Badastal Limited v Dr Puka Temu, Minister for Lands & Physical Planning and Mr Pepi Kimas, Secretary for Lands & Physical Planning and Mr Francis Tenge, Chairman of the Land Board and Mr Clement Kubaram, Surveyor General and Mr Raga Kavana, Registrar of Titles and The Independent State of Papua New Guinea (2011) SC1092

• Jurisdiction: Papua New Guinea
• Judge: Batari, Kariko & Sawong JJ
• Judgment Date: 11 March 2011
• Court: Supreme Court
• Citation: (2011) SC1092
• Docket Number: SCA N0. 107 0F 2008
• Year: 2011
• Judgement Number: SC1092

Full Title: SCA N0. 107 0F 2008; Badastal Limited v Dr Puka Temu, Minister for Lands & Physical Planning and Mr Pepi Kimas, Secretary for Lands & Physical Planning and Mr Francis Tenge, Chairman of the Land Board and Mr Clement Kubaram, Surveyor General and Mr Raga Kavana, Registrar of Titles and The Independent State of Papua New Guinea (2011) SC1092

Supreme Court: Batari, Kariko & Sawong JJ

Judgment Delivered: 11 March 2011

SC1092

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA N0. 107 0F 2008

Between:

BADASTAL LIMITED

Appellant

And:

DR PUKA TEMU, Minister for Lands & Physical Planning

First Respondent

And:

MR PEPI KIMAS, Secretary for Lands & Physical Planning

Second Respondent

And:

MR FRANCIS TENGE, Chairman of the Land Board

Third Respondent

MR CLEMENT KUBARAM, Surveyor General

Fourth Respondent

And:

MR RAGA KAVANA, Registrar of Titles

Fifth Respondent

And:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Sixth Respondent

Waigani: Batari, Kariko & Sawong JJ

2011: 2nd & 11th March

APPEAL – appeal against dismissal of claim - dismissal for want of proper notice under section 5 Claims By & Against the State Act – form of notice under section 5 – date when claim arose crucial in the notice.

APPEAL – PRACTICE AND PROCEDURE – interlocutory application in National Court must be by way of notice of motion.

Facts:

The appellant filed proceeding in the National Court seeking declaratory orders in respect of a piece of land. The Sixth Defendant filed a motion to dismiss the proceedings which was upheld by the National Court on the basis that there was no proper notice as required by section 5 of the Claims By and Against the State Act 1996.This appeal is against that decision of the National Court.

Held:

(1) A notice under section 5 of the Claims By and Against the State Act 1996 must provide the date of the alleged occurrence giving rise to claim or the alleged breach of contract.

(2) A person intending to make a claim against the State has obligation to provide the particulars of the intending claim.

(3) A defendant who has filed an appearance and a notice of intention to defend is entitled to make an interlocutory application.

(4) Interlocutory applications in the National Court shall be by way of motions and that the appropriate notice of motion must be properly filed and served.

(5) There being no errors by the trial judge, the appeal is dismissed.

Cases cited:

Chefs Secret Limited v. National Capital District Commission (2011) N4217

David Coyle v Loani Henao [2000] PNGLR 17

Hewali v Police Force & The State (2002) N2233

Minato v Kumo & The State (1998) N1768

Tohian & The State v. Tau Liu (1998) SC566

William Trnka v. The State N1957

Counsel:

Mr K Imako & A Token, for the appellant

Mr J Geita, for the respondents

11th March, 2011

1. BY THE COURT: On 13 November 2006, the Appellant filed proceedings WS 1639 of 2006 (“the Proceedings”) seeking declaratory orders in respect of a property described as Allotment 14 Section 2231 Hohola (Gordon 5). The sixth defendant filed a motion to dismiss the proceedings which was heard by His Honour Kandakasi J on 20 August 2008. His Honour upheld the application and ordered as follows:

(1) The Plaintiff’s purported Notice pursuant to Section 5 of the Claims By and Against the State Act, 1996 is no Notice.

(2) Entire proceeding is dismissed.

(3) Cost of the proceedings to the Sixth Defendant.

2. This appeal challenges the decision of the learned trial judge.

Grounds of appeal

3. The grounds set out in the Notice of Appeal are:

(1) The National Court erred in law and fact by holding that the Appellant’s Notice to the Solicitor General, dated 30 May 2006, failed to point out the date as to when the cause of action arose, and therefore, did not constitute Notice under the Claims By and Against the State Act, despite the Appellant’s evidence that the Appellant had sent a similar letter to the Second and Fifth Respondents, respectively and the Fifth Respondent succinctly responded to that letter. Therefore, regardless of the fact that the Notice failed to state the date as to when the cause of action arose, the other Respondents, who are servants, and or agents of the Sixth Respondent were aware of the facts relating to this matter, thus, the Sixth Respondent would have been able to conduct its investigation to defend the claim if it had obtained instructions particularly from the Fifth Respondent.

(2) The National Court erred in law by holding that the Appellant’s notice to the Solicitor General, dated 30 May 2006 did not constitute notice under the Claims By and Against the State Act, because the Appellant failed to give further particulars as requested by the Solicitor General, despite the appellants evidence that he Appellant sent to the Solicitor General copies of letters that it had sent to the Second and Fifth Respondent’s response, therefore, the appellant did comply with the Solicitor General’s request for further particulars.

(3) The National Court erred in law and fact by holding that the appellant’s land was forfeited because the appellants failed to comply with the improvement covenant, when this was a matter or issue for the trial judge to deal with at the trial and upon presentation of evidence.

(4) The National Court erred in law and fact by failing to consider and give credible weight to the evidence of the appellant in particular affidavit of Lionel Manua dated 14 February 2008 and the Annexure marked “B” and “C” in the Affidavit of Sandy Tiakin Lau, the lawyer for the sixth Respondent, in the Court below.

(5) The National Court erred in law by failing to take into account the fact that the Sixth Respondent Defendant filed its defence out of time without the leave of the Court, and therefore its Notice of Motion, filed on 18 June 2008, seeking to dismiss the proceeding for want of notice pursuant to Section 5 of the Claims By and Against the State Act, was an abuse of the process of the Courts.

4. Of these grounds of appeal, we would have had no hesitation in rejecting ground (4) as not constituting a proper ground of appeal as it is vague and in general terms and does not disclose the relevant particulars of the alleged error. This ground does not comply with the duty of an appellant to plead with particularity and precision the manner in which it is alleged that the court below erred in fact and/or law; David Coyle v Loani Henao [2000] PNGLR 17.However the appellant abandoned this ground.

5. In relation to ground (3), it is clear from the transcript that His Honour’s ruling was not based on the issue of whether the land in question had been properly forfeited and indeed His Honour made no finding on this aspect. The appellant also abandoned this ground.

6. We will therefore only discuss the remaining grounds of appeal which are summarised as follows:

(a) That the trial judge erred in law and fact in finding that the Appellant had failed to give proper notice to the State under section 5 of the Claims By and Against the State Act (“the Act”). (Grounds (1) and (2))

(b) That the trial judge erred in law in permitting the State to argue its motion to dismiss the proceeding when the State had filed its Defence out of time without leave of the court. (Ground (5))

Section 5 Notice

7. In relation to the section 5 notice, the trial judge firstly observed that the rationale behind the requirement to give notice “is to give the State early notice within the six months so that the State can carry out its investigations whilst the trail is fresh, so to speak, whilst evidence may still be intact.” His Honour went on to emphasise the view that the date and time when a cause of action is alleged to have occurred are critical particulars for the notice, so that time may be calculated to determine if the notice has been given within the stipulated period under section 5(2) of the Act, and secondly whether or not the claim is statute-barred.

8. The purported notice was in the form of a letter dated 30 May 2006 sent by the lawyers for the appellant to the Solicitor-General. The main body of the letter reads:

“re: Notice of Intention to make a claim against the State

We act for Badastal Limited.

We are instructed to give notice of our client’s intention to make claim aginst the State in accordance with section 5 of the Claims By and Against the State Act 1996.

Our client is the owner of Consolidated Allotments 13 and 14 Section 221, at Gordon 5, National Capital District contained in the State Residence Lease Volume 4 Folio 118.

We are instructed that our client engaged Arman Larmer Surveyors, who went to do a detail survey of the subject consolidated allotments for a K2. Million residential development project and they were chased by settlers occupying portion 2522.

Our client then found out that Allotment 14, Section 221, Gordon 5 had been altered to cater for a road easement to Portion 2522 without prior approval given to the Lands Department by our client.

On or about 23rd May 2006,...