Kiee Toap v The Independent State of Papua New Guinea and Department of Lands and Physical Planning (2004) N2766

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 21 December 2004
• Court: National Court
• Citation: (2004) N2766
• Year: 2004
• Judgement Number: N2766

Full Title: Kiee Toap v The Independent State of Papua New Guinea and Department of Lands and Physical Planning (2004) N2766

National Court: Cannings J

Judgment Delivered: 21 December 2004

N2766

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1628 OF 2003

KIEE TOAP

Plaintiff

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

First Defendant

DEPARTMENT OF LANDS AND PHYSICAL PLANNING

Second Defendant

MT HAGEN : CANNINGS J

19 NOVEMBER, 21 DECEMBER 2004

RULING ON MOTION

Land – practice and procedure – landowner seeks compensation from State for illegal use of his land – claim based on alleged negligence by Department of Lands and Physical Planning – application for default judgment – failure to file defence in time – application to strike out proceedings – whether plaintiff failed to comply with Claims By and Against the State Act – whether the proceedings are time-barred – Frauds and Limitations Act – whether statement of claim failed to disclose reasonable cause of action – whether proceedings are frivolous or vexatious – whether proceedings are an abuse of process – National Court Rules, Order 12, Rule 40 – whether application to strike out proceedings should be granted – discretion of Court.

Cases cited

Anderson Agiru v Electoral Commission and The State (2002) SC687

Application by Anderson Agiru (2002) SC686

Application by Anderson Agiru (2003) SC704

Central Pomio Logging Corporation Pty Ltd v The State [1990] PNGLR 195

Eliakim Laki and 167 Others v Maurice Alaluku and Others (2002) N2001

Gabriel Apio Irafawe v Yauwe Riyong (1996) N1915

Gia Kewa Piel v Eric Ranpi [1996] PNGLR 396

In the Matter of the Lawyers 1986 and In the Matter of an Application by Peter Norman Moore [1993] PNGRL 470

Kiee Toap v The State and Electoral Commission and Another (2004) N2731

Orogen Minerals Limited v David Sode, Commissioner General of Internal Revenue and Others (2003) N2467

PNG Forest Products Pty Ltd and Another v The State and Genia [1992] PNGLR 85

Ronny Wabia v BP Exploration Co Ltd and Others [1998] PNGLR 8

Siaman Riri v Simion Nurai (1995) N1375

Supreme Court Review No 4 of 1990; Application by Wali Kili Goiya [1991] PNGLR 170

The State v The Attorney-General and The Electoral Commissioner (2002) N2193

Takai Kapi v Daniel Don Kapi and Electoral Commission (1998) SC570

Tohian and The State v Tau Liu (1998) SC566

TST Pty Ltd (Provisional Liquidator Appointed) and Tin Siew Tan v Thomas John Pelis and Pelton Investments Pty Ltd (1998) N1747

K Toap, the plaintiff, in person

R Mai for the defendants

CANNINGS J:

INTRODUCTION

This is a ruling on various motions arising out of proceedings commenced by the plaintiff, who claims to be the lessee owner of a block of land in Mendi, Southern Highlands Province. The plaintiff claims that the Southern Highlands Provincial Government illegally occupied his land, and that this was due to the negligence of the Department of Lands and Physical Planning. He seeks compensation.

The defendants are applying to have the plaintiff’s case struck out summarily. The plaintiff says that his case should remain on foot and that default judgment should be entered in his favour.

BACKGROUND

The land

This case is about a block of land in Mendi town, Allotment 11, Section 12. The plaintiff says he is the lessee of that land and that it has been unlawfully occupied by the Southern Highlands Provincial Government.

The notice of claim

On 21 May 2003 the plaintiff hand-delivered a letter addressed to the Solicitor-General to Mary Bulina, a legal secretary with the Office of Solicitor-General. The letter was headed: “ILLEGAL ALIENATION & LOSS CONTINGENCY OF LEASEHOLD PROPERTY – SECTION 12 ALLOTMENT 11 MENDI TOWN SOUTHERN HIGHLANDS PROVINCE CLAIM DAMAGES FOR DISTRESS, FRUSTRATION & INCONVENIENCES FOR SETTLEMENT AT K7,228,303.30”. The letter was three pages in length. The plaintiff stated that the provincial government had illegally occupied his land and erected two buildings. He served a stop work notice on 7 December 1995, when the building was being erected. However, his notice was ignored. He claimed that the Department of Lands and Physical Planning had negligently alienated and transferred the land to the provincial government. He claimed K7,228,303.30 compensation. He allowed 30 days to settle his claim. If it were not settled by then, he would take the matter to Court.

Statement of claim

The statement of claim attached to the writ of summons avers to a number of matters in 12 numbered paragraphs. The grammar and syntax in almost every paragraph is poor. For example, paragraphs 6, 7 and 8, which contain the central allegations of negligence and impropriety, state:

6 The Plaintiff claims that the 2nd Defendant have negligent or failed to advise its clients the Southern Highlands Provincial Government that the property Allotment 11: Section 12 Mendi town was already allocated to lease holder or other alternative directive was required at the beginning of seeing the illegal development occurred at the Construction site.

7 The Plaintiff claims that the 2nd Defendant was a well vested organ to act promptly on the illegal occupancy on a property by co-ordinating all the legal responsibilities between the Provincial Building Board members and other legality involved that straight after the obtaining of a copy of the Stop Work Notice dated on the 07th December 1995 was physically hand delivered at the Provincial Lands Office.

8 The Plaintiff claims that the 2nd Defendant was acting on behalf of the 1st Defendant the Independent State of Papua New Guinea who refused or failed to give a legal directive to the Authorized Body of the Province the Provincial Building Board for its final Notice would have been followed to discontinue the occupation on the property at that time of the year.

The poor drafting of the document has legal consequences, referred to later. It is difficult to summarise the plaintiff’s claim or cause of action. However, it appears that what is pleaded to is negligence.

Particulars of claim

The plaintiff’s claim can be summarised as follows:

·the plaintiff is the leaseholder of Allotment 11, Section 12, Mendi Town;

·the provincial government occupied the land in December 1995 and started to erect two buildings;

·the Department of Lands and Physical Planning negligently failed to advise the provincial government that the property was already allocated to the plaintiff;

·the plaintiff served a stop work notice on the provincial government, but it was ignored;

·because of the negligent conduct of the Department of Lands and Physical Planning, the plaintiff’s land has been illegally alienated to the provincial government.

Relief sought

The plaintiff claims that the 1st defendant, the State, is liable to compensate him for the damage to his property etc. The plaintiff claims the amounts summarised below, plus interest (20%) and costs.

SUMMARY OF CLAIM

Details Amount (K)

1st defendant to pay “for illegal alienation of leasehold property to 1,237,500.00
its client to cause damage the whole dimension of the property”
[sic]

1st defendant to pay “for illegally permitting its client and made it 1,782,000.00
possible to blockage for business progressive participation” [sic]

1st defendant to pay “for illegally failed to convey the legal stop 1,807,750.00
work notice that issued on the 7th December 1995” [sic]

1st defendant to pay “for being illegally failed to inform the 722,900.00
provincial building board on the issuage of stop work notice
straight away” [sic]

Total 5,550,150.00

Service of writ

On 17 November 2003 the writ and statement of claim were served on the 1st and 2nd defendants.

On 3 December 2003 the Acting Solicitor-General, Mr John Kumura, filed a notice of intention to defend on behalf of both defendants.

In May 2004 Paul Paraka Lawyers commenced acting for the defendants.

Three motions

Since July 2004 three motions have been filed. They can be summarised as follows:

SUMMARY OF MOTIONS

No Date Filed by Details

1 19.07.04 Plaintiff Application for default judgment.

2 08.09.04 1st and 2nd Application to dismiss proceedings on three grounds:
defendants ·for non-compliance with Section 5, Claims By and
Against the State Act;
·for being time-barred pursuant to Section 16(1)(a),
Frauds and Limitations Act;
·for disclosing no cause of action, being frivolous and
vexatious and for being an abuse of process, pursuant to
Order 12, Rule 40, National Court Rules.
Alternatively, an application to file a defence out of time
pursuant to Order 7, Rule 6(2), National Court Rules.

3 17.09.04 Plaintiff Cross-motion re the defendants’ motion of 08.09.04.*

* This motion was unnecessary. It was simply a notice that the plaintiff would oppose the defendants’ motion.

On 19 November 2004 the three motions were argued. This ruling covers all of them.

THE ISSUES

The motions raise a number of issues. I address them in the following order:

1 Has the plaintiff breached the Claims By and Against the State Act?

2 Are the proceedings time-barred by the Frauds...