Michael Kuman for and on behalf of Himself and 158 other clan members of the Aura Gunua Clan and Steven Dama for and on behalf of Himself and 416 other clan members of the Toisinowai Clan v Digicel (PNG) Limited (2013) SC1232

• Jurisdiction: Papua New Guinea
• Judge: Sakora, Cannings & Collier JJ
• Judgment Date: 09 May 2013
• Court: Supreme Court
• Citation: (2013) SC1232
• Docket Number: SCA No 70 0f 2010
• Year: 2013
• Judgement Number: SC1232

Full Title: SCA No 70 0f 2010; Michael Kuman for and on behalf of Himself and 158 other clan members of the Aura Gunua Clan and Steven Dama for and on behalf of Himself and 416 other clan members of the Toisinowai Clan v Digicel (PNG) Limited (2013) SC1232

Supreme Court: Sakora, Cannings & Collier JJ

Judgment Delivered: 9 May 2013

SC1232

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 70 0F 2010

MICHAEL KUMAN FOR AND ON BEHALF OF HIMSELF AND 158 OTHER CLAN MEMBERS OF THE AURA GUNUA CLAN

First Appellants

STEVEN DAMA FOR AND ON BEHALF OF HIMSELF AND 416 OTHER CLAN MEMBERS OF THE TOISINOWAI CLAN

Second Appellant

V

DIGICEL (PNG) LIMITED

Respondent

Waigani: Sakora, Cannings & Collier JJ

2013: 2, 9 May

PRACTICE AND PROCEDURE – dismissal of proceedings under Order 12, Rule 40 (frivolity etc), National Court Rules – whether reasonable cause of action disclosed.

This was an appeal against the decision of the National Court to summarily dismiss proceedings under Order 12, Rule 40(1)(a) of the National Court Rules for failure to disclose a reasonable cause of action. The appellants had in the National Court commenced proceedings against the respondent claiming damages for negligence, trespass and breach of constitutional rights arising from the respondent entering their customary land and erecting a telecommunications tower on it without following proper protocols and getting approval from the proper persons. The appellants claimed that the negligent and unlawful actions of the defendant were the cause of a tribal fight involving loss and damage and personal injuries to the appellants. The National Court dismissed the proceedings on the grounds amongst others that the pleadings of the appellants were deficient in that the elements of the tort of negligence, in particular that the respondent owed a duty of care to the appellants, were not sufficiently pleaded.

Held:

(1) Though desirable it is not essential that every element of every cause of action be expressly pleaded in a statement of claim. What is essential is that the statement of claim read as a whole discloses a cause of action in sufficiently clear terms to put the defendant on notice as to the claim that it has to meet.

(2) An appellate court should be slow to interfere with the exercise of discretion by the primary judge and must be satisfied that some identifiable error was made by the primary judge.

(3) Here, though the duty of care element was not expressly pleaded, the statement of claim was drafted in sufficiently clear terms to put the respondent on notice that it was required to meet a claim in negligence and also in trespass and breach of constitutional rights. A reasonable cause of action was disclosed.

(4) The primary judge’s finding that there was no reasonable cause of action disclosed in the statement of claim was an identifiable error, warranting interference with the exercise of discretion.

(5) The appeal was accordingly allowed, the order of the National Court was quashed and the National Court proceedings were reinstated.

Cases cited

The following cases are cited in the judgment:

Agar v Hyde (2000) 201 CLR 552

Curtain Bros (PNG) Ltd v UPNG (2005) SC788

Donoghue v Stevenson [1932] AC 562

Ijabiro v Isoi [2008] PGLLC 3

Kerry Lero trading as Hulu Hara Investments Ltd v Philip Stagg (2006) N3950

Michael Kuman & Ors v Digicel (PNG) Ltd, WS No 961 of 2011, 24.05.12 (unreported)

Oio Aba v MVIL (2005) SC779

Philip Takori v Simon Yagari (2008) SC905

Richard Manui v ANZ Banking Group (PNG) Ltd (2008) N3405

Sakaraias Akap v Kenneth Korakali (2012) SC1179

Stephen Punagi v Pacific Plantation Timber Ltd (2011) SC1153

APPEAL

This was an appeal against the summary dismissal of proceedings in the National Court.

Counsel

C M Gagma for the appellants

F Griffin for the respondent

1. BY THE COURT: This is an appeal from a National Court judgment of Justice Hartshorn given on 24 May 2012 in proceedings WS No 961 of 2011, Michael Kuman & Ors v Digicel (PNG) Ltd. His Honour dealt with an interlocutory motion brought by the defendant Digicel (PNG) Ltd (“Digicel”), seeking dismissal of the proceedings. His Honour upheld the motion and dismissed the proceedings in their entirety. The appeal lies without leave under Section 14(1)(a) of the Supreme Court Act as it is an appeal on questions of law against a final (not interlocutory) judgment (Oio Aba v MVIL (2005) SC779, Stephen Punagi v Pacific Plantation Timber Ltd (2011) SC1153).

HISTORY

2. The appellants are from Gunorobaro village, Chuave District, Simbu Province. They are the customary landowners of a land area described as “Mononotu”. The first appellants are the clan leaders and clan members of the Aura Gunua Clan. Michael Kuman claims to be principal landowner of Mononotu, having bestowed upon him exclusive rights, by customary law of the people of Gunorobaro village, to deal with Mononotu including the first right of refusal over the usage of that land area. The second appellants are the clan leader and clan members of the Toisinowai Clan. Steven Dama claims to have had custom usage rights over Mononotu since pre-colonial times. The appellants claimed that under their custom both the principal customary landowner and their immediate relatives, and those with communal ownership and usage rights, must be consulted through their village leaders, and consent must be given before any dealings on the land takes place.

3. Digicel is a telecommunications company, registered as a body corporate under the Companies Act 1987. It is licensed under the Telecommunications Act and carries on business as a telecommunications service provider in Papua New Guinea. As part of providing telecommunications services in Papua New Guinea, Digicel constructs satellite communications towers across the country.

4. In late 2007 Digicel personnel visited Mononotu as a proposed site of a communications tower for Digicel, and negotiated with a person, Maina Munom, for the construction of a tower. The appellants claimed that Digicel did not consult them, and that Maina Munom did not represent the true landowners of Mononotu. The appellants also claimed that they contacted Digicel to seek to identify why Digicel had not contacted them, however their enquiries were ignored. Digicel (with the aid of Maina Munom) then commenced construction of a satellite communications tower on Mononotu. It was completed in August 2008, without a resolution of the dispute over land ownership and identity of the rightful beneficiaries.

5. In September 2008 a tribal fight erupted between the two clans. The appellants claimed the fight was caused by the outstanding dispute over the use of Mononotu. The appellants claimed that they suffered substantial losses and damage to their property and well-being.

6. In October 2009 a peace ceremony was held between the disputing appellants. Representatives of Digicel were present at the peace ceremony. The appellants claim that one of those representatives, Digicel’s lawyer Mr John Munnull, advised them to compile a valuation report of the damage and losses they had suffered, and to present it to Digicel for possible settlement of claims against Digicel. The appellants also claimed that Mr Munnull made an undertaking to the appellants that Digicel would compensate them for their losses and damage.

THE APPELLANTS’ STATEMENT OF CLAIM IN THE NATIONAL COURT

7. The appellants commenced proceedings by writ of summons against Digicel on 19 August 2011. In the statement of claim endorsed on the writ the appellants claimed, inter alia, that:

· Actions and/or omissions of Digicel agents resulted in losses and damage to the appellants through inter-tribal fighting. Specifically, the appellants pleaded:

20. The actions and/or omissions of the employees, servants and/or agents of the defendant company, as pleaded in paragraphs 9, 10, 11, 12, 13 and 14 resulting in the losses and damage suffered through the tribal fight as pleaded in paragraph 22 to 27. The defendant company is vicariously liable for the negligent actions and omissions of its employees, servants and/or agents and for the losses and damage suffered by the plaintiffs as pleaded herein.

· The appellants further pleaded:

PARTICULARS OF NEGLIGENCE

21 The defendant through its said employees, agents, or servants:

(a) failed to carry out a due diligence study and/or investigation to ascertain the true landowners and beneficiaries of the site of the subject tower;

(b) ignored, failed and/or refused to utilize existing government protocols and/or consult officers from the Simbu Provincial Government land administrators, land mediators and/or local level government officials to ascertain proper authorisation in the process of carrying out the construction of the subject tower; and

(c) neglected, ignored, failed and/or refused to address the principal plaintiffs’...