Joseph Pugma for and on behalf of himself and the Kutumb - Etemb Clan of Tambul District, Western Highlands Province v Alphonse Niggints, Secretary for Works & Supply Department and The Independent State of Papua New Guinea (2010) N3978

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 08 April 2010
• Citation: (2010) N3978
• Docket Number: WS 721 OF 2005
• Year: 2010

Full Title: WS 721 OF 2005; Joseph Pugma for and on behalf of himself and the Kutumb - Etemb Clan of Tambul District, Western Highlands Province v Alphonse Niggints, Secretary for Works & Supply Department and The Independent State of Papua New Guinea (2010) N3978

National Court: Salika, DCJ

Judgment Delivered: 8 April 2010

CIVIL PRACTICE AND PROCEDURE—cause of action—landowner seeks compensation from State for tort of trespass—whether the proceedings are time barred—s.16 of Frauds and Limitations Act.

Cases Cited:

Yorem Investments Limited v Commander of PNG Defence Force and the State, OS 194 of 2006; Otto Benal Magiten v Kopina Raka [2002] PNGLR 121

08 April, 2010

1. SALIKA DCJ: By an amended notice of motion filed on 6 August, 2009 the defendant moved the court for the following orders.

1. The entire proceedings be dismissed for:

(a) Non—compliance of the mandatory requirements of s5 and s21 of the Claims By and Against the State Act 1996.

(b) Being time-barred pursuant to s16(1) of the Frauds & Limitations Act 1988.

(c) Want or lack of consent authority and representative capacity pursuant to O5 r8(2) of the National Court Rules and O4 r20 of the National Court Rules.

(d) Disclosing no reasonable cause of action, being frivolous and vexatious and being an abuse of the Court process pursuant to O12 r40(1) of the National Court Rules.

2. In the alternative, pursuant to Section 10 of the Claims By & Against the State Act 1996 and O14 r25(1)(b) of the National Court Rules 1983 an amount of K50,000.00 be deposited with the Registrar of the National Court as Security for Costs with respect to this proceeding.

3. Costs of the entire proceedings on Solicitor-Client Basis if any or all of the Orders enumerated under Order 1 is granted.

4. Any other Orders this Honourable Court deems fit.

2. The application is supported by affidavits filed by Kisolel Kiapin filed on 24 July 2009 and Tanuvasa Tanuvasa filed on 24 July, 2009.

3. The primary issue before the court is whether this claim is Statute barred pursuant to s16 of the Frauds and Limitations Act.

4. In order for the court to determine the issue the facts as stated in the statement of claim are:

“STATEMENT OF CLAIM”

1. The plaintiff is a natural person and an adult member of the above named Clan, and therefore can sue in his own personal name, style and capacity as well as that of a representative capacity for his Clan, hence sues.

2. The First Defendant is the Secretary for the Department of Works and Supply, the Government agent or Department charged with statutory duties to construct, and maintain roads and bridges among other duties and therefore can be sued in is personal name, style and capacity, hence is sued.

3. The Second Defendant is the ultimate employer and the principal for which the First Defendant is the agent, and therefore can be vicariously liable for the wrongful act and/or omission by the First Defendant, in the course of executing its official duties. It is thus sued pursuant to s2 of the Claims By and Against the State Act.

4. In or around the year 1961 the Defendants, either by themselves or through their hired contractors started a quarry gravel mining activity, in and around Pinja area of Tambul District for extraction of gravel resources to seal various parts of Highlands Highway, between Western Highlands, Southern Highlands and Enga Provinces.

5. The quarry and gravel mining activity went on and off between 1961 and ceased in 1990, and occasionally in between the stated years, as and when the defendants saw fit and necessary.

6. In the course of the mining of gravel resources/quarry activities in the stated area, the Defendant and or their agents, caused massive destructions to the social and ecological environment and in particular:

Particulars of Destruction

(a) A large area of arable land has lost its fertility and vitality, following the disappearance of the topsoil, which are all replaced by the limestone gravel.

(b) The width and depth of the gravel pit created in the course of the quarry/activity renders to pose real and eminent danger to livestock and people, in and around the Pinja area in that, so many domesticated animals fell into the gravel pit and lost their lives.

(c) As a result of the creation of the gravel pit, the...