SC 905

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 151 OF 2004

BETWEEN:

PHILIP TAKORI FOR AN ON BEHALF
OF BEN KOMAE, JEFF LITA, TAPUKALI LITA,
YAS LAKAIN, TOM AIPI, RICHARD AIPI DAVID
TIMON, PAULUS PALIRO, WILLIAM ROBERT
AND ANDREW MALIPU
Appellants

AND

SIMON YAGARI AS THE COMMANDER
& MEMBERS OF POLICE MOBILE SQUAD 5 & 6
First Respondent

AND

THE COMMISSIONER OF POLICE
Second Respondent

AND

INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Kirriwom, Gavara - Nanu and Kandakasi, JJ.

2006: 3 March
2008: 29 February

APPEALS – PRACTICE & PROCEDURE – Appeal against dismissal of claim on an interlocutory application – Whether leave to appeal required – Decision appealed against final in nature and within exception for requirement for leave – Leave to appeal not required – Supreme Court Act s.14 (3) (b) (iii).

PRACTICE & PROCEDURE – Application to dismiss for failure to disclose reasonable cause of action – Whether failure to plead with particulars amounts to failure to disclose reasonable cause of action – Failure to disclose reasonable cause of action distinct from failure to plead with particulars – Separate consequences follow – Where a cause of action is pleaded but there is a lack of particulars the proper remedy is request for further and better particulars and amendment of pleadings – Applying to dismiss without requesting for better and further particulars where a cause of action known to law is pleaded amounts to an abuse of the process of the court – National Court Rules O 12 r 40 (1). 

JUDGEMENTS AND ORDERS – Power to dismiss a cause of action for failure to disclose cause of action – Discretionary matter for the Court – Court must exercise discretion with care and caution – Discretion can be exercised in the clearest of cases where no cause of action is pleaded – Where one of the parties is not legally represented, court under duty to carefully consider all issues raised before proceeding to judgment – National Court Rules O 12 r 40 (1).

Cases Cited:

Papua New Guinean Cases 

The Independent State of Papua New Guinea and Det Sgt Maj Francis Namues and Jimmy Tamate Wala and Hon Andrew Kumbakor MP v. John Talu Tekwie (2006) SC843.
Shelley v. PNG Aviation Services Pty. Limited [1979] PNGLR 119.
Boyepe Pere v. Emmanual Ningi (2003) SC711. 
Public Officers Superannuation Fund Board v. Sailas Imanakuan (2001) SC677.
Kerry Lerro trading as Hulu Hara Investments Ltd v. Philip Stagg, Valentine Kambori & The State (2006) N3950.
PNG Forest Products v. The State [1992] PNGLR 85.
Ronny Wabia v BP Exploration Co Ltd & Ors [1998] PNGLR 8.
Pius Nui v. Senior Sergeant Mas Tauda & Ors (2004) N2765. 
Gabriel Apio Irafawe v. Yauwe Riyong (1996) N1915.
Jack Livinai Patterson v. National Capital District Commission (2001) N2145.
Eliakim Laki & Ors v. Maurice Alaluku & Ors (2000) N2001.
Mesia Novau v. Nimrod Mark & Electoral Commission [1992] PNGLR 229. Polling v. Motor Vehicles Insurance (PNG) Trust [1982] PNGLR 228.
Bank of South Pacific Limited v. PNG Nambawan Trophy Holdngs Limited & Ors (12/11/04) N2717.
Papua New Guinea Banking Corporation v. Jeff Tole (27/09/02) SC694.
Mudge v Secretary for Lands and Others [1985] PNGLR 387. 

Overseas Cases

Dyson v. Attorney General [1911] I KB 410.
Nagle v. Feilden [1966] I AII ER 689 at 697 [1966] 2QB 633
Allen v. Gulf Oil Refining Ltd [1981] 1 All ER 353.
Attorney General of the Duchy of Lancaster v. London and North Western Railway Co. [1892] 3 Ch 274.
Read v. Brown (1888) 22 QBD 128.
Hubbuck & Sons Ltd v. Wilkinson Heywood & Clark Ltd [1899] 1 QB 86; [1895-9] AII ER Rep 244.

Counsel:

The Appellants in Person.
T. Anis, for the Respondent.

29 February, 2008

1.	BY THE COURT:	This is an appeal by Philip Takori and the others (the Appellants) against a decision of the National Court (per David AJ, as he then was) dismissing their claims. The dismissal was for failure to disclose a reasonable cause of action and lack of authority in Mr. Takori to represent himself and the other Appellants. The Appellants claimed damages against the State for torts allegedly committed against them in an alleged police raid conducted by members of the Police Force, then under the command and control of Simon Yagari, the First Respondent.

2.	The Appellants claim that the dismissal of their claim was erroneous because Mr. Takori did have the requisite authority and that their pleadings did disclose a reasonable cause of action though they may not have done so with sufficient particulars, which can be cured by an amendment of the pleadings. They also claim that, the National Court erroneously allowed the State and the other defendants (the State) to successfully make the application without first complying with the requirements for filing and serving of their notices of intention to defend and then secure leave of the Court to make the application. That error they argue, prevented the trial judge from considering their application for summary judgment against the State and sign judgment against the State, which they now argue this Court must do if we uphold their earlier arguments. 

3.	The State takes issues with the competency of the appeal saying, the Appellants should have sought leave to appeal because the decision, the subject of the appeal, was out of an interlocutory application. The State also argues that the National Court was correct and as such, this Court should uphold that decision. 
Relevant Issues

4.	Going by the arguments of the parties, it is clear to us that the following issues arise for our determination:

(1)	Whether leave is required for an appeal against a decision dismissing a claim in a writ of summons on an interlocutory application?

(2)	Did the State comply with the requirements for the filing and serving of its notice of intention to defend in order to properly make its application?

(3)	If the answer to issue (2) above is in the negative, was the State at any liberty to apply as of right for a dismissal of the claim against it and its servants?

(4)	Subject to an answer to issues (2) and (3) above, did the Appellants statement of claim fail to disclose a reasonable cause of action and one that could not be cured by amendment of the pleadings?

(5)	Subject to an answer to all of the foregoing issues, have the Appellants made out a case for summary judgment?

5.	Clearly, the first question can be considered and resolved on its own. It goes into the competency of the appeal. If that issue is determined in the affirmative, it might spell the end of the appeal. If however, that issue is determined in the negative, we will have to deal with the remaining issues. So we will deal with that issue first. The second and third questions can be dealt with together and thereafter the remaining issue on its own if need be.

Issue 1 – Leave to Appeal

6.	The law on whether leave is required for an appeal against the kind of decision the subject of this appeal is now well settled in our jurisdiction. The most recent decision of the Supreme Court in The Independent State of Papua New Guinea and Det Sgt Maj Francis Namues and Jimmy Tamate Wala and Hon Andrew Kumbakor MP v. John Talu Tekwie, reviewed almost all of the cases on point. That started with the decision of the Supreme Court in Shelley v. PNG Aviation Services Pty. Limited and ended with the decision of the Supreme Court in Boyepe Pere v. Emmanual Ningi. These authorities make it clear that, where the decision, the subject of an appeal, finally determines an issue between the parties, that would entitle a party, aggrieved by such a decision to appeal as of right under s. 14 (3) (b) (iii) of the Supreme Court Act.  That is the case, even if the decision in question comes out of an interlocutory application. Thus the authorities make it clear that, it is to the nature of the orders, judgment or decision to which one must look upon to see whether it is a final decision to determine whether there can be an appeal as of right under s. 14 (3) (b) (iii) of the Supreme Court Act, and not the process leading to the order, judgment or decision.

7.	In the present case, the decision, the subject of the Appellant’s appeal, dismissed their claim under a writ of summons with a statement of claim endorsed thereto. Whilst the process leading to that decision was an interlocutory application by way of a notice of motion, the final out come on that application finally ended the Appellants claim. Without their right of appeal, they have no other remedy. Their rights and interests in the proceedings that were dismissed came to an end as a result of the decision in question. They are thus, within their rights to appeal as of right under s.l4 (3) (b) (iii) of the Supreme Court Act. Accordingly, we have no hesitation in dismissing this part of the State’s arguments.

Issues 2 and 3 – Requirements for filing and serving of Notice of Intention to Defend and Applying to Dismiss Proceedings

8.	This leaves us to deal with the remaining issues, starting with the second and third issues. They concern the requirements for the State as a defendant to file and serve its defence and its right to successfully make the application to dismiss the Appellant’s proceedings. These requires an examination of the relevant rules, their meaning and purpose and whether or not the State complied with those requirements. Then, if the State did in fact not comply with the requirements, it requires a consideration and determination of the issue of, whether it was entitled to successfully make the application. 

9.	Order 6 r11 provides that, a defendant to a proceeding commenced by a mode other than an originating summons, has 30 days after the service of the proceedings on him or her to file and serve his or her defence to the claim. Order 7 provides in detail as to the form and manner of giving notice and related matters. In so far as is relevant, O 7 r 2 states in clear terms:

"Subject to these Rules, a person shall not, except by leave of the Court, take any step in any proceedings unless, before taking the step, he has filed originating process in the proceedings or has given a notice of intention to defend in the proceedings." 

10.	We note that, this is not the end of the matter. Rule 6 of the same order provides that:

"(1)	A defendant may give a notice of intention to defend at any time without leave.

(2)	Where a defendant gives a notice after the time limited for doing so, he shall not, unless the Court otherwise orders, be entitled to file a defence or do any other thing later than if he had given a notice of intention to defend within that time." 

11.	A reading of these rules make it clear that, no person can take any step in any proceeding unless, he or she is the person who issued the proceedings at the first place or has filed a notice of intention to defend in the proceedings, within the time periods stipulated in the Rules of the Court. Nevertheless, a defendant may still file and serve his or her notice of intention to defend any time passed the time period for him or her to do so without leave of the Court. But he or she is not entitled to file and serve his or her defence or do anything else except with the leave of the Court. That means no defendant is at any liberty to file and serve his or her defence or take any other step in the proceedings without first seeking and obtaining the permission to do so from the Court. We can not put it any clearer than that.

12.	We are aware that, many defendants and their lawyers have been filing their defence and have taken further steps in many proceedings in violation of the clear requirements of the law. At the same time, we note that, there is a large body of case authority such as the decision of the Supreme Court in Public Officers Superannuation Fund Board v. Sailas Imanakuan, which say that, the rules are only a means to an end and not an end in themselves. In other words, the Courts should be looking at doing justice on the merits of the case and not necessarily on the compliance or non compliance of the rules. However, we are of the view that, that issue can only arise when, a party is properly applying for and does make out a case for a dispensation of the strict compliance of the rules pursuant to O 1 r 7 of the Rules.

13.	In the present case, there was affidavit evidence from the Appellants that they served their proceedings on the State on 2 October 2003 after taking out the proceedings on 18 September 2003. Proceeding on that basis, the State had until 18 October 2003, to filed and serve, its Notice of intention to defend. Then going by s. 9 of the Claims by and Against the State Act 1996, the State had 60 days thereafter to file and serve its defence. Instead, the State through the Solicitor General’s office filed an unconditional notice of intention to defend on 22 December 2003, which was late by three months. 

14.	Also, on 22 December 2003, the State filed its defence. The State did not first seek leave of the Court as required by the Rules and proceeded to file its defence as if it had a right to do so. On 17 June 2004, the State filed another unconditional notice of intention to defend, this time through Paraka Lawyers. Five days later, the State through Paraka Lawyers filed the notice of motion that eventually led to a dismissal of the Appellant’s proceedings.

15.	At the hearing before David AJ, the State through Paraka Lawyers, took issue with proper service of the writ of summons. That was notwithstanding the State’s repeated filing of unconditional notices of intention to defend. Order 7 r7 and r8 provide for a defendant to file a conditional notice of intention to defend, if that party has an issue on service of proceedings on him or her. Where a defendant does that, he or she has 14 days within which to apply amongst others, for a set aside of the originating process on the grounds of say irregularity in service. When such an application is made and a case is made out, the Court can amongst others, order a set aside of the service of the proceedings purportedly served. 

16.	What actually happened in this case is a case of total lack of compliance of the relevant rules of the Court and a failure to take the correct steps for the State, either deliberately or inadvertently. This started with the filing and serving of the two unconditional notices of intention to defend well outside the required 30 days period. The two notices were filed three months and nine months respectively after the expiry of the initial time limit of 30 days. 

17.	The failure of the State continued when the State and its servants who were being sued, failed to apply for a set aside of the service of the proceedings on them, if indeed, there was a genuine issue on the service of the proceedings. The State and its employees had the opportunity either before filing the notices of intention to defend or 14 days after filing the notices to make such an application but it did not. For reasons only known to the State and the other defendants, they did not exhaust the remedy that was available to them, if indeed, there was a genuine issue over the service of the proceedings on them. 

18.	The failures by the State and the other defendants continued to run when they chose to file and serve their defence on 22 December 2003, without first seeking and securing leave of the Court to do so. The need for them to first seek and secure the leave of the court to file and serve their defence arose when they did not file their notice of intention to defend within the required period of 30 days. Hence, going by the provisions of O 7 r2 and r6, they had no right to file and serve their defence without first seeking and securing the permission of the Court to do so. 

19.	The State and the other defendants’ failure to take steps that were open to them and instead take steps that were not available to them continued. That ended with the filing of the motion on 24 June that eventually led to a dismissal of the Appellant’s claims. Again, going by the provisions of O 7, r2 and r6, the State and the other defendant’s were at no liberty to file and then move, let alone, succeed on that motion, unless they first sought and obtained the leave of the Court. Our perusal of the records of proceedings before the National Court does not show, neither the State and the other defendants nor the Court raising the issue of leave of the Court. So the learned trial judge did not give any consideration to the issue in his judgment. What is clear though is that, the learned trial judge proceeded to deal with the matter as if the State and the other defendants were entitled to bring the application, or that, there was no impediment to their application. 

20.	Since the Appellants were not legally represented and they were defending the State and the other defendant’s motion through Mr. Takori, it was necessary for the learned trial judge to exercise care and caution before proceeding to judgment against them. That necessarily required the trial judge to ensure that the State and the other defendants who were legally represented did comply with all of the requirements of the rules before giving them what they asked for. This is important, not only because there was an imbalance in the legal representation, but also because, the State was seeking to gain from the Appellant’s non compliance of the requirements of the rules as to pleadings and suing in representative capacity. The State and the other defendants are claiming a lack of strict compliance of the rules. It is therefore fair and reasonable that, they come with full compliance of the requirements of the law or the rules of the Court. After all, equity requires them to come with having strictly complied with the rules or the law first for equity requires, "he who comes to equity must come with clean hands".

21.	In order for the State to properly and fairly argue for the Appellants to strictly comply with the law in the areas it argues for, it must first comply with all of the requirements of the law as they apply to it. The evidence clearly shows failures by the State and the other defendants to meet the requirements they were obliged to meet to give them proper foundation to make their application. Hence, they could not file and serve their defence without first seeking and securing the leave of the Court. Similarly, the State and the other defendants could not file and serve the motion leading to the decision or judgment, the subject of this appeal. Further, the State and the other defendants could not argue for and succeed on their application, without first, seeking and securing the leave of the Court to do so. They did not seek a dispensation of the strict compliance of the rules to facilitate a hearing of its motion and eventually judgment in its favour. The trial judge was obliged to consider all of these issues but he did not. Accordingly, we have no hesitation in finding that the learned trial judge fell into a clearly identifiable error. We would therefore, uphold the appeal on this ground alone.

Issue 4 – Failure to Disclose Reasonable Cause of Action

22.	But there is an additional and substantive reason for us to uphold the appeal. That reason is the subject of the remaining issues, in respect of which, we find again that, the trial judge fell into a clearly identifiable error. This is apparent when we measure what the trial judge has done against the relevant and applying principles of law in relation to dismissal of proceedings for failure to disclose a reasonable cause of action, which are fairly well settled in our jurisdiction. 

23.	The starting point of course is, O 12 r 40 of the Rules as interpreted and applied by the Courts. The principles built around this provision are now well established. The National Court in Kerry Lerro trading as Hulu Hara Investments Ltd v. Philip Stagg, Valentine Kambori and The Independent State of Papua New Guinea extracted the relevant principles from a number of overseas and our own Supreme and National Court judgments (noted in the footnotes) in this way: 

"1.	Our judicial system should never permit a plaintiff or a defendant to be ‘driven from the judgment seat’ in a summary way, ‘without a Court having considered his right to be heard.’  A party has a right to have his case heard, as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the Court. That right cannot be lightly set aside. 

2.	At the same time however, the law, such as the Rules under consideration, provide for and the Court has an inherent jurisdiction to protect and safeguard against any possible abuse of the processes of the Court.

3.	The object of these rules are therefore ‘to stop cases which ought not to be launched — cases which are obviously frivolous or vexatious or obviously unsustainable.’ In other words ‘the object of the rule was to get rid of frivolous actions.’

4.	A claim may be frivolous if it can be characterized as so obviously untenable that, it cannot possibly succeed or that, the claim or defence is bound to fail, if it proceeds to trial. 

5.	A claim or defence may be vexatious, if the case amounts to a sham or one which, cannot succeed and is one that amounts to harassment of the opposing party who is unnecessarily put to the trouble and expenses of defending or proving the claim. 

6.	With regard to the issue of disclosing a reasonable cause of action or defence, the Court must be clear that, there are two parts to the phrase ‘cause of action’. First, it entails a right given by law, such as an entitlement to reasonable damages for breach of human rights under s. 58 of the Constitution, commonly referred to as, the ‘form of action’. Secondly, it entails the pleadings disclosing all the necessary facts which give rise to the form of action.

7.	The phrase ‘cause of action’ could thus be defined in terms of a legal right or form of action known to law with:

‘every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise of every piece of evidence which is necessary to prove each fact, but every fact is necessary to be proved.’

8.	A statement of claim or a defence (as the case may be) must therefore, clearly plead the form of action by pleading the necessary legal elements or ingredients of the action and the relevant and necessary facts (not the evidence) giving rise to the form of action. It follows therefore that, where a statement of claim or a defence is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified,  and instead leaves it to guess work, it should be struck out. 

9.	These rules provide a summary judgment procedure or remedy which is available to a plaintiff or a defendant, and one which vests and calls for an exercise of a discretion by the Court.

10.	The discretion must be exercised sparingly and only in a case where the statement of claim or the defence (as the case might be) is ‘obviously and almost incontestably bad.’ In other words this discretion can be exercised only in cases that ‘are plain and obvious so that the master or Judge can say at once that the statement of claim [or defence] as it stands, is insufficient, even if proved, to entitle the plaintiff [or defendant] to what he asks’ for." 

24.	After the above summation of the relevant principles, the National Court added:

"… the pleadings must be so bad and or vague and is not a case of lack of particulars or a lack of better pleading which cannot be cured by a request and or orders for further and better particulars and or amendment respectively under O.8, rr. 36, 50 or 51 of the Rules. Lack of particulars or lack of better pleadings is distinctly separate from a failure to disclose a reasonable cause of action or an action that is frivolous, vexatious or harassment. As such, clear and separate consequences follow. There is provision under the rules for requesting and or orders for further and better particulars or better pleadings as opposed to a right in a defendant or an opposing party to apply for a dismissal straightaway. A party must be careful not to ask for and the Court must stop to ensure that it is not being asked to dismiss a claim because of lack of particulars or lack of proper pleading which can be cured by appropriate amendments to the pleadings. Regard must also be had to the fact that the Rules are not an end in themselves but a means to an end and by reason of which a strict compliance of the Rules can be dispensed in the interest of doing justice in accordance with O. 1, r.7 of the Rules in appropriate cases." 

25.	 We agree with the above summation of the relevant principles of law. We also agree with the addition to those principles because, they are consistent with the way in which the law has built around O 12 r 40 in our jurisdiction to avoid any confusion between disclosing a cause of action as opposed to insufficiency of pleadings which can be cured by amendments. 

26.	Applying the above principles to the case before us, we now need to decide whether, the Appellant’s pleadings failed to disclose at the least, a cause of action known to law. In other words, we need to decide if the Appellants’ pleadings clearly disclosed no cause of action and that, no amount of amendment could easily cure it. Or put it another way, we need to determine if after a perusal of the Appellants’ pleadings, we could at once say that, their claim is so obviously and incontestably bad that it is beyond repair and the only option left is to dismiss the claim.

27.	Relying on the principles we have outlined above, the Appellants argue that, they did disclose a cause of action namely a tortuous conduct of a raid of their village by a unit of police led by Simon Yagari whilst in the employ of the State. They have further pleaded that, that raid was unlawful and did result in serious loss and damage to the Appellants. The State argues however that, the Appellants did not sufficiently disclose a cause of action against the State in that, they did not plead with sufficient detail a number of things. Firstly, the State relying on O 4 r 20 (1) and the case law on that provision, argue that, the Appellants failed to sufficiently plead the capacity in which Mr. Takori was suing and that, the persons he was purporting to represent did not endorse the writ. Secondly, relying on O5 r 9 and the case law on it, the State argues that, the Appellants did not name the person who occupied the position of the Commissioner of Police at the relevant time. Thirdly, they argue generally that, the trial judge did not fall into error when he decided to dismiss the Appellants claim and consequently decline to deal with the Appellants’ application for summary judgment. 

28.	The Appellants concede to the arguments as regards the naming of the person occupying the Office of the Commissioner of Police and the capacity in which Mr. Takori was suing, at least in the original pleadings. However, they argue that, these are matters that can be cured by amendment under O 8 r 51 of the Rules. Further they argue that, they have now filed affidavits providing the basis for their claims as well as the authority for the issuance of these proceedings for and on behalf of Mr. Takori and the others he purports to represent.
 
29.	We have carefully perused the Appellant’s statement of claim endorsed to the writ of summons. Going by what is pleaded, we accept the Appellant’s argument that, their statement of claim does disclose a cause of action based on the law of tort. They clearly plead that a unit of policemen under the command of Simon Yagari raided their village, namely Waem, without a search warrant, the police men fired shots from their guns, frightened and chased away people and burnt down the Appellant’s houses despite pleas by the people for the policemen to stop what they were doing. Further they plead that, the actions of the policemen resulted in loss and damage to the Appellant’s estimated to exceed K256, 116.25. The pleadings further disclose an undertaking to provide the necessary particulars of the Appellants’ claim at a later time or during trial. The Supreme Court in Papua New Guinea Banking Corporation (PNGBC.) v. Jeff Tole, held that such as pleaded is no pleading at all. So clearly, there is a claim for damages without pleading the necessary details or particulars of the damages.

30.	Although the pleadings do not specifically say that Mr. Takori is suing for and on behalf of himself and the other Appellants, paragraphs 12 and the other paragraphs in so far as they are relevant, make it clear that the action is not only for Mr. Takori but the others as well. In paragraph 12, the names of the other plaintiffs now Appellants are listed and thus disclosed. This is also made clear in the naming of the parties in the first page of the writ. 

31.	Going by the arguments of the State, it is clear that, the attack on the Appellants’ statement of claim is really on the insufficiency of pleadings more than a total failure to disclose a reasonable cause of action. There is provision in the Rules in particular O 8 r36, r50 and r51 to take care of and remedy these kinds of problems. It is not only a good practice but also fair and equitable for a defendant faced with such a bad pleading as might have been the case here, to request for further and better particulars from the party responsible for such poor pleadings or to amend the pleadings and plead with clarity and with all of the appropriate particulars. When such a request is not appropriately responded to or ignored, the party making the request would be entitled to apply to the Court for appropriate orders including remedial orders for any failures to comply with any such orders, at the cost of the defaulting party. After all, as has been noted repeatedly by both this and the National Courts, the aim must be to do justice on the merits, unless there is a deliberate or inexcusable non compliance of the Court’s orders and the rules of the Court. 

32.	We find that, the State through its lawyers obviously failed to note the distinction between a total failure to disclose a cause of action and a failure to plead with sufficient particulars and the different consequences that can follow as elaborated and set out by Kandakasi J., in the Kerry Lerro case which we noted above. Consequently, it seems clear to us that, the respondents did not make any request for further and better particulars of the cause of action that was pleaded against them. Similarly, they failed to apply to the Court and secure appropriate orders under O 8 r 36 for further and better particulars. 

33.	If the State and its lawyers truly appreciated the distinction between a failure to disclose a cause of action and a lack of further and better particulars as well as the other principles developed around O 12 r 40, they would not have made their application at the first place, without first exhausting the remedies for lack of further and better particulars. The fact that they made the application without exhausting the remedies for lack of further and better particulars, clearly demonstrates that, they did not appreciate those principles, or, if they did, they deliberately made an application that had no proper foundation as a matter of law. In our respectful view, it seems that learned trial judge also failed to appreciate the distinction and the relevant and applicable principles. If the learned trial judge proceeded carefully and cautiously as he should have, he would have come to the same findings and conclusions as we have. 

34.	Turning to the other issues, starting with the issue of representative action, we agree that, there is authority for requiring the capacity in which a person is suing in a representative action to be properly pleaded. We also agree that, there is authority for the requirement that, a plaintiff must endorse his or her writ. Further, we agree that, naming a government department or office such as the Police Commissioner is improper because, they are not legal entities having the capacity to sue and be sued as was made clear by the Supreme Court in the much earlier case of Mudge v Secretary for Lands and Others. 

35.	Where such pleadings are missing, they do not however, spell an end in themselves at the first instances. As with pleadings generally, there is an obligation in a defendant to any proceedings having such problems to point them out to the plaintiff and give him or her, the opportunity to take the corrective measures. Where a plaintiff is so requested and he or she fails to take the appropriate steps that attracts unto himself or herself an application by the defendant to the Court for appropriate orders to compel the plaintiff to correct the defects and failing that, appropriate consequential orders. The National Court often hears a lot of applications and readily grants orders aimed at correcting the kinds of deficiencies we speak of or orders compelling a plaintiff to take the corrective measures. These kinds of orders are made with a view to doing justice on the substantive merits of the case at less costs and delay to the parties. Hence, the practice of the National Court that we are well aware of is, often one of slow to finally shutting out a party except in the clearest of cases, and or where there is deliberate and inexcusable failure to comply with Court orders or the Rules of the Court, only as a last resort and only if no measure of amendments will do.

36. 	In the present case, there is no evidence of the State requesting the Appellants to correct the defects. Also there is no evidence of the State applying to the Court for appropriate orders to compel the Appellants to correct the defects. Further, and more importantly, there is no record of the trial judge giving consideration to the need for an application to dismiss to be proceeded by a request for correction by the Appellants and failing that, successfully applying to the Court for appropriate orders to compel the Appellants to correct the defects in their pleadings and the Appellants failing to comply with any such orders. Also, we note that, the learned trial judge failed to give any consideration to the fact that, the defects the State complained of for the first time before him, could easily be corrected by amending the proceedings and requiring Mr. Takori to provide evidence of his authority. Indeed we note that, the Appellants provided affidavit evidence of Mr. Takori being authorized to issue these proceedings for and on their behalf. Further, we note that, even if Mr. Takori did not have the authority of the other Appellants, there was nothing preventing him from suing in his own name for himself. 

37.	In these circumstances, we find that the learned trial judge clearly fell into an identifiable and serious error when he decided to dismiss the Appellants’ claims. This calls for correction by this Court. We do not hesitate to do so by upholding the Appellant’s appeal. Consequently, and for the reasons we have just outlined above, we would order a dismissal of the State’s application seeking to dismiss WS 1349 of 2003 filed on 24 June 2004, as having no merit and being brought in abuse of the process of the Court. 
 
Issue 5 – Appellants Application for Summary Judgment

38.	Our decision in the foregoing paves the way for a consideration of the Appellants’ application for summary judgment, which the trial judge decided not to deal with after having arrived at his decision to dismiss the Appellants’ claim.

39.	In the course of considering the third and fourth issues, we pointed out that the Appellant’s pleadings in their statement of claim endorsed to the writ of summons lack particulars and a proper pleading as to Mr. Takori’s authority to represent the other Appellants. These defects in the pleadings and the proceedings generally need to be sorted out first. When that is the case, it is too premature to entertain the Appellants’ application for summary judgment. Accordingly, we are of the view that, the Appellants’ application was an abuse of the process of the Court and ought to be declined. At the same time, we note that the abuse here could be excused. This is because the Appellants represented themselves through their representative Mr. Takori, unlike the State which has a whole team of lawyers including the private law firm of Paraka Lawyers at the relevant time. Further we note that the Appellants filed their application in response to that of the State. 

40.	Having regard to what we have discussed and found in the foregoing, for the reasons we have given, we are minded to make the following orders:

1.	The appeal is upheld.
2. 	WS 1349 of 2003 between Philip Takori & Ors and Simon Yagari & Ors is reinstated.
3.	The notice of motion filed by the Respondent/Defendants in WS 1349 of 2003 on 24 June 2004 is dismissed for abuse of the process of the Court.
4.	The defence filed by the Respondents/Defendants in WS 1349 of 2003 on 22 December 2003 is struck out for abuse of the process of the Court.
5.	The Appellants/plaintiffs in WS 1349 of 2003 shall file and serve within 30 days from today an amended statement of claim, clearly pleading:

(a)	the capacity and authority with which Mr. Philip Takori is suing;

(b)	particulars of each and every plaintiff Mr. Takori is representing and those plaintiffs’ approving the issuing and maintaining of the proceedings;

(c) 	details and particulars of each of the plaintiffs’ loss and damage; and

(d)	if the plaintiffs’ wish to name the police commissioner as a party, name the incumbent.

6.	Costs to the Appellants to be paid by the Respondents and such costs shall be agreed if not taxed.

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Appellants In Person
Blake Dawson Waldron lawyers: Lawyers for the Respondent