Kauba v Willie [2021] PGSC 78; SC2162 (29 September 2021)

SC2162

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 149 OF 2016

BETWEEN:
SIMON KAUBA, Provincial Police Commander, Simbu Province
First Appellant

AND:
JOHN WAKON, Commissioner for Police
Second Appellant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Appellant

AND:
ALPHONSE WILLIE on his own behalf and on behalf of 1,852 members of Gena tribe of Kerowagi, Simbu Province
Respondents

Waigani: Batari J, Yagi J & Bona J
2019: 02^nd May
2021: 29^th September

SUPREME COURT APPEAL – objection to competency of appeal – appeal against an award of damages – National Court delivered a provisional decision - whether the provisional judgment was an interlocutory judgment.

APPEAL AGAINST AWARD OF DAMAGES – National Court’s refusal to entertain submission on section 5 notice under Claims By and Against the State Act – whether the National Court erred in refusing to entertain the submission.

PRACTICE AND PROCEDURE – PLEADING – pleading of section 5 as condition precedent – whether a claimant or plaintiff is required to plead a condition precedent.

PRACTICE AND PROCEDURE – CLASS OR REPRESENTATIVE ACTION – plaintiff making a claim on behalf of other intending plaintiffs – consent or authority of intending plaintiff - whether it is necessary to file a consent or authority of intending plaintiffs.

Cases Cited:

Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (1980) SC185
Jeffrey Turia & Another v. Gabriel Nelson & National Housing Corporation (2008) SC949
Talibe Hegele v. Tony Kila (2011) SC1124
Steven Punagi v. Pacific Plantation Timber Ltd (2011) SC1153
PNG Forest Authority v. Securimax Security Pty Ltd (2003) SC717
Joseph Nandali v. Curtain Brothers Ltd (2012) SC1483
Paul Tohian & The State v. Tau Liu (1998) SC566
Acquila Konzie v. The State & Ors (2014) N5584
Hobolo Building & Maintenance Ltd v. Hela Provincial Government (2016) SC1549
Fredericks Martins Punagi v. Sinai Brown (2004) N2661
Mision Aseki v. Manasupe Zurenouc (2005) SC797
Paul Eddie v. Bill Kirokim (2012) N4932
William Wrondimi & Ors v Alphonse Vokene (2007) N3148
JA Construction Ltd v Eastern Highlands Provincial Government & Ors (2007) N3243
Rawson Construction Ltd & Ors v The State (2004) SC777
Joe Kerowa v Motor Vehicles Insurance Limited (2010) SC1100
Sao Gabi & State v Kasup Nate & Others (2006) N4020
Paul Kumba v Motor Vehicles Insurance (PNG) Trust (2001) N2132
Philip Takori v Simon Yagari (2008) SC905
Coecon Ltd (Receiver/Manager Appointed) v National Fisheries Authority (2002) N2182
Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694
William Mel v Coleman Pakalia (2005) SC790
Joel Aundambui & Ors v Post PNG Ltd & Ors (2014) N5772
Simon Mali v The Independent State of Papua New Guinea (2002) SC690
Tigan Malewo v Keith Faulkner (2009) SC960

Legislations:

Supreme Court Act (Chapter 37)
National Court Rules 1983
Claims By and Against the State Act 1996
Constitution of the Independent State of PNG

Counsel:

Ms. M. Kias, for the Appellants
Mr. R. Yansion, for the Respondents

29^th September, 2021

1. BATARI J: I had the benefit of reading the draft judgment of Justice Yagi and I agree with the reasons, conclusion and proposed orders. I have nothing further to add.

2. YAGI J: The Court heard this appeal on 02 May 2019 and reserved to give a decision during the sittings of the Court in June 2019. However, the date has since lapsed to the present time.

3. The matter before the Court consisted of two parts: the objection to the competency of the appeal and the substantive appeal. I will first discuss the objection to competency and move on to the substantive appeal. But it is necessary and appropriate to commence by setting out the important background facts in this appeal.

Relevant Background Facts

4. The respondents claim to be members of the Gena tribe in the Kerowagi District of the Simbu Province. They are said to be from Kamanigle, Nokar and Tanangile villages in the Kerowagi District. They claimed that members of the police force including the mobile squad based in Kundiawa, Simbu Province conducted unlawful raids on their villages in August and September 2000 and in consequence committed breaches of their various constitutional rights including wrongful acts such as burning down of houses, slaughtering of livestock, sexual assault on women and girls, unlawful assault of innocent men, threatening village people and destroying food gardens and cash crops. They therefore claimed compensation against the State by filing an application for the enforcement of their constitutional rights. The application was filed on 16 October 2000 and was registered as a miscellaneous proceeding or MP No. 658 of 2000.

5. About 6 years later, on 10 August 2006, the National Court ordered the respondents to file and serve a statement of claim in the proceeding. Accordingly, a statement of claim was filed on 26 January 2007 and served.

6. The appellants defaulted in terms of filing a defence to the statement of claim and as a result the National Court ordered on 26 April 2007 that judgment be entered against the third appellant (The State) with a further order for damages to be assessed.

7. The trial for assessment of damages was conducted and the respondents were awarded damages totaling the sum of K10,029,215.00. As regards the award the National Court made a “provisional” ruling on 13 October 2016 and subsequently confirmed the ruling or decision on 25 November 2016.

8. The appellants appeal against the award of damages by filing a notice of appeal on 27 October 2016.

Objection to Competency

9. The respondents filed an objection to the competency of the appeal on 26 April 2017. They raised eight grounds of objection. The primary ground is that the decision appealed from is not a final decision and therefore leave was required which leave was neither sought nor granted. The secondary grounds are contained in paragraphs 3 – 8 of the notice. However, ground 3C was withdrawn whilst ground 3D was pursued only in part. The grounds are enumerated below:

1. The Appeal is incompetent as the Appellants have failed to obtain leave of this Court to appeal as the purported appeal is essentially against a provisional decision of the trial judge, namely, Judge Cannings, made on 13^th October, 2016 in respect of the issue of assessment of damages; the final judgment of Judge Cannings was made on 25^th November 2016.
   
2. The Appeal is incompetent because the final judgment on MP (HR) No 658 of 2000: Alphonse Willie & ors v John , John Wakon and The State was made the 25^th November 2016, not on the 13^th October as alleged by the Appellants in the Notice of Appeal.
   

3. Objection to competency is made on the grounds of Appeal as follows:

1. Ground 2(i) – Section 5 Notice

(a) The appellants did not file any Defence raising the issue of section 5 notice under section 5 of the Claims By and Against the State Act.
(b) The Appellants did not file any applications raising the issue of the notice under section 5 of the Claims By and Against the State Act.
(c) The Appellants did not adduce any evidence, in fact, no evidence at all, was adduced raising the issue of the notice under section 5 of the Claims By and Against the State Act.
(d) The issue of notice under section 5 of the Claims By and Against the State Act was raised orally, at the very last minute, in reply to submissions on quantum by the Plaintiffs.

2. Ground 2(ii) – Revisiting Liability

(i) The Respondents repeat paragraphs 3A(a) – (d).
(ii) The Appellants did not file any application requesting the Court to revisit liability.
(iii) The Appellants did not adduce any evidence, if fact, no evidence at all, was adduced demonstrating the reasons why it was necessary to revisit liability.
(iv) In fact, the Appellants did not ask the Court to revisit liability.

100. Ground 2(iii) – Authority to Act

(i) The Appellants did not file any Defence raising the issue of the consent and authority given to Mr Alphonse Willie to represent the other Plaintiffs.
(ii) The Appellants did not file any application raising the issue of consent and authority given to Mr Alphonse Willie to represent the other Plaintiffs.
(iii) The Appellants did not adduce any evidence, if fact, no evidence at all, was adduced raising the issue of consent and authority given to Mr Alphonse Willie to represent the other Plaintiffs.
(iv) The issue of consent and authority given to Mr Alphonse Willie to represent the other Plaintiffs was raised orally, at the very last minute, in reply to submissions on quantum by the Plaintiffs.

4. Ground 2(iv) – Affidavit Evidence

(i) In the National Court proceedings, Notice to Rely on all the Affidavits under the Evidence Act (section 35) was filed on the 07^th October 2014 and served on the Third Appellant on the 08^th October 2014.
(ii) No notice of objection was filed by the Appellants.
(iii) Trial on assessment of damages was run on the 28^th May 2015. The Third Defendant did not object to the use of the Affidavits, in fact, the State consented to the Affidavits being tendered into evidence. This ground therefore is incompetent.

4. The Respondents initial claim was for K74,149,047.00 against the Appellants for the damages to their properties caused by the unlawful police raid of their villages; however, conceding that unlawful raids of villages had occurred in the manner claimed by the claimants the state then proposed a global sum of K5,000.00 to each Respondent/Plaintiff to cover all causes of action and all categories of damages. This proposition by the state was accepted by the trial Judge, thus, the Appellants are estopped from going back and revisiting the decision on assessment of damages.

5. The trial Judge was not duty bound to hear and uphold the Appellants/Defendants submissions but made his decision based on the evidence available to him.
   
6. Furthermore, the trial Judge was not duty bound to revisit the issue of liability as that issue was settled by the entry of default judgment on the 25^th April 2007; if the Appellants were aggrieved by that decision, they failed to apply to set aside the default judgment or appeal that decision there and then but constructively, by their actions, are deemed to have accepted that decision. Thus, the trial Judge rightfully rejected the state’s oral submission in that respect.
   
7. More still, there was no defence filed in the lower court; the grounds of appeal are essentially on procedural matters and they do not raise substantive issues relating to the appeal on assessment of damages, thus, the appeal should be dismissed.
   
8. For these reasons, the appeal is frivolous, vexatious and is tantamount to an abuse of the process of the Honourable Court and is therefore, incompetent, and should be dismissed with costs.
   

10. The law on objection to competency of an appeal process is settled in this jurisdiction. A proper ground of objection must directly impinge on the threshold issue of jurisdiction of the Court to hear the appeal. see Waghi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (1980) SC185; Jeffrey Turia & Another v. Gabriel Nelson & National Housing Corporation (2008) SC949 and Talibe Hegele v. Tony Kila (2011) SC1124

11. In Turia & McKay (supra), the Supreme Court held that “it is not a proper ground of objection to competency of an application for leave to appeal that the proposed grounds of appeal are unmeritorious, frivolous or vexatious or that the application for leave was unnecessary”. The Court also held in that case that “the objection to competency must in itself be competent”. These principles were endorsed and adopted in Talibe Hegele (supra).

12. I deal first with the secondary grounds contained in paragraph 3 - 8 of the notice. In this case, as it will become apparent when I consider the grounds of appeal, all the grounds of objection relate to the merits or demerits of the appeal grounds and therefore, in my respectful view, are not proper grounds of objection. I would therefore dismiss all secondary grounds of objection.

13. As to the primary ground set out in paragraphs 1 and 2 of the notice counsel for the respondents submits the decision by the learned primary Judge given on 13 October 2016 was interlocutory in nature and not a final decision and therefore leave was required by virtue of s. 14(3)(b) of the Supreme Court Act (Chapter 37).

14. Counsel for the appellants submits the decision delivered on 13 October 2016 was not interlocutory but was in effect a final decision and therefore leave was not required.

15. It is an undisputed fact that the learned primary judge conducted the trial on the quantum of damages over a period of time. It would appear the trial commenced on 28 May and concluded on 2 October 2015. On 13 October 2016 a written decision was delivered to the parties. The decision comprised of 48 pages. A Schedule of named plaintiffs numbering 1,687 is spread over 37 pages, about 75% of the written judgment.

16. The orders made by the trial Judge are recorded at page 11 of the decision in the following terms:

ORDER

The following provisional order is made, subject to the parties having being allowed seven days to file and serve written submissions to highlight any errors or omissions in the names of the plaintiffs referred to in the order.

1. Damages are payable by the third defendant in the sum of K5,000.00 to each plaintiff whose name appears in the Schedule.
   
2. In addition, interest is payable by the third defendant in the sum of K945.00 to each plaintiff whose name appears in the Schedule.
   
3. Each plaintiff whose name appear in the Schedule is awarded a total judgment sum of K5,945.00.
   
4. Subject to any particular costs order to the contrary, costs of the entire proceedings shall be paid by the third defendant to the plaintiffs on a party-party basis, to be taxed if not agreed.
   
5. The proceedings against the first and second defendants are dismissed.
   

17. On 28 October 2016 the lawyers for the plaintiffs (now respondents) filed further submission in accordance with the order of 13 October. The submission was very brief highlighting only the errors and omissions in respect to the names of the plaintiffs in the Schedule to the judgment. The submission also acknowledges that the errors and omissions highlighted do not affect the total of the judgment amount. The defendants (now appellants) did not file any submission.

18. Then on 25 November 2016 the trial Judge delivered almost identical written decision. The only difference is the final orders; however, it did not change the structure and the substance of the decision. The changes were minor or otherwise merely cosmetic in nature. The total number of the plaintiffs and the individual awards remained the same. Each plaintiff was awarded a principal amount of K5,000.00 plus interest of K945.00 totaling K5,945.00. The aggregate judgment award of K10,029,215.00 also remained unchanged.

19. The issue is whether the decision delivered on 13 October 2016 was an interlocutory judgment.

20. The question of whether a decision is interlocutory, or final has been resolved by the full bench of the Supreme Court in Steven Punagi v Pacific Plantation Timber Ltd (2011) SC1153 where it was held that any decision or judgment of the National Court that has the effect of finally determining a proceeding, including dismissal of the proceedings for want of prosecution is a final decision.

21. In this case, it is clear in my view that the decision made on 13 October 2016 effectively determined the proceedings. That decision effectively determined all the issues in the proceedings in terms of damages, interest and costs. I am satisfied the decision is not interlocutory as there is no substantive issue pending determination.

22. The circumstance of this case is analogous to a situation where a Judge in the course of reading his or her judgment in court discovers that there are typographical errors or editorial work that are needed to be done to polish up on the written judgment and therefore withholds the release of the written judgement for purposes of editing before releasing the final print of the judgment to the parties and the public. This is not an unusual practice. Judges resort to this practice all the time especially when further editorials are required on the written judgment before being released to the parties and their lawyer.

23. This ground of objection must also fail and is therefore dismissed.

24. There is a further reason for dismissing the objection. As submitted by counsel for the appellants the notice of objection is in itself incompetent because it failed to state the jurisdictional basis or the law on which the notice of appeal is alleged to offend. The appellants rely on the case authority in PNG Forest Authority v Securimax Security Pty Ltd (2003) SC717. However, that case is not directly on point, and it was a decision of a single judge sitting as the Supreme Court. It is also worthy of noting that case was decided prior to the promulgation of the current Supreme Court Rules 2012.

25. The case directly on point, which is a more recent case, and which preceded the Supreme Court Rules 2012, is Joseph Nandali v Curtain Brothers Ltd (2012) SC1483. In that case the Supreme Court dismissed an objection to competency for failing to state the jurisdictional basis of the objection. The Court endorsed and approved the principle in Pacific Equities & Investments Ltd v. Tuep Goledu & 2 Others (2009) SC962 where it was held that a notice of objection to competency which fails to set out the jurisdictional basis and or failed to state any law that the notice of appeal offended against, the objection is incompetent.

26. In Joseph Nandali (supra), the Supreme Court also made specific reference to the strict requirement of Order 13 Rule 15 of the Supreme Court Rules. This Rule states:

“All applications for interlocutory orders must contain a concise statement of the Court’s jurisdiction to grant the orders being sought.”

Grounds of Appeal

27. There are four grounds of appeal. All grounds alleged errors of law or mixed fact and law. I reproduce them below as follows:

(i) The Trial Judge erred in law and in fact when he rejected the appellants’ primary submission to dismiss the proceedings for the Plaintiffs non – compliance of section 5 of the Claims By and Against the State Act 1996 prior to the commencement of the national court proceedings when that threshold issue raised the competency of the proceedings and the court’s jurisdiction.

(ii) The Trial Judge erred in law and in fact when he did not revisit liability and dismiss the entire proceeding when evidence was put before him that there was no compliance of section 5 of the Claims By and Against the State Act prior to the commencement of this proceedings.

(iii) The Trial Judge erred in law and in fact in rejecting the appellants second primary argument to allow only the principal plaintiff’s claim for damages to be assessed for his failure as the principal plaintiff to obtain the consent and authority of the other plaintiffs whose names are listed in the Schedule attached to the Writ of Summons, to represent them in a class action pursuant to Order 5 Rule 8(2) of the National Court Rules.

(iv) The Trial Judge erred in law and in fact in accepting 1,687 affidavit evidence in assessing damages at K10,029,215.00 when each of these affidavit evidence were generic in content and not independently corroborated.

28. In my view the grounds of appeal raise the following issues:

(i) Whether the learned primary judge erred by rejecting the submission by the appellants to dismiss the proceedings for lack of compliance with s. 5 of the Claims By and Against the State Act 1996 (CBASA).

(ii) Whether the learned primary judge erred by not revisiting the issue of liability.

(iii) Whether the learned primary judge erred in awarding damages, except for the principal plaintiff, to all other plaintiffs in the proceedings in circumstances where there was no consent and authority given by the other plaintiffs.

(iv) Whether the learned primary judge erred in accepting the affidavits of the plaintiffs in circumstances where the content of each affidavit were generic and not independently corroborated.

29. Issue 1 and 2 are similar in nature and therefore will be considered together.

Issues 1 & 2 – Lack of compliance with s. 5 of CBASA

30. The appellants contend that during submissions on the evidence, the appellants raised the issue of lack of compliance with s. 5 of the Claims By and Against the State Act 1996 (CBASA) and argued that the respondents failed to give notice of their claims in accordance with s.5 of the CBASA prior to filing the proceedings or the statement of claim. Moreover, it is argued, even though no formal application was filed by the appellants, the issue was raised not only as a preliminary but a fundamental point of law that directly affects the jurisdiction of the Court. It was also argued s. 2(2) of the CBASA is mandatory and does not excuse the respondents from complying with s. 5 of the CBASA. On these bases, it is argued, the Court erred in not dismissing the proceedings. The following cases were cited in support of the submission: Paul Tohian & The State v Tau Liu (1998) SC566; Acquila Konzie v The State & Ors (2014) N5584; Hobolo Building & Maintenance Ltd v Hela Provincial Government (2016) SC1549; Punagi v Brown (2004) N2661; Mision Aseki v Manasupe Zurenouc (2005) SC797, Eddie v Kirokim (2012) N4932; William Wrondimi & Ors v Alphonse Vokene (2007) N3148 and JA Construction Ltd v Eastern Highlands Provincial Government & Ors (2007) N3243.

31. The respondents, in response, argued that:

(a) the appellants did not file any defence where s. 5 notice under the CBASA was raised

(b) no application was filed raising the s. 5 notice issue

(c) no evidence pertaining to s.5 notice issue was adduced before the Court, and

(d) the s.5 notice issue was raised belatedly,

32. The transcript of proceedings indicate that the s.5 notice issue was indeed raised during the submission by counsel for the appellants. The trial Judge after hearing arguments dismissed the submission for 2 reasons; first, the submission was made orally and without notice, and second, it was made late, 8 years after the entry of default judgment.

33. The law on s. 5 notice under the CBASA is now authoritatively settled. The leading case authority is the decision of the Supreme Court in Paul Tohian & The State (supra) and approved and endorsed by a host of other decisions of the Supreme Court. see for example Mision Aseki (supra) and the cases cited by the appellants mentioned above. A claim in tort, contract or enforcement of rights and freedoms under the Constitution, (ss. 57 and 58) made against the State is subject to a notice requirement under s. 5 of the CBASA.

34, It is trite law in our jurisdiction that the requirement to give notice in accordance with s. 5 of the CBASA is mandatory and a “condition precedent” to a right to bring or pursue a claim against the State. Where a notice is not given and a proceeding is filed such a proceeding will be deemed incompetent, even if the claim in the proceeding may have substantial merit. The notice must be given within 6 months of the occurrence of the event from which the claim arose. The 6 months’ notice period may be extended by the Principal Legal Adviser (Attorney General) or the Court on sufficient cause be demonstrated (see s. 5 (2)(c) of the CBASA).

35. What is of significance, in the decisions of the Supreme Court in so far as s. 5 is concerned, is that a claim that is filed in Court that does not comply with s. 5 of the CBASA has no foundation in law. This is so irrespective whether the claim itself is well grounded in law and facts. The proceedings simply cannot stand, be maintained or enforced under any circumstances. In my respectful opinion, this legal position is based entirely on statute (CBASA). As such, a statute law has an overriding effect on equitable principles. The notion, doctrine and principles of delay, lashes, acquiesce, estoppel, etc. are equitable principles. They do not override the statute law. The Supreme Court in Brian Josiah v Steven Raphael (2018) SC1665 considered the very issue and in so doing reviewed decisions of both the Supreme Court and National Court starting with Rawson Construction Ltd & Ors v The State (2004) SC777, Joe Kerowa v Motor Vehicles Insurance Limited (2010) SC1100, Sao Gabi & State v Kasup Nate & Others (2006) N4020 and Paul Kumba v Motor Vehicles Insurance (PNG) Trust (2001) N2132. These cases held that principles of common law and equity do not override the statute law. The Court in that case went on to describe the adages attributable to the principle stating:

“The entrenched principle is drawn from the latin maxim “aequitas sequitur legem”, which meaning has invariably been given adages such as “equity will not allow a remedy that is contrary to law”, or equity had come not to destroy the law, but to fulfill it” or “equity has no clash with the law neither it overrides the provisions of the law, nor it is the enemy of the law. It adopts and follows the basic rules of the law”

36. It is therefore plainly clear that principles of equity are and will always remain subservient to the statute law. Where circumstances in a particular case require a Court to apply an equitable principle the Court will do so in the exercise of discretion. However, where a statute law is to be applied there is no or very little room for the exercise of discretion by a court of law. The statute law will and should be applied as a matter of course.

37. In this case the learned primary Judge applied the equitable principle of delay and the practice requirement of the Court Rules. It should be noted that Court Rules are not an end in themselves, but a means to an end: Philip Takori v Simon Yagari (2008) SC905. His Honour found that there was substantial delay of 8 years and furthermore no written application supported by affidavit evidence was filed. The following reasons were given by the learned primary Judge in ruling against the submission by the State (now the appellant) relative to the issue of s.5 notice:

I dismiss both arguments as they have been made orally, they are made very late (eight years after entry of default judgment), without notice and without evidence. Such arguments must be made by notice of motion, in a timely manner (in this case, soon after entry of default judgment) and supported by affidavit.

38. I agree that there has been inordinate, unreasonable and inexcusable delay on the part of the appellant in bringing the section 5 issue before the Court. It is implicit that the delay on the part of the appellant raises serious issues about resources, capacity and competency within the Office of the Solicitor General and may warrant some form of legal redress or penalty. I also accept that there was no written application supported by affidavit evidence before the Court. However, be that as it may, it is my considered opinion that the failure by the appellant does not relieve the Court in its duty to ensure a statute law is not ignored. It has a duty to ensure that the law is given full force and effect in its application. It also has a duty to ensure that its own process is protected and safeguarded from being abused by filing of illegal claims.

38. Section 5 notice is a threshold issue that directly affects the jurisdiction of the Court. In this case, default judgment was entered, and the matter proceeded for assessment of damages before the learned trial Judge. An entry of default judgment is not a final or conclusive judgment on liability. The issue of liability may be revisited and open to review and challenge, depending on the circumstances. It always remains a live issue throughout the proceeding: see Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112, Haiveta v Wingti (No. 1) [1994] PNGLR 160, Sir Arnold Amet v Peter Charles Yama (2010) SC1064 and John Kekeno v Philip Undialu & Electoral Commission (2014) SC1428. This is also apparent from the many principles surrounding the assessment of damages. Case authorities provide exceptions to the general rule that once liability is resolved by default does not preclude the Court from reviewing the question of liability. It is certainly not an absolute bar.

40. The relevant principles on assessment of damages were succinctly canvassed in Coecon Ltd (Receiver/Manager Appointed) v National Fisheries Authority (2002) N2182 which were subsequently endorsed and applied by the Supreme Court in Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694 and William Mel v Coleman Pakalia (2005) SC790. Among others, the following principles are stated:

• A default judgment resolves all questions of liability in so far as pleadings are concerned. Facts pleaded as regards liability are deemed proven in establishing a cause of action known to law.
  
• Where a fact or matter is not specifically pleaded in the statement of claim and is otherwise sought to be introduced at the trial for assessment of damages the defendant is entitled to re-open the issue of liability.
  
• A Judge conducting trial on assessment of damages should undertake a cursory inquiry to satisfy himself that facts and cause of action are pleaded with sufficient clarity.
  
• Where the trial Judge is satisfied that the facts as pleaded demonstrate with sufficient and reasonable clarity a cause of action liability should be deemed proven.
  
• Where the facts pleaded do not make any sense or would lead to a futile exercise if the assessment proceeds further, then it is proper and appropriate for the trial judge to revisit the issue of liability.
  

41. In this case the appellants submit the learned trial Judge erred in not revisiting the issue of liability. If his Honour had done so, the inquiry would reveal notice under the CBASA was wanting.

42. It must be noted that the initiating process (Application for Enforcement of Constitutional Rights) was filed on 18 October 2000. This document is in the Appeal Book at pages 6 – 10 (Tab 4). There is nothing in that document that pleads or states that a notice under s. 5 of the CBASA was given to the State. The statement of claim which was filed pursuant to a court order also does not plead that the condition precedent was complied with. This document can be found in the appeal book at pages 15 – 82 (Tab 7). The facts pleaded appear from pages 16 – 18. There is no question that the facts are pleaded with sufficient clarity and gives rise to causes of action in tort of trespass, detinue and breaches of rights and freedom under the Constitution. However, the claims as pleaded are regulated by law. In this regard ss. 2 and 5 of the CBASA are pertinent. I set out below ss. 2 and 5 which are as follows:

2. Suits against the State.

(1) A person making a claim against the State in contract or in tort may bring a suit against the State, in respect of the claim, in any court in which such a suit may be brought as between other persons.

(2) The provisions of this Act apply to applications for the enforcement against the State of a right or freedom under Section 57 (Enforcement of guaranteed rights and freedoms) of the Constitution and for damages for infringement of a right or freedom under Section 58 (Compensation) of the Constitution.

5. Notice of claims against the State.

(1) No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this Section by the claimant to—

(a) the Departmental Head of the Department responsible for justice matters; or

(b) the Solicitor-General.

(2) A notice under this Section shall be given—

(a) within a period of six months after the occurrence out of which the claim arose; or

(b) where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach; or

(c) within such further period as—

(i) the Principal Legal Adviser; or

(ii) the court before which the action is instituted,

on sufficient cause being shown, allows.

(3) A notice under Subsection (1) shall be given by—

(a) personal service on an officer referred to in Subsection (1); or

(b) leaving the document at the office of the officer with the person apparently occupying the position of personal secretary to that officer between the hours of 7.45 a.m. and 12 noon, or 1.00 p.m. and 4.06 p.m., or such other hours as may from time to time be declared by or under the Public Services (Management) Act 1995 to be the normal public service hours of duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Chapter 321).

43. As I discussed earlier the case law authorities makes it plain and trite that no claim either in tort or for breach of constitutional rights can stand and be entertained in a court of law unless notice requirement under s. 5 is satisfied.

44. The question arises as to the practice and procedure in terms of pleading this legal requirement? There appears to be no specific procedure prescribed by the National Court Rules (NCR) in respect to pleading the requirement of s. 5 notice. The rules provide for general pleading in terms of a claim, defence, reply, re-joinder, set-off and cross claim. The general rule is that the plaintiff is required to plead a claim that is identifiable in law. As s. 5 notice is a condition precedent, Rule 12 of Order 8 of the NCR is relevant. It states:

12. Condition Precedent (15/11)

Where it is a condition precedent necessary for the case of a party in any pleading that a thing has been done or an event has happened, a statement that the thing has been done or that event has happened shall be implied in the pleading.

45. In my view, Rule 12 provides the minimum requirement to plead a statement to the affect that the condition precedent has been satisfied. It is not necessary for the plaintiff to plead detail facts because these facts will be implied from that statement. In this case the plaintiff must plead a statement that s. 5 notice under CBASA was given to the State. Details of the notice such as when, who, where and how the notice was served, and the form of notice need not be pleaded. These facts will be subject of subsequent pleading by way of a reply, after the State files a defence denying the statement and taking issue with it. Where the State fails to file a defence, or files a defence but does not deny or take issue with the statement it will be deemed that the condition precedent has been fully complied with.

46. In many instances the plaintiffs in a proceeding do not plead a statement that steps have been taken in accordance with the requirements of the CBASA. This case is a classic example. This practice is not proper and is inconsistent with the law.

47. In my view a claimant or plaintiff suing the State should plead in the statement of claim, or in appropriate initiating document, a statement that he or she has complied with s. 5 of the CBASA. It must be pleaded that the condition precedent has been complied with. When such a statement is made then it means that the plaintiff has a prima facie identifiable cause of action in law. Where a pleading does not make such a statement then the action, suit and proceedings is fortiori incompetent as matter of law. A statement of claim that does not specifically plead the condition precedent is for all intentions and purposes of the law incompetent. Such a claim is also illegal and is null and void ab initio. It cannot be presumed that the condition precedent has been complied with. Such presumption has no basis in law.

48. Counsel for the respondents cited the decision of his Honour Kandakasi J (as his Honour then was) in Joel Aundambui & Ors v Post PNG Ltd & Ors (2014) N5772 and argued that s. 5 notice issue was not raised in the pleading by way of a defence by the appellant and therefore the appellant is precluded from raising the issue. The following statement was specifically relied upon:

82. Post PNG did not raise the issue of notice under s. 5 of the CBASA in its defence or its main submissions. This argument is thus raised for the first time in its reply to the Aundambuis’ submissions. In The State v. Brian Josiah & Ors14 the Supreme Court held that, the defence of lack of any notice under s. 5 of the CBASA is a statutory defence. Such a defence requires specific pleading. A failure to do so precludes the State or anyone seeking to benefit from such a defence from raising it belatedly.15 That being the case, the State or a defendant seeking to dismiss any proceeding for lack of s.5 notice can do so only after pleading it in its defence and not otherwise.

83. Post PNG’s response to that legal position is that, the issue of competency of any proceeding is always an open issue until final decision. Hence, it can be raised at any time before final decision. The decision of the Supreme Court in Sir Arnold Amet v. Peter Charles Yama16 supports that position. This was however the subject of further consideration and decision of the Supreme Court in Paru Aihi v. Peter Isoaimo.17 There the Court which included myself, took the view that, in fairness to all parties, it is far better to allow for the requirement that all issues must be appropriately raised in the pleadings or earlier on. A failure to raise an issue in this way, prevents a party from raising such an issue belatedly on appeal or review, even if it is only a point of law. In arriving at that view, I went into a detailed consideration of all of the past authorities with the support expressly of one other member of the Court. In that consideration I had careful regard to the line of authorities led by MVIT v. James Pupune,18 which say that the Court cannot have any regard to matters not pleaded. Here Post PNG has not provided me with any convincing reason to depart from this position. Accordingly, I am of view that the requirement for notice under s, 5 of the CBASA, is raised belatedly and without any proper foundation in the pleadings. Consequently, I would dismiss Post PNG’s argument and hence, its defence based on s. 5 of the CBASA.

49. Whilst I acknowledge the reasoning, with the greatest of respect, I beg to differ from his Honour’s conclusion. It appears the view expressed did not take proper account of the statement of the Supreme Court in State v Brian Josiah (2005) SC792 where the Court said the following with regards to non-pleading of a statutory defence, though in the context of the Statute of Frauds and Limitations, which in my view, is pertinent:

“We therefore cannot accept Mr Dotaona’s submission that it was a statutory defence which should have been raised in the pleading. If a claim is not sustainable at law ........ what difference would pleading of statute of frauds and limitations make? Can a failure to plead cure a clear defect in law? Certainly not.” (emphasis added)

50. In my considered view, the onus is on a plaintiff or claimant to plead his or her case according to law. Going by the strength of the judicial pronouncements on s. 5 notice requirement and the requirement of the NCR, Order 5 Rule 12, it is incumbent on the plaintiff to plead and show that the case is fully compliant with the law and in the context of claims against the State, is s. 5 compliant.

51. In this case a serious point of law was raised by counsel for the State at trial, and with respect, the learned trial Judge took the view that such preliminary point was not properly before the Court. With respect the legal point raised has substantial merit and deserve to be given due and proper consideration. A cursory look at both the Application for Enforcement of Constitutional Rights and the Statement of Claim is both glaring and revealing. When properly considered it ought to or should lead to an inescapable conclusion on the face of the record that the claim may be highly questionable, and hence may lead to a futile exercise if the trial proceeded further. The respondents do not appear to have any evidence to contest the legal point other than simply oppose the issue merely on a procedural point. In these circumstances, it was just and proper that the learned trial Judge should have revisited the issue of liability and in particular the issue of s. 5 notice.

52. The appellants had filed an affidavit in the National Court to the effect that the notice requirement under the CBASA had not been complied with by the respondents. There appears to be an issue whether that affidavit was served on the respondents’ lawyers whose office at the relevant time was not operating as normal. However, it must be said that the respondents had not filed any affidavit disputing this fact. The respondents merely objected to the use of that affidavit at trial on the grounds that the affidavit was not served. The learned trial Judge upheld the objection on the basis that the appellants failed to file an affidavit confirming service of a notice under s. 35 of the Evidence Act that such affidavit will be used at trial. With respect, in my opinion the interest of justice demands that the trial judge ought to and should have exercised the Court’s inherent power to do justice in the case by allowing the affidavit material to be used because the circumstances did not appear to cause the respondents serious prejudice. Even if there is any suggestion of prejudice it was within the Court’s power to adjourn the trial to allow the respondents an opportunity to fairly contest the serious point of law raised by the appellant. That would be, in my respectful view, the proper and appropriate manner to deal with a very significant legal point. Using the procedural law to circumvent a strict rule of law is not doing justice in the circumstances of the case. The Court has a paramount duty to dispense justice (see Constitution, s. 158). In that regard, I am of the opinion that the learned trial Judge, with respect, fell into error in deciding the issue resulting in miscarriage of justice. I would uphold this ground of appeal.

Issue 3 - No consent and authority given prior to commencement of proceedings.

53. The appellant submits there was no evidence of written consent or authority given by the other plaintiffs for the lead plaintiff (Alphonse Willie) to represent them in the proceeding thus offending the requirement of Order 5 Rule 8(2) of the NCR. In the result, it is argued, the assessment of damages, and the awards made, in respect of those other plaintiff is wrong. It is further submitted, even if such consent and authority was given those other plaintiffs must also give notice of their claim to the State in accordance with s. 5 of the CBASA. In the present case, no such notice was given by these other plaintiffs.

54. The respondents submit the appellants did not file any defence nor an application raising the issue. The appellants also did not file any affidavit evidence to show that the lead plaintiff (Alphonse Willie) filed proceedings without consent and authority of the other plaintiffs.

55. Order 5 Rule 8(2) of the NCR states:

“(2) A person shall not be added as plaintiff without his consent.”

56. The facts in this case demonstrate clearly that the proceedings involve a class or representative action by members of a certain group. In that regard Rule 13 of Order 5 is also relevant. It states:

“13. Representation; Current interests. (8/13)

(1) Where numerous persons have the same interest in any proceedings the proceedings may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.

(2) At any stage of proceedings pursuant to this Rule the Court, on the application of the plaintiff, may, on terms, appoint any one or more of the defendants or other persons (as representing whom the defendants are sued) to represent all, or all except one or more, of those persons in the proceedings.

(3) Where, under Sub-rule (2), the Court appoints a person who is not a defendant, the Court shall make an order under Rule 8 adding him as a defendant.

(4) A judgement entered or order made in proceedings pursuant to this Rule shall be binding on all the persons as representing whom the plaintiffs sue or the defendants are sued, as the case may be, but shall not be enforced against any person not a party to the proceedings except with the leave of the Court.

(5) An application for leave under Sub-rule (4) shall be made by motion, notice of which shall be served personally on the person against whom it is sought to enforce the judgement or order.

(6) Notwithstanding that a judgement or order to which an application under Sub-rule (5) relates is binding on the person against whom the application is made, that person may dispute liability to have the judgement or order enforced against him on the ground that by reason of facts and matters particular to his case he is entitled to be exempted from the liability.

(7) This Rule does not apply to proceedings concerning —

(a) the administration of the estate of a deceased person; or

(b) property subject to a trust.”

57. The combined effect of Order 5, particularly Rules 1, 2, 3 6 and 13 have been judicially considered by the Supreme Court in Simon Mali v The Independent State of Papua New Guinea (2002) SC690 and Tigan Malewo v Keith Faulkner (2009) SC960. These Rules govern and regulate the mode and manner of commencement of proceedings in a class or representative action. In so far as Rule 3 is concerned the Supreme Court in Simon Mali (supra) stated:

“.......................... the legal representatives of the unnamed plaintiffs in all of the five (5) proceedings were required by law to “have their names included in a schedule (to the writ) or for their written consent to be filed”. And these written consents would have had to come by way of an Authority to Act Form.”

58. The Court further stated:

“................ in all actions or proceedings of a representative nature, all the intending plaintiffs must be named and duly identified in the originating process, be it Writ of Summons, Originating Summons or Statement of Claim endorsed on a writ. In this respect, pursuant to the Rules (supra), each and every intending plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them. There are good reasons for this, one being where costs are concerned, if awarded against the plaintiffs. Some of the problems or consequences in a representative action are anticipated in the various sub-rules under O. 5 r. 13 NCR (Representation: Current Interests).”

59. In Tigan Malewo (supra), the Supreme Court in endorsing the ratio decidendi in Simon Mali (supra) re-iterated the principles in terms of the requirements of Rule 13:

• all intended plaintiffs must b named in the originating process.
• each and every plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them.
• any person in whose name proceedings are commenced and who claim to represent other intending plaintiffs must produce an authority to the court to show that he was authorized by them to file proceedings as a class representative.
  

60. From these decisions, there can be no doubt as to the requirements of Order 5. Where a claim is instituted or commenced as a class or representative action all intending plaintiffs must be identified or named. Each intending plaintiff must give written instructions to their legal representative and any person who claims to represent the intending plaintiffs must produce in terms of filing in court a written consent or authority.

61. In the present case, there is no evidence of written consent or authority filed by the lead plaintiff (Alphonse Willie) showing that he was authorized by each of the intended plaintiffs when he instituted or filed the Application for Enforcement of Constitutional Rights in October 2000. Indeed, he did not seek nor obtain leave of the Court to file such authority prior to filing the statement of claim in January 2007. In this regard, I note the order of 10 August 2006 (directing for filing of statement of claim) did not grant leave for the lead plaintiff to file such consent or authority.

62. The decisions of the Supreme Court are clear in that failure to comply with the requirements of Order 5 is fatal to the survival of the action. In this regard, I am satisfied this ground of appeal has substantial merit and must also be upheld.

Issue 4 – generic affidavit not independently corroborated

63. Given the reasons and conclusions reached in respect to the forgoing issues, in my view, it is not necessary to consider this issue.

Orders

64. I consider that, having regard to the powers vested in the Court under s. 16 of the Supreme Court Act, the appropriate orders in the circumstances of the case should be the following:

1. The Appeal is upheld

2. The whole of the judgment of the National Court dated 13 October 2016 and confirmed on 25 November 2016 in awarding to the respondents the aggregate sum of K10,029,215.00 in damages is quashed and set aside forthwith.
   
3. The proceedings MP (HR) No 658 of 2000 is forthwith dismissed.
   
4. The respondents shall pay the appellants’ costs in the appeal on party-party basis to be taxed, if not agreed.
   

65. BONA J: I had the benefit of reading the draft judgment of Justice Yagi and I agree with the reasons, conclusion and proposed orders. I have nothing further to add.

Orders

66, The orders of the Court are therefore as follows:

1. The Appeal is upheld

2. The whole of the judgment of the National Court dated 13 October 2016 and confirmed on 25 November 2016 in awarding to the respondents the aggregate sum of K10,029,215.00 in damages is quashed and set aside forthwith.
   
3. The proceedings MP (HR) No 658 of 2000 is forthwith dismissed.
   
4. The respondents shall pay the appellants’ costs in the appeal on party-party basis to be taxed, if not agreed.
   

_____________________________________________________________

Solicitor General: Lawyer for the Appellants

Yansion Lawyers: Lawyer for the Respondents