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
• Judge: Salika, DCJ
• Judgment Date: 08 April 2010
• Court: National Court
• Citation: (2010) N3978
• Docket Number: WS 721 OF 2005
• Year: 2010
• Judgement Number: N3978

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

N3978

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 721 OF 2005

BETWEEN:

JOSEPH PUGMA FOR AND ON BEHALF OF HIMSELF AND THE KUTUMB-ETEMB CLAN OF TAMBUL DISTRICT, WESTERN HIGHLANDS PROVINCE

Plaintiff

AND:

ALPHONSE NIGGINTS, Secretary for Works & Supply Department

First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Waigani: Salika, DCJ

2010: 08 April

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 Migiten v Ela Motors & 2 Ors, Unreported National Court Judgment N2179

Counsel:

Mr J Napu, for the Plaintiffs

Mr T Tanuvasa, for the Defendants

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 Sections 5 and 21 of the Claims By and Against the State Act 1996.

(b) Being time-barred pursuant to Section 16(1) of the Frauds & Limitations Act 1988.

(c) Want or lack of consent authority and representative capacity pursuant to O.5 r.8(2) of the National Court Rules and O.4 r.20 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 Order 12 Rule 40(1) of the National Court Rules.

2. In the alternative, pursuant to Section 10 of the Claims By & Against the State Act 1996 and Order 14 Rule 25(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 s.16 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 s.2 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 Plaintiff lost the use of the road which runs across the gravel pit hence renders the Plaintiff to take strenuous, tedious and stressful efforts to get around longer paths, and occasionally with loads of firewood, harvest and other items.

(d) Destruction of Kulaigomugu river which runs through the quarry area, through sedimentation and changing of the river course saw the loss of use of enjoyment of the river, as well further erosion of arable land.

7. The Plaintiff says that in the course of effecting their statutory duties, the Defendants owe to the plaintiff, as they would to the public in similar circumstances both a fiduciary/statutory duty and duty of care to ensure among others.

Particulars of Duty

(a) Consciouable and equitable royalties, based on mutually agreed price, between the parties herein, with reference to normal market price subject to variations from time to time be paid to the Plaintiff, for the extraction of gravel resources.

(b) Environmental plan to ensure that environmental destruction, which may occur in the course of the quarry/gravel mining activity, and the consequences of which is natural and probable, is minimized, is put in place, prior to the mining and extraction of the gravel resources by the Defendants.

(c) An environmental impact assessment is commissioned by the Defendants, and that equitable, just and fair compensation pursuant to relevant provisions of the National constitution is paid to the Defendant, after the gravel mining activity ceases.

(d) Efforts to rehabilitate and restore the vitality of the ecological social environment of the affected area is commissioned.

8. Particulars forming the basis and substance of the Plaintiffs’ capacity and claim:

(a) The plaintiff sues for and on behalf of himself and as the representative of his Kutubu Etemb clan in custom.

(b) Plaintiff becomes aware of the cause of action pleaded herein paragraphs 6 and 9 of this Statement of Claim in custom.

(c) The land upon which the quarry/gravel mining takes place is a traditional land, owned by the Plaintiff(s) herein.

(d) The said land was at all material time, prior to the extraction of the gravel mining and or quarry activities, was a prime arable land, used for subsistence gardening/farming and was able to supply the food needs of the Plaintiff’s Clan all year round.

(e) In our present times, the said affected area has a vast wasted potential for commercial agriculture usage.

(f) The unpaid and/or underpaid royalties of the extraction of gravel resources in the Pinja area; and for the loss of quality of life and consequential economic loses occasioned as the result of the quarry/gravel mining.

9 The Plaintiff says that the Defendant had in the course of extracting the gravel resources for the sealing of the highway, had been negligent and/or have failed to exercise care and diligence, hence are in breach of both their common law duty of care and their fiduciary/statutory duty, in that, the Defendant had.

Particulars of Negligence/Breach of Duty of Care

(a) Failed to pay equitable amount of royalties to the Plaintiff for the extraction of the gravel resource.

(b) Failed to put in place and execute an environmental plan relating to the said quarry/gravel mining activities, to ensure environmental destruction which are natural and probable during and after the gravel mining activity is minimized.

(c) Failed to take affirmative measures to commission environmental and social impact assessment. In order to rehabilitate and restore the vitality of the ecological and social environment of the affected area and to verify and quantify the extent of damages arose both socially and economically for the purpose of compensation is commissioned.

10. Consequent to the destruction caused including negligence and breach of the various duties stated herein, the Plaintiff suffered physical, mental and economic losses and injuries:-

Particulars of Loss and Damages

(a) Loss of royalties in equitably computed sum for extraction of gravel resources;

(b) Loss of use of gardening/arable land;

(c) Loss of livestock over time, which fell in the gravel pit.

(d) Hardship and frustration caused by loss of right of way

(e) Loss of use and enjoyment of water resources

(f) Collateral damages caused by the changing course of the river; and

(g) Further economic losses.

11. And the Plaintiff claims:

(a) Equitable, just and fair compensation pursuant to relevant provisions of the National Constitution for loss of...