Gabriel Apio Irafawe v Yauwe Riyong

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom J
• Judgment Date: 22 September 1999
• Citation: (1999) N1915
• Court: National Court
• Year: 1999
• Judgement Number: N1915

National Court: Kirriwom J

Judgment Delivered: 22 September 1999

N1915

PAPUA NEW GUINEA

(In the National Court of Justice)

WS No. 1276 of 1996

Between:

GABRIEL APIO IRAFAWE

- Plaintiff -

And:

YAUWE RIYONG

- Defendant -

GOROKA: KIRRIWOM J

1999: 19 July & 22 September

Papua New Guinea Cases cited:

PNG Forest Products v The State [1992]PNGLR 86

Lowa v Akipe [1992] PNGLR 399

Counsels:

Mr. K. Wogaro for the Plaintiff

Mr A. Manase for the Defendant

RULING

22 September 1999

KIRRIWOM J: On the day fixed for the hearing of this matter the Defendant moved the Court for the case to be dismissed pursuant to O. 12 r. 40 of the National Court Rules on the grounds that -

1. Statement of Claim does not disclose a reasonable or legally identifiable cause of action;

2. Action was frivolous and vexatious;

3. Action was an abuse of Court process.

Mr Manase submitted that if the application was successful that would be the end of this action and it was imperative therefore that it be heard first. Mr Wogaro for the Plaintiff did not oppose and so I proceeded to hear the Defendant on his preliminary application.

In Part A of the Statement of Claim the Plaintiff seeks:

(i) K46,661.00 as damages for breach of verbal promise for

the purchase of a 6 Ton Hino Highway Truck.

(ii) K12,300 as loss for the use of the Plaintiff’s Toyota Stout while the Defendant had the use of the vehicle for 164 days at K75 per day hire.

In the alternative in Part B of the Statement of Claim the Plaintiff seeks:

(i) K2,650 in damages for unpaid hire rates for the period 42 days the Defendant had the Plaintiff’s vehicle Toyota Stout at K75 per day hire. A sum of K500 paid to the Plaintiff was deducted from the total sum of K3,150.

The claim in part B appears to be a duplication of the claim for K12,300 in Part A of the Statement of Claim.

There is a common denominator to these claims. They are election related but with a proviso that the Defendant was successful in his election bid for the Chuave Open Electorate in the Chimbu Province. The Plaintiff now sues the Defendant to live up to the ‘promise’ he made to him which he had not fulfilled since winning the election.

It must be appreciated at the outset that the Plaintiff and the Defendant are related by custom and they come from the same village of Kibereu, Chuave District, Chimbu Province. The Plaintiff claims that during or leading up to the 1992 elections the Plaintiff entered into an oral agreement with the Defendant to lend him (the Defendant) the use of his (the Plaintiff’s) toyota stout vehicle for his election campaign so that if he

won the election he (the Defendant) would buy the Plaintiff a Hino 6 tonne truck valued at K46,661.00. This was the condition of the Defendant’s use of the Plaintiff’s toyota stout vehicle during his campaign rally.

At the same time it is claimed that the Defendant was also required to pay K75 per day for the use of the said vehicle and this is the essence of his claims for K12,300 or in the alternative K2,650 for hire rates. This claim is also pursued notwithstanding the perceived agreement to buy a heavy duty truck.

I have to decide on the facts as presented by the Plaintiff in the Statement of Claim as to whether he has a reasonable cause of action against the Defendant. The Defendant founds his application on the strength of O. 12 r. 40 and O. 8 r. 27 of the National Court Rules. These Rules clearly set out what the law is in this jurisdiction as far as civil suits are concerned because strictly speaking these rules govern the practice and procedures of civil proceedings before the Courts. Both these Rules had been considered and discussed in various cases including PNG Forest Products v The State [1992] PNGLR 399.

For purposes of clarity both O. 12 r. 40 and O. 8 r. 27 of the National Court Rules are set out below:

Order 12 rule 40. Frivolity, etc

“(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings -

(a) no reasonable cause of action is disclosed;

(b) the proceedings are frivolous or vexatious; or

(c) the proceedings are an abuse of the process of the Court,

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

(2) The Court may receive evidence on the hearing of an application for an Order under Sub-rule (1)".

Order 8 rule 27. Embarrassment, etc

“(1) Where a pleading -

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; or

(c) is otherwise an abuse of the process of the Court,

the Court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleading be struck out.

(2) The Court may receive evidence on the hearing of an application for an order under Sub-rule (1)".

What this Court had said in the cases alluded to have been correctly quoted by Counsel for the Defendant in his written submission which, with respect, I adopt into the body of my judgement because I cannot express what has been stated in them in any better way than as they appear in their original text. In the case of PNG Forest Products v The State (supra) Justice Sheehan held, at p. 87:

“1. A party has a right to have his case heard, as guaranteed by the Constitution and the laws of this...