Nikint Investment Ltd v Thomas Niganu and Cathleen Ao and Gertrude Marika and Doreen Tatu and Muambie Firompa and Wari Kapi and Luke Vai and Steven Oi and John Sendy Sireh and Benjamin Samson and Yanol Apin, Registrar of Titles and Hon Benny Allan, Minister for Lands & Physical Planning and the Independent State of Papua New Guinea (2020) SC1919

• Jurisdiction: Papua New Guinea
• Judge: Yagi, Kariko and Koeget, JJ
• Judgment Date: 21 February 2020
• Court: Supreme Court
• Citation: (2020) SC1919
• Docket Number: SCA No 65 of 2018
• Year: 2020
• Judgement Number: SC1919

Full Title: SCA No 65 of 2018; Nikint Investment Ltd v Thomas Niganu and Cathleen Ao and Gertrude Marika and Doreen Tatu and Muambie Firompa and Wari Kapi and Luke Vai and Steven Oi and John Sendy Sireh and Benjamin Samson and Yanol Apin, Registrar of Titles and Hon Benny Allan, Minister for Lands & Physical Planning and the Independent State of Papua New Guinea (2020) SC1919

Supreme Court: Yagi, Kariko and Koeget, JJ

Judgment Delivered: 21 February 2020

SC1919

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 65 OF 2018

BETWEEN:

NIKINT INVESTMENT LIMITED

Appellant

AND:

THOMAS NIGANU

First Respondent

AND:

CATHLEEN AO

Second Respondent

AND:

GERTRUDE MARIKA

Third Respondent

AND:

DOREEN TATU

Fourth Respondent

AND:

MUAMBIE FIROMPA

Fifth Respondent

AND:

WARI KAPI

Sixth Respondent

AND:

LUKE VAI

Seventh Respondent

AND:

STEVEN OI

Eighth Respondent

AND:

JOHN SENDY SIREH

Ninth Respondent

AND:

BENJAMIN SAMSON

Tenth Respondent

AND:

YANOL APIN, REGISTRAR OF TITLES

Eleventh Respondent

AND:

HON. BENNY ALLAN, MINISTER FOR LANDS

& PHYSICAL PLANNING

Twelfth Respondent

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA

Thirteenth Respondent

Waigani: Yagi, Kariko and Koeget, JJ

2019: 31st October

2020: 21st February

PRACTICE AND PROCEDURE –claim against the State – State sued with other defendants –lack of s.5 Notice – whether National Court has discretion whether or not to dismiss entire proceedings

Cases Cited:

CMSS (PNG) Ltd v State (2014) N5717

Huriba Andago v Andy Hamaga (2018) N7332

Jack Apai v David Ling (2014) N7567

JA Construction Limited v Ipisa Wanega (2007) N3243

James Mara v Kakas Muikin (2009) N3971

Mission Asiki v Manasupe Zurenuoc (2005) SC797

Paul Tohian v Tau Liu (1998) SC566

Rundall v Motor Vehicle Insurance Trust [1988] PNGLR 20

State v Downer Construction (PNG) Ltd (2009) SC979

Tukuliya v Director, Papua New Guinea National Museum & Art Gallery (2018) SC1697

Yamanka Multi Services Ltd v National Capital District Commission (2016) N6556

Legislation:

Claims By And Against The State Act 1996

Constitution

Motor Vehicles (Third Party Insurance) Act, Ch. 295

Counsel:

Ms D Doiwa, for the Appellant

Mr S Phannaphen, for the first respondent

Mr A Token, for the Second to Seventh Respondents

No appearances for the Eighth to Thirteenth Respondents

JUDGMENT

21st February, 2020

1. BY THE COURT: This is an appeal from the decision of the National Court given on 11th of April, 2018 in proceeding WS (HR) No. 267 of 2016 – Thomas Niganu –v- Cathleen Ao and 12 Others in which the trial Judge ordered the proceeding be dismissed against the State for non-compliance with s.5 of the Claims By And Against The State Act 1996(the Claims Act) but that the suit otherwise continue as against the remaining defendants.

National Court proceeding

2. The first respondent Thomas Niganu (Niganu) is the registered proprietor of land described as Allotment 66 Section 484 Hohola. National Capital District.

3. In the National Court, he pleads in his Statement of Claim that:

· In 2009 he lodged his application seeking rezoning of vacant State land (part of a road reserve) adjoining his property so that the area of his property could be extended to include the vacant land as residential land, to allow him to build 40 residential units with adequate car parking.

· The application together with accompanying documents including the survey and building plans were passed to the second respondent Cathleen Ao(Ao), an employee of the Department of Lands & Physical Planning (Lands Department)to submit to the relevant authorities for consideration.

· Instead, Ao and five co-workers plagiarized his documents and under the auspices of a home-ownership scheme for staff of the Lands Department, lodged their own applications for rezoning and sub-division of the same vacant land.

· Their applications were subsequently approved, and each of them wasissued a State Lease over one of the newly-created blocks of land described as Allotments 86, 87, 88, 89 and 28 Section 484, Hohola.

4. Ao and her co-workers are named as the first six defendants. It is alleged that they colluded and fraudulently obtained the new State Leases.

5. Two of the new Allotments were then sold to third parties - one Steven Oi, and the other to the appellant. The two transferees are also named as defendants. Their registered titles are sought to be nullified on the basis that the State Leases were initially obtained by fraud.

6. The other defendants are:

· John Sendy Sireh, the surveyor who drew up the relevant survey plan for the rezoning and sub-division of the vacant land. It is alleged that he plagiarized the survey plan prepared by Niganu.

· Benjamin Samson, the former Registrar of Titles, against whom it is alleged that he colluded with Ao and her co-workers in obtaining the new State Leases.

· Yanol Apin, the Registrar of Titles (at the time of filing of the Writ), Interestingly, no cause of action is pleaded against this officer. Rather, Niganu requires this officer to explain to the Court whether the issuance of the new State Leases followed proper process.

· Hon. Benny Allan, who was then the Minister for Lands & Physical Planning. It is alleged that he wrongfully approved the new State Leases that had been issued as a result of fraud.

· The State, who was sued on the basis of vicarious liability for the wrongful actions of its “servants and or agents”, who Niganu lists as Ao and her co-workers, the Registrar of Titles and his predecessor, and the Minister.

The decision appealed

7. On 11th April 2018, counsel for the State (also representing the Registrar of Titles, his predecessor, and the Minister) moved an application in the National Court seeking dismissal of the proceedings for lack of Notice under s.5 of the Claims Act, and alternatively, under O12 r40 and O8 r27 of the National Court Rules for failing to disclose a reasonable cause of action, for being frivolous or vexatious and for abuse of process.

8. After deciding that s.5 Notice was not given, the learned trial Judge acknowledged he was obliged to dismiss the proceedings against the State, but he nonetheless considered he had a discretion as to whether or not to wholly dismiss the proceedings against all the defendants. His Honour reasoned:

“ …. it does not seem to me to necessarily follow that the proceedings against the State having been dismissed, the whole proceedings ought to be dismissed. I understand that that is the usual consequence when the court finds that section 5 has not been complied with. ….

As section 5 as counsel have indicated and it has been shown in a number of cases is a law that is designed or the purpose of which is to protect the State or to put the State on notice that there is a likelihood of a claim being made against it so that the State can, because it has so many public officials for whom it is responsible and potentially liable for their conduct and it allows the State the opportunity to investigate the claim and sort out its merits and so that claims against the State are not delayed and prolonged. So if the proceedings against the State are dismissed, that purpose of section 5(1) will be achieved in this case. …..

…………………………………………………………………………………………………

It is relevant to consider the overall interests of justice and in interpreting the law the courts must give paramount consideration for the interests of justice.

I do not think it would be just to dismiss these proceedings against all other defendants simply because of the failure of the plaintiff to comply with section 5(1). Therefore, the proceedings will be dismissed against the State. The proceedings will remain against the other defendants including those who had been sued apparently in their capacity as public officials…..The State is an individual entity. It is a legal person and it has separate existence from the officers and functions of it. For those reasons as indicated, the proceedings against the State only will be dismissed.”(Our emphasis)

Grounds of appeal

9. Summarized, the appellant’s grounds of appeal allege that:

(1) The trial judge erred in law in not dismissing the entire proceedings for the first respondent’s failure to give proper s.5 Notice.

(2) The trial judge erred in law and in fact, in separating the State from its employees and functionaries,contrary to the principles of vicarious liability and the Wrongs (Miscellaneous Provisions) Act, Ch.297.

(3) The trial judge erred in law and in fact, in separating the State from its employees and functionaries, contrary to the pleadings in the Statement of Claim.

(4) The trial judge erred in law and in fact, in intervening in the pleadings in the Statement of Claim.

(5) The trial judge erred in law and in fact, in finding that the overall interests of justice favoured the first respondent.

Ground 1

10. We consider the critical and fundamental question to answer on this appeal is whether or not the Court is obliged to dismiss the entire proceedings in all cases...