Mamun Investment Limited v Nixon Koi and Onda Koim, Koim Rob, Amuni Koim, So Koim, Paul Ponda, Elias Komb, Robert Duma and Dokta Kilt representing themselves and an Association known as Mt Hagen Young Men’s Christian Association (YMCA) (2015) SC1409

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Date: 04 February 2015
• Citation: (2015) SC1409
• Docket Number: SCA 112 of 2011
• Year: 2015

Full Title: SCA 112 of 2011; Mamun Investment Limited v Nixon Koi and Onda Koim, Koim Rob, Amuni Koim, So Koim, Paul Ponda, Elias Komb, Robert Duma and Dokta Kilt representing themselves and an Association known as Mt Hagen Young Men’s Christian Association (YMCA) (2015) SC1409

Supreme Court: Sakora, David and Hartshorn, JJ.

Judgment Delivered: 4 February 2015

APPEAL—whether declaratory relief is equitable relief - Frauds and Limitations Act sections 16 and 18 considered—whether a cause of action may accrue without the knowledge of the aggrieved party

Cases cited:

Papua New Guinea Cases

Douglas Dent v. Thomas Kavali and Ors [1981] PNGLR 488

NCDIC v. Bogibada Holdings Pty Ltd and Anor [1987] PNGLR 135

Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Ors (No 2) [1988-89] PNGLR 425

Overseas Cases

Kitchen v. Royal Air Forces Association & Ors [1958] 1 W.L.R. 563

Cartledge and Ors v. E. Jopling & Sons Ltd [1963] 2 WLR 210

Eddis and Anor v. Chichester Constable [1969] 1 W.L.R. 385

Tito v. Waddell (No.2) [1977] 1 Ch. 106

R. B. Policies at Lloyds v. Butler [1950] 1 K.B. 76

Ramsden v. Lee [1992] 2 All ER 204

Sheldon & Ors v. RHM Outhwaite & Ors [1995] 2 All ER 558

Tau Gumu v. Papua New Guinea Banking Corporation (2001) N2288

AWB Limited v. Honourable Terence Rhoderic Hudson Cole (No.2) [2006] FCA 913

Law Society v. Sephton & Co [2006] 2 AC 543, 2WLR 1091

H. Stanke & Sons Pty Ltd & Anor v. O’Meara [2007] SASC 246

1. SAKORA J. and HARTSHORN J: This is an appeal against a National Court decision that found that amongst others, the defendants now appellants had obtained a property in Mt Hagen known as the YMCA Hall, by fraud. The plaintiffs now respondents oppose the appeal.

2. The appellants rely upon 26 grounds of appeal.

Preliminary

3. The respondents submit that the orders sought in the notice of appeal, for the orders of the National Court in Mt Hagen to be quashed or in lieu thereof, that the respondents’ claims be dismissed, are not orders that this court may make pursuant to s. 16 Supreme Court Act, and that this appeal should be dismissed on these grounds alone.

4. We are of the view that in addition to s. 16 giving this court the discretion as to the orders it may make upon the hearing of an appeal, the wording of s. 16 (c) is of sufficient width to allow the making of orders about which complaint is made. These preliminary points raised by the respondents are rejected.

Grounds of appeal

5. The appellants’ first ground of appeal is that the trial Judge erred in that he should have found that the respondent’s claims were time-barred under s.16 Frauds and Limitations Act 1988 in that they were founded on a simple contract or on tort for which a claim shall not be brought after the expiration of six years after the claim accrued.

6. Before considering this ground of appeal, we are of the view that it would be prudent to consider the second ground of appeal first as it concerns amongst others, whether the respondents’ claims are equitable. Section 18 Frauds and Limitations Act provides that s.16 does not apply to any claim for specific performance of a contract or for an injunction or for other equitable relief. If it is found that the respondents’ claims come within s. 18 Frauds and Limitations Act, it will not be necessary to consider the first ground of appeal.

Whether s. 18 Frauds and Limitations Act applies

7. In regard to whether the respondents’ claims come within s. 18 Frauds and...