N10176
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO. 380 OF 2020

BETWEEN:
FRESH PRODUCE DEVELOPMENT AGENCY LTD.
Plaintiff

AND:
MACKENZIE JIKIAN (SNR)
First Defendant

AND:
JOHNNY MINGA WEMIN
Second Defendant

AND:
GURE’AHAFO TUMAE, NOEL YORI KUMAN AND WAYNE POWAE
Third Defendant

Goroka: Mugugia, AJ
2023: 16th, 24th March

PRACTICE AND PROCEDURE – Defendants’ motion to dismiss proceedings – Ground - The Plaintiff has no locus standi to bring this action – Abuse of process – Alternative ground - Proceedings is frivolous and vexatious - Whether the proceedings should be dismissed pursuant to Order 12, Rule 40(1)(b), Rule 40(1)(c) and Rule 1 of the National Court Rules - Exercise of discretion - Application refused – Order for conversion to pleadings.  

Counsel: 

B. Koningi, for the Plaintiff 
G. Gendua, for the Defendants 

RULING ON APPLICATION TO DISMISS PROCEEDINGS  

24th March, 2023 

1. MUGUGIA, AJ: The Defendants came before this Court with their Notice of Motion (motion) filed on 3rd March 2023, seeking dismissal of the proceedings. The main ground raised in the motion is that the Plaintiff company has no locus standi to bring this action. This amounts to an abuse of process, and therefore should be dismissed. The alternative ground raised in the motion is that the proceedings is frivolous and vexatious. Based on this ground, the proceedings should be dismissed in its entirety. 

2. The Plaintiff, through Counsel Mr Koningi, opposed the application. I heard the application on 16th March 2023, and reserved my ruling to 24th March 2023. I now rule on the Defendants’ motion.  

3. The Defendants cited Order 12, Rule 40(1)(b), Rule 40(1)(c) and Rule 1 of the National Court Rules in their motion to confer jurisdiction on the Court to make the orders sought. 

4. Rule 40 of Order 12 of the National Court Rules provides for ‘Frivolity, etc.’. Rules 40(1)(b) and 40(1)(c) read:
 
“(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) …

(b) the proceedings are frivolous or vexatious; or   

(c) 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.” 
5. The purpose of Order 12, Rule 40 of the National Court Rules is to give the Court power to terminate actions or claims which are plainly frivolous or vexatious or untenable. An action or claim is bound to be terminated if it amounts to an abuse of the process of the Court. The power conferred on the National Court to dismiss is discretionary and must be exercised based on proper principles. 
6. 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 judgement or order in any originating process. 
 
7. Should I invoke the Court’s jurisdiction pursuant to the Rules relied on by the Defendants to dismiss the proceedings based on the grounds raised in their motion?

8. The Plaintiff is responsible for implementing government policy on fresh vegetables and fruits. Its function is to encourage and facilitate growth, production, transportation and marketing of the fresh vegetables and fruits by farmers throughout the country.  

9. The Plaintiff commenced the current proceedings by originating summons on 18th November 2020. It sought a number of declaratory orders. The primary relief it seeks is a declaration that the Plaintiff has always been and is the only rightful owner of the copyright in three separate work titled: (1) ‘Bulb Onion Production and Marketing Extension Training Manual’, (2) ‘Village Extension Worker (VEW) Operational Manual’, and (3) ‘Production and Marketing of Bulb Onion in Papua New Guinea’.

10. The Plaintiff’s originating summons was accompanied by an affidavit of facts (Affidavit of Mark Worinu filed on 18th November 2020). The Plaintiff relied on this affidavit at the hearing of the Defendants’ motion.  

11. The Defendants took issue with the primary relief sought by the Plaintiff. In support of the Defendants’ application, Mr Gendua of Counsel for the Defendants relied on the following affidavits:

(i) Affidavit of Gabriel Gendua filed on 3rd March 2023; 

(ii) Affidavit of Johnny Minga Wemin filed on 9th December 2022;

(iii) Affidavit of Mackenzie Jikian (Snr) filed on 21st December 2022; 

(iv) Affidavit of Wayne Powae filed on 5th December 2022; and 

(v) Affidavit of Gure’ahafo Tumae filed on 27th February 2023.  

12. Mr Gendua submitted that his clients worked on what he termed as the books and published them. He said that they own the documents. The submission is that the Plaintiff does not have a primary right, and it has no right to claim ownership. It is claiming copyright of these three documents when it has no locus standi to bring this action. The Manuals that the Defendants worked on are the property of “Fresh Produce Development Agency”, and not the Plaintiff. The Plaintiff is a different entity. The Plaintiff “Fresh Produce Development Agency Limited” is different from “Fresh Produce Development Agency”. The correct entity is “Fresh Produce Development Agency”, and it is the entity that should complain, not the Plaintiff. 

13. Mr Gendua submitted that the relevant law applicable in this case is the Copyright and Neighbouring Rights Act 2000, and the relevant provision is section 18(4) which are in these terms: 

“In respect of a work created by an author employed by a person or legal entity in the course of his employment, the original owner of the economic rights shall be the employer unless otherwise provided under a written agreement.”

14. Mr Koningi argued that “Fresh Produce Development Agency Limited” and “Fresh Produce Development Agency” is one and the same entity. The address for service is the same for both. Counsel referred the Court to Section 18(4) of the Copyright and Neighbouring Rights Act 2000, and submitted that Section 18(4) favours his client. He further submitted that there was no agreement between the parties. 

15. I noted that the Defendants’ affidavits relied on at the hearing rebutted the evidence in the Plaintiff’s affidavit. The facts were disputed.

16. I also noted from the Court File that a number of affidavits were filed in this proceedings after its institution. Alot of contentions were raised.

17. Counsels were asked whether the declarations sought by the Plaintiff raise issues, whether issues are in dispute and whether the mode of proceedings is correct. Counsels made submissions on these issues, and I took note of the submissions presented. 

18. After considering the affidavit materials before me, and hearing Counsels’ submissions, I make these observations: 

(i) The declarations sought in the Plaintiff’s originating summons raise issues to be defined. 

(ii) There are facts in dispute. The questions of who owns the Work/Books/Manuals, who is the original owner of the economic rights, and who is the correct entity arise. There are issues of fact for determination.

(iii) The issue of whether the Work/Books/Manuals are protected works and are eligible for copyright under Section 4 of the Copyright and Neighbouring Rights Act 2000 arises.  

(iv) The question of which party does Section 18(4) of the Copyright and Neighbouring Rights Act 2000 favour arises. 

19. I am of the considered view that the declarations sought by the Plaintiff in its Originating Summons raise issues. The documentation before me show that there are issues of fact for determination, and issues to be identified. I find that the appropriate mode of proceedings is a writ of summons. The materials before me support this finding. 

20. The Copyright and Neighbouring Rights Act 2000 was enacted to make provision for the protection of copyright and for related purposes. Part IV of this Act makes provision for  “ENFORCEMENT OF RIGHTS”. Section 27 provides for “CIVIL REMEDIES”. Section 27(1) states that:

“The owner of any right protected under the Act whose right has been infringed shall be entitled to payment of damages by the infringer for the prejudice suffered as a consequence of the act of infringement including such expenses directly caused by the infringement.”

21. To claim damages, a writ of summons should be filed. 

22. I remind myself to consider the overall requirement to do justice in this case. Considering the circumstances, the way forward in dealing with this matter is for the proceedings to be converted to a Writ of Summons and Statement of Claim for the parties to properly plead their respective cases. 

23. Pursuant to Order 4, Rule 35(1) of the National Court Rules, the Court may order that the proceedings continue on pleadings. The Court may, on or after making an order under Rule 35(1), make an order for the filing of a statement of claim (Order 4, Rule 35(2)(b)).

24. I will not dismiss the proceedings based on the grounds raised in the Defendants’ motion. I shall refuse the Defendants’ application to dismiss the proceedings pursuant to Order 12, Rule 1 of the National Court Rules. An order for costs is discretionary. I order that the parties shall meet their own costs. In the exercise of my discretion, I make these Orders: 

1. The Defendants’ Notice of Motion filed on 3rd March 2023 is refused. 

2. Pursuant to Order 4, Rule 35(1) of the National Court Rules, the Plaintiff’s Originating Summons filed on 18th November 2020 is to continue on pleadings.

3. Pursuant to Order 4, Rule 35(2)(b) of the National Court Rules, the Plaintiff shall file a Statement of Claim within 30 days, and serve on the Defendants.  

4. Parties shall bear their own costs. 

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

The Court orders accordingly. 

Koningi Lawyers: Lawyers for the Plaintiffs	
Gendua & Associates Lawyers: Lawyers for the Defendants