Siwi v Rosso [2024] PGNC 275; N10943 (8 August 2024)

N10943

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 144 OF 2023

BETWEEN:
PAUL SIWI
-Plaintiff-

AND:
HON JOHN ROSSO, Minister for Lands & Physical Planning
-First Defendant-

AND:
JOHN OFOI, The Chaiman for Lands & Physical Planning
-Second Defendant-

AND:
BENJAMIN SAMSON-the Secretary for Lands & Physical Planning
-Third Defendant-

AND:
JACK BAKUS, The Surveyor General
-Fourth Defendant-

AND
LUCAS KISU, THE Chairman Morobe Provincial Physical Planning Board
-Fifth Defendant-

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
-Sixth Defendant-

AND
TIMOTHY AMOS, As a Director -Bewapi Coffee Mill Limited
-Seventh Defendant-

AND
PACIFIC CORPORATE SECURITY LIMITED
-Eighth Defendant-

Lae: Dowa J
2023: 8^th December
2024: 8^th August

PRACTICE AND PROCEDURE- application for dismissal of proceedings for disclosing no reasonable cause of action- Order 12 Rule 40 of the National Court Rules-claim statute barred under section 16 of Frauds and Limitations Act-failure to give prior notice under section 5 of the Claims by and Against the State Act-National Court lacks jurisdiction to determine customary land interest on alienated land section 16 of the Land Commission Act 2022-case untenable -proceedings summarily dismissed.

Cases Cited:
PNG Forest Products v State [1992] PNGLR 84
Ronny Wabia v BP Exploration Co. Ltd [1998] PNGLR 8
National Provident Fund Board v Maladina & Others (2003) N2486
Mamun Investment Ltd-v-Nixon Koi (2015) SC1409
John Hiwi-v-Rebdle Rimua (2015) SC1460
Nodepa Plantation Ltd-v-Balat (2020) SC1927
Kimas v Oala (2015) SC1475
Wabia v BP Petroleum (2009) N4337
Waril Incorporated Land Group v Morobe Provincial Government & others (2023 N10108
Vaki Vailala v NHC (2017) N6598
Pius Tikili v Home Base Real Estate (2017) SC1563
Katumani & Ors v Elijah Yawing & Ors (2020) N8481
Abel v National Airports Corporation (2024) N10936

Counsel
T. Topo, for the Plaintiff
S Maliaki, for the First, Second, Third, Fourth & Sixth Defendants
W. Kume, for the Eighth Defendant

RULING

8^th August 2024

1. DOWA J: Pacific Corporate Security Limited, the Eighth Defendant, by Notice of Motion, applies for summary dismissal of the proceedings under Order 8 Rule 27 and Order 12 Rule 40 of the National Court Rules. The Notice of Motion is supported by the Affidavit of Killien Biranke, Manager of the Eighth Defendant.

2. The grounds for the application are:

1. The claim is statute/ time barred.
2. Want of Section 5 Notice under the Claims by And Against the State Act
3. Lack of jurisdiction in dealing with customary land interests.
   

Background Facts

3. The Plaintiff originally from Simbu Province is a resident of 9 Mile, Morobe Province. He resides and conducts business on a land described as Portion 834, Markham, Morobe Province. He pleads he has been adopted into the Sagaling family; the original customary landowners of land commonly known as Ikolo land at Bewapi 9 Mile Lae Morobe Province. As a family member of the Sagaling family, the Plaintiff claims ownership of the portion of land he is currently occupying which is part of Portion 834.

4. Portions of the Bewapi Land were alienated by the Colonial Administration and State leases was issued. Portion 27, Milinch of Lae, Morobe Province under State Lease Volume 66 Folio 93 is one of them.

5. The Plaintiff alleges that Portion 27 was not lawfully acquired. The original Agriculture Lease was granted to Ena Marry Patterson in June 1979. The title was then transferred to Yabim/Kottie Development Corporation Pty Ltd in December 1979 and mortgaged to Morobe Provincial Government. The property was then transferred to Namalu Pty Ltd in September 1996. On 11^th March 2011 the title was transferred to Bewapi-Coffee Ltd. On 27^th October 2011, the title was conditionally surrendered.

6. After the surrender of the original lease the land was subdivided, and individual titles were issued apparently to Bewapi Coffee Mill Limited in February 2013. They became Portions 834, 835 and 869-884. The Plaintiff resides on Portion 834.

7. Bewapi Coffee Mill Limited Transferred Portion 834 to the eighth Defendant between 2016 and 2017. The Eighth Defendant is the current registered owner of Portion 834.

8. The Plaintiff alleges that the transfer of the original title from Morobe Provincial Government to Namalu Pty Ltd was fraudulently done. The Plaintiff alleges that, this renders the subsequent transactions on the land illegal including the sub-divisions and the recent transfer of title to the eighth Defendant.

The application

9. The eighth Defendant alleges that the Plaintiff’s claim is frivolous and has no cause of action and seeks summary dismissal under Order 8 Rule 27 and Order 12 Rule 40 of the National Court Rules.

Issues

10. The main issue for consideration is whether the Plaintiff’s proceeding be summarily dismissed for frivolity and disclosing no reasonable cause of action.

Law

11. Order 8 Rule 27 and Order 12 Rule 40(1) of the National Court Rules are relevant, and they read:

Order 8 Rule 27

“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.

(2) The Court may receive evidence on the hearing of an application for an order under Sub-rule (1).”

Order 12 Rule 40

“Frivolity, etc. (13/5)

(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; or
• (b) The proceedings are frivolous or vexatious; or
• (c) The proceedings are an abuse of the process of the Court,

The Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.”
12. I adopt my discussions on the law on applications under Order12 Rule 40 of the National Court Rules in an earlier proceeding over the same land between Waril Incorporated Land Group v Morobe Provincial Government & others (2023) N10108.

12. The law on applications under Order 12 Rule 40(1) of the National Court Rules is settled. In the case, PNG Forest Products v State (1992) PNG LR84-85 the Court adopting some English Court phrases stated that a court be slow and cautious in entertaining applications for dismissal of proceedings on the grounds of a party disclosing no reasonable cause of action. A Plaintiff should not be driven from the judgment seat unless the case is “unarguable” or the cause of action is “obviously and almost incontestably bad, or plainly untenable. In that case, the Court also said the Court has a discretionary power to dismiss if the proceedings are an abuse of the Court process.
    
1. On the other hand, there are other string of cases that developed the principle that, where the case is vexatious or frivolous and that it is unlikely to succeed, the case can be summarily determined. Ronny Wabia v BP Exploration Co. Ltd (1998) PNGLR 8, and Wabia v BP Petroleum (2009) N4337 and National Provident Fund Board v Maladina & Others (2003) N2486.
   
2. In NPF v Maladina, Kandakasi J, (as he then was) said:

“The law on pleadings generally is settled in our jurisdiction. A clearest statement of the law is by the Supreme Court in Motor Vehicles Insurance (PNG) Trust v. John Etape, in these terms:

"‘besides requiring that certain matters be pleaded specifically, the rules also contain a number of provisions which require a party to furnish in or with his pleadings, particulars of his claim or defence or other matter pleaded. The function of particulars is ‘to let (a party) know what case he will have to meet and to enable him to know what evidence he ought to be prepared with’. The object is ‘to ensure as far as is practicable, that proceedings between parties would result in a determination of the rights of the parties according to law and to limit if not eradicate the number of cases in which technologies can cause the proceedings to miscarry. Generally speaking justice will be more readily and speedily attained if each party is fully aware of the precise nature of the allegations made by the other’.

Particulars are in fact an extension of the pleadings — they control the generality of the pleadings. In Pilato -v- Metropolitan Water Sewerage and Drainange Board, McClemens J said at 365 – ‘Pleadings define the issues in general terms. Particulars control the generality of the pleadings and restrict the evidence to be led by the parties at the trial and give the other party such information as may enable him to know what case he will be met with at the trial and prevent surprise. Evidence enables the tribunal within the ambit of the general definition of the issues, affected by the pleadings and limited by the particulars, to decide where the truth lies’."

3. In my view, the purpose of Order 12 Rule 40(1) of the National Court Rules is to provide for summary determination of the Plaintiff’s proceedings where it is plain and clear based on the pleadings that no triable cause of action is disclosed or where some common and proven facts show that the proceedings will not succeed if it proceeds to trial. Where common and proven facts show that the claim is untenable, no amount of evidence, or amendment to the pleadings will cure or improve the facts on which the claim is based. It is in the interest of all parties to terminate the proceedings early to avoid cost of a prolonged and winding litigation. The Court should not give the impression that the factual situation will change with the passing of time or that the Plaintiff’s chances of success will improve with more litigation. After all, the Court has a duty to protect itself from abuse of the Court process by entertaining unmeritorious claims which will only consume time and resources.”
   

13. Mr Kume, counsel for eighth defendant, submits that the proceedings be summarily dismissed for the following reasons:

1. The claim is statute barred under section 16 of the Frauds and Limitations Act
2. The Plaintiff did not give section 5 notice under the Claims by And Against the State Act

100. The National Court has no jurisdiction to deal with customary land interest over alienated land.

4. Generally, no reasonable cause of action and for frivolity

Statute /Time Barred

14. The eighth Defendant is the registered proprietor of Portion 834, the subject of this proceeding. Section 32 of the Land Registration Act provides that where an instrument of title describes a person as the proprietor of an estate or interest, that person is the registered proprietor of the estate or interest. Section 33 of the Land Registration Act provides that a registered proprietor of an estate or interest holds it absolutely free from all encumbrances except for fraud and other exceptions set out in (1)(a) to (f). (Mudge -v- Secretary for Lands (1985) PNG LR 387).

15. Fraud is defined in the head notes of the judgments in the case Vaki Vailala v NHC (2017) N6598 and Pius Tikili v Home Base Real Estate (2017) SC1563 to mean “actual fraud or constructive fraud. Constructive fraud exists where the circumstances of a transfer of title are so unsatisfactory, irregular, or unlawful, it is tantamount to fraud, warranting the setting aside of registration of title.”

16. The Plaintiff pleads a series of allegations of fraud committed by the Defendants either individually or in collusion with others in the statement of claim. There is no specific allegation of fraud pleaded against the eighth Defendant.

17. The main allegation of fraud is allegedly committed by one, Namalu Pty Ltd in September 1996, 26 years ago when the title was transferred to Namalu Pty Ltd . Namalu Pty Ltd is not named a party in the proceedings. The second allegation of fraud is alleged to have been committed when the title was transferred to Bewapi Coffee Mill Limited. The third allegation is levelled against Bewapi Coffee Mill Limited, the sixth Defendant, when it subdivided the land into various smaller portions and obtained titles without first surrendering the original Title under Portion 27. However, the evidence filed by the Plaintiff shows that the Title in Portion 27, was surrendered and registered on 28^th October 2011. It seems a new lease described as Portion 791 was issued to Bewapi Coffee Mill Limited on 15^th November 2011. This lease under Portion 791 was again surrendered in March 2017 by Bewapi and individual leases were then issued to Bewapi in April 2017. Portion 834 was one of the new portions. Portion 834 was then transferred to the eighth Defendant in May 2017.

18. Mr. Kume, counsel for the eighth Defendant, submits that the allegation of fraud allegedly committed by Namalu Pty Ltd took place in September 1996, more than 27 years ago. He submits, the claim is statute barred under section 16 of the Frauds and Limitations Act. Ms. Maliaki, counsel for the 1^st to the fourth & sixth Defendants, supports the application for dismissal. The State relies on the Affidavit of Benjamin Samson filed 17^th November 2023.

19. Section 16 of Frauds and Limitations Act reads:

“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; or

(b) to enforce a recognizance; or

(c) to enforce an award, where the submission is not by an instrument
under seal; or

(d) to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture,

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

20. Under section 16 of the Frauds and Limitations Act an action that is founded on a simple contract or tort shall not be brought after the expiration of 6 years commencing on the date on which the cause of action arose. An allegation of fraud is a tortuous action and falls under the statutory provision of section 16.

21. The action can only be saved under section 18 of the Act. Section 18 provides that section 16 does not apply to any claims for the specific performance of a contract or for injunction or other equitable reliefs. The facts pleaded show this is an action based on allegations of fraud and thus it can not be saved by section 18.

22. I have considered the two affidavits of Paul Siwi filed on 19^th April 2023. The Plaintiff deposes to the history of the land acquisition and land transactions. He decided to act because of the recent eviction proceedings against him and other occupants by the eighth Defendant. Mr. Siwi deposes that the Plaintiff came to learn of the fraud only recently. He did not elaborate on the exact date when he acquired such knowledge of the alleged fraud. Even then the law is now settled by the Supreme Court in various decisions that the cause of action based on the allegation of fraud arises on the date of transfer and not the date the aggrieved party uncovered the fraud. Refer to Mamun Investment Ltd-v-Nixon Koi (2015) SC1409, John Hiwi-v-Rebdle Rimua (2015) SC 1460 and Nodepa Plantation Ltd-v-Balat (2020) SC1927.

23. In the present case the allegations of fraud arose 27 years ago. I find the Plaintiff’s proceedings are time-barred and have become an abuse of process to allow it to continue.

Section 5 Notice: Whether the Plaintiff complied with section 5 of the Claims by And Against the State Act.

24. The eighth Defendant, supported by counsel for the State, submits that the proceedings are incompetent for failing to give notice of claim under section 5 of the Claims by And Against the State Act.
25. Section 5 of the Act States:

No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this section by the claimant to–(a) the Departmental Head of the Department responsible for justice matters; or(b) the Solicitor-General.
26. The same objection was raised in the earlier case in volving the same land, Waril ILG v Morobe Provincial Government (supra). Like the earlier case, the issue is raised by a party who is not the State nor a state agent. I adopt my reasons for decision in that case and restate them:

“22. The sixth defendant who raised the issue is not the State nor a State Instrumentality. Should a party other than the State raise this issue. In my view a party other than the State can raise the issue of want of section 5 Notice. It is a threshold issue questioning the competency of the proceedings. It can be raised by any party other than the State or State agency if the State or State agency is a party in the proceedings. The Court can on its own volition raise the issue as well. In Kopyoto Investment Ltd (trading as Lodge 10) v National Housing Corporation [2022] PGSC 138; SC2339, the Court said this at paragrapg 5 of the judgment:

“5. At the first hearing of the appeal, pursuant to its inherent jurisdiction, the Court of its own volition required the parties to make submissions on whether s. 5 Claims By and Against The State Act (Claims Act) and s. 25 National Housing Corporation Act (NHC Act) were applicable in the circumstances of the case and if so whether those provisions had been complied with. The appellant took no issue with the Court of its own volition raising the issue of s. 5 Claims Act and cited Bluewater International Ltd v. Mumu (2019) SC1798 in this regard. We refer to State v. Nimbituo (2020) SC1974, as an example of this Court of its own volition, raising the s. 5 Claims Act issue.”

23. In the present case, the allegations of fraud are expressly made against the First, Seventh, Eighth, Ninth and Tenth Defendants who are the State and State agents and or department. It is necessary for the Plaintiff to give Notice where the claim is for the tort of fraud under section 5 of the Claims by and Against the State Act.”
    

27. In the present case, there is no pleadings or evidence that the Plaintiff has served Section 5 Notice before commencing the proceedings. The Plaintiff has been advised of the application. The Plaintiff and his lawyers filed several Affidavits both in response to the application and the merits of the case. However, the Plaintiff has not specifically deposed to any facts in response to the application on the issue. In the absence of any evidence to the contrary, I find the Plaintiff failed to comply with section 5 of the Claims By And Against the State Act, and the proceedings are therefore incompetent.

Lack of Jurisdiction

28. The Third leg of the application is that the National Court lacks jurisdiction to deal with customary land issues on alienated land.

29. It is settled law that where customary land is alienated, the process of determining customary ownership and land rights is now vested with the Land Commission of Papua New Guinea, formerly Land Titles Commission. Refer: Kimas v Oala (2015) SC 1475 and Abel v National Airports Corporation (2024) N109636. I say this because the allegations concern customary land rights and interests. The Plaintiff alleges that the customary land was unlawfully alienated by the colonial administration and is therefore inviting the National Court to determine the issues of acquisition as well as the subsequent fraudulent transactions. Section 16 of the Land Commission Act 2022 (formerly section 15 of the Land Titles Commission Act) vests jurisdiction in the Land Commission to determine customary land ownership on alienated land.

30. In Kimas v Oala (supra), the Supreme Court settled the law. At paragraphs 6 and 7 of its judgment the Court said, and I quote:

“6. It is settled law that the National Court has no jurisdiction to hear and determine disputes concerning ownership by custom of any land, including a dispute as to whether any land is or is not customary land. Such disputes fall within the exclusive jurisdiction of the Land Titles Commission under section 15 (determination of Disputes) of the Land Titles Commission Act, which states:

The Commission has, subject to this Act, exclusive jurisdiction to hear and determine all disputes concerning and claims to the ownership by custom of, or the right by custom to use, any land, water or reef, including a dispute as to whether any land is or is not customary land and may make all such preliminary inquiries and investigations as it deems necessary for the purpose of hearing and determining the disputes and claims.

7. Section 15 has been given full effect by the courts over many years. As soon as it becomes apparent that a case involves a dispute about whether a land is or is not a customary land, the court should divest itself of jurisdiction. Such disputes fall within the exclusive domain of the Land Titles Commission.”
   

31. Applying the reasonings in Kimas v Oala, I have expressed a similar view in Katumani & Ors v Elijah Yawing & Ors (2020) N8481. At paragraph 28 of my judgment, I said:

“28. Since the Defendants have raised substantial dispute over ownership, I will address them as well, so the parties have proper and informed understanding of the process involved in furthering their interests. It is trite law that both the district and National Courts have no jurisdiction to deal with disputes over customary land. Such disputes can be dealt with in the first instance by following the procedures and processes in the Land Dispute Settlement Act. Where a title is issued over customary land as in the present case, a disputing party can mount a case with the Land Titles Commission pursuant to section 15 of the Land Titles Commission Act”.
32. In the circumstances, the National Court does not have jurisdiction to deal with the issues the Plaintiff pleads and proposes to raise in pursuance of the reliefs sought in the proceeding.

Frivolity

33. As opposed to the eighth Defendant, the Plaintiff has not demonstrated in the pleadings that he has a legal right or interest in the land Portion 834.His interest is equitable at best. The eighth Defendant, on the other hand, as the registered proprietor, is entitled to immediate possession of the land. It is not just and equitable to deprive the eighth Defendant of the right to immediate possession. The proceedings by the Plaintiff are frivolous and have no legal basis.

Conclusion

34. For the reasons given above, the Plaintiff’s claim is untenable and is bound to fail if allowed to proceed further. The parties and the Court will save time and expenses for the proceedings to end how rather than later. I will therefore uphold the Eight Defendant’s application and dismiss the proceedings.

Costs

35. The Defendants have succeeded in their application and therefore are entitled to their costs.

Orders

36. The Court orders that:

1. The Plaintiff’s entire proceeding is dismissed.
2. The Plaintiff shall pay the Defendants’ costs of the proceedings, to be taxed if not agreed.
3. Time be abridged.
   

Supersonixs & Alu Lawyers: Lawyers for the Plaintiff
George Koare Lawyers: Lawyers for the Eighth Defendant
Solicitor General Lawyers: Lawyers for the First to the Fourth & the Sixth Defendants