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Enai v Moreka [2023] PGNC 9; N10104 (27 January 2023)

N10104


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS NO. 1235 OF 2017


BETWEEN
ENA ENAI
First Plaintiff


AND
MOGA INCORPORATED LAND GROUP
Second Plaintiff


AND
ANNE MOREKA
First Defendant


AND
GREG KONJIB trading as KONJIB & ASSOCIATES LAWYERS
Second Defendant


Waigani: Shepherd J
2018: 25th September
2023: 27th January


PRACTICE & PROCEDURE – application for dismissal of proceeding – principles applicable – summary disposal of proceeding not available under Order 12 Rule 40 of National Court Rules when fraud is pleaded – alternative procedure for summary disposal where fraud is pleaded may be availed of under Order 12 Rule 27(1)(a) of National Court if no reasonable cause of action is demonstrated – strict necessity for particulars of fraud –


National Court Rules, Order 12 Rule 30 - a party pleading fraud as a cause of action must give full particulars of the facts, matters and circumstancees which constitute the elements of the tort of fraud – the Court has a discretion to not only strike out a statement of claim if no reasonable cause of action is pleaded but may also dismiss a proceeding as abuse of process if plaintiff’s case is incontestably bad.


LIMITATION PERIODS – Frauds and Limitations Act 1988, Sections 16(1)(a) and 18 - fraud is a tort - claims founded on fraud and breach of contract or agreement must be commenced within 6 years from the date on which the causes of action accrued for those claims – claims for equitable relief are not subject to the 6-year limitation period prescribed by Section 16(1) – National Court Rules, Order 8 Rule 14 - a statutory limitation period must be pleaded in a defence – if it is not pleaded it does not extinguish the proceeding and the Court will continue to have jurisdiction – a statutory limitation period pleaded as a defence is a remedy which if not pleaded does not affect the substance of the claim.


Cases Cited:   

AGC (Pacific) Ltd v Registrar of Titles (2009) N3807
Chris v Kaeo (2019) N8163
Kappo No. 5 Pty Ltd v Wong (1997) SC520
Leahy v Otri (2009) N3860
Maki v Pundia [1993] PNGLR 337
Motor Vehicles Insurance Ltd v Kiangua (2015) SC1476
Papua New Guinea Banking Corporation v Tole (2002) SC694
PNG Forest Products Pty Ltd & Inchcape Berhard v The State [1992] PNGLR 85
Post PNG Ltd v Hubert (2004) N2656
The Papua Club Inc v Nusaum Holdings Ltd (No.2) (2004) N2603
Toap v Independent State of Papua New Guinea [2004] 2 PNGLR 191


Legislation:


Frauds and Limitations Act 1988: Sections 16(1)(a), 16(2), 18
National Court Rules: Order 8 Rules 14, 27; Order 12 Rules 27; Order 12 Rules 37(b), 40(1)(a) and (d)
Professional Conduct Rules 1989: Rule 4(1)(a), Rule 20(3)


Counsel
Mr Frederick Lunge, for the First Defendant
Mr Thomas Imal, for the Second Defendant


DECISION


27th January, 2023


  1. SHEPHERD J: This is a decision on separate applications by each of the two defendants for the dismissal of this proceeding.

PRELIMINARY


  1. By notice of motion filed on 25 May 2018 the first defendant Anne Moreka (Mrs Moreka) has applied for the dismissal of this proceeding for having disclosed no reasonable cause of action and because it is contended that the plaintiffs’ suit is statute-barred. Mrs Moreka has applied in the alternative for orders for the removal of the second plaintiff Moga Incorporated Land Group (Moga ILG) as a party to this proceeding and for other consequential interim relief, including an order that the plaintiffs be required to pay monies into Court as security for her costs if this case is to continue.
  2. The second defendant Greg Konjib (Mr Konjib) has applied by notice of motion filed on 29 August 2018 for similar orders to those sought by Mrs Moreka and for an order that he be removed as a party to this proceeding.
  3. I allowed the two motions to proceed on their appointed hearing date of 25 September 2018 in the absence of representation on behalf of the two plaintiffs. I did this because I was satisfied that counsel for the plaintiffs, Mr Justin Yakasa of Yandeken Lawyers, was well aware that both motions had been set down for hearing by the Court on 25 September 2018 at 1.30 pm. Mr Yakasa had appeared for the plaintiffs before the Court for a directions hearing on 12 September 2018 at which time the order was made in Mr Yakasa’s presence for the subject two motions to be heard together as a special fixture on 25 September 2018 at 1.30 pm.
  4. In the period that intervened between 12 September 2018 and the hearing date for the defendants’ two motions of 25 September 2018, no application was made for the plaintiffs for the special fixture date to be vacated and no indication was given by Yandeken Lawyers to my associate or to my secretary that Mr Yakasa or other counsel for the plaintiffs would be unable to appear before the Court for the motions’ hearing set down for 25 September 2018.
  5. Mrs Moreka contends that the Court should dismiss this proceeding:

a) because the suit is statute-barred pursuant to Section 16 of the Frauds and Limitations Act 1988;

b) pursuant to Order 8 Rule 27 and Order 8 Rule 40 of the National Court Rules for failure to have disclosed any reasonable cause of action.


  1. Mr Konjib submits that the Court should dismiss this proceeding pursuant to:

a) Section 16(1)(a) and 16(2) of the Frauds and Limitations Act for being statute-barred;

b) Order 12 Rule 40(1) of the National Court Rules for disclosing no reasonable cause of action and for being an abuse of process;

c) Order 5 Rules 3 and 8 of the National Court Rules for failure of the plaintiffs to have authority to act.


BACKGROUND:


  1. The present proceeding WS No. 1235 of 2017 was filed by Yandeken Lawyers for the plaintiffs on 17 November 2017. The first plaintiff (Mr Enei) pleaded in the initial statement of claim endorsed on the writ of summons that he is the chairman of the Moga ILG which in turn represents the Moga Clan of Loupom Island, Abau District, Central Province.
  2. In May 2010 the State via the Department of Lands and Physical Planning paid the sum of K4,337,500 to Moga ILG as compensation for use and damage done to the Moga Clan’s customary land within State Title 95 Number 43 known as the Mogubo Log Pond and Mogubo Foreshore at Mogubo Plantation Estate, Mailu, Abau District, Central Province (the Mogubo Land).
  3. In anticipation of receipt of the compensation monies from the State, on 11 May 2010 Moga ILG purportedly passed several resolutions at its extraordinary meeting no. 03/2010 whereby it appointed Konjib & Associates Lawyers to act for Moga ILG in connection with matters relating to settlement of Moga ILG’s claim against the State. Minutes of two of the resolutions made at Moga ILG’s meeting no. 03/2010 state that payments from the settlement monies would be made to National Security Network Ltd (K1,550,000), James Yang Nasa (K730,000) and Mrs Moreka (K700,000) for services they provided to Moga ILG during the many years involved in the lead-up to settlement of Moga ILG’s compensation claim against the State.
  4. One of the minutes of resolutions made at Moga ILG’s meeting no. 03/2010 held on 11 May 2010 states that the payment of K700,000 to be made to Mrs Moreka was because she had “provided all office and secretarial support in supporting Moga ILG. Also supported Moga ILG through sustenance and provision of financial support.”
  5. The acting chairman of Moga ILG when resolutions were made at its meeting no. 03/2010 held on 11 May 2010 was Mr Enei’s son, Mr Luke Ibi, also known as Luke Ibi Enei.
  6. The minutes of the resolutions passed at Moga ILG’s meeting no. 03/2010 on 11 May 2010 produced in evidence to this Court bear the signature not only of Mr Luke Ibi as acting chairman and the signature of the above named first plaintiff Mr Enei as deputy chairman but also the signatures of 30 other members of Moga ILG said to have been in attendance at that meeting.
  7. The proceeds of the State’s settlement cheque dated 14 May 2010 for K4,337,500 were paid into the trust account of Konjib & Associate Lawyers, which is the law firm of the above named second defendant (Mr Konjib). After deducting his legal fees of K80,000, Mr Konjib paid the balance of K4,257,500 to Moga ILG.
  8. A cheque for K750,000, not K700,000, in favour of Mrs Moreka as payee was then drawn on Moga ILG’s BSP account and this was, according to Mrs Moreka, received by her on 14 May 2010. There is some confusion in the evidence as to whether, it was this cheque or a later cheque of K750,000 from Moga ILG issued towards the end of May 2010 which Mrs Moreka then deposited to her BSP account. However, Mrs Moreka does not dispute the fact that she had received the sum of K750,000 from Moga ILG which was credited to her BSP account by the end of May 2010.
  9. On 16 June 2010, the Public Prosecutor commenced proceeding OS No. 307 of 2010 in the National Court against Mr Luke Ibi under various provisions of the Proceeds of Crimes Act 2005. It was alleged by the Public Prosecutor that Moga ILG did not represent the true customary landowners of the Magubo Land in respect of which the State had paid compensation of K4,337,500 and that Moga ILG by its acting chairman Mr Luke Ibi had misappropriated those monies.
  10. On 17 June 2010 the Court issued an interim restraining order in OS No. 307 of 2010 which effectively “froze” part of the settlement funds then still held in the BSP trust account of Konjib & Associates as well as funds already disbursed from those settlement monies and which were held in the BSP bank accounts of Moga ILG, Luke Ibi, Mrs Moreka, James Yang Nasa and others.
  11. More than seven years later, on 25 September 2017 the Supreme Court delivered its judgment SC1605 in appeal SCA No. 126 of 2011 – Rimbunan Hijau (PNG) Ltd v Ina Enei & Moga Clan & Anor - whereby the Court determined that the Moga Clan was indeed the rightful customary owner of the Mogubo Land.
  12. On 8 November 2017 the National Court in OS No. 307 of 2010 discharged its interim restraining order made back on 17 June 2010 and thereby allowed funds held in all of the BSP bank accounts which had been subject to that injunction to be released, including funds held in the BSP bank accounts of Mrs Moreka and the trust account of Mr Konjib. This order also gave leave to the Public Prosecutor to discontinue the proceeding. The order of 8 November 2017 was made with the consent of Public Prosecutor Mr Pondros Kaluwin and Mr Luke Ibi by the lawyer representing him at the time, Mr Louis Yandeken, the principal of Yandeken Lawyers.
  13. By letter dated 9 November 2017 Mr Louis Yandeken wrote to the Legal & Compliance Manager of BSP and advised that he acted for Mr Luke Ibi, describing him as the former acting chairman of Moga ILG, in connection with the recently discontinued proceeding in OS No. 307 of 2010. Mr Yandeken said in his letter to BSP that “Anne Moreka and James Yang Nasa who had no lawyers of their own were also covered by our representation” with regard to OS No. 307 of 2010, Mr Yandeken requested that the BSP allow those persons whose bank accounts had been subject to the earlier interim restraining order to now have access to their respective bank accounts.
  14. However it seems that within days of Mr Yandeken requesting BSP on 9 November 2017 to allow Mrs Moreka and others to access their bank accounts, Moga ILG by its then latest chairman Mr Enei, who had replaced his son Mr Luke Ibi the former acting chairman, decided to instruct Yandeken Lawyers to commence this present proceeding by Mr Enei and Moga ILG against Mrs Moreka and Mr Konjib alleging that they had conspired to defraud Moga ILG of the K750,000 which had been paid to Mrs Moreka back in May 2010, it having been alleged that those monies should never have been paid by Moga ILG to Mrs Moreka in the first place because of alleged fraudulent conduct of her late husband, who had died on 10 November 2013.

THE PLEADINGS


  1. As noted above, Mr Enei and Moga ILG’s claim against Mrs Moreka and Mr Konjib in this proceeding WS No. 1235 of 2017 was filed on 17 November 2017.
  2. Three days after filing their writ of summons and initial statement of claim on 17 November 2017, the plaintiffs filed an amended statement of claim on 20 November 2017.
  3. On 19 April 2018 the plaintiffs filed a further amended statement of claim pursuant to leave of the Court granted on 6 April 2018.
  4. The plaintiffs’ further amended statement of claim filed on 19 April 2018 (the Amended Statement of Claim) pleads that the former chairman of Moga ILG, Mr Luke Ibi (who was in fact the former acting chairman), had made a payment of K750,000 to Mrs Moreka’s BSP account in May 2010 without the knowledge or consent of chairman Mr Enei and Moga ILG. This pleading is contrary to the minutes of the resolutions which were purportedly passed by Moga ILG at its meeting 03/2010, said to have been held on 11 May 2010, those minutes having been signed by 32 members of Moga ILG, including Mr Luke Ibi as acting chairman and Mr Enei as deputy chairman.
  5. The plaintiffs’ Amended Statement of Claim then pleads to the effect that Mrs Moreka, in alleged breach of an agreement and representation she made in an affidavit sworn on 28 August 2017 in earlier proceeding OS No. 307 of 2010 to return the sum of K750,000 to the plaintiffs, then withdrew the sum of K150,000 from her BSP account on 14 November 2017 for her own use and benefit and at the same time wrongly transferred an amount of K663,840 to one of Mr Konjib’s BSP bank account in circumstances when it is said Mr Konjib knew that Mrs Moreka was not entitled to the funds of K750,000 paid into her BSP account back in May 2010. It is pleaded by the plaintiffs that Mr Konjib withdrew the sum of K663,840 from his BSP account on 20 November 2017 thereby dissipating those monies with intent to defraud the plaintiffs.
  6. The plaintiffs’ Amended Statement of Claim pleads causes of action based on alleged fraud by Mrs Moreka and Mr Konjib and breach of agreement by Mrs Moreka.
  7. The relief which the plaintiffs seek in their Amended Statement of Claim is judgment against both defendants for damages in the sum of K750,000, alternatively the sum of K633,840, plus interest and costs.
  8. Mrs Moreka’s amended defence filed on 25 May 2018 pleads to the effect that on 28 August 2017 she was coerced into signing an already prepared affidavit in which she purportedly agreed to transfer to Moga ILG’s bank account the K750,000 paid into her BSP bank account back in May 2010. Mrs Moreka denies any misrepresentation on her part and denies having been complicit with Mr Konjib in any fraud alleged to have been committed against the Plaintiffs.
  9. Mr Konjib’s amended defence was also filed on 25 May 2018. Apart from Mr Konjib’s denials of commission of any fraud on his part against the plaintiffs, he also pleaded to the effect that the resolutions of Moga ILG made in May 2010 authorised payment of K750,000 (not K700,000) into Mrs Moga’s bank account and payment of K80,000 to Mr Konjib for legal fees owed to him by Moga ILG. Mr Konjib pleads that clearances were later given by the Public Prosecutor, the National Fraud Squad and Yandeken Lawyers in 2017 for Mrs Moreka to deal with the funds in her BSP account and that monies received from Mrs Moreka into his law firm’s trust account were disbursed by him in accordance with instructions received from Mrs Moreka.

EVIDENCE


  1. At the hearing of the two motions, the defendants relied on the following affidavits:

(1) Affidavit of Mrs Moreka sworn on 5 December 2017, filed on 7 December 2017.

(2) Affidavit of Mrs Moreka sworn and filed on 11 December 2017.

(3) Affidavit of Mr Konjib sworn on 4 December 2017, filed on 5 December 2017

(4) Affidavit of Mr Konjib sworn and filed on 29 August 2018.


  1. Notice pursuant to Section 35 of the Evidence Act of intention to rely on these four affidavits was filed by Begisegil Lawyers for Mr Konjib on 6 September 2018 and this notice was served on the office of Yandeken Lawyers on 7 September 2018.

ISSUES


  1. Having reviewed the evidence in support of the two motions before the Court, I consider that the primary two issues which require determination by the Court are these:

(2) If not statute-barred, should this proceeding be summarily dismissed pursuant to:


(a) Order 12 Rule 40 of the National Court Rules; and/or

(b) Order 8 Rule 27 of the National Court Rules,

for having disclosed no reasonable cause of action?


  1. In the event that primary issues (1) and (2) are not resolved in favour of the defendants, only then would the Court be required to consider the following residual issues raised by the defendants’ two motions:

(3) If not statute-barred, should this proceeding be dismissed pursuant to Order 5 Rules 3 and 8 of the National Court Rules for alleged failure by the plaintiffs to have the authority of Moga ILG to act?


(4) If not dismissed, should Moga ILG be removed as a party to this proceeding for alleged want of the authority required by Section 14 of the Land Groups Incorporation Act 1974 to have commenced this proceeding?


(5) If not dismissed, should the plaintiffs be required to give security for the Mrs Moreka’s costs pursuant to Order 14 Rule 25 of the National Court Rules?


(6) If not dismissed, should there be a stay of this proceeding pursuant to Order 14 Rule 25 of the National Court Rules pending the plaintiffs’ compliance with any interlocutory orders made by the Court?


(7) If not dismissed, should Mr Konjib be removed as a party to this proceeding pursuant to Order 5 Rule 9 of the National Court Rules?


Issue 1 – Is this proceeding statute-barred?


  1. It is contended as a threshold submission for Mrs Moreka and Mr Konjib by their respective counsel that this proceeding is statute-barred and must be dismissed on that ground alone.
  2. Sections 16(1) and 16(2) of the Frauds and Limitations Act 1988 relevantly provide:

16. Limitation of actions in contract, tort, etc.

(1) Subject to Sections 17 and 18, an action –

(a) that is founded on simple contract or on tort; ...

shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.

(2) An action for an account shall not be brought in respect of any matter which arose more than six years before the commencement of the action.


  1. Section 17 of the Act concerns actions within the admiralty jurisdiction of the Court and has no bearing on the facts of this case.
  2. Section 18 of the Act states:

18. Claims for specific performance, etc.

Section 16 does not apply to any claim for specific performance of a contract or for an injunction or other equitable relief.


  1. The plaintiffs’ principal claim in this instance is founded on alleged fraud by the defendants. Paragraph 13 of the plaintiffs’ Amended Statement of Claim pleads to the effect that the defendants were complicit with actual intent to defraud the plaintiffs of the sum of K750,000. Fraud, also known as deceit, is a tort: Derry v Peek (1888) LR 14 pp Cas 337; Magill v Magill [2006] HCA 51; Pololi v Wyborn (2013) N5253 (Hartshorn J).
  2. The plaintiffs have also pleaded in paragraphs 8 and 14 of their Amended Statement of Claim that Mrs Moreka breached an alleged agreement, referred to in an affidavit sworn by her on 28 August 2017 in proceeding OS No. 307 of 2010, to return the sum of K750,000 to the plaintiffs.
  3. The plaintiffs’ twin causes of action as pleaded are founded on the tort of fraud and breach of alleged contract and are therefore subject to Section 16(1)(a) of the Frauds and Limitations Act.
  4. However, Section 16 (2) of the Act, referred to in Mr Konjib’s motion, has no application to this case as the Plaintiffs’ have not pleaded or sought any remedy based on the common law causes of action known as an action for account and account for monies had and received.
  5. The substantive relief claimed by the plaintiffs in their Amended Statement of Claim does not include any form of equitable relief. As with Section 16(2), Section 18 of the Act similarly has no application to the present case.
  6. The question that then arises is when did the plaintiff’s two causes of action of fraud alleged against both defendants and breach of contract alleged against Mrs Moreka accrue for the purposes of Section 16(1)(a) of the Act?
  7. Counsel for Mrs Moreka submitted that the plaintiffs’ cause of action founded on fraud accrued when the sum of K750,000 was transferred or credited to Mrs Moreka’s BSP account in late May 2010 or June 2010 and that this proceeding became time-barred under s.16(1)(a) of the Act six years later in June 2017.
  8. Counsel for Mr Konjib argued that the plaintiffs’ cause of action founded on fraud accrued when Moga ILG passed a resolution on or about 11 May 2010 to pay all service providers, which included payment of K750,000 to Mrs Moreka, alternatively when payment of that amount was made to Mrs Moreka and other service providers on or about 17 June 2010 (more likely on the evidence to have been late May 2010), alternatively when the Public Prosecutor’s suit against Mr Luke Ibi under the Proceeds of Crimes Act 2005 was filed in 2010. The evidence shows that OS No. 307 of 2010 was filed on 16 June 2010 and that the interim restraining order which froze the BSP accounts of Mrs Moreka and others was issued by the National Court the next day, on 17 June 2010.
  9. It was further argued for Mr Konjib that the plaintiffs did not take any active steps after June 2010 to contest the validity of the payment of K750,000 which Moga ILG had made to Mrs Moreka, despite the plaintiff’s having had ample time and opportunity to do so in the earlier proceeding OS No. 307 of 2010, and that this proceeding in WS No. 1235 of 2017 is therefore caught by the time-bar of 6 years in Section 16(1)(a) of the Frauds and Limitations Act.
  10. I reject both of these submissions.
  11. Firstly, the plaintiffs have pleaded in paragraph 13 of their Amended Statement of Claim that fraud occurred when Mrs Moreka transferred K633,840 from her BSP account to the trust account of Konjib Lawyers. The undisputed affidavit evidence of the parties is that this transfer of funds took place on 15 November 2017. Mr Konjib deposes in paragraphs 8, 9 and 10 of his affidavit filed on 5 December 2017 as follows:

“ 8. On 15.11.2017 the First Defendant and her extended family members decided that the funds totalling K633,840 be withdrawn from her BSP Account ... (frozen for 7 years and 4 month[s] subject of a Public Prosecution National Fraud Squad investigation, uplifted 8.11.2017 by consent) and be deposited into my operating account [at] West Pac Bank.


9. On the 15.11.2017, funds totalling K633,840.00 in the form of two BSP Bank cheques number 1293211 for K434,000.00 dated 15.11.2017 and number 1293214 dated 15.11.2017 for K199,790 were both deposited into my operating account [at] Westpac Bank account, Waigani.


10. I also withdrew K30,000.00 from my trust account with BSP (also subject of the freeze and uplifted on 8.11.2017) and deposited into my operating account [at] WestPac Bank, Waigani.

Annexed hereto and marked with the letters “C” and “D” are true copies of the three cheques referred to in paragraphs 9 and 10 above and the deposit slip as per instructions. ”


  1. I observe that Mr Konjib does not explain in his affidavit evidence as to why two bank cheques totalling K633,840 from Mrs Moreka were deposited into Mr Konjib’s operating account at Westpac Bank on 15 November 2017 and not into another trust account established after his law firm’s trust account with BSP had been frozen under the interim restraining order made in OS No. 307 of 2010 on 17 June 2010. Be that as it may, the fact is that according to the tenor of the plaintiffs’ pleading in their Amended Statement of Claim, 15 November 2017 is the date on which the bulk of the K750,000 originally frozen in Mrs Moreka’s BSP account by the interim injunction of 17 June 2010 was transferred by Mrs Moreka to Mr Konjib’s operating account with Westpac Bank. This transfer of funds constituted the alleged fraudulent breach of the agreement which the plaintiffs have pleaded Mrs Moreka entered into with the plaintiffs in August 2017 to return the whole of the K750,000 to Moga ILG and which agreement is pleaded by the plaintiffs as having been acknowledged by Mrs Moreka in her affidavit sworn on 28 August 2017 filed in proceeding OS No. 307 of 2010.
  2. A copy of Mrs Moreka’s affidavit sworn on 28 August 2017 and filed in OS No. 307 of 2010 is annexure “E” to the affidavit of Mr Enei filed in this proceeding WS No. 1235 of 2017 on 17 November 2017. Mrs Moreka deposed in paragraph 6 of her affidavit of 28 August 2017 as follows:

“ I have agreed to have funds standing to the credit of Bank South Pacific account No. 1000 537 662 in the name of Anne Moreka to be transferred back to the main account of Moga ILG bank account. ”

  1. I am well aware that Mrs Moreka asserts in her amended defence that she signed this affidavit under duress after it was drafted and presented to her by Mr Louis Yandeken at his home at Gerehu on 28 August 2017.
  2. However, the plaintiffs’ pleading of alleged fraud by Mrs Moreka and Mr Konjib centres on:

(1) the transfer of funds from Mrs Moreka’s BSP account to Mr Konjib’s operating account with Westpac Bank, which the evidence shows occurred on 15 November 2017; and

(2) an alleged representation made by Mr Konjib to Yandeken Lawyers on 16 November 2017 that the sum of K633,840 received into the trust account of Konjib Lawyers was intact in that trust account; and

(3) the sum of K633,840 having been withdrawn from a bank account operated by Mr Konjib (and presumably released by Mr Konjib to Mrs Moreka) with intent to defraud the Plaintiffs in breach of Mrs Moreka’s alleged agreement of 28 August 2017 to return the full amount of K750,000 to Moga ILG.


  1. The plaintiffs in their Amended Statement of Claim have not pleaded that their two causes of action based on fraud and breach of contract accrued back in 2010. It is clear that the fraud alleged to have been committed by the defendants is pleaded to have occurred in mid-November 2017.
  2. Secondly, Order 8 Rule 14 of the National Court Rules provides, among others, that any statute of limitation must be specifically pleaded in a defence. Order 8 Rule 14 is in mandatory terms. It states:

14. Matters for specific pleading

In a defence or subsequent pleading, the party pleading shall plead specifically any matter, for example, performance, release, any statute of limitation, fraud, or any fact showing illegality—

(a) which he alleges makes any claim, defence or other case of the opposite party not maintainable; or

(b) which, if not pleaded specifically, may take the opposite party by surprise; or

(c) which raises matters of fact not arising out of the preceding pleadings.


  1. In Motor Vehicles Insurance Ltd v Kiangua (2015) SC 1476 Kassman J said this at para. 99 with reference to the necessity for a defendant to plead a statutory time bar:

“ I also adopt discussion in Cheshire & Fifoot’s Law of Contract Eighth Australian Edition ... Butterworths 2022 at page 1056 “The defendant must plead the statute as a defence. It is not the court’s task to raise the question of time limits and the court has jurisdiction to hear a matter even though the time has expired. This is because expiry of the time does not affect the substance of the claim but only the remedy.” At page 1063 “The statute is procedural, not substantive. If the statutory period expires before action is brought, the plaintiff’s right is not extinguished. Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166; Byrnes v Groote Eylandt Mining Co Pty Ltd (1990) 93 ALR 131. Further at page 1064 “It is because the expiration of the period bars the remedy and not the right that the statute must be specifically pleaded as a defence. If it is not, the court has jurisdiction to hear the matter.””


  1. Neither Mrs Moreka nor Mr Konjib have pleaded the time-bar in their further amended defences filed on 25 May 2018. They are therefore procedurally estopped from raising or relying on Section 16(1)(a) of the Frauds and Limitations Act in support of their motions for dismissal of this proceeding.
  2. For these reasons, I find that the plaintiffs’ claim in this proceeding, having been originally filed with alacrity on 17 November 2017, was filed well within time, within a matter of a day or so of accrual of the Plaintiff’s two causes of action as pleaded. This proceeding is not statute-barred by s.16(1)(a) of the Frauds and Limitations Act. Issue 1 is resolved in favour of the plaintiffs.

Issue 2: Should this proceeding be summarily dismissed pursuant to Order 12 Rule 40 and/or Order 8 Rule 27 of the National Court Rules for having disclosed no reasonable cause of action?


  1. The defendants have both applied to the Court seeking summary dismissal of this proceeding pursuant to Order 12 Rule 40 of the National Court Rules on the ground that no reasonable cause of action has been disclosed.
  2. Order 12 Rule 40 comes within Division 4 of Order 12 of the National Court Rules which regulates the summary disposal of cases. Order 12 Rule 40(1)(a) and

(d) states:

40. Frivolity, etc

(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a) no reasonable cause of action is disclosed; ...

(d) the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.


  1. However, Order 12 Rule 37(b) states that Division 4 of Order 12 does not apply to a claim by a plaintiff which is based on an allegation of fraud. Summary judgment cannot be obtained in a case which includes a cause of action founded on an allegation of fraud. This is because allegations of fraud are serious and, if proven, have serious consequences in law. See for example Kappo No. 5 Pty Ltd v Wong (1997) SC520 (Kapi DCJ, Los J, Salika J); Chris v Kaeo (2019) N8163 (Shepherd J).
  2. I find that the defendants are precluded by operation of Order 12 Rule 37(b) from raising or relying on Order 12 Rule 40(1)(a) as a source of jurisdiction for the Court to summarily dismiss this proceeding because the plaintiffs’ principal cause of action as pleaded is founded on allegations of fraud against the defendants.
  3. This then leaves Mrs Moreka’s motion seeking, in the alternative, dismissal of this proceeding pursuant to Order 8 Rule 27 of the National Court Rules. This Rule provides:

27. Embarrassment, etc

(1) Where a pleading—

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; or

(c) is otherwise an abuse of the process of the Court,

the Court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleading be struck out.


  1. It is submitted for Mrs Moreka that although the plaintiffs have pleaded two causes of action in their Amended Statement of Claim, the Statement discloses no reasonable cause of action and should be struck out or dismissed. This argument appears to have more substance. It requires analysis by the Court of the plaintiffs’ Amended Statement of Claim to determine whether the Statement has pleaded almost incontestably bad causes of action which cannot possibly succeed and cannot be cured by amendment: PNG Forest Products Pty Ltd & Inchcape Berhad v The State [1992] PNGLR 85 (Sheehan J).
  2. Further principles for striking out a proceeding for not disclosing a reasonable cause of action were enunciated by Cannings J in Toap v Independent State of Papua New Guinea [2004] 2 PNGLR 191 at p. 206:

“ Whenever a plaintiff brings a cast to court, the originating document – in the present case, the writ of summons and statement of claim – must demonstrate that the plaintiff has a ‘cause of action’. The document must clearly set out:


The plaintiff does not have to say what evidence there is of the facts being alleged. In fact, the National Court Rules prohibit that. But the plaintiff must outline the claim and demonstrate that it has a clear legal basis. If the plaintiff’s originating document does that, there is a reasonable cause of action. If not, it does not disclose a reasonable cause of action. ”


  1. Order 8 Rule 29 of the National Court Rules, which relates to the particulars that must be pleaded by a party, states:

29. General

(1) A party pleading shall give the necessary particulars of any claim, defence or other matter pleaded by him.


  1. Order 8 Rule 30 is more specific:

30. Fraud, etc

A party pleading shall give particulars of any fraud,

misrepresentation, breach of trust, wilful default or under influence on which he relies.


  1. The law on pleadings in our jurisdiction is well settled. In Papua New Guinea Banking Corporation v Tole (2002) SC694 it was eloquently said by Kandakasi J (as he then was):

“ The principles governing pleadings can easily be summarised in terms of, unless there is foundation in the pleadings of a party, no evidence and damages or relief of matters not pleaded can be allowed. ”


  1. Where a cause of action based on the tort of fraud is pleaded, the procedural rules are especially stringent. The reason for this was explained by Woods J in Maki v Pundia [1993] PNGLR 337 at pp 38 and 39:

“ 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 on 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 to just say that the person lied or swore a false affidavit. The facts, matters and circumstances which make such statements lies must be particularised. ”


  1. This statement of procedural law by Woods J has been endorsed and applied in many subsequent cases: see for example The Papua Club Inc v Nusaum Holdings Ltd (No.2) (2004) N2603 per Gavara-Nanu J at pp.85-87; Post PNG Ltd v Hubert (2004) N2656 (Lenalia J); AGC (Pacific) Ltd v Registrar of Titles (2009) N3807 (Davani, J); Leahy v Otri (2009) N3860 (Makail, J).
  2. In the present case, it is submitted for the defendants that the plaintiffs’ pleading of fraud in their Amended Statement of Claim is woefully inadequate and has failed to meet the requirements of Order 8 Rules 29 and 30 of the National Court Rules thereby rendering the Statement defective for failure to disclose a reasonable cause of action within the meaning of Order 8 Rule 27(1)(a).
  3. Paragraph 13 of the Amended Statement of Claim pleads the plaintiffs’ cause of action in fraud against Mrs Moreka and Mr Konjib. Paragraph 14 of the Statement pleads the plaintiffs’ cause of action based on the alleged breach of agreement by Mrs Moreka. It is therefore necessary to have a close review of paragraphs 13 and 14 of the Statement to determine whether the plaintiffs have complied with the requirements of Order 8 Rules 29 and 30 of the National Court Rules when pleading fraud and breach of agreement.
  4. Reproduced below is the text of paragraphs 13 and 14 of the Plaintiffs’ amended statement of claim:

“ 13. That the First Defendant and the Second Defendant were complicit and their conduct and actions as pleaded in the preceding paragraphs were with actual intent to hinder or defraud the Plaintiffs of the said funds therefore amount to fraud.

Particulars of fraud

(a) The First Defendant was not entitled to the sum of K750,000.00 standing to the credit of her bank account no. 1000 537 662.

(b) By a sworn affidavit dated 28 August 2017, the First Defendant represented to the Plaintiffs that she would return the sum of K750,000.00 back to the Plaintiffs, which was false and known to be false by the First Defendant.

(c) That the representation was made to induce the Plaintiffs to believe and rely upon it which the Plaintiffs rightfully relied upon it in ignorance of its falsity.

(d) The Second Defendant as a former lawyer for the Plaintiffs knew or ought to have known that the First Defendant was not entitled to the funds standing to the credit of her Bank Account No. 1000 537 662.

(e) Despite having full knowledge that the First Defendant was not entitled to the sum of K633,840.00, the Second Defendant aided and allowed her to transfer from her bank account no. 1000 537 662 the said sum to his bank account.

(f) On 16 November 2017, whilst knowing that it was false, the Second Defendant represented to the Plaintiff through their lawyers that the sum of K633,840.00 was intact in his trust account.

(g) That the Second Defendant made the representation to induce the Plaintiffs to believe and reply upon it which the Plaintiffs rightfully relied upon it in ignorance of its falsity.

(h) That contrary to the representation, the Second Defendant knowingly and with intend [sic] to defraud and frustrate the Plaintiffs’ claim, withdrew the sum of K633,849.00, thereby totally dissipating the said sum.

14. Further or in the alternative, the actions of the First Defendant as aforesaid amount to breach of agreement to transfer or return the sum of K750,000.00 ack to the Plaintiffs, which she made pursuant to the sworn affidavit dated 28 August 2017. ”

  1. I observe that paragraph 13 of the Amended Statement of Claim opens with the pleading of an allegation that the defendants’ conduct and actions were complicit and done with actual intent to defraud the Plaintiffs. This is then followed by a series of statements said to be “particulars” of the alleged fraud.
  2. Paragraph 13(a) is a general assertion that Mrs Moreka was not entitled to a sum of K750,000 standing to her credit in her BSP account. No details as to the reason for Mrs Moreka’s disentitlement to that money is pleaded in paragraph 13(a).
  3. Paragraph 13(b) refers to an alleged representation made in an affidavit sworn by Mrs Moreka on 28 August 2017 that she would return K750,000 to Mr Enei and Moga ILG, which representation is pleaded as being false. However, the facts, matters and circumstances which allegedly make such representation false have not been particularized. As was said by Woods J in Maki v Pundia, it is not enough to just plead that a person lied or swore a false affidavit.
  4. Paragraph 13(c) pleads that Mrs Moreka’s alleged representation was made to induce Mr Enei and Moga ILG to rely on it. All this means in the context of the other matters pleaded in the Amended Statement of Claim is that Mr Enei and Moga ILG thought that they would get the return of K750,000 that had been paid by Moga ILG at the direction of its former acting chairman Mr Luke Ibi into Mrs Moreka’s BSP account back in late May 2010. Paragraph 13(c) takes matters no further than what had already been pleaded in general terms in preceding paragraphs of the Amended Statement of Claim.
  5. Paragraph 13(d) pleads that Mr Konjib, who had previously acted for Mr Enei and Moga ILG, knew or ought to have known that Mrs Moreka was not entitled to an indeterminate amount of funds in her BSP account. This is conjecture on the part of the Plaintiffs. No facts, matters and circumstances which would tend to substantiate this allegation are pleaded by the plaintiffs.
  6. Paragraph 13(e) pleads that Mr Konjib allegedly knew that Mrs Moreka was not entitled to an amount of K633,840 but that he aided her to transfer that amount to an unidentified bank account operated by Mr Konjib. Again, nothing is pleaded by way of facts, matters and circumstances to support the allegation that Mr Konjib knew that Mrs Moreka was not entitled to retain the sum of K633,840. Nor have the plaintiffs identified any particulars of the bank account of Mr Konjib into which those monies were pleaded as having been transferred. Details of that bank account were readily available to have been pleaded by the plaintiffs had effort been taken to refer to paragraphs 8 to 10 and copies of bank cheques totalling K633,790 and a corresponding bank deposit slip which are annexures “C” and “D” of Mr Konjib’s affidavit filed in this proceeding on 5 December 2017. Mr Konjib’s affidavit preceded the filing of the plaintiffs’ Amended Statement of Claim on 19 April 2018 by more than 4 months.
  7. Paragraph 13(f) pleads that Mr Konjib falsely represented to the lawyers for “the Plaintiff” (singular) that the sum of K633,840 was intact in Mr Konjib’s trust account. No attempt is made in this sub-paragraph to give particulars as to how or when the alleged false representation was made by Mr Konjib to the lawyers on the record acting for both Mr Enei and Moga ILG in this proceeding, namely Yandeken Lawyers. Was the alleged false representation made by Mr Konjib by letter, by email, by phone, by some form of social media platform or perhaps during personal conversation with someone at Yandeken Lawyers? If so, on what date was that alleged false representation made by Mr Konjib? The date on which any such false representation was allegedly made by Mr Konjib and the circumstances in which that false representation was made would be essential facts needing to be proved by the plaintiffs if their cause of action against Mr Konjib based on fraud were to have any prospect of success.
  8. Paragraph 13(g) pleads in effect that Mr Konjib made his alleged false representation regarding funds in his trust account to induce Mr Enei and Moga ILG to believe the representation to be true. Again, this is a conjecture on the part of the Plaintiffs. This sub-paragraph does not plead any fact situation at all to support this presumption.
  9. Paragraph 13(h) pleads that Mr Konjib with intent to defraud Mr Enei and Moga ILG withdrew K633,840 from somewhere, presumably a bank account, thereby “totally dissipating the said sum”. No particulars of which bank account these monies are alleged to been withdrawn from or on what date the withdrawal was made or the name of the payee who would have received those monies is pleaded.
  10. As to paragraph 14 of the Amended Statement of Claim, again, there are no particulars pleaded as to the facts, matters and circumstances which support the plaintiffs’ allegations of breach of the purported agreement which Mrs Moreka is said to have made with Moga ILG in her affidavit sworn in OS No. 307 of 2010 on 28 August 2017.
  11. It is submitted for Mrs Moreka and Mr Konjib that as a pleading, the plaintiffs’ Amended Statement of Claim falls far short of the standard required by Order 8 Rule 30 of the National Court Rules. Paragraph 13 of the Amended Statement of Claim, it is argued, is a series of assertions as to fraud with no proper particulars or specifics. The same applies to paragraph 14 of the Amended Statement of Claim which alleges breach by Mrs Moreka of a purported agreement, again with no proper particulars or specifics having been pleaded.
  12. When the plaintiffs’ Amended Statement of Claim was drafted by Mr Yandeken preparatory to it being filed on 19 April 2018, Mr Yandeken and his clients Mr Enei and Moga ILG had the benefit of three explanatory affidavits filed for the defendants: two affidavits from Mrs Moreka filed on 7 December 2017 and 11 December 2017 and one affidavit from Mr Konjib filed on 5 December 2017. There were several matters deposed to by Mrs Moreka and Mr Konjib in their affidavits which were especially relevant to the plaintiffs’ pleading of their two causes of action in fraud and breach of agreement and which I consider should have been addressed in the Plaintiffs’ Amended Statement of Claim but which I find were either intentionally omitted or deliberately ignored.
  13. Paragraph 8 of the plaintiffs’ Amended Statement of Claim pleads that Mrs Moreka represented to the Plaintiffs in an affidavit sworn by her 28 August 2017 in National Court proceeding OS No 307 of 2010 that she would return the sum of K750,000 to them. This representation in Mrs Moreka’s affidavit of 28 August 2017 in OS No. 307 of 2010 forms the basis for the plaintiffs’ allegations in paragraphs 10 and 14 of their Amended Statement of Claim that there was a purported agreement made by Mrs Moreka with the plaintiffs which she breached by withdrawing from her BSP account the sum of K150,000 on 14 November 2017 and by transferring an amount of K633,840 to Mr Konjib on 15 November 2017.
  14. I have already observed that a copy of Mrs Moreka’s affidavit sworn on 28 August 2017 in OS No. 307 of 2010 is annexure “E” to the affidavit of Mr Enei sworn on 16 November 2017 and filed in WS No. 1235 of 2017 on 17 November 2017. Mr Enei’s affidavit was filed 5 months before the plaintiffs’ Amended Statement of Claim was filed on 19 April 2018.
  15. Mrs Moreka’s unchallenged evidence is that on a date in August 2017 she was telephoned by Mr Yandeken who told her to come to his house at Gerehu to sign an affidavit he had prepared. Mrs Moreka went to Mr Yandeken’s house, accompanied by her father-in law Joe Kimo and her step-son Raphael Wosae. At Mr Yandeken’s house, Mrs Moreka was pressured by Mr Yandeken to sign an already prepared affidavit. There is no evidence before the Court to indicate that this affidavit was actually sworn by Mrs Moreka on any oath on the bible administered by Mr Yandeken. However, there can be no doubt that the document posing as an affidavit signed by Mrs Moreka on 28 August 2017 was witnessed by Mr Yandeken. His signature as witness to Mrs Moreka’s signing of her purported affidavit appears underneath the jurat on page 2 of the document. Mr Yandeken’s commissioner for oaths stamp is affixed over his signature as witness.
  16. Taken at face value the wording of paragraph 6 of Mrs Moreka’s purported affidavit of 28 August 2017 would seem to support the plaintiffs’ contention pleaded in paragraphs 8 and 14 of their Amended Statement of Claim that Mrs Moreka had agreed in August 2017 to return the sum of K750,000 to the Plaintiffs, or rather to Moga ILG.
  17. However, the circumstances which surround Mrs Moreka’s signing of her purported affidavit of 28 August 2017 in OS No. 307 of 2010, as explained in her affidavit filed in WS No. 1235 of 2017 on 7 December 2017, cast a very different light as to why on 28 August 2017 Mr Yandeken insisted, she sign the former affidavit. Mrs Moreka explains in her latter affidavit that 10 weeks after signing her affidavit of 28 August 2017, Mr Yandeken was pressuring her to pay K350,000 into his own bank account in payment of legal fees he claimed were owing to him in connection with OS No. 307 of 2010.
  18. The illuminating circumstances I have adverted to are deposed to by Mrs Moreka in paragraphs 33 to 42 of her affidavit filed in WS No. 1235 of 2017 on 7 December 2017. Reproduced below is the text of those paragraphs:

“ 33. Around August 2017 on a Saturday in the morning, Luis Yandeken called me to go to his house at Gerehu to sign an Affidavit for the purposes of getting all funds in my account paid to his trust account.

34. I was accompanied by Joe Kimo, my father-in-law, Raphael Wosae, late Kain Wosae’s son from a Gulf woman to see him [and for me to] sign an already prepared Affidavit.


35. Without legal representation and advice, I was only told to sign the Affidavit to get all the funds back into Yandakens Lawyers trust account.


36. I belatedly learnt (late 2017) that Mr Yandeken has won a Supreme Court case in favor of Moga reaffirming customary ownership rights to Moga.


Conference and receipt of demand letter for Legal Fees of K350,000.00 in Mr Yandeken’s Blue ten-Seater Motor vehicle at Vision City Car Park


37.... around 09.11.2017 some time in the morning, Mr Yandeken and his client Luke Ibi called and invited me, my stepson Raphael Wosae, my son Nigel Wosae, their grandfather Joe Kimo to meet with them at Vision City to discuss issues of legal fees.


38. We were all told to get into the blue Ten-Seater troop car[rier] and in front drivers’ seat was Mr Yandeken and offside was Luke Ibi.


39. Mr Yandeken said that the accounts are now cleared, and I can access my account and pay him legal fees of K350,000.00.


40. His client Luke Ibi also supported Mr. Luis Yandeken and said ... your father [referring to late Kain Wosae] did a lot of work for Moga clan so you can keep the balance of the funds in your account and pay Yandeken lawyers K350,000.00.


41. Mr Yandeken then gave me his one (1) page demand letter for his legal fees of K350,000.00 at that time dated 09.11.2017.


42. My lawyer has informed me Lawyers provide Legal Services and in order to justify their bills it should be reduced into taxation form detailing work done, date and time spent. ”


  1. A copy of Yandeken Lawyers’ letter to Mrs Moreka dated 9 November 2017 is annexure “A” to Mrs Moreka’s affidavit filed in WS No. 1235 of 2017 on 7 December 2017. The text of that letter, omitting the letterhead and formal parts, is set out below:

“ Thursday, 09 November 2017 “by Hand”

Mrs Anne Moreka
PO Box
Hohola
National Capital District

Dear Madam,

RE: OS NO. 307 OF 2010 – PUBLIC PROSECUTOR vs. LUKE IBI

I refer to the above matter and am pleased to advise that I have successfully obtained consent from the Public Prosecutor to lift the Court Restraining Order on 08 November 2017. A copy of the Court Order is enclosed for your reference.

After your account is lifted by the Bank South Pacific, you will be advised to have access to your bank account.

In the meantime, as advised earlier, I remind you again that my legal bills since 2010 to date stands at K350,000.

Please kindly have the above amount transferred directly to Yandeken Lawyers BSP Account No. 100 168 4655.

Should there be any queries, do not hesitate to contact me on the above address.

Yours faithfully
YANDEKEN Lawyers
[signature]
Louis Yandeken

Cc: Mr Ina Enei
Chairman of Moga ILG ”


  1. What is of concern about the circumstances deposed to by Mrs Moreka is that, I find that Mr Yandeken already knew, or should have known, in August 2017 when he drafted the affidavit he wanted Mrs Moreka to sign, that Mrs Moreka had originally been legally represented in earlier proceeding OS No. 307 of 2010 by Kusip & Associate Lawyers back in 2010.
  2. It is a breach of Rule 20(3) of the Professional Conduct Rules 1989 for a lawyer to communicate regarding a legal matter in which he is acting with a person whom he knows is represented in that matter by another lawyer.
  3. Furthermore Rule 4(1)(a) of the Professional Conduct Rules 1989 states that a lawyer shall not attempt to further his client’s case by unfair or dishonest means.
  4. I consider that it was therefore incumbent on Mr Yandeken, when communicating with Mrs Moreka in mid-August 2017, to have first enquired of her if she was still legally represented by Kusip & Associate Lawyers or by any other lawyer such as Greg Konjib of Konjib Lawyers in connection with matters relating to the restraining order which had frozen her BSP bank account back in June 2010. It is clear from Mrs Moreka’s affidavit evidence in this proceeding WS No. 1235 of 2017 that Mr Yandeken made no such enquiry of her when he insisted on 28 August 2017 that she meet with him at his house at Gerehu to sign an affidavit to be signed by her which he had prepared for the benefit of his clients, who at that point were not only Mr Enei and Moga ILG, but also Mr Luke Ibi.
  5. It is equally clear that Mr Yandeken breached his professional duty as a lawyer when he failed to inform Mrs Moreka on 28 August 2017 that she should obtain independent legal advice from another lawyer before she signed the affidavit he had prepared and which, in its paragraph 6, contained a purported acknowledgement by Mrs Moreka that she had agreed to have the funds frozen in her BSP account transferred back to Moga ILG’s bank account. By failing to inform Mrs Moreka that she should obtain independent legal advice in connection with the affidavit Mr Yandeken had prepared for her to sign, to my mind Mr Yandeken was furthering his clients’ own case by unfair means in breach of Rule 4(1)(a) of the Professional Conduct Rules.
  6. This breach of the Professional Conduct Rules was then exacerbated by Mr Yandeken when, on 9 November 2017, he again requested Mrs Moreka to meet with him, this time in his vehicle at Vision City, to discuss the issue of legal fees of K350,000 which he said were owing to him in connection with OS No. 307 of 2010. Mr Yandeken’s letter to Mrs Moreka dated 9 November 2017 speaks for itself. Mr Yandeken was not interested in Mrs Moreka transferring K750,000 from her BSP account to Moga ILG. Rather, he wanted Mrs Moreka to transfer K350,000 from her BSP account to his own law firm’s BSP account no. 100 168 4655 given that a Court order had been obtained in OS No. 307 of 2010 only the day before, on 8 November 2017, which had discharged the interim restraining order preventing Mrs Moreka from accessing funds held in her BSP account for the preceding seven years.
  7. According to Mrs Moreka’s evidence, Mr Luke Ibi was present on 9 November 2017 when Mrs Moreka and her son Nigel Wosae, her step-son Raphael Wosae and her father-in-law Joe Kimo met with Mr Yandeken in his vehicle at Vision City. Mrs Moreka has deposed that Mr Luke Ibi said to her that on payment by her of K350,000 to Mr Yandeken for his legal fees, Mrs Moreka could then keep the balance of funds held in her BSP account because of the work her late husband Kain Wosae had done for Moga ILG. Mr Luke Ibi is, of course, the very same person who is named as the acting chairman of Moga ILG in the minutes of the resolutions passed by Mogo ILG at its meeting 03/2010 held on 11 May 2010 which authorised the sum of K750,000 to be paid to Mrs Moreka.
  8. I have already observed that Mr Yandeken stated in his letter dated 9 November 2017 to the Legal & Compliance Manager of BSP that, at that juncture in 2017 he was acting for Mr Luke Ibi. There is a very serious conflict of interest here on the part of Mr Yandeken in his conduct of this proceeding WS No. 1235 of 2017.
  9. I note that Mr Enei in his affidavit filed in WS No. 1235 of 2017 on 16 November 2017 deposed at paragraphs 5 and 7 that Mr Luke Ibi is his son, that Luke was a former chairman of Moga ILG (in fact, former acting chairman) and that the two of them had been pursuing claims against the State through the Department of Lands and Physical Planning for damage done to the Moga Clan’s Mogubo Land.
  10. Mr Yandeken is on the record in this proceeding as acting for Mr Enei and for Moga ILG as plaintiffs in circumstances where the plaintiffs’ Amended Statement of Claim at paragraph 6 impugns Mr Luke Ibi, Mr Enei’s son, for having made payment of K750,000 to Mrs Moreka back in May 2010 without the knowledge or consent of the plaintiffs, a pleading which the evidence adduced before this Court indicates is demonstrably untrue unless someone forged the minutes and signature of Mr Enai, Mr Luke Ibi and the 30 other persons who signed the minutes of meeting 03/2010 of Moga ILG.
  11. I observe that the matters deposed to by Mrs Moreka in paragraphs 33 of 41 of her affidavits filed on 7 December 2017 have never been challenged by Mr Yandeken, Mr Enei or Mr Luke Ibi, notwithstanding that each of them had ample opportunity to do so prior to the hearing of the two motions for dismissal of this proceeding. Mrs Moreka’s evidence in this regard is compelling. It remains intact.
  12. I have dwelt at length on Mrs Moreka’s evidence as to the professionally unacceptable circumstances under which she signed her affidavit in OS No. 305 of 2010 on 28 August 2017. I have also directed my attention to the unchallenged evidence of Mrs Moreka that on 9 November 2017 she was told by Mr Yandeken to pay K350,000 to Yandeken Lawyers’ bank account for fees allegedly owed to Mr Yandeken for his legal services in connection with OS No. 305 of 2010 and that Mr Luke Ibi had told Mrs Moreka at their meeting in Mr Yandeken’s vehicle on 9 November 2017 that she could keep for herself the remainder of the monies paid into her BSP account by Moga ILG back in June 2010 as recompense for the services which her late husband had given to Moga ILG when pursuing Moga ILG’s ultimately successful claim of K4,337,500 against the State. The reason I have highlighted Mrs Moreka’s evidence in this regard is because it is consistent with the letter dated 9 November 2017 written to Mrs Moreka by Mr Yandeken requesting payment by her of his legal bills of K350,000. The combination of all of these matters seriously undermines and contradicts the matters pleaded in paragraphs 8, 13, 14 and elsewhere in the plaintiffs’ Amended Statement of Claim.
  13. I find that not only has the plaintiffs’ Amended Statement of Claim failed to plead with the particularity the matters required by Order 8 Rule 30 of the National Court Rules to be pleaded where allegations of fraud and misrepresentation have been made, but the matters which have been pleaded in the Amended Statement of Claim in an endeavour to substantiate causes of action founded in fraud and breach of agreement, taken in the context of Mrs Moreka’s evidence, are patently misleading and false. To my mind, the plaintiffs’ Amended Statement of Claim, and this proceeding as a whole, is a sham, designed to obscure the real reason for commencement of proceedings against Mrs Moreka and Mr Konjib. I find that the real reason for this suit is that, it was intended to obtain the funds frozen in Mrs Moreka’s BSP account which were then released by the order made in OS 305 of 2010 on 8 November 2017 as a source for payment of Mr Yandeken’s legal fees, reputedly K350,000 incurred by Moga ILG, rather than Moga ILG having to pay those legal fees itself. This proceeding is an abuse of the Court’s process. The Court will not countenance the continuation of this proceeding in circumstances such as this.
  14. For these reasons I find that the plaintiffs’ Amended Statement of Claim has failed to disclose any reasonable cause of action against the defendants and should be struck out pursuant to Order 8 Rule 27 of the National Court Rules as specifically sought by Mrs Moreka in her notice of motion filed on 25 May 2018.
  15. Issue 2 is resolved in favour of the defendants.

CONCLUSION


  1. Because of the seriousness of the matters I have adverted to, I have determined that not only should the plaintiffs’ Amended Statement of Claim be struck out, I also find that because of the matters deposed to by Mrs Moreka, supported by Mr Konjib’s evidence, the plaintiffs’ claim against the defendants in this proceeding is incontestably bad. The plaintiff’s Amended Statement of Claim failed to succinctly set out the elements of each of the pleaded two causes of action and it failed to clearly set out the facts that support each element of those two causes of action. The plaintiffs’ Amended Statement of Claim should not be allowed to be further amended for a third time. The evidence before the Court clearly demonstrates that the plaintiffs have no arguable causes of action against the defendants founded on the tort of fraud or on breach of agreement as pleaded. This proceeding is a sham.
  2. For these reasons the Court will order pursuant to Order 12 Rule 1 of the National Court Rules and the Court’s own inherent jurisdiction under Section 155(4) of the Constitution to prevent abuse of process that this proceeding is to be entirely dismissed, not just struck out.
  3. As this proceeding is to be dismissed for the reasons I have given, the issues I have identified as issues (3) to (7) are no longer relevant. It is not necessary for those residual issues to be canvassed in this decision, notwithstanding that I consider most of them have substantial merit.
  4. As to costs, the Court has a wide discretion. I am satisfied that, the circumstances of this case are sufficiently egregious as to require the plaintiffs to be ordered to jointly and severally pay the defendants’ costs of this proceeding, on a solicitor/client basis, such costs to be taxed if not agreed.

ORDER


  1. The terms of the formal order of this Court are:

(1) This proceeding is dismissed.

(2) The plaintiffs shall jointly and severally pay each defendants’ costs of and incidental to this proceeding on a solicitor/client basis, such costs to be taxed if not agreed.

(3) The time for entry of this Order is abridged to the time of signing by the Court which shall take place forthwith.

Order accordingly

Ninerah Lawyers: Lawyers for First Defendant
Begisegil Lawyers: Lawyers for the Second Defendant


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