Opre Wamabiang v Alice Palme and Alisons Struggle Limited and Raga Kavana and the Independent State of Papua New Guinea (2012) N4715

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 21 May 2012
• Citation: (2012) N4715
• Docket Number: WS No.1293 of 2010
• Year: 2012

Full Title: WS No.1293 of 2010; Opre Wamabiang v Alice Palme and Alisons Struggle Limited and Raga Kavana and the Independent State of Papua New Guinea (2012) N4715

National Court: David, J

Judgment Delivered: 21 May 2012

PRACTICE & PROCEDURE—application to dismiss proceedings—plaintiff’s claim primarily based on fraud—statutory prohibition to summarily dismiss—relief sought refused—National Court Rules, Order 12 Rules 37 and 40—Frauds and Limitations Act, s16.

PRACTICE & PROCEDURE—application to dismiss proceedings—default in giving discovery—list of documents provided without verification—partial compliance - relief sought refused—National Court Rules, Order 9 Rule 15(1)(a).

PRACTICE & PROCEDURE—application to amend statement of claim—relief sought granted—National Court Rules, Order 8 Rule 50 (1).

PRACTICE & PROCEDURE—failure of First and Second Defendants to supply answer to notice to admit facts - application for order that default deemed admission of facts specified in notice—relief sought refused—National Court Rules, Order 9 Rule 29.

EVICTION—alternative remedy—application for order to evict plaintiff from three portions of land—one portion subject of an appeal in the National Court from a decision of the Mt. Hagen District Court - stay order in place—relief sought refused.

Cases cited:

Anderson Agiru v The Electoral Commission (2002) SC687; Curtain Bros (PNG) Ltd v UPNG (2005) SC788; Niugini Mining Ltd v Joe Bumbandy (2005) SC804; Rural Development Bank Ltd v Maria Laka (2007) SC897; Philip Takori v Simon Yagari (2008) SC905; Hilary Singat v Commissioner of Police (2008) SC910; Alfred Alan Daniel v Pak Domoi Ltd (2009) SC970; Mount Hagen Urban Local Level Government v Sek No. 15 Ltd (2009) SC1007; Rex Paki v MVIL (2010) SC1015; New Guinea Company Ltd v Thomason [1975] PNGLR 454; John Cybula v Nings Agencies Pty Ltd [1978] PNGLR 166; Anthony John Polling v MVIT [1986] PNGLR 228; Credit Corporation (PNG) Ltd v Gerald Jee [1988–89] PNGLR 11; PNG Forest Products Pty Ltd v The State [1992] PNGLR 85; Samson Kai v The State (1992) N1079; Komboro George v MVIT [1993] PNGLR 477; Titus Keran v Jerry Warun and Country Motors Pty Ltd [1994] PNGLR 130; Ronny Wabia v BP Exploration Operating Co Ltd [1998] PNGLR 8; Kappo No 5 Pty Ltd v Wong [1998] PNGLR 544; Gabriel Apio Irafawe v Yauwe Riyong (1999) N1915; Eliakim Laki v Maurice Alaluku, Secretary Department of Lands [2000] PNGLR 392; The Papua Club Inc v Nusaum Holdings Ltd [2002] PNGLR 230; Porgera Freighters Ltd v Bank of South Pacific Ltd (2004) N2662; Michael Kewa v Elias Mai Kombo (2004) N2688; Kiee Toap v The State (2004) N2731; Lawrence Mango v Peter Chow Po Khoon (2005) N2907; Goma Ermuke v MVIL (2009) N3719; Angeline Petersen and Svend Antony Petersen v Telikom (PNG) Limited, Unreported & Unnumbered Judgment of Kandakasi, J of 3 May 2012

RULING ON MOTION

DAVID J: INTRODUCTION: This is a ruling on 2 motions brought before me for determination.

1. The First and Second Defendants’ notice of motion was filed earlier in time so it was moved first followed by the plaintiff’s.

2. By their notice of motion filed on 5 September 2011, the First and Second Defendants seek the following orders:

“1. Pursuant to Order 9 Rule 15 (1)(a) of the National Court Rules, the proceedings be dismissed.

2. Additionally, pursuant to Order 12 Rule 40 (1) of the National Court Rules, the proceedings be dismissed for being frivolous or vexatious and disclosing no reasonable cause of action and are an abuse of process.

3. Alternatively, pursuant to s155 (4) of the Constitution, the Plaintiff be evicted from Portions 2529, 2530 and 2531 Milinch of Hagen, Fourmil of Ramu, Western Highlands Province forthwith:

(a) if orders one (1) and two (2) above are granted; or

(b) pending the substantive proceedings, if orders one (1) and two (2) above are refused.

4. The Plaintiff pays the cost and incidental to the application.

5. Any other order this Court sees appropriate.”

4. To support the application, the First and Second Defendants rely on the following documents:

1. Affidavit in Support of Alice Palme sworn on 1 September 2011 and filed on 5 September 2011; and

2. Affidavit in Support of Winston Kapipi sworn on 2 September 2011 and filed on 5 September 2011.

5. In the Affidavit in Support of Winston Kapipi, he craved leave to refer to a number of affidavits filed in the proceedings and these are:

1. the Affidavit of Service of Alice Palme sworn on 6 July 2011 and filed on 7 July 2011;

2. Affidavit of Search of Sam Nanga sworn and filed on 19 July 2011;

3. Affidavit of Service of Alice Palme sworn on 27 July 2011 and filed on 28 July 2011; and

4. Affidavit of Search of Ellie Jacob sworn and filed on 24 August 2011.

6. I have considered these affidavits as well.

7. By his notice of motion filed on 14 March 2012, the plaintiff seeks the following orders:

“1. That pursuant to Order 8 Rule 50 (1) of the National Court Rules and s155 (4) of the Constitution of PNG, the Plaintiff be granted leave to amend the statement of claim.

2. That pursuant to Order 8 Rule 51 (2)(b) of the National Court Rules, the defendants file their defence within 14 days after service of a sealed copy of the amended writ and statement of claim.

3. That pursuant to Order 9 Rule 29 (2) of the National Court Rules, the defendants are deemed to have admitted the facts as are contained in the Notice to Admit Facts.

4. That costs be in the cause.

5. Such further and other orders as the Court sees fit.

6. The time for the entry of the orders be abridged.”

8. To support the application, the plaintiff relies on the affidavit of Opre Wamabiang sworn on 12 March 2012 and filed on 14 March 2012.

9. Both motions were contested.

BRIEF BACKGROUND

10. On 19 October 2010, the plaintiff filed his writ of summons endorsed with a statement of claim. His allegations are basically these. He is the original customary landowner of a piece or parcel of land known as Ganga situated between Tega and Dobel areas in Mt. Hagen (the land) which the defendants have now subdivided into three blocks namely, Portions 2529, 2530 and 2531 Milinch of Hagen, Fourmil of Ramu and converted to special purpose State Leases. In or about 1993, the First Defendant approached the plaintiff and requested him to release the land to her on an undertaking that; she have it registered under a company which would then pave way for the land to be developed for business purposes including making it possible to obtain a loan from the National Development Bank which the First Defendant’s husband was the Chairman of then and the plaintiff would be a partner and a director in the business venture. Based on this undertaking, the plaintiff released the land to the First Defendant. The First Defendant did not honour the undertaking. Instead, she fraudulently converted the land from customary land to a special purpose lease which is now registered under the name of the Second Defendant. Her action was therefore unlawful or illegal. The particulars of fraud are pleaded at paragraph 15 of the statement of claim. The plaintiff principally claims compensation in the sum of K320,000.00, damages for distress and anxiety, and the surrender of the title to him.

11. On 4 November 2010, the First and Second Defendants filed their notice of intention to defend

12. On 2 December 2010, they filed their defence basically denying liability. They do not admit the plaintiff’s claim to being...