N1137

PAPUA NEW GUINEA
[In The National Court of Justice]

WS 762 OF 1992

WILLIAM MAKI & Os
Plaintiffs

V

MICHAEL PUNDIA
First Defendant

PNG MOTORS
Second Defendant

Mt Hagen: Woods J.
27 January 19 February 1993

Practice and Procedure - pleadings - allegation of fraud - plaintiff must set out the facts, matters, and circumstances - application to strike out - dismissal or stay.

A Yer for the Plaintiff.
C Hudson for the Defendants.

19 February 1993

WOODS J.: The subject matter of this Writ of Summons is an area of land known as Ngents situated near Mount Hagen and fronting on the Highlands Highway. The Plaintiffs are claiming to be owners of this land by right of custom and are alleging that the First Defendant unlawfully occupied the land and fraudulently obtained title to the land under the Land (Tenure Conversion) Act by fraudulently claiming he had proper and legal title to the said land. The Plaintiffs further claim that having obtained title to the land the First defendant leased the land to the second Defendant.

At this stage I am not sure what the claim really is against the Second Defendant as there is no wrong specifically alleged against the second defendant, however for the purpose of the Motion that is before me I do not have to consider the nature of the claim against the Second Defendant as the Motion is against the Statement of Claim generally.

The Summons is claiming a right to land but as the First defendant clearly has a Certificate of Title to the subject land the plaintiff is having to claim fraud on the part of the First Defendant to try and overturn that Certificate of Title. The Defendants are moving the Court to stay the proceedings generally, or to dismiss the proceedings, or to strike out the Statement of Claim.

The first argument by the defendants is that the Plaintiffs Writ is an abuse of process in that they are seeking the same or substantially similar relief as they have sought and failed to obtain in the District Court. It appears that there have been proceedings in the District Court over the subject land and the District Court in July ordered that the plaintiffs in these proceedings are restrained from interfering with the Defendants use and occupation of the land. The Defendants say that the plaintiffs should have appealed that Order of the District Court not taken fresh proceedings. However it is obvious that there was no argument that the plaintiffs could have used on any appeal as in appealing they would have been challenging the title of the First Defendant to the Land and that cannot be done in the District Court as the District Court has no jurisdiction to decide questions of title to land. So if the plaintiffs wanted to challenge the title to the land the only procedure is in the National Court.

The defendants further say that the pleadings of the plaintiff are deficient and should be struck out. This is a claim challenging the grant of a Certificate of Title. The claim is that the Certificate of Title was obtained by fraud. Order 8 rule 30 makes particular reference to pleadings of fraud, "A party pleading shall give particulars of any fraud, misrepresentation, breach of trust, wilful default or undue influence on which he relies". An allegation of fraud is a very serious allegation and the courts have required strict adherence to requirements for pleadings in such cases. Courts have never allowed general allegations of fraud. Courts have required that a person pleading fraud should set out the facts, matters and circumstances relied upon to show that the party charged had or was actuated by a fraudulent intention. The acts alleged to be fraudulent must be stated fully and precisely with full particulars. It is not enough just to say that the person lied or swore a false affidavit, the facts matters and circumstances which make such statements lies must be particularised. Also this being a challenge to the procedures under an Act namely the Land (Tenure Conversion) Act then the fault or fraud in those procedures should be particularised. In such a challenge to a Certificate of Title to land the court has traditionally insisted on strict rules for the protection of persons who are in possession of land to protect them against attacks from persons who hoping to find some blot on the title sometimes bring actions against them without any reasonable cause. Whilst I am not saying that this action may be being brought without reasonable cause but if these rules which protect persons in possession of land from being wrongfully and improperly attacked works hard on the plaintiffs that is part of the general purpose of protecting property and persons from being improperly vexed. But surely the rule is no such hardship. If the plaintiffs know anything then they can and should plead it.

The Amended Statement of Claim clearly does not plead any facts matters or circumstances. It merely asserts that the First Defendant fraudulently obtained title without giving any details. However the Plaintiffs have filed a further document called Particulars of Fraud. Clauses 1 and 2 of that Particulars takes the allegation of fraud no further, merely alleging that the defendant told lies without giving the facts and circumstances which may show that he has told lies. Clause 3 refers to the Defendant falsely procuring a statutory declaration. This is a serious allegation but there are no facts supporting how or when or under what circumstances this was done and how this circumvented the procedures under the relevant Act under which the Certificate of Title was granted. An allegation of fraud like this requires more detail. Clause 4 merely in effect states the Defendant told a lie with no facts to support that allegation. Clause 5 does not really allege anything. 

I am satisfied that in this allegation of fraud in the issue of a Certificate of Title following procedures laid down in an Act the allegations of fraud are not sufficiently particularised to satisfy the requirements of Order 8 rule 30. I Order that the statement of claim and the particulars of fraud pleaded separately be struck out. 

Having ordered that the Statement of Claim and particulars be struck out does this court then either give judgement for the defendants or strike out the proceedings. Whilst this Court has an inherent jurisdiction to control proceedings before it and prevent any abuse of process before it and strike out any proceedings that are an abuse or frivolous and vexatious and this inherent jurisdiction is a jurisdiction quite apart from the rules of court, such inherent jurisdiction is one that should not be exercised too readily particularly if the exercise of it effectively puts an end to the action.

In the circumstances therefore having struck out the pleadings as not complying with Order 8 rule 30 I will stay the proceedings generally. Of course if the plaintiffs take no action within a reasonable time to repair the situation then the defendants can apply to have the proceedings dismissed.

I order that the Plaintiff pay the Defendants' costs of this application.

Lawyer for the Plaintiff: A Yer.
Lawyer for the Defendants: Gadens Ridgeway