Bill v Kiap Brum Paknge [2022] PGNC 56; N9447 (22 February 2022)

N9447

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 342 OF 2018

BETWEEN
KUMI BILL
Plaintiff

AND
KIAP BRUM PAKNGE AND KOM KENZIE
Defendants

Waigani: Linge A J
2022: 18^th & 22^nd February

PRACTICE AND PROCEDURE – Dismissal for want of prosecution – proceeding is statute barred – withdrawal of originating process

Cases Cited:

Yayabu (trading as Paula Yayabu Lawyers) v Melanesian Trustee Services Ltd as Trustee for Pacific Property Trust [2019] PGNC 310; N7967
Markscal Ltd v Mineral Resource Development Company Ltd (1999) PGNC 117; N1807
Dogoliv v Laho [2005] PGNC 47; N2885
Waink v Motor Vehicle Insurance (PNG) Trust [1997] PGNC 98; N1630
Viviso Seravo v Jack Bahafo (2001) N2078.
Ahmadiyya Muslim Mission v Bank of South Pacific Ltd (2005) N2845.
John Niale v Sepik Coffee Producers Ltd (2004) N2637
Roger Meckpi v Lukue Fallon and Dekenai Construction, WS No.1081 of 2002
Kai Ulo & Ors v The State [1981] PNGLR 148
Burns Philp (New Guinea) Limited v Maxine George [1983] PNGLR 55

Counsel:

Ms. Topo, for the Applicant/Defendant
No appearance by the respondent/plaintiff

22^nd February, 2022

1. LINGE A J: A ruling on the defendants Notice of Motion filed on the 11 October 2021 seeking as its main order dismissal of proceedings for want of prosecution relying on Order 10 Rule 5 and Order 4 Rule 36 of the National Court Rules.
2. Defendants also seek orders in terms of Order 12 Rule 1 and Order 12 Rule 40 (a), (b) and (c) of the National Court Rules to dismiss the entire proceedings in its entirety for disclosing no reasonable cause of action against the defendant, being frivolous and vexatious and an abuse of court process.

3. Other secondary orders sought in the application are the dismissal of the entire proceeding for being statute barred pursuant to Section 16 of the Frauds and Limitation Act and permanent restraining orders pursuant to Order 12 Rule 1 of the National Court Rules.

4. The application came before me on the 18 February 2022. Counsel for the defendant Ms Topo sought leave to tender her extract of submission. This ruling takes into account matters raised in the Submission of Counsel.
5. Service of the Notice of Motion and affidavit in support was affected on Kuma Lawyers for the plaintiff on the 15 February 2022 and thus I proceeded to hear the application ex parte.

Brief Facts

6. In 1984 the plaintiff offered to sell his customary land to the defendants allegedly for K 12,000.00 and the defendants paid K1, 600.00 to the plaintiff with the balance to be paid later and moved onto and occupied the land.

7. The defendants then converted the customary land to their own names pursuant to the Land (Tenure Conversion) Act 1963. The Certificate of Title over the customary land now known as Portion 610C, Kupral, Milinch of Minch, Fourmil, Ramu had been issued to Kiap Brum and Kom Kenzie as the proprietors of an estate in fee simple as tenants in common on the 19 April 1988.

8. In 2018 the plaintiff filed the Originating Summons against the defendants claiming inter alia that the defendants fraudulently purchased the land.

This proceeding

9. The plaintiff filed this proceeding by way of Originating Summons on the 22 May 2018 seeking declarations inter alia that the Certificate of Title issued to the defendants over Portion 610C, Kupral, Milinch of Minch, Fourmil, Ramu is null and void and of no effect as the defendants obtained it by fraud.

10. Further declarations being sought are that the defendants never purchased the customary land, the plaintiff be declared as the traditional owner, that the traditional name of the land is Burilap and not Kurpal.

11. The plaintiff also seeks Orders for defendants to give vacant possession, to remove the Certificate of Title from the Registry of Titles, to remove the names of the defendants from the Certificate of Title, the land to be restored to the plaintiff and to restrain the defendants and servants, associates, agents, relatives and family members from use of threats and violence.

12. The defendants filed their Defence on the 4 June 2018 denying fraud and specifically that particulars of fraud had not been sufficiently pleaded and, countered that they have followed due process to obtain a valid Certificate of Title over Portion 610C, Kupral, Milinch of Minch, Fourmil, Ramu.

13. Defendants also pleaded that they paid K 2000.00 as outright purchase as valuable consideration in response to a roadside Cardboard notice of the Sale of the said land.

14. Further, the defendants pleaded Section 16 of the Land (Tenure Conversion) Act that the land ceased to be customary land and the claim by the plaintiff to be recognized as a customary owner is null and void.

This Application

15. The Notice of Motion is filed by the defendants on the 11 October 2021 and is made pursuant to Order 4 Rule 36 of the National Court Rules.

16. In support of the application, the defendants rely on the affidavit in support of Kiap Brum Paknge filed on the 11 October 2021 and also craves the court to use two (2) of Kiap Brum Paknge earlier affidavits both filed on the 12 June 2018 as Documents 9 and 10 respectively.

16. The affidavit evidence is that in 1984 the defendants saw a notice of land sale over customary land posted on a roadside near Minj in Jiwaka and upon enquiries came upon the plaintiff as the person who offered the Kupral land for sale. A deal was then struck, and the defendants paid K 2,000.00 as purchase price to the plaintiff for the customary land.

17. The defendants thereafter decided to register the land and they depose that they solicited and were assisted by and witnessed by the Minj District office staff including the Assistant District Commissioner who gave advice on the process to facilitate the land purchase and registration.

18. Kiap Brum Paknge deposes that they engaged the services of a registered surveyor, Arman Larmer Surveys Pty Ltd to undertake survey of the land and prepared sketch which resulted in the description given to the land as Portion 610C, Kupral, Milinch of Minch, Fourmil, Ramu.

19. He deposes that they followed all due processes to facilitate the conversion including the help of Land Titles Commission which successfully enable land tenure conversion to be completed under the Land (Tenure Conversion) Act 1963.

20. Having completed all processes for conversion the Certificate of Title was issued to Kiap Brum and Kom Kenzie as the proprietors of an estate in fee simple as tenants in common on the 19 April 1988.

21. He deposes that both defendants have planted crops and work on Kurpal land since the 25 March 1987 as owners and occupiers.

22. The plaintiff/respondent filed four (4) affidavits in support by Kumi Bill filed on the 17 May 2018, affidavit of Dorum Kuma filed on the 17 May 2018, affidavit of Gabriel Okun filed on the 22 May 2018 and affidavit of Kongi Bill filed on the 22 May 2O18.

23. All deponents depose that the land known to them as Burilap was given to Kumi Bill by his father-in-law, the true customary landowner when Kumi Bill married his daughter.

24. They all depose that they are aware of the land deal between Kiap Brum Paknge in around 1984 for K12,000.00 and that the Defendants paid K1,600.00 and that Kumi Bill had been trying to get the applicants/defendants to settle the balance.

25. Kumi Bill deposes that he was not aware that Kiap Brum and Kom Kenzie had obtained the Certificate of Title over the subject land until 2016.

Submission by Counsel

26. In her Submission Ms.Topo of Counsel for the defendant referred me to a number of judgments in support of the application.

27. In relation to the principal order being sought by the defendant pursuant to Order 10 Rule 5 of the National Court Rules, Counsel cited Yayabu (trading as Paula Yayabu Lawyers) v Melanesian Trustee Services Ltd as Trustee for Pacific Property Trust [2019] PGNC 310; N7967 (20 August 2019) where the Court expressed that in dealing with applications to dismiss proceedings pursuant to Order 10 Rule 5 of the National Court Rules as “... the launching pad for many such applications to dismiss proceedings for want of prosecution. What is clear though is that the power of the Court to dismiss proceedings on the ground of want of prosecution on an application is discretionary after having regard to all the circumstances”.

28. In Markscal Ltd v Mineral Resource Development Company Ltd (1999) PGNC 117; N1807, His Honour Sevua J held that:

“In my view a plaintiff, who institutes a lawsuit has an obligation to prosecute it without unnecessary delay. He has a duty to comply with any court order relative to the lawsuit; he has a duty to comply with the rule of the court to ensure that prosecution of the suit reaches its finality without inordinate delay, and without causing prejudice to the defendant. A party cannot just ignore court process, if he does, he does so at this peril.”

29. In Dogoliv v Laho [2005] PGNC 47; N2885, Sawong J on Order 10 Rule 5 puts it more precisely by stating that:

“Order 10 Rule 5 creates an obligation on the part of the plaintiff to set down the proceedings for trial within six (6) weeks from the date of the close of pleadings. This is a discretionary rule. Thus, if a breach of this rule occurs, it does not automatically result in the dismissal of proceedings. The rule, however, does give a defendant a right to apply for dismissal of the proceedings and the Court has a discretionary power to dismiss the proceedings under this rule in the appropriate circumstances.”

30. Counsel cited Viviso Seravo v Jack Bahafo (2001) N2078 wherein Kandakasi J summarised well the principles governing the dismissal of proceedings for want of prosecution. See also; Ahmadiyya Muslim Mission v Bank of South Pacific Ltd (2005) N2845.
31. She also refers me to the case of John Niale v Sepik Coffee Producers Ltd (2004) N2637 wherein Cannings J suggested additional principles which he set out and states:

“An application for a dismissal of proceedings for want of prosecution pursuant to Order 10 Rule 5 may therefore be granted if:

(a) The plaintiff’s default is intentional or is allowing for an inordinate and inexcusable delay in a prosecution of his or her claim;
(b) There is no reasonable explanation given by the plaintiff for the delay;
(c) The delay has caused injustice or prejudice to the defendant;
(d) The conduct of the parties and their lawyers’ warrants; and
(e) It is in the interests of justice.”

32. In summary, Counsel applied the principles outlined in Markscal Ltd v Mineral Resource Development Company Ltd (supra), Dagoliv v Laho (supra) and John Niale v Sepik Coffee Producers Ltd (supra) and submits that this case meets all the requirements that warrants its dismissal in its entirety for want of prosecution satisfying all the criteria referred above in particular it is (4) years, two (2) months now and it has not been prosecuted or progressed to is finality and there is no reasonable explanation provided by the plaintiff or his lawyer for the delay.

33. On the alleged fraud on the defendant’s part in registering the title under their name, she submits that this is misconstrued on the basis that instead of commencing this proceeding by writ of summons with a statement of claim, clearly pleading the elements of fraud against the defendants, the plaintiff commenced the proceedings by way of an originating summons which is an incorrect mode.

34. Ms.Topo also submits that pursuant to Order 12 Rule 1 and Order 40 Rule 12(a) (b) and (c) of the National Court Rules, these proceedings are not properly before this Court and must be dismissed in its entirety for being frivolous and vexatious and for being an abuse of court process.

35. In relation to the third order being sought, she submits that it is undisputed that the defendant, Mr. Kiap Brum purchased the subject land in 1984 and the defendants used their own funds to conduct survey over the subject land and obtain the Certificate of Title in 1988 and since 1984 to the filing of this proceeding in 2018 it is more than 35 years.

36. She also submits that this proceeding is well out of time limitation and in breach of Section 16 of the Frauds and Limitations Act and should be dismissed in its entirety for being statute barred.

37. Finally Counsel submits that as the defendants hold a clear title over the subject land, and given the reasons provided above, the defendants are entitled to be protected from threats, intimidation and violence from the plaintiff, his servants, agents, relatives and/or family members including any interested parties from interfering with the use, enjoyment of Portion 610C, Kupral, Milinch of Minch, Fourmil, Ramu and unnecessarily dragging the defendants to any further law suits which will only prejudice and interfere with their quiet enjoyment and use of their land.

Legal Consideration
38. The principles governing dismissal of proceedings for want of prosecution are well settled in this jurisdiction. I have considered the submission of Counsel on the principals involved in invoking Order 10 Rule 5 of the National Court Rules and it is on point on the settled law.

39 Order 10 Rule 5 of the National Court Rules provides:

“Where a plaintiff does not, within six (6) weeks after pleadings are closed, set the proceedings down for trial, the Curt, on motion by any other party, may on terms dismisses the proceedings or make such other order as the Court thinks fit”.

40. While Order 10 Rule 5 of the National Court Rules deals with dismissal for want of prosecution initiated by writ of summons, Courts have in practice have used the same procedure in relation to proceedings commenced by originating summons to the extent and with such modifications as the Court may direct. The procedural basis for this is Order 10 Rule 1 (2) of the National Court Rules. I refer to the unnumbered Ruling by David J in Roger Meckpi v Luke Fallon and Dekenai Construction, WS No.1081 of 2002

41. In exercising the discretionary power of the Court to dismiss proceedings, I must have regard to all the circumstances of the case. Kai Ulo & Ors v The State [1981] PNGLR 148; Burns Philp (New Guinea) Limited v Maxine George [1983] PNGLR 55.

41. His Honour Kandakasi J in Viviso Seravo v Jack Bahafo (2001) N2078 summarized well the principles governing the dismissal of proceedings for want of prosecution. This was followed in Ahmadiyya Muslim Mission v Bank of South Pacific Ltd (2005) N2845 and further criterions added in John Niale v Sepik Coffee Producers Ltd (2004) N2637 by His Honour Cannings J as follows:

“An application for a dismissal of proceedings for want of prosecution (pursuant to Order 10 Rule 5 may therefore be granted if:

(i) The plaintiff’s default is intentional or is allowing for an inordinate and inexcusable delay in a prosecution of his or her claim;

(ii) There is no reasonable explanation given by the plaintiff for the delay;

(iii) The delay has caused injustice or prejudice to the defendant;

(iv) The conduct of the parties and their lawyers’ warrants; and

(v) It is in the interests of justice.”

42. I apply the criterions as follows:

(a) The plaintiff’s delay is intentional as the Pleadings closed after the defendants filed their Defence on the 4 June 2018 and the plaintiff had not set the matter down for trial in accordance with the requirement of Order 1 Rule 4 of the National Court Rules since the close of pleadings.

(b) The plaintiff had not filed any affidavits giving any explanation for the delay. The last activity by the plaintiff was the filing of Notice of Withdrawal of the Originating Summons by Kuma Lawyers of Counsel for the plaintiff on the 5 September 2018.

(c) The delay in prosecuting the proceedings has caused injustice and prejudice in defending a case which was futile from the start.

(d) The conduct of the plaintiff and his lawyers leading to withdrawal of the originating summons is clear admission of their non-compliance to the National Court Rules.

(e) The interest of justice must favour the granting of the order.
43. As to the ground for dismissal for disclosing no reasonable cause of action pursuant to Order 12 Rule 1 and Order 12 Rule 40 (a), (b) and (c) of the National Court Rules, I find it not necessary to consider this ground after having considered the issue of dismissal under Order 10 Rule 5 of the National Court Rules.

44. On the third order sought for dismissal of proceeding for being statute barred pursuant to Section 16 of the Frauds and Limitation Act (the Act), it is in evidence that the defendants purchased the subject land in 1984 and were legal owners since issuance of the Certificate of Title in 1988 and the filing of this proceeding in 2018 it is more than 30 years.

45. I have not considered the issue of alleged fraud against the defendants as it is not in a proper mode and thus not properly pleaded before the Court. Fraud and irregularity must be properly and clearly pleaded in a writ of summons against the person against whom it is alleged.

46. In respect of the restraining order being sought pursuant to Order 12 Rule 1 of the National Court Rules, the law is settled and protects a person who holds a valid title, this is the principle of indefeasibility of title, which is settled in this jurisdiction, unless one of the conditions in Section 33 of the Land Registration Act applies. I find no such in this this case and there is no reason to depart, thus as the defendants hold a valid Certificate of Title to Portion 610C, Kupral, Milinch of Minch, Fourmil, Ramu they are entitled to the protection under law.

47. For all the above reasons, I will grant the Defendants the orders they seek in their Notice of Motion.

Orders

48. The formal Orders of the Court are:

1 The entire proceeding is dismissed in its entirety for want of prosecution pursuant to Order 10 Rule 5 and Order 4 Rule 36 of the National Court Rules.

2 This proceeding is also dismissed for being statute barred pursuant to Section 16 of the Frauds and Limitation Act (the Act),

3. The plaintiff his servants, agents, relatives and/or family members including any interested parties are restrained from using threats, intimidation, force, violence and from interfering with the use and enjoyment by the Defendants of Portion 610C, Kupral, Milinch of Minch, Fourmil, Ramu, and further from unnecessarily dragging the Defendants to any further legal suits prejudicial to the Defendants quiet enjoyment and use of their land.

4 Costs is awarded to the Defendants.

____________________________________________________________
Emunsah Legal: Lawyers for the Plaintiffs
Kuman Lawyers: Lawyers for the First Defendants