one Michael Kambao filed on 21^st May, 2018 and the affidavit of one Paul Kandi filed on 21^st May, 2018.
2. I have had regard to the originating process in this matter and all the accompanying documentation filed of record. It is pertinent that I must have regard to the terms of Order 12 Rule 40(1)(a), (b) and (c) of the National Court Rules. Order 12 Rule 40 read as follows:
   • “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, no reasonable cause of action is disclosed or the proceedings are frivolous or vexatious or the proceedings are an abuse of the process of the Court, the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings and the Court may receive evidence on the hearing of an application for an order under sub-rule (1).”
3. I have had regard to the originating process of the plaintiff. I have had regard to the writ and the endorsed statement of claim. The plaintiff alleges in its statement of claim, among other things, that on or around 1990, the Enga Provincial Government awarded the Hagen-Enga boarder security checkpoint contract to one Win Konjil being the owner of Minab Security Service, a locally owned security firm, from the Maimapalu clan of the Yoponda tribe in the Enga Province.
4. The above averment is supposed to ground the basis of the alleged breach of contract as per the originating summons. On the face of the Writ as endorsed by the statement of claim, it is plain that the defendant would be embarrassed to effectively answer the claim against it because the writ and the endorsement statement of claim are so materially lacking in terms of the precise terms of that agreement and the terms thereof, such as, who were the parties to that agreement and who signed on behalf of each. Without those particulars that are critical, it seems to me that the complaint by the applicant that the proceedings do not disclose a reasonable cause of action is merited. The alleged agreement is also not attached.
5. For that reason alone and I emphasise alone, I will dismiss these proceedings in their entirety. But in the event I am wrong in holding as I do that the proceedings do not disclose a cause of action, these particular proceedings brought by the plaintiff are littered with many irreconcilable procedural inadequacies on the face of the record.
6. The plaintiff is required to plead and prove that it issued a valid Section 5 Notice in terms of Claims By and Against the State Act of 1996. I have not had sight of that notice but it is pleaded in paragraph 9 of the plaintiff’s statement of claim and I quote that:
   • “Section 5 Notice under the Claims By and Against the State Act was given on 12^th May, 2018 and acknowledged receipt on 5^th October, 2018 constituting notice under Section 5.”
7. With respect to this particular point, learned counsel for the plaintiffs/respondents, Mr. Pupu, sought to persuade the Court that that will still hold because the wrong was continuing. There is no such pleading namely that the alleged wrong is continuing, in the originating summons. It was a statement delivered by counsel from the bar. So I therefore, hold that the proceedings stand to be dismissed on that basis that there is no evidence that a valid Section 5 Notice was given as required by Section 5 of the Claims By and Against the State.
8. Whilst still on this point, there is another relevant piece of legislation that is almost a replica of Section 5 of the Claims By and Against the State Act. That is the Enga Provincial Government Amendment Act 2000. That Act provides at Section 3(a) (1) and I quote:
   • “No action to enforce any claim against the Enga Provincial Government lies against it unless notice in writing of the intention to make a claim is given in accordance with this section by the claimant.”
9. It is my humble opinion that both Section 5 of the Claims By and Against the State Act and Section 3(a) (1) of the Enga Provincial Government Act are condition precedent to using the State and/or the provincial government. It follows, in my view, that the plaintiff having failed to plead and prove that he did issue a notice as contemplated by Section 3(a) (1) of the Enga Provincial Government Act means that the proceedings are in actual fact vexatious and an abuse of court process and are liable to dismissal accordingly. For that reason alone these proceedings fall to be dismissed.
10. On the face of the writ, it is stated that these proceedings are brought by Eric Mapiso and 16 sub-clan representatives of the Yoponda tribe in Enga Province whose names appear on the schedule attached to this writ representing Yoponda tribe in the Enga Province. The locus classicus case governing representative actions is arguably the Simon Malis’s case. It is a decision of the Supreme Court, SC 690, that has been brought to my attention.
11. In this case, the court had the following to state and I quote:
    • “We accept the State’s submission that in all actions of proceedings of a representative nature, all the intended plaintiffs be named and duly identified in the originating process, be it writ of summons, originating summons or statement of a claim endorsed on a writ ... pursuant to the rules, each and every person including plaintiff must give specific instructions evidenced in writing to the lawyers to act for them. There are good reasons for this, one being where costs of the litigation are concerned, if awarded against the plaintiff. Some of the problems or consequences in a representative action are anticipated in the various sub-rules under Order 5 Rule 13 of the National Court Rules.

That statement of the Supreme Court is binding on this Court and the plaintiff has fallen short of compliance with those provisions.

12. In the premises, for one or all of the above reasons it is necessary having regard to what I have already said, to deal with the balance of the arguments raised by the applicant in this matter. It follows, therefore, that the application ought to succeed.
13. I have already said that even in the event I was wrong in that regard, I will still dismiss the application for want of compliance with Section 5 of the Claims By and Against the State Act and its counter part, the Enga Provincial Act, Section 3(a). In this particular motion, the applicant says I must order costs of an incidental to this application on a solicitor/client scale. I have agonised a bit on that aspect and the temptation boiling to an almost an irresistible point for me to accede to it for the simple reason that, as I have stated, this application is littered with irreconcilable procedural deficiencies. It seems to be the kind of application where an order or a solicitor/client scale for costs will be merited. But I will temper justice with mercy as I must in this particular case. The plaintiffs/respondents will pay costs on the ordinary party to party scale.
14. In the result, it is ordered:
    • (1) That pursuant to Order 12 Rule 40(1) (a), (b) and (c) of the National Court Rules and of the Court’s inherent power:
      • (i) the entire proceedings herein be dismissed with costs, as no reasonable cause of action is disclosed.
      • (ii) The proceedings are frivolous and vexatious and an abuse of the process of the Court.

____________________________________________________________
Bradshaw Lawyers: Lawyers for the Plaintiffs
No Appearance: Lawyers for the Defendants