Mala Stephen Ahi v John Bangkok and Others

• Jurisdiction: Papua New Guinea
• Judge: Dowa J
• Judgment Date: 16 January 2024
• Neutral Citation: N10646
• Citation: N10646, 2024-01-16
• Counsel: K Keindip, for the Plaintiff,G Topa, for the Defendants
• Docket Number: WS NO. 416 OF 2023
• Hearing Date: 08 December 2023,13 December 2023,16 January 2024
• Court: National Court

N10646

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 416 OF 2023

Between

Mala Stephen Ahi

Plaintiff

v.

John Bangkok

First Defendant

and

East West (1) Limited

Second Defendant

and

JV PNG Investment Constructions Limited

Third Defendant

Lae: Dowa J

2023: 8^th & 13^th December

2024: 16^th January

PRACTICE AND PROCEDURE — application for dismissal of proceedings for disclosing on reasonable cause of action and for lack of jurisdiction-abuse of process — Order 12 Rule 40 of the National Court Rules-lack of jurisdiction in dealing with customary landownership disputes — clear case for summary dismissal-application granted, proceedings dismissed.

Cases Cited:

Mt Hagen Urban LLG v Sek No.15

Philip Takori v Simon Vagari (2008) SC905

Telikom PNG v ICCC & Digicel (PNG) Ltd (2008) SC906

Kerry Lerro v Philip Stagg (2006) N3050

PNG Forest Products vs. State (1992) PNGLR 84–85,

Ronny Wabia vs. BP Exploration Co. Ltd (1998) PNGLR 8

Wabia vs. BP Petroleum (2019)) N4337

National Provident Fund vs. Maladina & Others (2003) N2486

Wambunawa Holdings Ltd. vs. ANZ Bank (2020) N8310

Titi Christian v Rabbie Namaliu (1995), Unreported, Un-numbered Supreme Court Judgment in OS No. 2 of 1995.

National Airline Commission v Lysenko [1990] PNGLR 266;

AGC (Pacific) Ltd v Sir Albert Kipalan (2000) N1944,

Kundu Consultants Ltd v The State (2001) N2128

Kimas v Oala (2015) SC1475,

Katumani & Ors v Elijah Yawing & Ors (2020) N8481

Waril Incorporated Land Group Inc v Morobe Provincial Government [2023] PGNC 21; N10108.

Hegele v Kila (2012) SC1180

Counsel:

K Keindip, for the Plaintiff

G Topa, for the Defendants

Sawong & Associates: Lawyers for the Plaintiff

Miles Legal Services: Lawyers for the Defendants

16^th January 2024

DECISION

1. Dowa J: This is a ruling on the Defendant's application seeking dismissal of the proceedings.

2. The parties filed competing applications which were set for hearing on 8^th December 2023. It was determined that the Defendants Notice of Motion for dismissal be heard first because if the application is upheld, that will end the proceedings. I heard the application on 8^th and 13^th December 2023 and reserved my ruling which I now deliver.

Motion For Dismissal

3. By Notice of Motion, the Defendant applies for the dismissal of the proceedings for the following reasons:

i. under Order 12 Rule 40 (1) of the National Court Rules for disclosing no reasonable cause of action and for abuse of process.

ii. under Order 12 Rule 1 of the National Court Rules for lack of locus standi and want of jurisdiction

iii. under sections 4 and 16 of the Frauds and Limitation Act for being statute barred.

Brief Facts

4. The Plaintiff comes from Butibam, Lae, Morobe Province. He is a member of the Wapicgubu clan. He alleges, he is the owner of customary land known as Akohu 2 on land described as Portion 684c of Malahang, Fourmil Huon, Butibam Lae. It is alleged that the Defendants have unlawfully and without the consent of the Plaintiff entered the said land and have and continue to carry on business as quarry operators, gravel stockpiling, road and building constructions. It is alleged that the Defendants have been occupying his land without paying any rent to him. Aggrieved, the Plaintiff seeks damages for trespass and for the unlawful use and deprivation of his property.

5. The Defendants deny the claim. The defendants averred in the Defence that they have they bought the land from the Bogan family, the customary landowners in 2011. They have the consent of the Bogan family to enter and occupy the land and conduct business. The Defendants deny the Plaintiff has any legal or customary right to make a claim for the use of the land.

Preliminary Issue

6. The Plaintiff submits as a preliminary point in law that the Defendants' Notice of Motion is incompetent for failing to cite the concise reference to the Court's jurisdiction for the reliefs they are seeking.

Issues

7. The issues for consideration are:

i. Whether the Defendants' Notice of Motion is incompetent

ii. Whether the proceedings be dismissed for the reasons set out in the Notice of Motion.

Whether the Defendants' Notice of Motion is incompetent

8. The Plaintiff submits that the Notice of Motion filed by the Defendants is incompetent for failing to plead the concise reference to the Court's jurisdiction, as required by Order 4 Rule 49 (8) of the National Court Rules, and therefore, be struck out and the Motion be dismissed.

9. In the Notice of Motion, the Defendant seeks dismissal of the proceedings for three reasons. I will deal with each of them. Firstly, the Plaintiff seeks dismissal under Order 12 Rule 40 (1) of the National Court Rules for disclosing no reasonable cause of action and for abuse of the process. In my view this ground is sufficiently pleaded as provided by the Rules. The second ground for dismissal is for lack of standing and for want of jurisdiction under Order 12 Rule 1 of the National Court Rules. Rule 1 is of general application. The Motion did not state the correct and concise reference to the Court's jurisdiction. However, I will, in the exercise of my discretion dispense with the requirement under Order 4 Rule 49 (20) of the NCR and allow the motion as the grounds raised are sufficiently covered under Order 12 Rule 40 (1) of the NCRs which has correctly invoked the jurisdiction of the Court. The final ground for dismissal is that the claim is statute barred under sections 4 and 16 of the Frauds and Limitation Act. I note the Court's jurisdiction is properly invoked and shall be allowed. The result is the Plaintiffs objection to the competency of the Defendants' Notice of Motion is overruled in the exercise of the Court's discretion.

The law under Order 12 Rule 40 of the NCR.

10. The application for dismissal is made under Order 12 Rule 40(1) of the National Court Rules. It reads:

“40. Frivolity, etc. (13/5)

(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; or

(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.”

11. The law on applications under Order 12 Rule 40(1) of the National Court Rules is settled in this jurisdiction in cases such as Mt Hagen Urban LLG v Sek No.15, Philip Takori v Simon Vagari (2008) SC 905, Telikom PNG v ICCC & Digicel (PNG) Ltd (2008) SC 906 and Kerry Lerro v Philip Stagg (2006) N 3050.

12. Order 12 Rule 40 (1) of the NCRs is constructed and defined by the Supreme Court (per Takori v Vagari) in following terms:

a) A claim may be disclosing no reasonable cause of action if the facts pleaded does not clearly show all necessary facts and legal elements to establish a claim known to law.

b) A claim maybe frivolous if it can be shown that it is obviously untenable that it cannot possibly succeed or is bound to fail it if proceeds to trial.

c) Proceedings are vexatious where the case is a sham, amounting to harassment of the opposing party, or where the opposing party is put to unnecessary trouble and expense of defending the case.

13. The Court cannot readily dismiss a case on poor pleading or for lack of disclosing a reasonable cause of action or for abuse of process unless it is shown that the case is clearly frivolous or vexatious or an abuse of the process and that it is unlikely to succeed even it proceeds to trial. Refer: PNG Forest Products vs. State (1992) PNGLR 84–85, Ronny Wabia vs. BP Exploration Co. Ltd (1998) PNGLR 8, Wabia vs. BP Petroleum (2019)) N4337, Mt. Hagen Urban LLG vs. Sek No. 15 (2009) SC1007, National Provident Fund vs. Maladina & Others (2003) N2486; and Wambunawa Holdings Ltd. vs. ANZ Bank (2020) N8310.

14. I will now proceed to consider the grounds raised by the Defendants. For convenience I will deal with the grounds together. In my view the most important questions to be...