SC2693

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCREV 21 OF 2023

BETWEEN:
CHINA HARBOUR ENGINEERING COMPANY (PNG) LTD
First Applicant

AND:
CHINA HARBOUR ENGINEERING COMPANY LTD
Second Applicant

AND:
BUNI MORUA ALOYSIUS, FOR HIMSELF AND ON BEHALF OF 79 OTHER OCCUPANTS OF A PORTION 1189 OF LALOKI, CENTRAL PROVINCE
Respondents

WAIGANI: HARTSHORN J, LOGAN J, WAWUN-KUVI J
28 OCTOBER 2024

REPRESENTATIVE PROCEEDINGS – where the respondents purported to bring representative proceedings – where the respondents did not file consent to act forms in accordance with the procedure set out in Mali v The State [2002] PNGLR 549 – failure to follow procedural fatal to proceedings – appeal allowed

LAND LAW – where the respondents purported to bring claims including trespass to land – where none of the respondents were the registered proprietors of the land during the relevant period – where claims based on being proprietor of land untenable – appeal allowed

PRACTICE & PROCEDURE – where primary judge conducted an assessment of damages after judgment being entered in default – where the primary judge adverted to issues regarding constitution of representative proceedings and title to the land – where primary judge did not deal with those other issues – appeal allowed

Facts:

The respondents commenced proceedings in the National Court against the applicants for various causes of action relating to the building of a bridge at Laloki. The various causes of action, and related heads of damages, largely related to adverse environmental impacts causing nuisance and, as a sequel to nuisance and trespass, resulting in environmental damages. 

In 2020, judgment in default was entered against the applicants. The proceedings were then listed for hearing on the assessment of damages. The primary judge awarded a total sum of K7,733,740 in damages, plus interest and indemnity costs. 

The applicants applied for a review of that decision on various bases, including that the proceedings were not properly instituted representative proceedings and that the respondents were not the registered owners of the land during the relevant period.

Held:

1.	[Logan J, with Hartshorn J and Wawun-Kuvi J agreeing]: The proceedings were not properly instituted representative proceedings. This failure is fatal to the proceedings and they should have been dismissed.

2.	The respondents lacked standing to bring some of the claims due to not being the registered proprietors of the land during the relevant period. 

Cases cited:

Aloysius v China Harbour Engineering Co (PNG) Ltd [2023] PGNC 203; N10265
Kauba v Willie [2021] PGSC 78; SC2162
Koti v Mali [2022] PGSC 4; SC2191
Malewo v Faulkner [2009] PGSC 3; SC960
Mali v The State [2002] PNGLR 549
Mel v Pakalia [2005] PGSC 36; SC790
Morua v China Harbour Engineering Co (PNG) Ltd [2020] PGNC 16; N8188
Ronnie Choi Constructions Limited v Tela [2024] PGSC 91; SC2617

Counsel

Mr. Nalawaku and Ms Marru for the applicants
Mr. Kiuk for the respondents

Oral decision delivered on
28th October 2024

1.	HARTSHORN J:  I agree with the reasoning, conclusions and the orders of Logan J which were detailed and covered all aspects of the matters concerning the review before the Court today.  

2.	I add further that I am satisfied from the documentation before this Court that the representative requirements that should have been complied with to bring a representative action were not complied with and I refer in this regard to the authority of Kauba, Mali and Koti and Malewo.  

3.	And further that the plaintiff, now respondent, and the persons he purported to represent do not have standing to bring the National Court proceeding, as they were not the registered State lease holders when the alleged damage about which the complaint is made was caused.  And so for those two main reasons, the National Court proceedings were fatally flawed.

4.	I am satisfied that this Court, pursuant to its inherent jurisdiction as referred to in the case of Ronnie Choi, at [8]-[9], should order as has been ordered by Logan J and that is that first that the orders of the National Court on 27 February 2023 are quashed and further, as sought by the applicants at [43] of their application to review, that the respondents have no standing at all to have commenced the proceedings in the National Court.  And so the proceeding WS 437 of 2019 in the National Court is dismissed. 

On the consequential costs application
5.	I agree with my brother Logan J as to the orders as to costs.

6.	LOGAN J: On 18 April 2019, the present respondent, “for himself and on behalf of the 79 other occupants of portion 1189 of Laloki, Central Province” (according to the entitling of the writ), caused a writ to be issued naming the present applicants for review, China Harbour Engineering Company (PNG) Limited and China Harbour Engineering Company Limited as defendants.

7.	The statement of claim endorsed on the writ as issued provided by paragraph 1 that the plaintiff is a natural person and citizen who can sue and be sued in his own name and for and on behalf of his family members.  Paragraph 2 of the statement of claim provided that the “plaintiff’s family is the owner of the piece of State Lease Volume 101, Folio 87, namely Portion 1189, Granville Milinch, Fourmil of Port Moresby, hereafter as the land lies along the Hiritano Highway at Laloki Bridge in the Central Province containing 5.1 hectors [sic].”  “Hectors” is surely meant to mean hectares.  

8.	Paragraph 5 in the statement of claim provides that the defendants were awarded various road and building contracts in Papua New Guinea, including, among others, the refurbishment or construction of the new Laloki River Bridge contract. This contract was awarded to the defendants whereby the first defendant company was fully engaged and independently contracted to carry out construction work by the government of Papua New Guinea under the Department of Works and Implementation as the project owner and was fully funded by the Asian Development Bank in the form of a loan owed to PNG Government.

9.	Paragraph 6 provides that the plaintiff’s cause of action is brought under section 16 of the Frauds and Limitations Act for tort of nuisance and by trespassing property violating various rights under the Constitution of Papua New Guinea pursuant to section 53 and other relevant provisions of the Environmental Act 2000 regarding issuance of a work permit, and more particularly the defendants are in breach of section 45 of the Environmental Act 2000.

10.	What follows thereafter are allegations in relation to the performance of project works between 15 January 2015 and completion in March 2017.  The allegations concern what might compendiously be described as adverse environmental impacts causing nuisance, as a sequel to trespass, resulting in environmental damage.  There is also an allegation of a liability on the part of the named defendant companies to compensate for “environmental damages, noise and air pollution based on the assessment done to the value of K13,981,700 as a result of the private nuisance and trespassing of the plaintiff’s property and in breach of sections 41 and 45 of the Environment Act 2000.  And therefore, ‘violent’ section 53 of the Constitution for just and fair compensation.” Again, the reference to “violent” is surely intended to be “violation of.”

11.	What follows under paragraph 26 of the statement of claim is a table which particularises the claimed heads of damage as land degradation and soil pollution and rehabilitation costs for 65 years remaining on the lease, gravel extraction and unpaid royalty, potential income loss and cash cultivation, loss of earnings, and what is said to be annual State lease yet to be paid for the 65 years remaining.

12.	The applicants gave a notice of intention to defend on 7 May 2019.  Thereafter, however, the defendants did not file a defence.

13.	Interlocutory proceedings thereafter included an application which came before Kandakasi DCJ on 18 December 2019.  The present applicants, as defendants, sought a dismissal of the proceedings for a failure to disclose a reasonable cause of action and for the plaintiffs lacking the necessary standing to bring the claim.  There was a separate application also heard that day by the present respondent as at least a purported representative plaintiff seeking judgment in default of the present applicants’ defence.  Judgment was reserved that day and delivered on 7 February 2020.  The formal orders of the court are recorded at [69] of the judgment: Morua v China Harbour Engineering Co (PNG) Ltd [2020] PGNC 16; N8188.  That paragraph provided:

“69. On the basis of the foregoing reasons I ultimately make the following orders:
1. The application to dismiss the proceedings on the basis of the Plaintiffs’ lacking the necessary standing and a failure to disclose a reasonable cause of action is dismissed.
2. Costs of the application dismissed under term 1 is ordered against the Defendants on the basis of own solicitor and client costs to be taxed, if not agreed.
3. The Plaintiffs application for default judgment is dismissed with costs to the Defendants.
4. The Plaintiffs are granted leave to file and serve an amended writ and statement of claim which observes the rules of proper pleading with particulars by no later than 07th March 2020.
5. Pursuant to s. 57 (1) of the Constitution and Order 5, Rule 8 (1) of the National Court Rules, the Court on its own motion orders and directs the following persons or authorities be joined as parties to this proceeding:
(a) Ruel Yamuna in his capacity as Managing Director of the Conservation and Environment Protection Authority (CEPA) and in his capacity as Director of Environment under s. 15 of the Environment Act 2000 as amended as the Third Defendant;
(b) Environment Protection Authority as Fourth Defendant;
(c) the Secretary for the Department of Environment and Conservation as the Fifth Defendant;
(d) Honourable Mr. Wera Mori as Minister for Environment and Conservation as Sixth Defendant; and
(e) The Independent State of Papua New Guinea as Seventh Defendant.
6. The persons and authorities joined as defendants under term 5 of these orders shall by no later than 21st March 2020, provided a detailed report to this Court of the steps they each took to ensure compliance of the various provisions of the Environment Act 2000 as amended and all other relevant and applicable National legislation and all relevant and applicable international conventions, treaties and protocols on the environment as they may have applied to the construction and completion of the Laloki River Bridge and related activities.”
14.	One such order was dismissal of the proceedings on the basis of a lack of standing by the plaintiffs.  Another was dismissal of an application for default judgment against the present applicants, yet another was a grant of leave to file and serve an amended statement of claim “which observes the rules of proper pleading with particulars.”  As can be seen, there was also an order for the joinder of various State parties.

15.	On 6 March 2020, an amended writ of summons pursuant to the interlocutory order of the National Court was filed.  The amended statement of claim in paragraph 1 stated the plaintiff is a natural person and citizen who has the legal capacity to sue and be sued in his personal name as cited or styled and in his representative capacity for and on behalf of others as also cited.  Particulars of causes of action in the amended writ were breach of statutory or regulatory requirements, “illicit activities as a result of non-compliance with the requirement for EMP, a permit under the Environment Act, trespass, fraud, loss of income and adverse impacts on the environment of the subject land, negligence, regulatory breaches, and violation of various constitutional rights – alleged constitutional rights being section 36, freedom from inhuman treatment, section 69, right to privacy, section 53, protection from unjust deprivation of property.”

16.	Once again, the present applicants filed a notice of intention to defend but they did not thereafter file a defence to the amended statement of claim.  So it was that by an order dated 25 September 2020 entered on 5 October 2020, default judgment was entered against the present applicants with damages to be assessed.  

17.	The assessment of damages came before an acting judge of the National Court on 16 February 2023.  For reasons for judgment later published (Aloysius v China Harbour Engineering Company (PNG) Ltd [2023] PGNC 203; N10265), the Court ordered on 11 May 2023 that a sum of K4,653,740 be awarded for general damages for environmental damage against the present applicants.  The Court also assessed general damages for trespass in the sum of K80,000, nil for loss of income, nil for negligence, nil for statutory breach, nil for constitutional breach, but the sum of K3,000,000 for exemplary damages.  In all, a total of K7,733,740 by way of damages together with interest thereon and costs on an indemnity basis.

18.	Leave to review the order so made was granted on 14 August 2023.  Notwithstanding that grant of leave, the respondent nonetheless chose to object to the competency of the applicants’ review application under section 155(2) of the Constitution.  That objection to competency was itself incompetent.  

19.	Subject to the grant of leave, the Court has jurisdiction to review a judicial act of the National Court.  The judgment given in 2023 assessing damages and making consequential orders was a judicial act of the National Court.  It is, with all respect to the respondent, beyond question that the Court has jurisdiction to review that. 
 
20.	An objection to competency goes to jurisdiction.  It is not apt, under the guise of an objection to competency, to seek to take issue with a particular ground of review.  Rather, whatever flaw there might be in a particular ground of review is a matter for submissions upon the hearing within jurisdiction of the application for review.  One order which I would therefore make today is that the respondent’s objection to competency be dismissed.  

21.	In many ways though, that is a side-wind.  Understanding what came to be two substantive bases of challenge to the orders made on the assessment of damages requires that the conclusions reached by the learned the primary judge, as summarised by his Honour at [76]-[78], be set out in full. His Honour there states:

“76. This proceeding is instituted by Buni Morua Aloysius for himself and on behalf of 79 other occupants. He filed the proceeding on the 18 April 2019. The Amended Writ of Summons was filed on the 6 March 2020. Attached to the original Writ of Summons is a “Claimant List” of 79 persons. Order 5 Rule 8 of the National Court Rules requires consent of persons to be a joint plaintiff. In Simon Mali & Ors v The State, [2002] PNGLR 549 the Supreme Court held inter alia that “in representative actions, the legal representatives are required by law to
have the names of the plaintiffs included in a schedule (to the Writ) or for their written consents to be filed and these consents to be by way of an Authority to Act Form.”
77. Here there is no evidence of the 79 people having consented to being parties to the proceeding. Moreover, the Amended Writ of Summons is devoid of such a list. It means that Buni Morua did not have sufficient representative capacity and as such the claim is valid for him only and no other.
78. The other matter of concern is the legal right to make a claim in respect of a State Lease. The Lease Title shows that the principal plaintiff and his 3 siblings who are joint tenants, became registered as such on the 22 June 2018, 3 years after the cause of action arose in 2015. In short, he was not a legal title holder at the accrual of the cause of action. At best he has an equitable right of use being the son of the title holder. The principle of adverse possession is not available to him as it is not applicable in this jurisdiction.”

22.	Nonetheless, in light of these conclusions, the primary judge made the award of damages mentioned.  The essence of the grounds of review pressed for the applicants are found in these paragraphs of the reasons for judgment of the primary judge.  They are: (1) the proceeding was never validly constituted as a representative proceeding; and (2) the proceeding was misconceived by virtue of an assertion of a right to sue in a representative capacity in respect of the land in the face of evidence that the land was held by way of a State lease under the Land Act in circumstances where the registered proprietor of the State lease was neither the lead plaintiff nor any and certainly not all of the 79 persons on whose behalf the proceeding was said to have been instituted.  It takes a somewhat benign reading of the statement of claim either in its original form or in its amended form to regard it as one where it is alleged that not only does the plaintiff have capacity to sue on behalf of 79 other persons but does indeed sue on their behalf.

23.	It is sufficient though to accept that, albeit in a benign reading, the learned primary judge regarded the proceeding as one which was representative.  It was put for the applicants that there was a fatal flaw apparent to the primary judge in the passage just quoted, but which was not taken towards a lawful result by the primary judge.  That lawful result being one which should have led inexorably to the dismissal of the proceeding.

24.	Considering that ground first, it is sufficient to refer to two judgments of this court. In Kauba v Willie [2021] PGSC 78, SC2162.  Yagi J, with whom Batari J and Bona J agreed, addressed under the subject of “Issue 3 - no consent and authority given prior to commencement of proceedings”, at [53]-[62], the requirements for the institution of a representative proceeding.  His Honour stated:

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 [sic] 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.
	[emphasis added]
25.	Later in time, but to no different effect is Koti v Mali [2022] PGSC 4; SC2191, where the Court making reference inter alia to a case cited by the primary judge, Mali, stated at [13]-[15]:

13. The applicant has commenced and prosecutes this review in a representative capacity and so must have complied with the necessary representative requirements which must be followed as has been held in Simon Mali v. Independent State of Papua New Guinea [2002] PNGLR 15 and Tigam Malewo v. Keith Faulkner (2009) SC960: generally and at [63].

14. These requirements were recently reproduced in RD Fishing (PNG) Ltd v. Masai (2021) SC2143. Paragraphs 11 and 12 of RD Fishing (supra) are reproduced here:
“11. The three interlocutory judgments appealed are concerned with a representative action. In Simon Mali v. The State (supra) and Tigam Malewo v. Keith Faulkner (supra), it was held that where a plaintiff is acting in a representative capacity for other persons:

a) all intended plaintiffs (those who he claims to represent) must be named in the originating process;
b) each and every intended plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them;
c) any person who commences proceedings and claims to represent other intended plaintiffs must produce an authority to the court to show that he was authorised by them to file proceedings as a class representative.

12. These requirements have recently been referred to with approval in Mark Philip v. Ken Tiliyago (2019) SC1783 at [24] (David, Hartshorn and Kariko JJ), Independent State of Papua New Guinea v. Kunai (2020) SC2029 at [10] (Makail J.) and Amaiu v. Yalbees (2020) SC2046 at [21] (Salika CJ, Makail J and Berrigan JJ).”

15. In this instance the applicant purports to have commenced the review for himself and on behalf of the Dumuna Akiki Clan of Damaende Village, Nahu Rawa LLG, Raicoast, Madang Province.

26.	The consequence of the violation of the requirements of the National Court Rules for representative proceedings was regarded both in Kauba, as well as Koti, as fatal.  It was common ground in this proceeding that the names of the 79 persons were not mentioned and that there was not, annexed to the writ or otherwise filed, an authority signed by those persons consenting to the institution of proceedings. 
 
27.	This particular feature of the case was apparently one not drawn to the attention of Kandakasi DCJ at the time when his Honour gave the interlocutory judgment mentioned.  It was though most definitely an issue detected by the learned primary judge.  It is just that, with respect, his Honour did not apply, as he was bound to do by a Supreme Court authority, the consequence of that deficiency.

28.	The Court in assessing damages is entitled of its own motion to draw to the attention of the parties an apparently fatal deficiency in the proceeding: see, as to this and most recently, Ronnie Choi Constructions Limited v Tela [2024] PGSC 91; SC2617.  There, in the joint judgment of David and Hartshorn JJ, it is stated at [7]-[8]: 

7. As to the submission that compliance with the Public Finances (Management) Act, PFMA, if a matter of procedure, if the procedure or manner prescribed by an Act of Parliament is not followed, consequences follow that liability was determined does not have the effect of giving, of overriding a provision of an Act of Parliament.  A court cannot ignore or set aside a statutory provision unless a statute gives the court the power to do so.  That the National Court rule provides that a defence must be pleaded does not render a provision of an Act of parliament of no effect if a defence is not pleaded and judgment entered.  The reliance on the judgment of Mel v Pakalia [2005] SC790 does not assist the appellant as the PFMA section 2A Claims Act and the ability of the court to override a statutory provision were not considered in that judgment.
8. Consequently, this appeal is frivolous as the purported contract was not able to be enforced in the National Court and is not able to be enforced in this court.”  And then I will reproduce certain reasons as revised, the balance of paragraph 8.
29.	What follows then, in light of a position which was conceded to be the case in terms of absence of naming the 79 persons and absence of any written consent, is that this proceeding was never validly constituted.  It was always fatally deficient, both as instituted and in its amended form.  Having detected that deficiency and subject to putting that to the parties, the learned primary judge was bound on an assessment not to proceed further but rather to dismiss.

30.	When the point was put to the present respondent, the most that could be said was that there was in evidence before the Court at the time when damages were assessed, being a minute of a meeting held on 7 September 2019.  The meeting has annexed to it a tabulation with signatures grouped according to various families.  The minute states: “Agreement endorsements signs, signing of the endorsement list by 79 aggrieved members of Laloki, Central Province.”  Neither in that minute nor in the annexure is there any indication at all that what has been signed is a consent to issue proceedings or even a consent to the issuing of the proceedings as already constituted intended to take effect as if signed immediately prior to the issuing of a writ.  In my view, that particular minute and its annexures is no sufficient answer to the deficiency in terms of compliance with the rules for the institution of a representative proceeding.  That deficiency is a complete answer, however one characterises the nature of the rights sued for, be they personal or proprietary.

31.	The primary judge did appreciate that what was left could only be an individual claim by the respondent, but the respondent had never sued in his own right for loss and damage occasioned to him personally, be that personal or proprietary.  He had only ever purported to sue in a representative capacity.  Moreover, the proof of damages offered in the environmental reports concern damages which were if one accepted what was stated in those reports, not unique to the plaintiff in his individual capacity but rather of a more pervasive character.  

32.	Quite apart from this particular fatal difficulty with which as I have mentioned, Kandakasi DCJ was not confronted at the earlier interlocutory stage because his Honour’s attention was not drawn to the absence of the requisite naming and evidencing of consent, there is the question which the primary judge also detected of the impact of registered proprietorship.  His Honour accurately recorded in the passage of his conclusions concerning the position with respect to registered proprietorship.  One can amplify that a little by noting that between 2015 and 2018, Aloysius and his wife as joint tenants were the registered proprietors.

33.	The agriculture lease concerned was issued under the Land Act.  In respect of leases, the Land Act provides for what is known as a Torrens system of title which is a system of title by registration.  During the period under which the applicants undertook public works at and about the bridge site concerned, neither the plaintiff nor any of the 79 persons on whose behalf he purported to sue held registered title to the land in question.  Some, and some only, the now respondents included became later registered proprietors.  But there is nothing either by way of allegation, much less by way of evidence, which shows how the plaintiff came to be able to sue for trespass to land owned by the then registered proprietors, apparently his and his siblings’ parents.  It is not inconceivable to see how a cause of action for damage to land held by registered proprietors might form part of their estate which passed in some way to their successors such that they were able to sue for damage to the property of the estate.  But this was neither pleaded nor evidenced before the primary judge.  There was just no evident connection at all.

34.	This finding by the primary judge also was one which obliged his Honour to dismiss at least so much of the proceeding, if not the whole as was reliant upon proprietorship of land.  This was not land held in customary ownership.

35.	The legal profession in this country has a particular duty in my view, much more so than one might see in more developed countries, to explain to aggrieved persons the effect of this country’s laws in relation to land ownership.  It is by no means impossible to see how in good faith the persons who attended that meeting in 2019 might feel a sense of aggrievement.  The legal profession has a duty to explain how that sense of aggrievement meshes in with this country’s laws both in terms of substantive law as well as procedure in relation to the institution of proceedings.  This proceeding starkly illustrates what can happen if there is not observance of a need for such an explanation.  

36.	That is not in any way to say that those who earlier acted for the present applicants were paragons of virtue in relation to the conduct of legal practice.  The points which came to be agitated on the review application could, and should have, featured in a defence duly filed in accordance with the National Court Rules.  It is to be lamented that that did not occur.  Much time, financial resources, and also the precious national resource of judicial availability could have been better used if these two points had been raised as they have should have been in a duly filed defence.

37.	However that may be, those two points having been detected, the primary judge was duty bound to act on them after hearing whatever the parties might submit.  The parties have in this Court and particularly the respondent made such submissions as they could in response to each of the two substantive issues.  In truth, there is no answer to them.  Not only should the Court have declined to assess damages, but these particular issues having emerged in the course of that assessment and having heard from the parties, the Court should have dismissed the proceeding.

38.	So, for these reasons, the orders that I would make in respect of this particular proceeding are to quash the orders made by the National Court on 27 February 2023.  In lieu thereof, I would order that the proceedings in the National Court being proceeding WS 437 of 2019 be dismissed.  

On the consequential costs application
39.	As to the costs application, costs have been sought by the applicants in respect of what one might describe as the Supreme Court dimension to the proceeding.  The orders that they seek are that the respondent pay the applicants’ costs of and incidental to the proceeding including costs in relation to the application for leave and a stay.

40.	Counsel for the respondent accepted that the ordinary way in which the costs’ discretion would be exercised in respect of that application was that costs should follow the event.  

41.	In my view, there is no reason why that discretion should be otherwise exercised, and I would make a costs order in the terms sought by the applicants.  There remains a question as to what costs, if any, should be ordered in respect of the consequence of the dismissal of the National Court proceeding.

42.	With commendable professional value judgement, counsel for the applicants recognised that there were lapses in relation to the conduct of the then defendants, now applicants, in the National Court.  He accepted that the grounds of review pressed did not include, again with commendable professional value judgement, any agitation of a denial of procedural fairness in relation to what was after all a value judgement by the National Court judge on a matter of practice and procedure in relation to the refusal on adjournment of the hearing of the assessment of damages. 
 
43.	In those circumstances, counsel for the applicants, as a matter of deliberate professional value judgement, did not seek any order for costs in respect of the National Court proceedings but rather accepted that existing orders for costs in the National Court should lie where they fall.  In other words, undisturbed, notwithstanding the dismissal of the National Court proceeding.

44.	Accordingly, in my view, there is no need to do other than record by order as to costs in the National Court, the dismissal of the proceeding being without prejudice to existing orders for costs and, save as to that, there be no order as to costs in respect of the National Court proceeding.

45.	WAWUN-KUVI J:  I agree with the background and the law and reasonings and orders given by my brother Logan J.  
46.	I only add that there are two issues that are crucial and pertinent as identified and discussed at [77] and [78] in the trial judge’s ruling.  

47.	Firstly, it was a representative claim as identified by the trial judge.  This was pleaded by the respondent.  There was no basis for the finding that the claim was valid only for him.  

48.	Secondly, the trial judge correctly identified that the respondent did not have legal title at the accrual of the cause of action.  Having made this finding, it is my view that there was no basis to proceed to the award of damages. 
 
49.	As these matters are central to the heart of the proceeding in the National Court, it must follow that the proceeding styled as WS 437 of 2019 must be dismissed.  I agree with the orders proposed by the president and my brother judge, Logan J.

On the consequential costs application
50.	I agree with my brother Logan J in terms of the orders as to costs.

Orders

1)	The orders made by the National Court on 27 February 2023 be quashed.
2)	In lieu thereof, the proceedings in the National Court, being WS No. 437 of 2019, be dismissed.
3)	The respondents pay the applicants’ costs of and incidental to the review proceedings, including the costs in relation to the application for leave and the stay application.
4)	The dismissal of the National Court proceeding be without prejudice as to costs, and, save as to that, there be no order as to costs of the National Court proceeding.
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Lawyers for the applicants:  Namani & Associates
Lawyers for the respondents: Kiuk & Associates