Genderiso v Nambawan Super Ltd [2022] PGNC 409; N9863 (17 August 2022)

N9863

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 461 OF 2021

BETWEEN:

KI GENDERISO

- Plaintiff-

AND:

NAMBAWAN SUPER LIMITED

-Defendant-

Waigani: Tamade AJ

2022: 16^th & 17^th August

PRACTICE AND PROCEDURE – Section 16 of Frauds & Limitations Act 1988 – self represented litigant – Statement of Claim does not disclose a clear cause of action – facts disclose tort of conversion – entitlements and benefits paid upon resignation – proceedings filed outside of six years time limitation – proceedings dismissed for being time barred.

Counsel:

Mr Ki Genderiso, Plaintiff In Person
Ms Marlynn Koim, for the Defendant

17^th August, 2022

1. TAMADE AJ: This is a ruling on the Defendant’s application by way of a Notice of Motion filed on 1 June 2022 seeking to dismiss these proceedings. The Defendants are basically seeking that the proceedings are time barred pursuant to section 16 of the Frauds and Limitations Act 1988 and that the Plaintiff has received all his dues as a member of the Defendant fund and that alternatively, the Defendant be granted leave to file a Defence out of time as the Defence on file has been filed irregularly.
   
2. The Plaintiff is self-represented in this matter. The Plaintiff claims that he is a member of the then POSF Fund and claims that a sum of K1 217 being his contributions to the Fund were never paid. He therefore claims for his entitlements from 1970 to 1973 and his entitlements from 1982 to 2002 as being underpaid by the Defendant.
   
3. The Plaintiff claims that he was employed in 1982 and resigned in Goroka in 2002. His claims are therefore for a State contribution component of K19 655.94 and a further sum of K12 647.73 also with interest and the State component of his contributions. The Plaintiff’s pleadings in a vague manner attempt to say that the employees of the Defendants had wrongfully converted and used the Plaintiff’s contributions to their own gain and therefore the Defendant is liable. The Plaintiff’s pleadings are not so clear as to the two different sums claimed as to which period he is claiming from with the State’s contributions and interests.
   
4. The Defendant on the other hand in the Affidavit of Ms Marlynn Koim deposes that the Writ of Summons instituted by the Plaintiff was served at the Member Services Branch of the Defendant at Waigani on 15 October 2021 and was not served on the Defendant’s registered address for service which is the reason why it took some time for the Defendant to take steps to defend the matter.
   
5. Ms Koim’s affidavit also sets out the steps involved when a Member of the Defendant Fund resigns from his employment and the process for a pay out of their dues. Ms Koim deposes that where a member who serves the State as his employer resigns from his employment, his contributions from his salary is paid out to him upon him making a withdrawal however in instances where the State makes a late payment on the employer contribution, a temporary account is created under the name of the Member who has been paid out his own contributions to cater for the State’s contribution and these late payment is then processed and paid out to the Member.
   
6. Ms Koim states that from the Defendant’s records, the Plaintiff was employed with the Department of Education from 1971 to 1981 and was a member of the Defendant within this period. He then resigned in 1981 and applied for his benefits which were paid to him. The Plaintiff was then re-employed as a teacher in 1982 and contributed to the Defendant fund until 2002 when he retired and applied for his benefits. A sum of K36 601.26 was paid to the Plaintiff on 7 February 2003.
   
7. The State component of the Plaintiff’s contributions were however received late and therefore a payment of K19 655.94 which consisted of a retirement contribution from the State in the sum of K1 217.21 and interest of K18 815.03 as the State’s contributions took some time to be paid. The Defendant therefore states that the Plaintiff has received all his contributions and there is nothing owing to the Plaintiff.
   
8. A perusal of the Statement of Claim reveals that the Plaintiff is seeking a sum of K19 655.96 which is the payment he had already received from the Defendant however he further claims for the State’s contributions and a further sum of K12 647.73 which is quite confusing and unclear in his claim as to the foundational basis for these.
   
9. The pertinent question to ask in this application is when did the Plaintiff’s cause of action arise?
   
10. The Plaintiff is claiming the tort of conversion in his Statement of Claim. I am of the opinion that this is caught under section 16 of the Frauds and Limitations Act and therefore the claim should be filed within six years from when the alleged act of when the conversion happened. The pleadings do not disclose when this act of conversion happened. The Plaintiff only states that he resigned from employment in 2002. Ms Koim of the Defendant submits that the cause of action for any payment owing from the Defendant should be from the date the last payment was made that would be from 16 April 2014. Six years from 16 April 2014 would run till 16 April 2020. These proceedings were filed on 11 October 2021.
    
11. The Plaintiff’s pleadings are therefore confusing and embarrassing within the meaning of the Rules of Court as there is no date of when the alleged act of conversion happened. It is therefore reasonable to conclude that if any such act of conversion were to happen, it would be from the date of payment of the K19 655.96 which was paid on or about 16 April 2014. It renders these proceedings as therefore being filed out of time and should be dismissed. The proceedings also do not disclose a clear and identifiable cause of action but are confusing and cause the Defendant to unnecessarily defend a matter that is futile.
    
12. The Court therefore makes the following orders:
    
    1. The Plaintiff’s claim is dismissed for being time barred and for disclosing no reasonable cause of action.
    2. Each party shall meet their own costs of the proceedings.
       

Orders accordingly.

______________________________________________________________

Mr Ki Genderiso Plaintiff In Person

Nambawan Super Limited In-House Lawyers: Lawyers for the Defendant