N8804
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 423 OF 2011

BETWEEN
TEDDY MAINA & ORS
Plaintiff

AND
MAINA JOHN MUNOM
First Defendant

AND
DAMA MOSES
Second Defendant

AND
JOHN PAGARI
Third Defendant

AND
MARINA SANSAN
Fourth Defendant

AND
DIGICEL (PNG) LIMITED
Fifth Defendant

Waigani:  Thompson J
2021:  8th, 9th April

PRACTICE AND PROCEDURE – application by defendants seeking orders to dismiss proceedings for being frivolous and vexatious and for failing to disclose a reasonable cause of action – principles for such applications are well settled - whether the statement of claim pleads a cause of action known to law, with the facts necessary to establish that cause of action - the statement of claim fails to disclose a reasonable cause of action against them, and it cannot be cured by amendment - plaintiffs’ case is obviously and almost incontestably bad, and the lack of jurisdiction cannot be cured by amendment – proceedings is an abuse of process – proceedings dismissed

Cases Cited
Kuman v Digicel (2019) PGSC 72
Phillip Takori and Others v Simon Yagari and Others (2007) PGSC 48
Rimbunan Hijau Ltd v Ina Enei and another (2017) PGSC 36
Siu v Wasime Land Group Inc (2011) PGSC 4

Counsel:

Mr. N Vada, for the Plaintiff
T. Kuma, for the Third, Fourth & Fifth Defendants

9th April, 2021

1.	THOMPSON J:	The Third-Fifth defendants (“the defendants”) are applying under Order 12 Rules 1 and 40 to dismiss the proceedings for being frivolous, vexatious, and abuse of process, and failing to disclose a reasonable cause of action.
2.	The principles applicable to such applications are well-settled.  As set out by the Supreme Court in Phillip Takori and ors v Simon Yagari and ors (2007) PGSC 48, the court should not permit a plaintiff to be driven from the judgment seat except in the clearest of cases.  A claim may be frivolous if it is obviously untenable and it cannot possibly succeed if it proceeds to trial. A claim may be vexatious if it cannot succeed and it amounts to harassing the other party and unreasonably putting them to the expense and time of defending the claim.  In order to disclose a reasonable cause of action, the statement of claim must show a right given by law, and then it must show all the facts giving rise to that cause of action.  The Statement of Claim must clearly plead each of the legal elements of the cause of action, and the facts giving rise to it.  Where a Statement of Claim is so bad or vague that it cannot be cured by further particulars or amendment, it should be struck out.
3.	This discretion to strike out should be exercised sparingly by the court, and only in the most plain and obvious of cases.  If the court can say at once that even if the claim as pleaded is proved, it will not entitle the plaintiff to the relief sought, it should be struck out.  
4.	I have therefore considered the statement of claim filed on 12 May 2011.  It is lengthy, and not at all clear.  It is difficult to discern exactly what rights the plaintiffs are claiming to have, and how those rights give rise to a cause of action against the defendants.
5.	 The plaintiffs described themselves as representing the Aura Gunua and Toi-Sinowai Clans (“the two clans”).  They plead that the first and second defendants are members of the two clans.  They plead in 2007, the fifth defendant secretly acquired a piece of land from the first and second defendants and built a tower on it.  They say that this was customary land owned by the two clans, and that although the first and second defendants are members of the two clans, the first and second defendants’ rights are “subservient to the group titles”, so that they had no right to allow the fifth defendant to acquire the land.  They say that the first and second defendants had the right to use the land, but could not deal with it or dispose of it.  No relief is claimed against the first and second defendants arising out of these.
6.	The allegations against the fifth defendant are that it was advised or “oath to have been advised” that it should deal with the two clans in order to acquire the land, that foreign companies could not acquire customary land, the fifth defendant did not do so, and should have foreseen that these would result in intergroup fighting, loss and damage.  The main pleading is then that after the plaintiffs became aware of the tower built in 2007, they had “intergroup fights” between the two clans in 2008, and also with another clan who lived nearby, which resulted in property damage, injury and death.  
7.	They do not identify any duty of care owed by the fifth defendant to the plaintiffs.  They plead that these intergroup fighting was due to the fifth defendants’ negligence by “not seeking proper advice on the nature of customary land tenure”, the fifth defendant did not have the power to acquire the land, and should have dealt with the plaintiffs and not the first and second defendants.  They say that the fifth defendant “did not follow proper procedures in the acquisition of the land”.  
8.	The relief sought against the fifth defendant is for declarations that the fifth defendant had no power to acquire the land, the fifth defendant was in breach of the Land Act and was negligent in the acquisition of the land, the tower is illegal, and claims for general, special and punitive damages of over K2.5m for the losses incurred in the intergroup fighting.
9.	Applying the relevant principles to those matters pleaded, the issue is whether the statement of claim pleads a cause of action known to law, with the facts necessary to establish that cause of action.
10.	The first point is that the fifth defendant did not in fact acquire the land.  It just paid the first and second defendants for its use.  It follows that all the allegations based on alleged failures to comply with unspecified procedures under unspecified provisions of the Land Act relating to the acquisition of land, are irrelevant.    The plaintiffs cannot succeed at trial on any of those allegations based on the land being sold to the fifth defendant, as the land has never been sold to it. 
11.	There are many other defects in the pleadings, which might be able to be cured by amendment, although if the references to the acquisition of the land are removed, it is not clear what new cause of action might replace them, or if such new cause of action could not be time-barred, as the conduct occurred in 2007-2008.
12.	However, there are two more fundamental matters which are unable to be cured by amendment.
13.	The first is the nature of damage caused by the intergroup fighting.  Destruction of property, assaulting and killing people are all offenses under the Criminal Code.  Further, S 11 of the Intergroup Fighting Act makes participation in an intergroup fight, a criminal offence, and where someone is killed in the fighting, as in this case, the offenders can be charged with murder.
14.	The plaintiffs plead that the two clans took part in intergroup fighting with each other in which property was destroyed, and people were injured and killed.  The statement of claim does not disclose a cause of action arising out of these facts, which allows criminals to hold third parties liable for the criminals’ own actions. The defendants did not participate in an intergroup fight, and the defendants did not destroy the plaintiffs’ property or injured the plaintiffs.  It was the plaintiffs who did this to each other.  None of the plaintiffs are the servants or agents of the defendants.  The plaintiffs attacked and fought each other.  No cause of action known to law is pleaded in this statement of claim which gives a right to criminals who have committed serious offenses, and who have caused injury and loss to each other, to assert that a third party should compensate them for that injury and loss.  An action by offenders who inflicted injury and loss on each other during the commission of offenses, for damages to be paid to them by anyone other than those persons who actually inflicted the injury and loss, is not a cause of action caused known to law, and would in any event be against public policy.
15.	The plaintiffs are now assisted by the case of Rimbunan Hijau Ltd v Ina Enei and another (2017) PGSC 36, because unlike in that case there is no determination that the plaintiffs are customary landowners of this piece of land with the sole rights to deal with it, and the plaintiffs have admitted that the first and second defendants are also customary landowners who have rights of usage of the disputed land, and so the plaintiffs cannot show that the fifth defendant erred in dealing with the first and second defendants, or committed any trespass, and most significantly, the plaintiffs in Enei’s case did not cause the loss and damage themselves, it was the defendant who did that.
16.	As confirmed by the Supreme Court in the other case brought by the same two clans over the same issue, in Kuman v Digicel (2019) PGSC 72, whatever grievance the plaintiffs had, it was illegal for them to engage in tribal fighting over it.  Any claim for damages based on their own illegal conduct, is without legal foundation.
17.	As this claim is not maintainable against the defendants, the statement of claim fails to disclose a reasonable cause of action against them, and it cannot be cured by amendment.
18.	The second issue is the most fundamental one.  The plaintiffs’ claims has pleaded in the statement of claim, of whatever nature, are all based on the assertion that they are the customary landowners, and that although the first and second defendants are also customary landowners, it was only the plaintiffs who had sufficient interests in the land to deal with the small parcel of land within the greater area of the customary land, used by the fifth defendant.  They say that the first and second defendant’s interests in the land, do not extend to allowing them to lease it out without the plaintiffs’ approval.  The plaintiffs’ pleadings in paras 17-25 set out the dispute between them and the first and second defendants on this issue.
19.	However, under the Lands Disputes Settlement Act, such disputes concerning interests in customary land, can only be determined by the Local Land Court.   Interests in customary land also include interests over the use of the land, and financial benefits derived from the use of the land.  The Supreme Court in Siu v Wasime Land Group Inc (2011) PGSC 4, established that the National Court has no jurisdiction to determine disputes over interests in customary land, and any National Court proceedings seeking court recognizing of interests in customary land, amounts to an abuse of process because it does not disclose a reasonable cause of action.  
20.	In the present case, the plaintiffs have not directly sought recognizing of their interests in the customary land.  However, that recognizing is the only basis on which their action is founded. They can only succeed at trial if their dispute with the first and second defendants over their respective interest in the customary land, has been determined in their favour.  This court cannot determine the dispute in their favour, indeed, it cannot determine the dispute at all, because it is the Local Land Court which has the jurisdiction to determine disputes over interest in customary land. 
21.	Because the dispute over the rights and interests in the customary land still exists, as pleaded in the statement of claim, and because this dispute cannot be determined by this court, the plaintiffs’ claim cannot possibly succeed, and the claim is bound to fail at the trial.
22.	This is not an issue which has taken the plaintiffs by surprise.  The same two clans issued similar proceedings against the same fifth defendant on WS 961 of 2011, also claiming damages for the loss, injury and death sustained in the same intergroup fighting.  Those proceedings were dismissed for failing to show a reasonable cause of action, and for the court lacking in jurisdiction to determine the dispute over interest in the customary land.  In fact that the court ordered the two clans to have their dispute determined in the local land court in accordance with the Lands Dispute Settlement Act. This still has not been done. The plaintiffs’ appeal against that decision was dismissed.  As a result, they were urged by the defendants to discontinue these proceedings, but they did not do so.  
23.	Leaving aside the strong possibility that because of the other proceedings, the plaintiffs claim is raised res judicata, and raises various issue estoppel grounds, the fact remains that the plaintiffs have been aware of the two fundamental defects in their claim for many years, found by the National Court and confirmed by the Supreme Court, but have taken no steps to remedy them, by amendment or otherwise, and more fundamentally, by having their dispute over the customary land determined in the Local Land Court.  It has been ten years since filing the writ, and it could not be said that the plaintiffs are being summarily driven by the seal of judgment, or that the plaintiffs have had not an opportunity to be heard by presenting their case in accordance with the law. 
24.	The Courts have a duty to protect against cases which are frivolous, vexatious or obviously unsustainable.  Here, the plaintiffs’ case for showing that the fifth defendant in some unspecified way, owed them a duty of care, is very weak.  Their case for showing that the loss and damage inflicted by themselves was caused by a breach of a duty of care by the fifth defendant, is even weaker.  Their case for showing that the fifth defendant is liable to pay damages to the plaintiffs for the plaintiffs’ own criminal conduct, is plainly untenable. And finally, the plaintiffs are unable to even start their case without showing that their dispute with the first and second defendants over their interests in the customary land, has been determined in their favour in the Local Land Court, so that they are in fact the landowners with whom the fifth defendant should have dealt, and not the first and second defendants.  Without that determination having been made this court has no jurisdiction.
25.	I am satisfied that the plaintiffs’ case is obviously and almost incontestably bad, and the lack of jurisdiction cannot be cured by amendment.  The statement of claim therefore fails to disclose a reasonable cause of action, and in all the circumstances, it is an abuse of process.  
26.	I therefore make the following orders:  
	(a)	The proceedings are dismissed as against the third, fourth and fifth 			defendants.
	(b)	The plaintiffs are to pay the third, fourth and fifth defendants’ costs, 			on a party/party basis, to be agreed or taxed.
___________________________________________________________
Lawyers for the plaintiff:  Nowa Lawyers
Lawyers for the Third, Fourth and Fifth Defendants:  Bradshaw Lawyers