Owa v Independent State of Papua New Guinea [2024] PGNC 178; N10839 (11 June 2024)

N10839

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO.537 OF 2019

BETWEEN
KEN OWA, TIMBI OWA, and KATU TIMOTHY WAI in their capacity as beneficiaries to Investment by Owa Puga of Kopi Clan
First Plaintiffs

AND:
GOIMBAK PAING and DAVID GOIMBA in their capacity as beneficiaries to Investments by Rumints Pena of Kurup Clan
Second Plaintiffs

AND:
PRISILA IPITA, JOHN NAKINI, and POO ORI in their capacity as beneficiaries to Investment by Rega Kuru of Moge Clan
Third Plaintiffs

AND:
RAIMA ROMBA, TIMOTHY ROMBA, and GABRIEL GOIMBA ROMBA in their capacity as beneficiaries to Investment by Romba Paink of Tabe Clan
Fourth Plaintiffs

AND:
MARIA UGL, POMB PENG, and THOMAS PENG in their capacity as beneficiaries to Investment by Ugl Yu of Palgei Clan
Fifth Plaintiffs

AND:
PUT MANGA, KRAI MELPA, and DANIEL M NALINGI in their capacity as beneficiaries to Investment by Manga Kelepa of Romaig Clan
Sixth Plaintiffs

AND:
PAKA NIKI, PAWA PAKA, and ANDREW WINGTI ROMALG in their capacity as beneficiaries to Investment by Pil Kumen of Gebugai Clan
Seventh Plaintiffs

AND:
KONGA NUKINTS and ALFRED KONGA, in their capacity as beneficiaries to Investment by Pil Taga of Ebiliga Clan
Eight Plaintiffs

AND:
JACKSON RUI, JOHN PAI RUI and SIMON RUI in their capacity as beneficiaries to Investment by Numindi Pena of Koiega Clan
Ninth Plaintiffs

AND:
OKPUL YAIDI, AMBAM KAMDARU, and NICKSON WAKAM in their capacity as beneficiaries to Investment by Okain Epinta of Kopen Clan
Tenth Plaintiffs

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
First Defendant

AND:
PAPUA NEW GUINEA FOREST AUTHORITY
Second Defendant

AND:
DAIRI VELE IN HIS CAPACITY AS SECRETARY FOR DEPARTMENT OF TREASURY
Third Defendant

AND:
DR. KEN NGANGAN IN HIS CAPACITY AS SECRETARY FOR DEPARTMENT OF FINANCE
Fourth Defendant

Waigani: Manuhu, J
2020: 13^th October
2024: 11^th June

PRACTICE AND PROCEDURE – Motion for Default Judgment – Failure to file defence – Want of better pleadings - Pre-independence Timber Rights Permit Agreement – Failure to plead legal link between colonial administration and State – Failure to plead that proceeding not time-barred – Duty to protect integrity of court processes.

Cases Cited:

Nil

Counsel
Timil L Tape, for the Plaintiffs
G. Dusava, for the Defendants

11^th June 2024

1. MANUHU, J: This is a claim arising from a 40-year Timber Rights Permit agreement on 29^th August 1968 between the landowners of Moiwa, Jimmy Valley, Western Highlands Province, and the Administration of the Territory of New Guinea. The agreement would have expired on 21^st October 2007. Consideration for the TRP was for $53,010 where $5,890 was paid in cash and the balance of $47,120 was to be invested as Treasury Investment. The investment term was 10 years so it would have accrued on 15^th December 1977. However, no payment was made at the end of the investment term. That is the basis of the claim.

2. The plaintiffs' application before me is for default judgment based on failure to file a statement of defence. I note the pending application to extend the time for the plaintiffs to file their defense.

3. However, my attention is drawn to the pleadings and the apparent legal issues therein. Firstly, the statement of claim does not link the colonial administration to the State and the defendants. Neither does the amended statement of claim plead the legal connection between the colonial administration and the State. Secondly, the claim is facially statute-barred. The amended statement of claim does not explain this glaring anomaly. Third, there is no pleading on s. 5 notice. However, the amended statement of claim states that s.5 notice dated 01^st July 2013 was served and accepted by the Acting Solicitor General in a letter dated 28^th August 2013.

4. That notwithstanding, failure to plead the legal link between the colonial administration and the State is fatal in my respectful view. The colonial administration could have left with the investment. If the claim is based on law of contract, how the State inherited the contractual obligation of the colonial administration ought to be pleaded to demonstrate a cause of action.

5. It is therefore open to the court to find that, due to lack of sufficient pleadings, there is no cause of action against the State and defendants. Similarly, in the absence of any pleading to save the claim from the Frauds and Limitations Act 1988, it is open to the court to find that the claim is time-barred.

6. The defendants have not moved for the Court to dismiss the proceeding on lack of sufficient pleadings. Regardless, the Court must protect the integrity of its processes, and ensure that a litigant is not deprived of due process of law and natural justice. In the statement of claim, the TRP agreement was entered into in 1967; the purported investment matured in 2007. The proceeding was filed in 2019. The statement of claim does not identify any current official file or records of the TRP agreement or the investment in the custody of the State and the defendants.

6. In the circumstances, the defendants will likely be highly prejudiced in their defence of the proceeding. The plaintiffs' application to enter a default judgment is therefore refused. On its own volition, the Court has to dismiss the entire proceeding and, I so order with costs.

Orders accordingly.
________________________________________________________________
Kandawalyn Lawyers: Lawyer for the Plaintiffs
Solicitor General: Lawyer for the Defendants