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Kapawo v Gawi [2022] PGDC 99; DC9046 (15 August 2022)

DC9046
PAPUA NEW GUINEA.
CIVIL JURISDICTION.
DC NO: 18 & 19 /2022.

IN THE MATTER BETWEEN:

1. BEN KAPAWO, and
2. KING ALEXANDRA II VOVOROPA

Complainants.

AND:

1. PETER GAWI
2. RUSSEL KANIKI
3. OIC CID POLICE
4. KOMOTE SECURITY
5. SECURITY INDUSTRY
6. MANAGER HQH
7. THE STATE.

Defendants

Popondetta: Michael W. Apie’e
2022: August 09^th and 15^th.

CIVIL PROCEEDINGS.
-First Claim UNDER DC No: 18 of 2022 by Complainants for K10,000.00 against the Defendants Peter Gawi, Russel Kaniki, OIC CID Police, HQH Manager and State for the ‘Wrongful Death’ of Late Saviour Karis on the 21^st of July 2022.
-The Second Claim UNDER DC No: 19 of 2022 by Complainants for K10,000.00 against the Defendants Peter Gawi, Russel Kaniki, OIC CID Police, Komote Security Services, Security Industry, HQH Manager and State for the ‘Wrongful Death’ of Late Saviour Karis on the 21^st of July 2022.

NOTICE OF MOTION DATED 10^TH AUGUST 2022:
-Notice of Motion filed by Mr. Tony Sua of Sua and Sons Lawyers seeking the Summary Dismissal of the Two action mentioned above on the Basis that the Actions Did Not Comply with Section 5 of the Claims by and Against the State Act, also that no Proper Cause of Claim was Disclosed and also that Defendant HQH Enterprises Limited was improperly named, Misnomer and so the Actions be summarily dismissed.

RESPONSE TO NOTICE OF MOTION BY COMPLAINANT BEN KAPAWO DATED 15^TH AUGUST 2022.
-Complainant Ben Kapawo sought to withdraw the whole of the Actions of DC No: 18 and 19 against the Defendants in order to seek other redress or actions.
HELD:

1. The Actions under DC No: 18 and 19 of 2022 by the Complainants against the named Defendants are dismissed in their Entirety.
2. No orders on Costs.

Cases Cited:
Hure Vebubu v. Nelly Maleva [1987] PNGLR 87.

References:
Claims by and Against the State Act 1996
Representation:
Ben Kapawo appears for himself and the Second Defendant.
Mr. Tony Sua appears for the Peter Gawi and MANAGER HQH.
No appearances for other Defendants.

JUDGMENT ON NOTICE OF MOTIONS.

Background.

1. These Actions DC No: 18 and 19 of 2022 both relate to the death of one Late Mr. Saviour Karis and in both actions the amount of K10,000.00 is claimed against effectively the same Defendants except for Defendant Komote Security for ‘Funeral Travel’ for the Body of the Deceased from Popondetta Northern Province to Wewak East Sepik Province.
   
2. These Actions are filed on the 02^nd of August 2022 and the Defendants especially Peter Gawi and Manager HQH filed their Notice of Motion through Counsel seeking the summary dismissal of the same on the 10^th of August 2022 on the following basis’
   
   1. There is no Section 5 Notice under Section 5 of the Claims by and Against the State Act produced to sustain this case given that OIC CID of police in Popondetta is named as a Defendant and also that the State itself is labelled as a Defendant in this suit.
      
   2. No Proper Cause of Claim’ is pleaded in the claim as to how and why each of the So called Defendants are being sued.
      
   100. That the Defendant HQH Enterprises Limited has not being property named in its Lawfully Incorporated name in this suit therefore there is misnomer sufficient to remove this claim.
        
3. On the 09/08/22 when this matter was mentioned before me in court, the Complainant appeared and also Mr. Sua for Two of the Defendants namely Peter Gawi and Manager HQH and the Complainant was put on Notice that the Defendants Notice of Motion dated 10^th of August 2022.
   
4. The Complainant(s) then on the 15^th of August 2022 filed another Notice of Motion seeking to Withdraw or for the Court to Strike out both cases for them to seek other proceedings in other avenues.
   

OBSERVATIONS.

5. Having considered both Notices of Motion and also having received verbal Submission from Both Mr. Tony Sua on behalf of the Defendants (Peter Gawi and Manager HQH) and also from Ben Kapawo for the Complainants I will make the following observations;
   
   1. The Filing of this two Actions DC No: 18 and 19 of 2022 is related to the same general came of ‘Funeral Travel’ by the same Complainants against the Same defendants except for Komote Security and Security Industry (If such an Entity exists in and Incorporated form at all) which is name in DC: No: 18 but not in DC No: 19 of 2022.
      
   2. In other word’s these Actions are bad on the basis of being Duplicitous on their own in that DC No: 19 of 2022 is merely a rehashing of DC No: 18 of 2022 with the Addition of Komote Security and Security Industry in DC No: 19 of 2022 as opposed to DC No: 18 of 2022.
      
   3. Simply the Complainant is asking the same orders for the same Claim in Two Different Actions, namely
      
      1. K10,000.00 against the Defendants for the ‘Funeral Travel’ of Late Savior Karis in DC No: 18 of 2022, and again, another K10,000.00 against the same Defendants but this time including Komote Security in DC No: 19 of 2022 for the same reason of ‘Funeral Travel’ for the Late Savior Karis.
         
      2. This is a Duplication of the Same Claim in two Different Suits and is therefore bad, null and void.
         
      100. In regards to Duplicity in civil cases the National Court case of Hure Vebubu v. Nelly Maleva Chief Justice Buri Kidu (Late) as he then was sitting in the National Court deliberated and discussed on the issue of Duplicity of Claims in the same Suit, while deliberating on an appeal from the Lower Local Court.
           
      4. In that case he was dealing with the claim of Duplicity wherein the Complainant in the Lower Court made a claim for two separate incidences of Adultery in the one action when according to practice, any action must be in relation to one claim only.
         
      5. In the end the Late CJ Kidu held that any claim must be for be one matter only and not two different claims under the one act.
         
      6. In this case however, the Complaints seeks a total of K10,000.00 against the Defendants each and severally in DC No: 18 of 2022 and again in DC No: 19 of 2022, and again they seek the same amount K10,000.00 for the same claim of ‘Funeral Travel’ this time including Komote Security and Security Industry as defendants in DC No: 19 of 2022.
         
      7. Though this Actions cannot be labelled as Duplicitous per se, they are on their own Duplications of each other and therefore seeks to enable the Complainants to make two claims for the same Cause against the Defendants except for Komote Security and Security Industry as defendants in DC No: 19 of 2022.
         
   4. This makes these Actions therefore bad for Duplicity and therefore Null and Void and thus sufficient reason for this court to strike out the actions in the first Place.
      
6. However additional to the above point on Duplicity are the Grounds relied on by the Defendants Peter Gawi and Manager HQH to seek the Summary Dismissal of these claims in their Notice of Motion of 10/08/22 as alluded to in paragraph # 2 a, b and c above.
   
   1. Regarding the Requirement of Section 5 Notice on the State when State Agencies and The State are being Sued, Section 5 of the Claims by and Against the State Act is explicit in its requirement for The Claiming Party (In this case the Complainant) to give Notice of Intent to sue the State of its Agents by Notice in Writing to the Secretary of Department of Attorney General or Solicitor General within 6 months from the occurrence of the Wrong claimed against. Such notice must be acknowledged to kick-start the litigations process. No such notice or Acknowledgement is produce in this case!
      
   2. Regarding Causes of Claim,
      
      1. the Pleadings in Both Dc No: 18 and 19 of 2022 are for lack of a better word unclear and lacks definiteness in order for this court to begin to appropriately appreciate the part each Defendant is tied in to the claim of K10,000.00 each.
         
      2. Even the Cause of Claim of ‘Funeral Travel’ makes no sense to this court as in what way and for what reason would the Defendants be responsible for ‘Repatriation of a Deceased body’ unless a Civil Obligation and duty is founded and based on a fact established by Law such as a Conviction in the Criminal Court or ‘A Wrongful death claim’ Adjudged by a civil court.
         
   100. The Question of Misnomer, that is Parties not being properly identified;
        
        1. HQH has it Legal Incorporate name ‘HQH Enterprises Limited’ that must be used in all formal transactions such as a court case and not just HQH or Manager HQH.
           
        3. Also the name of the 5^th Defendant Security Industry, to whom is it referring too and who is to respond to this name?
           
        4. The Complainants naming of its Defendants is not definitive and clear and leaves much to be desired.
           
7. The Complainant after the mention of this case on the 09^th of August 2022 after being informed of the intention of the Defendant Notice of motion for Summary Dismissal of their claim for the above reasons filed their own Notice of Motion dated to 15/08/22 seeking to withdraw this case.
   
8. In response to the Defendants Notice of Motion, the Complainant informed the Court of his intention to withdraw the claims Dc No: 18 and 19 of 2022 against the Defendants in favour of seeking other avenues.
   
9. The Defendants Notice of Motion therefore was Not Contested and so the Order sought were granted not only because of the Non-Contest, but also because of the Logical and Legal Sense and Merit of the Arguments made by Mr. Tony Sua for his clients.
   
10. Accordingly, the Court Orders as follows;
    

ORDERS

1. The Notice of Motion by the First Defendant Peter Gawi and Sixth Defendant David Lin as Manager HQH is approved.
   
2. The whole of DC No: 18 and 19 of 2022 are hereby dismissed in their Entirety on the Basis that;
   
   1. There is Non-Compliance by the Complainants to the Requirements of Section 5 of the Claims by and Against the State Act given that OIC CID of Police (and Agent of the State) and the State Itself (Presumably the Independent State of Papua New Guinea are named as Defendants in both suits.
      
   2. The Cause of Claim or reason for the suit in both cases is uncertain and not properly pleaded as against each of the named Defendants to sustain the two cases.
      
   100. The Defendants Manager HQH and also Security Industry are not properly and Identifiably named in the two actions therefore the two actions suffer from misnomer of the Parties.
        
   4. Parties to bear own costs.
      

Complainant in Person.
First Defendant appears in person for the Defendants