Muve v Alfred [2023] PGNC 171; N10218 (20 April 2023)

N10218

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 136 OF 2022

BETWEEN:
MOPO MUVE
Plaintiff

AND:
CHARLIE ALFRED
First Defendant

AND:
ANDREW JOHNSON
Second Defendant

AND:
TELIKOM (PNG) LIMITED
Third Defendant

Goroka: Mugugia, AJ
2023: 21^st March, 20^th April

PRACTICE AND PROCEDURE – Defendants’ motion to dismiss proceedings – Whether the proceedings should be dismissed pursuant to Order 8, Rule 27, Order 12, Rule 40(1)(a), (b) and (c) and Order 5, Rules 3, 8 and 13 of the National Court Rules - Exercise of discretion - Application refused.

Counsel:

Karen Lafanama, for the Plaintiff
Christopher Karaiye, for the Defendants

RULING ON APPLICATION TO DISMISS PROCEEDINGS

20^th April, 2023

1. MUGUGIA, AJ: I heard the Defendants’ motion filed on 13^th February 2023, seeking dismissal of the proceedings. The Plaintiff’s Counsel opposed the Defendants’ application. This is my ruling on this application.

2. The Plaintiff’s claim as I understand it is that he, a Clan Leader of Ginipai Hufa Clan, agreed to permit Telikom (PNG) Limited to erect a telecommunication tower (4G Telikom Tower) on customary land known as Husama Roka at Matega Village. A Land Usage Agreement was signed. Charlie Alfred signed as the officer representing Telikom (PNG) Limited. Thereafter, a Memorandum of Understanding was drawn up. The parties to this Memorandum of Understanding were Telikom (PNG) Limited and Mopo Muve. The purpose of the Memorandum of Understanding was for Mopo Muve and Telikom (PNG) Limited to consult each other and then enter into a formal agreement. The officers of Telikom (PNG) Limited did not consult Mopo Muve to draw up the formal agreement. Telikom (PNG) Limited erected the 4G Tower on a different location, and not on the land concerned which is Matega or any area within its vicinity.

3. Mopo Muve pleads Particulars of the Land Usage Agreement, Particulars of the Memorandum of Understanding, Particulars of Wrongs and Particulars of Losses, Worry and Anxiety in his Statement of Claim endorsed to his Writ of Summons filed on 10^th March 2022. He claims general damages, special damages, interest and costs.

4. A number of orders were sought in the Defendants’ motion filed on 13^th February 2023. The parties’ lawyers consented for the Defendants to withdraw their defence filed on 13^th January 2023, and for the Defendants to file their defence out of time.

5. The Defendants’ lawyer moved for dismissal of the proceedings pursuant to Order 8, Rule 27, Order 12, Rule 40(1)(a), (b) and (c), and Order 5, Rules 3, 8 and 13 of the National Court Rules.

6. An issue that arose was whether or not the Court has the jurisdiction to deal with an application when no defence has been filed. Counsels addressed this issue. Both Counsels were in agreement that an applicant for dismissal can still file an application if there is no defence filed.

7. I have fully considered the documentation before me and the parties’ submissions, especially the grounds raised by the Defendants in support of their application for dismissal.

8. I remind myself of the purpose of the Rules of Court that give the National Court power to terminate actions or claims where no reasonable cause of action is disclosed, where actions or claims are plainly frivolous or vexatious or untenable, where proceedings are an abuse of process or where there is lack of representative capacity. The power of the National Court to terminate actions or claims is discretionary and must be exercised based on proper principles.
9. I have taken into account the relevant Rules and the law applicable. After consideration of the Plaintiff’s pleadings, I am of the view that there is merits in the substantive matter. The Plaintiff has a genuine case. His case is arguable. He has come to this Court to seek redress and he should not be driven from the judgment seat.

10. I am of the view that the issues raised by the Defendants now can be raised at the substantive hearing.

11. The parties’ lawyers had consented to the order sought in the Defendants’ motion to file defence out of time, so I will make an order for the Defendants to file their defence out of time. If there is a need for the Plaintiff to amend the original pleadings to properly plead the claim, then he can do so under Order 8, Rule 50(1) of the National Court Rules. Affidavit materials for the substantive hearing can then be filed by the parties. This is the best way forward in dealing with this case instead of summarily dismissing the proceedings at this interlocutory stage. This will give the parties the opportunity to better plead their respective cases, especially the Defendants to plead their defence. I see this as the fair thing to do.

12. Under Order 12, Rule 1 of the National Court Rules (General relief), the Court may, at any stage of any proceedings, on the application of any party, direct the entry of such judgement or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgment or order in any originating process.

13. I remind myself to consider the overall requirement to do justice in this case. Considering the circumstances, I will not dismiss the proceedings based on the grounds raised in the Defendants’ motion at this interlocutory stage. I shall refuse the Defendants’ application to dismiss the proceedings pursuant to Order 12, Rule 1 of the National Court Rules. Leave shall be granted to the Defendants to file their defence out of time. An order for costs is discretionary. I order that parties bear their own costs.

FORMAL COURT ORDERS

14. In the exercise of my discretion, I make these Orders:

1. The Defendants’ Notice of Motion filed on 13^th February 2023 is refused.

2. Leave is granted to the Defendants to file their defence within 14 days.

3. Parties shall bear their own costs.

4. Time is abridged to the time of settlement to take place forthwith.

Court Orders Accordingly.

Office of the Public Solicitors: Lawyers for the Plaintiff
Telikom (PNG) Ltd In-house Lawyers: Lawyers for the Defendant