James Kuba v Graham King and Others

• Jurisdiction: Papua New Guinea
• Judge: Anis J
• Judgment Date: 24 November 2023
• Neutral Citation: N10584
• Citation: N10584, 2023-11-24
• Counsel: F Kua, for the Plaintiffs,Nil representative for the First Defendant,G Aiawa, for the Second Defendant
• Docket Number: WS NO 555 OF 2022
• Hearing Date: 21 November 2023,24 November 2023
• Court: National Court

N10584

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 555 OF 2022

Between:

James Kuba, Jacob Koale, Abrose Vetata, Francis Liga, and Ebert Taumosi for themselves and on behalf of Ibana Incorporated Land Group (ILG) made up of the Ablimosi Kasia, Nagoa, and Abunava customary clans of Ulamona village

Plaintiffs

v.

Graham King, Manager in the time being of Hargy Oil Palms Limited

First Defendant

and

Hargy Oil Palms Limited

Second Defendant

Kimbe: Anis J

2023: 21^st & 24^th November

NOTICE OF MOTION — Application to dismiss — abuse of process — Order 12 Rule 40(1)(c) — National Court Rules — dismissal also sought premised on time-bar issue — s.16(1)(a) — Frauds and Limitations Act — whether claim premised on a single act or whether cause of action accruing — consideration — alternative claim — whether claim should be dismissed for want of proper representative capacities and instructions to act — Order 5 Rule 13(1) — National Court Rules — second alternative claim — whether the ILG does not exist pursuant s.11 — Land Group Incorporation (Amendment) Act 2009 — whether ILG ceased to exist after the 5th year — consideration — ruling

Cases Cited:

Mamun Investment Ltd and 1 Or v. Onda Koim and Ors (2015) SC1409

Soakofa Trading and 1 Or v Bank South Pacific Ltd (2021) SC2068

Habolo Building & Maintenance Ltd v Hela Provincial Government (2016) SC1549

Public Curator v Konze Kara as Administrator of the estate of Kibikang Kara (2014) SC1420

Wasu Api and Ors v. Green Timber (PNG) Ltd (2021) N8898

Counsel:

F Kua, for the Plaintiffs

Nil representative for the First Defendant

G Aiawa, for the Second Defendant

Felix Kua Lawyers: Lawyers for the Plaintiffs

In-house Counsel: Lawyer for the Second Defendant

RULING

24^th November, 2023

1. Anis J: I heard the second defendant's notice of motion filed 4 September 2023 (NoM) on 21 November 2023. The application was contested. I reserved my ruling thereafter to a date to be advised.

2. This is my ruling.

BACKGROUND

3. I refer to the plaintiffs' writ of summons and statemen of claim filed 17 November 2022 (SoC). The plaintiffs claim to be customary landowners of Ulamona Village of Bialla in West New Britain Province. The are suing for themselves and on behalf of an entity called the Ibana Incorporated Land Ground (Ibana ILG). They claim damages based on various causes of actions against the defendants, namely, negligence, nuisance, trespass and breach ss 41 and 44 of the Constitution.

4. The second defendant is a proprietor of a registered state lease in the Bialla area. It is described as Agricultural State Lease, Portion 624, Milinch of Ulawun, Fourmil Talasea, West New Britain Province (State Lease or Navo Oil Palm Plantation). There is a river that flows along the boundaries of the State Lease and customary land. It is called Ibana River. The plaintiffs' various causes of actions are premised on this. They allege that the second defendant, since 1984 and up to the present time, has been secretly or without any rights removing or extracting gravels or aggregates from the riverbeds or sides of the Ibana River. As such, they claim that the actions of the second defendant had caused damages to their land and environment. They claim, amongst others, that the actions of the second defendant has also affected the river system which in turn has affected their lives or caused destruction or damages to their land.

5. Premised on their various claims, they seek the following relief:

(a) Compensation of K35,000,000.00.

(b) General damages.

(c) Special damages.

(d) Interest pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No. 52.

(e) Cost of this proceeding.

MOTION

6. The second defendant seeks the following main relief in its NoM:

1. Entire proceedings be dismissed for abuse of court process pursuant to Order 12 Rules 40(1)(c) of the National Court Rules and for being statute barred pursuant to sections 16(1)(a) of the Frauds and Limitation Act.

2. Alternatively, pursuant to Order 5, Rules 13(1) of the National Court Rules, the entire proceedings be dismissed for Plaintiffs' lack of representative capacity to sue in this class action.

3. Alternatively, the entire proceeding be dismissed for lack of compliance with section 11, Land Group Incorporation (Amendment) Act 2009 in registration of Ibana Incorporated Land Group.

7. The second defendant relies on the affidavit of Mr Aiawa filed 4 September 2023 in support of the NoM. The plaintiffs, on the other hand, rely on the affidavit of James Kuba in opposing the NoM.

ISSUES

8. The main issue in my view is, whether the claims are an abuse of process because they are time barred under s.16(1)(a) of the Frauds and Limitations Act 1988 (FLA). Subject to the Court's ruling, I may proceed to consider the alternative issues, namely, whether the plaintiffs lack representative capacities to sue as a class action, and secondly, whether the Ibana ILG has ceased to exist. And consequently, if the answers to the alternative issues are in the affirmative, whether they effectively mean that the proceeding should be dismissed.

TIME BAR

9. I note the submissions of the parties under this sub-heading.

10. The premise of the second defendant's claim is that the alleged causes of actions as pleaded at para 11 of the SoC, arose in 1984. As such, it claims that by virtue of s.16(1)(a) of the FLA, the action is time barred because the claim had occurred about 38 years ago from the date of filing the SoC. The plaintiffs, in their defence, argue that although the claim had commenced in 1984 as pleaded at para 11, it has continued to accrue over the years and the actions complained off are presently still occurring. As such, they submit that the claims are not time barred.

11. The reference to the year 1984, I observe, was not pleaded to say that it was a one-off incident that had occurred in the said year as regarded and submitted by the second defendant. I reach this observations premised on the pleadings in the SoC. Para 8 for example begins as follows, The extraction of stone and aggregates from the Ibana River from the past and current were done without the Plaintiffs' knowledge….”. And Para 11 also states in part, The Defendants have caused destructions to the river banks and surrounding vegetation since 1984..

12. These are just some of the examples that are asserted in the SoC by the plaintiffs to support their submissions that their claims are not premised on a single event or incident, but rather, are premised on alleged actions or inactions of the second defendant that have continued to accrue to date since 1984.

13. What does the case law say on this? In Mamun Investment Ltd and 1 Or v. Onda Koim and Ors (2015) SC1409, the Supreme Court stated at paras 15 and 16:

15. In the House of Lords case of Cartledge and Ors v. E. Jopling & Sons Ltd [1963] 2 WLR 210, Lord Pearce said at p223:

“Past cases have been decided on the basis that the time runs from the accrual of the cause of action, whether known or unknown,…..

16. His Lordship referred to numerous...