Wamabiang v Palme [2012] PGNC 84; N4715 (21 May 2012)

N4715

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No.1293 of 2010

BETWEEN:

OPRE WAMABIANG
Plaintiff

AND:

ALICE PALME
First Defendant

AND:

ALISONS STRUGGLE LIMITED
Second Defendant

AND:

RAGA KAVANA
Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Mt. Hagen: David, J
2012: 11 & 21 May

PRACTICE & PROCEDURE – application to dismiss proceedings – plaintiff's claim primarily based on fraud – statutory prohibition to summarily dismiss – relief sought refused – National Court Rules, Order 12 Rules 37 and 40 – Frauds and Limitations Act, Section 16.

PRACTICE & PROCEDURE – application to dismiss proceedings – default in giving discovery – list of documents provided without verification – partial compliance - relief sought refused – National Court Rules, Order 9 Rule 15(1)(a).

PRACTICE & PROCEDURE – application to amend statement of claim – relief sought granted – National Court Rules, Order 8 Rule 50 (1).

PRACTICE & PROCEDURE – failure of First and Second Defendants to supply answer to notice to admit facts - application for order that default deemed admission of facts specified in notice – relief sought refused – National Court Rules, Order 9 Rule 29.

EVICTION – alternative remedy – application for order to evict plaintiff from three portions of land – one portion subject of an appeal in the National Court from a decision of the Mt. Hagen District Court - stay order in place – relief sought refused.

Cases cited:

Anderson Agiru v Electoral Commission and The State (2002) SC687
Curtain Bros (PNG) Ltd v UPNG (2005) SC788
Niugini Mining Ltd v Joe Bumbandy (2005) SC804
Rural Development Bank Ltd v Maria Laka (2007) SC897
Philip Takori v Simon Yagari (2008) SC905
Hilary Singat v Commissioner of Police (2008) SC910
Alfred Alan Daniel v Pak Domoi Ltd (2009) SC970
Mount Hagen Urban Local Level Government v Sek No. 15 Ltd (2009) SC1007
Rex Paki v MVIL (2010) SC1015
New Guinea Limited v Thomason [1975] PNGLR 454
John Cybula v Nings Agencies Pty Ltd [1978] PNGLR 166
Anthony John Polling v MVIT [1986] PNGLR 230
Credit Corporation (PNG) Ltd v Gerald Jee [1988-89] PNGLR 11
PNG Forest Products Pty Ltd and Inchcape Berhad v The Independent State of Papua New Guinea, Jack Genia and the Minister for Forests [1992] PNGLR 85
Samson Kai v The State (1992) N1079
Komboro George v MVIT [1993] PNGLR 477
Titus Keran v Jerry Warun & Country Motors Pty Ltd [1994] PNGLR 130
Ronny Wabia v BP Exploration Operating Co Ltd [1998] PNGLR 8
Kappo No 5 Pty Limited v Wong [1998] PNGLR 544
Gabriel Apio Irafawe v Yauwe Riyong (1999) N1915
Eliakim Laki v Maurice Alaluku, Secretary Department of Lands [2000] PNGLR 392
The Papua Club Inc. v Nasaum Holdings Ltd (2002) 2273
Porgera Freighters Limited v Bank of South Pacific Limited (2004) N2662
Michael Kewa v Elias M. Kombo (2004) N2688
Kiee Toap v The Independent State of Papua New Guinea (2004) N2731
Lawrence Mango v Peter Chow Po Khoon (2005) N2907
Goma Ermuke v MVIL (2009) N3719
Angeline Petersen and Svend Antony Petersen v Telikom (PNG) Limited, Unreported & Unnumbered Judgment of Kandakasi, J of 3 May 2012

Counsel:

Leslie Ako Kari, for the plaintiff
Veronica Palts, for the First & Second Defendants

RULING ON MOTION

DAVID J: INTRODUCTION: This is a ruling on 2 motions brought before me for determination.

1. The First and Second Defendants' notice of motion was filed earlier in time so it was moved first followed by the plaintiff's.
   
2. By their notice of motion filed on 5 September 2011, the First and Second Defendants seek the following orders:
   

"1. Pursuant to Order 9 Rule 15 (1)(a) of the National Court Rules, the proceedings be dismissed.

2. Additionally, pursuant to Order 12 Rule 40 (1) of the National Court Rules, the proceedings be dismissed for being frivolous or vexatious and disclosing no reasonable cause of action and are an abuse of process.

3. Alternatively, pursuant to Section 155 (4) of the Constitution, the Plaintiff be evicted from Portions 2529, 2530 and 2531 Milinch of Hagen, Fourmil of Ramu, Western Highlands Province forthwith:

(a) if orders one (1) and two (2) above are granted; or

(b) pending the substantive proceedings, if orders one (1) and two (2) above are refused.

4. The Plaintiff pays the cost and incidental to the application.

5. Any other order this Court sees appropriate."

4. To support the application, the First and Second Defendants rely on the following documents:

1. Affidavit in Support of Alice Palme sworn on 1 September 2011 and filed on 5 September 2011; and
   
2. Affidavit in Support of Winston Kapipi sworn on 2 September 2011 and filed on 5 September 2011.
   

5. In the Affidavit in Support of Winston Kapipi, he craved leave to refer to a number of affidavits filed in the proceedings and these are:

1. the Affidavit of Service of Alice Palme sworn on 6 July 2011 and filed on 7 July 2011;

2. Affidavit of Search of Sam Nanga sworn and filed on 19 July 2011;

3. Affidavit of Service of Alice Palme sworn on 27 July 2011 and filed on 28 July 2011; and

4. Affidavit of Search of Ellie Jacob sworn and filed on 24 August 2011.

6. I have considered these affidavits as well.

7. By his notice of motion filed on 14 March 2012, the plaintiff seeks the following orders:

"1. That pursuant to Order 8 Rule 50 (1) of the National Court Rules and Section 155 (4) of the Constitution of PNG, the Plaintiff be granted leave to amend the statement of claim.

2. That pursuant to Order 8 Rule 51 (2)(b) of the National Court Rules, the defendants file their defence within 14 days after service of a sealed copy of the amended writ and statement of claim.

3. That pursuant to Order 9 Rule 29 (2) of the National Court Rules, the defendants are deemed to have admitted the facts as are contained in the Notice to Admit Facts.

4. That costs be in the cause.

5. Such further and other orders as the Court sees fit.

6. The time for the entry of the orders be abridged."

8. To support the application, the plaintiff relies on the affidavit of Opre Wamabiang sworn on 12 March 2012 and filed on 14 March 2012.

9. Both motions were contested.

BRIEF BACKGROUND

10. On 19 October 2010, the plaintiff filed his writ of summons endorsed with a statement of claim. His allegations are basically these. He is the original customary landowner of a piece or parcel of land known as Ganga situated between Tega and Dobel areas in Mt. Hagen (the land) which the defendants have now subdivided into three blocks namely, Portions 2529, 2530 and 2531 Milinch of Hagen, Fourmil of Ramu and converted to special purpose State Leases. In or about 1993, the First Defendant approached the plaintiff and requested him to release the land to her on an undertaking that; she have it registered under a company which would then pave way for the land to be developed for business purposes including making it possible to obtain a loan from the National Development Bank which the First Defendant's husband was the Chairman of then and the plaintiff would be a partner and a director in the business venture. Based on this undertaking, the plaintiff released the land to the First Defendant. The First Defendant did not honour the undertaking. Instead, she fraudulently converted the land from customary land to a special purpose lease which is now registered under the name of the Second Defendant. Her action was therefore unlawful or illegal. The particulars of fraud are pleaded at paragraph 15 of the statement of claim. The plaintiff principally claims compensation in the sum of K320,000.00, damages for distress and anxiety, and the surrender of the title to him.

11. On 4 November 2010, the First and Second Defendants filed their notice of intention to defend

12. On 2 December 2010, they filed their defence basically denying liability. They do not admit the plaintiff's claim to being the customary landowner of the land, but state that it was sold to the First Defendant for which payments were made hence the land was obtained legally. The land was then subdivided into 3 portions namely, Portions 2529, 2530 and 2531 and separate State Leases were issued over each portion following compliance with correct legal procedures. The First Defendant admits signing a statutory declaration to pay some customary compensation for the land, but states that it is not an agreement in law.

13. According to the Court's record, the Third and Fourth Defendants have not filed any notice of intention to defend these proceedings or defence.

ISSUES

14. The primary issues arising from these motions for my consideration and determination are:

1. whether the proceedings should be dismissed for failing to file a verified list of documents?
   
2. whether the proceedings should be dismissed for failing to disclose a reasonable cause of action?
   
3. whether the proceedings should be dismissed for being frivolous or vexatious?
   
4. whether the proceedings should be dismissed as they are an abuse of process?
   
5. whether the plaintiff should be granted leave to amend his statement of claim?
   
6. whether the failure by the defendants to provide a response or give notice disputing facts as stated in the Notice to Admit Facts entitles the plaintiff to a declaration that the facts stated in the Notice to Admit Facts stand admitted?
   
7. whether the plaintiff should be evicted from Portions 2529, 2530 and 2531?
   

APPLICATION FOR DISMISSAL OF PROCEEDINGS UNDER ORDER 12 RULE 40 NATIONAL COURT RULES

15. I will firstly deal with issues 2 to 4 together.

16. The First and Second Defendants submit that the proceedings should be dismissed for the following reasons:

1. the plaintiff sold the land to the First Defendant, the latter giving a 15 seater bus to the plaintiff as payment.
   
2. the land was then sub-divided into 3 different portions namely Portions 2529, 2530 and 2531 Milinch of Hagen and Fourmil of Ramu over which separate State Leases have been issued in favour of the Second Defendant.
   
3. the claim is statute-barred as the individual titles to Portions 2529, 2530 and 2531 Milinch of Hagen and Fourmil of Ramu were issued in 1995.
   

17. The plaintiff submitted that only in the clearest of cases will a Court summarily dismiss proceedings. Mr. Kari of counsel for the plaintiff referred me to a number of decisions of the Supreme Court and the National Court to support the proposition. These are; Anderson Agiru v Electoral Commission and The State (2002) SC687; Curtain Bros (PNG) Ltd v UPNG (2005) SC788; Philip Takori v Simon Yagari (2008) SC905; Mount Hagen Urban Local Level Government v Sek No. 15 Ltd (2009) SC1007; Rex Paki v MVIL (2010) SC1015; PNG Forest Products Pty Ltd and Inchcape Berhad v The Independent State of Papua New Guinea, Jack Genia and the Minister for Forests [1992] PNGLR 85; Ronny Wabia v BP Exploration Operating Co Ltd [1998] PNGLR 8; Gabriel Apio Irafawe v Yauwe Riyong (1999) N1915; Eliakim Laki v Maurice Alaluku, Secretary Department of Lands [2000] PNGLR 392; and Kiee Toap v The Independent State of Papua New Guinea (2004) N2731. The plaintiff further submits that his statement of claim sufficiently sets out the nature of the claim. His statement of claim demonstrates that the claim is for breach of agreement for the sale of the land and fraudulent conversion of the land to special purpose business leases he contends. It was therefore submitted that this was not a clear case that warrants dismissal summarily.

18. The Court's power to stay or dismiss proceedings, either generally or in relation to any claim for relief in the proceedings, under any of the grounds specified in sub-rule (1) of Order 12 Rule 40 of the National Court Rules is discretionary and the power contained there supplements the Court's inherent jurisdiction to protect and safeguard any abuse of its process. Order 12 Rule 40 applies to all proceedings (whether commenced by writ of summons or originating summons) except for proceedings involving a claim by the plaintiff for libel, slander, malicious prosecution, false imprisonment, seduction, breach of promise of marriage, fraud or a claim for damages arising from death or personal injury which are clearly prohibited by Order 12 Rule 37 of the National Court Rules: see Lawrence Mango v Peter Chow Po Khoon (2005) N2907. Evidence may be received by the Court on the hearing of an application for an order under sub-rule (1) of Order 12 Rule 40 of the National Court Rules.

19. It is instructive that I set out Order 12 Rule 37 of the National Court Rules in full below:

"37. Application of Division 4. (13/1)

This Division applies to all proceedings except proceedings which include -

(a) a claim by the plaintiff for libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage; or

(b) a claim by the plaintiff based on an allegation of fraud; or

(c) a claim for damages arising in respect of the death of any person or in respect of personal injuries to any person."

20. Division 12.4 (Summary Disposal) consists of Rules 37 to 43.

21. The plaintiff's statement of claim discloses that his claim primarily is based on an allegation of fraud. The questions whether the plaintiff entered into any agreement with the First Defendant to sell the land to the First Defendant or that there was a breach of any such agreement by the First Defendant are matters that should be addressed simultaneously with the primary issue of fraud.

22. Order 12 Rule 37 in no uncertain terms prohibits a claim based on an allegation of fraud to be dealt with summarily under Division 12.4 of the National Court Rules: see for example; Kappo No 5 Pty Limited v Wong [1998] PNGLR 544; Porgera Freighters Limited v Bank of South Pacific Limited (2004) N2662; and Alfred Alan Daniel v Pak Domoi Ltd (2009) SC970. Thus, as the instant case involves one of the claims identified in Order 12 Rule 37 of the National Court Rules, Order 12 Rule 40 of the National Court Rules is clearly inapplicable.

23. Even if Order 12 Rule 40 of the National Court Rules were applicable, I would still have found that the proceedings do disclose a reasonable cause of action based on an allegation of fraud and they are not frivolous or vexatious or are an abuse of the process of the Court. I concur with the plaintiff that this is not a clear case for the Court to summarily dismiss the proceedings.

24. As to whether the proceedings are statute-barred by virtue of section 16 of the Frauds and Limitations Act, the defendants do not have any formal application before the Court for me to deal with this threshold issue. Therefore, I am quite reluctant to make a ruling on the matter. If it has been raised in the context of the proceedings being an abuse of the process of the Court because the claim is purportedly statute-barred, then I am fortified by my earlier ruling as to the inapplicability of Order 12 Rule 40 of the National Court Rules in the present case. I will leave it to the defendants to explore whether it is feasible to file a further and formal application for the Court's determination of this issue.

25. Consequently, I will refuse the First and Second Defendants' application based on Order 12 Rule 40 (1) of the National Court Rules.

APPLICATION FOR DISMISSAL OF PROCEEDINGS UNDER ORDER 9 RULE 15 (1)(a) NATIONAL COURT RULES

26. It is submitted by the First and Second Defendants that these proceedings should be dismissed pursuant to Order 9 Rule 15 (1)(a) National Court Rules because the plaintiff defaulted in giving discovery as required by a notice of discovery filed on 30 June 2011 and served upon him on 1 July 2011 when he failed to give his list of documents with verification within 15 days after service of the notice.

27. The plaintiff submitted that the proceedings should not be dismissed just because he failed to serve his list of documents without verification. He submitted that in fact, there was substantial compliance with the First and Second Defendant's notice to give discovery when he served his list of documents.

28. Mr. Kari of counsel for the plaintiff submitted that non-compliance with the National Court Rules should not be used as a basis to dismiss a case as they are not an end in themselves, but are a means to an end and are designed as a code of practice to have parties arrive at a just solution. Counsel cited a number of decisions of the Supreme Court and the National Court to support the proposition and these are Anthony John Polling v MVIT [1986] PNGLR 230; Curtain Bros; Niugini Mining Ltd v Joe Bumbandy (2005) SC804; Rural Development Bank Ltd v Maria Laka (2007) SC897; and Angeline Petersen and Svend Antony Petersen v Telikom (PNG) Limited, Unreported & Unnumbered Judgment of Kandakasi, J of 3 May 2012.

29. It is trite law that if a party ignores Court process, he does so at his own peril. See Credit Corporation (PNG) Ltd v Gerald Jee [1988-89] PNGLR 11; Titus Keran v Jerry Warun & Country Motors Pty Ltd [1994] PNGLR 130; and Curtain Bros.

30. The Court's power to enforce discovery is extremely broad and the power vested in it by Order 9 Rule 15 (1) of the National Court Rules is discretionary in nature. Where a party gives a notice for discovery, the party that is required to give discovery must do so within the period specified in the notice. The requirement is mandatory: see Order 9 Rules 1 & 2 of the National Court Rules. I consider therefore that where a defendant has served a notice for discovery pursuant to Order 9 Rule 1 of the National Court Rules and the plaintiff has failed to comply, an application to stay or dismiss the proceedings as to the whole or any part of the relief claimed should be refused where he has offered a reasonable explanation for his default. Moreover, the default provisions under Order 9 Rule 15 (1) of the National Court Rules should only be enforced in the last resort and where it is clear that the party in default really intends not to comply with the notice for discovery.

31. Before I exercise my discretion whether to grant or refuse the First and Second Defendants' application, I need to be satisfied that the plaintiff has defaulted in filing or serving a list of documents as required by the First and Second Defendants' notice for discovery. The First and Second Defendants gave to the plaintiff their notice for discovery with verification filed on 30 June 2011 and served upon him on 1 July 2011: see the Affidavit of Service of Alice Palme sworn on 6 July 2011 and filed on 7 July 2011. The First and Second Defendants required the plaintiff to give full discovery of documents within 15 days after service of the notice upon him, that is, by 16 July 2011. A search conducted of the Court file on 18 July 2011 by a Sam Nanga, Legal Clerk employed by Twivey Lawyers, Mt. Hagen revealed that the plaintiff had not filed his verified List of Documents at the time of conducting the search: see the Affidavit of Search of Sam Nanga sworn and filed on 19 July 2011. On 19 July 2011, the First and Second Defendants' lawyers wrote to the plaintiff's lawyers, Tonges Lawyers then giving the plaintiff notice of their intention to file an application to dismiss the proceedings should he fail to file and serve on them his List of Documents within 7 days of the date of service of the letter. A copy of the letter is in evidence and is attached to the affidavit of Winston Kapipi as annexure "WK1". The letter was served on Tonges Lawyers on 19 July 2011: see the Affidavit of Service of Alice Palme sworn on 27 July 2011 and filed on 28 July 2011. By that letter, the plaintiff was required to file and serve his List of Documents with verification by 26 July 2011. On 8 August 2011, the plaintiff filed his List of Documents in response to the First and Second Defendants' notice for discovery, but without verification.

32. I am satisfied that the plaintiff has defaulted in giving discovery with verification as was required by the First and Second Defendants' notice for discovery and the further extended time of 7 days given by the First and Second Defendants' lawyers' letter to Tonges Lawyers of 19 July 2011. The plaintiff has not provided any reasonable explanation for the default. However, in the present case, the plaintiff has partly complied with the First and Second Defendants' notice for discovery by filing and serving on the First and Second Defendants' lawyers on 8 August 2011 a List of Documents without verification. That demonstrates that the plaintiff has no intention not to comply with the First and Second Defendants' notice for discovery.

33. For these reasons and in the exercise of my discretion, I will refuse to dismiss the proceedings for the plaintiff's default in filing or serving a List of Documents with verification upon the First and Second Defendants. Instead, I will order the plaintiff to file and serve upon the First and Second Defendants an amended List of Documents with verification within 7 days from the date of this order.

APPLICATION TO AMEND THE PLAINTIFF'S STATEMENT OF CLAIM UNDER ORDER 8 RULE 50 (1) OF THE NATIONAL COURT RULES AND SECTION 155 (4) OF THE CONSTITUTION

34. The plaintiff submitted that the plaintiff's statement of claim is sufficiently pleaded, but the amendments proposed in the form of the draft amended writ of summons and statement of claim annexed to the plaintiff's affidavit as annexure "OW1" will tidy up the pleadings.

35. The First and Second Defendants did not seriously contest the application although their counsel took issue with the draft amended writ of summons and statement of claim annexed to the plaintiff's affidavit as she thought it had already been filed without obtaining leave when it was not.

36. The power of the Court to either grant or not to grant the leave sought by the plaintiff is derived from Order 8 Rule 50 of the National Court Rules. It was not necessary to invoke Section 155 (4) of the Constitution to establish the jurisdictional basis of the application. Sub-rule (1) of Order 8 Rule 50 provides that at any stage of the proceedings, the Court may grant leave to a party to make an amendment to any document in the proceedings either on application of a party or of its own motion in such manner as the Court thinks fit. Sub-rule (2) then provides that all necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings.

37. The Court's power under this rule is discretionary and broad and in exercising that discretion, the Court has the duty to do so judicially and on proper principles, so that justice is done in the case even at the late stage of the proceedings: see New Guinea Limited v Thomason [1975] PNGLR 454; Komboro George v MVIT [1993] PNGLR 477.

38. In The Papua Club Inc. v Nasaum Holdings Ltd (2002) 2273, Gavara-Nanu, J set out five considerations to be taken into account when deciding whether or not to grant leave to amend. These are:

1. Will the amendment enable the Court to determine the real question in controversy between the parties?

1. Will the amendment correct any defect or error in the proceedings?

2. Will the amendment cause real prejudice or injustice to other party?

4. Is the application for such amendment made mala fide or bona fide?

5. Can the other party be fairly compensated with costs for such amendment?

39. Three other considerations were added to that list by Cannings, J in Michael Kewa v Elias M. Kombo (2004) N2688. These are:

1. Is the party applying prevented by its conduct or the manner in which the proceedings have been progressed from being permitted to amend its pleadings?
   
2. Where do the interests of justice lie?
   
3. Is the proposed amendment efficacious? That is, is it a proper amendment?
   

40. I will respond to the questions or considerations proposed in The Papua Club Inc. in the order as they are set out as follows:

1. Yes.
   
2. Yes.
   
3. No. The First and Second Defendants will have the opportunity to file an amended defence.
   
4. The application is made bona fide.
   
5. Yes, but subject to the outcomes of the 2 competing motions of the parties.
   

41. I will respond to the questions or considerations proposed in Michael Kewa in the order as they are set out as follows:

1. No.

2. A serious allegation of fraud involving what was once a piece of customary land subdivided and converted to three portions of State land requires proper pleading. The interests of justice lie in granting the application.

3. It is a proper amendment.

42. I will therefore grant leave to the plaintiff to amend his statement of claim in the manner he has proposed in the draft amended writ of summons and statement of claim annexed to his affidavit as annexure "WO1". The plaintiff shall file and serve his amended writ of summons and statement of claim within 7 days from the date of this order and the defendants shall file their amended defence within 14 days after service.

NOTICE TO ADMIT FACTS UNDER ORDER 9 RULE 29 NATIONAL COURT RULES

43. It was submitted by the First and Second Defendants that their lawyers wrote to the plaintiff's lawyers requesting them to plead particulars of fraud on which the plaintiff relied as was required by Order 8 Rule 30 of the National Court Rules as the plaintiff's statement of claim lacked such particulars. A copy of the relevant letter which is dated 27 July 2011 is in evidence and is annexed to the affidavit in support of Winston Kapipi as annexure "WK2". It was further submitted that notwithstanding the lack of particulars of fraud, the plaintiff proceeded to file the application for an order seeking to enforce in his favour Order 9 Rule 29 (2) of the National Court Rules.

44. The plaintiff submitted that since the First and Second Defendants have failed to give notice disputing facts specified in the Notice to Admit Facts within fourteen days after service of the notice, those facts, for the purpose of these proceedings, are deemed to be admitted. Counsel referred me to John Cybula v Nings Agencies Pty Ltd [1978] PNGLR 166, Samson Kai v The State (1992) N1079 and Alfred Alan Daniel as some cases on point which I have considered.

45. Order 9 Rule 29 (2) of the National Court Rules appears to be in mandatory terms. I have alluded to already that it is trite law that if a party ignores Court process, he does so at his own peril. However, I consider that this rule which is punitive in nature should only be enforced in the last resort, where it seems clear that the defaulting party really intends not to respond appropriately to a Notice to Admit Facts.

46. There is no evidence before me that suggests that the plaintiff forewarned the First and Second Defendants by letter of his intention to invoke Order 9 Rule 29 (2) of the National Court Rules, the warning in the Notice to Admit Facts aside. The Supreme Court in Hilary Singat v Commissioner of Police (2008) SC910 remarked on the importance of that practice in the following terms:

"The aim of the forewarning letter is thus, to give a defendant who might have inadvertently overlooked the need for filing and serving its defence within the prescribed time limits the opportunity to do so. This ties in well with the Courts usual desire to do justice on the substantive merits of a case as opposed to a judgment based purely on technicalities and deficiencies or defaults in compliance with the rules of the Court, which are only a means to an end and not an end in them. At the same time, the requirement also ensures that, a defendant is not taken by surprise by a default judgment and thereby avoids the possibility of an application to set aside a default judgment, with the associated costs and the Court's time issues."

47. I have said in Goma Ermuke v MVIL (2009) N3719 that whilst that practice applies to applications for the entry of default judgments which has now been adopted and incorporated into the National Court Rules by the Motions (Amendment) Rules 2005 (O.4 r.49 sub-rule 19 (3)(a)(i)(4)), the practice of forewarning lawyers on opposing sides in other aspects of civil litigation is a good one.

48. If the plaintiff had given a forewarning letter to the First and Second Defendants to respond to the Notice to Admit Facts within an extended period and they failed to respond appropriately, then it would be deemed that they intended not to respond to the Notice to Admit Facts.

49. Moreover, the Court must look at all the circumstances surrounding a particular application in deciding whether or not to grant the remedy sought as the objective of the exercise is that any remedy the Court grants must serve a useful purpose and justice is dispensed. The First and Second Defendants took issue with the sufficiency of the particulars of the allegation of fraud in the plaintiff's statement of claim and on 9 June 2011 they filed and served on the plaintiff a Request for Further and Better Particulars. On 23 June 2011, the plaintiff filed and served on the First and Second Defendants his Reply to their Request for Further and Better Particulars. Having formed the view that the plaintiff had not sufficiently pleaded fraud against them, the First and Second Defendants proceeded to file their unsuccessful application to dismiss the proceedings under Order 12 Rule 40 of the National Court Rules. The plaintiff's application seeking leave to amend his statement of claim has also been granted. In all the circumstances of this case, I think it is in the interests of justice which I am duty bound to consider as is required by Section 158 (2) of the Constitution that I should refuse the plaintiff's application.

EVICTION

50. The First and Second Defendants submitted that they were entitled to an order for the eviction of the plaintiff who is currently occupying the portions of land in dispute and conducting business therefrom should their application under Order 12 Rule 40 of the National Court Rules be successful or alternatively pending the hearing of the substantive application should their application be refused.

51. Details of past and current litigation affecting these portions of land, the burning down of the First Defendant's permanent residential accommodation on Portion 2530 allegedly by the plaintiff leading to the conviction and imprisonment of the plaintiff in 2005 for arson are contained in the affidavit in support of the First Defendant. I note that currently there is an appeal on foot from the decision of the Mt. Hagen District Court made on 30 May 2011 ordering the plaintiff to refrain from conducting any form of commercial activity or business on Portion 2529 instituted by the plaintiff (CIA No.69 of 2011). A stay of the District Court order appears to be in place. It would not be proper for me to accede to the First and Second Defendants' application in the circumstances on the basis that although Portion 2529 may be the only subject matter of the appeal, it is part and parcel of the land in dispute. I will refuse to make any eviction order.

52. The formal orders of the Court will be:

1. the First and Second Defendants' application to dismiss the proceedings for showing no reasonable cause of action or that they are frivolous or vexatious or are an abuse of process of the Court under Order 12 Rule 40 of the National Court Rules is refused.
   
2. the First and Second Defendants application to dismiss the proceedings pursuant to Order 9 Rule 15 (1)(a) National Court Rules is refused.
   
3. the plaintiff's application for leave to amend his statement of claim pursuant to Order 8 Rule 50 (1) of the National Court Rules is granted.
   
4. the plaintiff shall file and serve his amended writ of summons and statement of claim within 7 days from the date of this order and the defendants shall file their amended defence within 14 days after service.
   
5. the plaintiff's application made pursuant to Order 9 Rule 29 (2) of the National Court Rules is refused.
   
6. the First and Second Defendants' application for an order to evict the plaintiff from Portions 2529, 2530 and 2531 Milinch of Hagen and Fourmil of Ramu is refused.
   
7. the circumstances surrounding the filing and moving of the motions warrant that each party should bear their own costs of the hearing of the motions.

_________________________________________________
PNG Legal Services: Lawyers for the plaintiff
Twivey Lawyers: Lawyers for the First & Second Defendants