Covec (PNG) Limited v Peter Kama and Others

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Judge: Yagi J,Numapo J,Carey J
• Judgment Date: 31 July 2026
• Neutral Citation: SC2872
• Docket Number: SCA 123 OF 2024 (IECMS)
• Date: 31 July 2026
• Counsel: Mr. W. Mapiso, for the appellant,Mr. C. Gagma, for the first respondents,Ms. S. Nisimi, for the second, third, fourth and fifth respondent,Ms. J. Kare, for the sixth respondents,Counsel

SC2872

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCA 123 OF 2024 (IECMS)

Between:

Covec (PNG) Limited

Appellant

v.

Peter Kama, Anna Kama and Micah Kama as Joint Tenants Over Sabl 1239C Hela Roads Joint Venture Limited

First Respondents

and

Ala Ane – Registrar of Titles

Second Respondent

and

Benjamin Samson – Secretary, Department of Lands & Physical Planning

Third Respondent

and

Hon. John Rosso – Minister for Lands & Physical Planning

Fourth Respondent

and

The Independent State of Papua New Guinea

Fifth Respondent

and

John Nuka – for himself and on behalf of the Kunalgapam Clan of Kumai Tribe of Kup, Kerowagi District, Simbu Province

Sixth Respondents

WAIGANI: Yagi J, Numapo J, Carey J

24 February, 31 July 2026

SUPREME COURT — Appeal against National Court Decision — summary dismissal — limitation — new points raised on appeal — constructive and equitable fraud — Registrar of Titles Summons

The Appellant appeals against the decision of the trial judge who summarily dismissed the proceedings. The Appeal lies without leave as the decision of the National Court is final and involves questions of law and/or mixed facts and law. The Sixth Respondents support the appeal by the Appellant. The First, Second, Third, Fourth and Fifth Respondents oppose the Appeal.

Held

1. A party cannot mount a fresh jurisdictional objection for the first time on appeal without leave and therefore, in the absence of leave, the objection is not properly before the Court and will not be entertained. Following Independent State of PNG v Maladina [2021] SC2180; Fairweather v Singirok [2013] SC1293.

2. Where the pleading does not distinctly articulate an equitable cause of action, section 16(1) of the Frauds and Limitation Act applies.

3. For challenges to a registered State lease on the basis of fraud or tort or procedural irregularity, the cause ordinarily accrues on registration and a claim lodged twelve years post registration is statute barred.

4. The Registrar of Titles administrative summons to surrender an owner's copy of title does not determine title, effect cancellation, suspend limitation or revive a time-barred claim and is immaterial to accrual under section 16(1) the Frauds and Limitations Act.

5. The Appeal is dismissed in its entirety.

6. The Appellant shall pay the costs of the First Respondents, Second Respondent, Third Respondent, Fourth Respondent and Fifth Respondent, and the Sixth Respondents to pay its own costs, to be taxed if not agreed.

Cases cited

Camilus v Mota [2022] SC2210

Fairweather v Singirok [2013] SC1293

Independent State of PNG v Maladina [2021] SC2180

Kandapaki v Enga Provincial Government [2011] SC1140

Mamun Investment Ltd v Koi [2015] SC1409

Porgera Joint Venture v Yako [2008] SC916

Powi v Southern Highlands Provincial Government [2006] SC844

Roman Catholic Archdiocese of Rabaul v Paonga & Ors [2024] SC2674

Tagau v Selon Ltd [2018] SC1755

Timothy & Ors v Timothy [2022] SC2282

Counsel

Mr. W. Mapiso, for the appellant

Mr. C. Gagma, for the first respondents

Ms. S. Nisimi, for the second, third, fourth and fifth respondent

Ms. J. Kare, for the sixth respondents

Lawyers for the appellant: Guardian Legal Services

Lawyers for the first respondents: Gagma Legal Services

Lawyer for the second, third, fourth and fifth respondent: Solicitor General

Lawyers for the sixth respondent: Kare and Associates Lawyers

JUDGMENT

1. BY THE COURT: This is the decision in the appeal of the whole judgment given by the trial judge on 26^th September 2024 styled WS No. 197 of 2020.

BACKGROUND FACTS

2. On 11^th March 2020, John Nuka, in his representative capacity (the Sixth Respondents) filed a Writ of Summons in the National Court. The causes of action were fraud, misrepresentation and illegality, procedural irregularities, breach of fiduciary duties, breach of agreement and negligence.

3. The Sixth Respondents also disputed the customary ownership of Portion 1239C, Volume 15, Folio 43, Barawagi, Simbu Province (the Land) which was registered on 11^th March 2008 to the First Respondents under a Special Agriculture and Business Lease (SABL).

4. The Sixth Respondents claimed that they were customary landowners over the Land and that the SABL was irregularly issued to Peter Kama, Anna Kama and Micah Kama (the First Respondents) which amounted to fraud.

5. The Land had economic value due to gravel extraction used to rehabilitate the Simbu section of the Okuk Highway. In another proceeding, WS 712 of 2007, the First Respondents sued the Second to Fifth Respondents for trespass and were successful.

6. In proceeding SCA 16 of 2017, the Supreme Court upheld the ownership of the First Respondents and awarded over K4 million in damages.

7. The claim founded on fraud was against the First Respondents, Ale Ane in his capacity as Registrar of Titles (the Second Respondent), Benjamin Samson in his capacity as the Secretary for Department of Lands and Physical Planning (the Third Respondent), the Honourable John Rosso in his capacity as Minister For Lands And Physical Planning (the Fourth Respondent) and the Independent State of Papua New Guinea (the Fifth Respondent). There was no claim against COVEC (PNG) Limited (the Appellant).

8. On 25^th April 2023 the First Respondents moved an application to dismiss the proceedings based on the following ground, among others:

7.1 the Section 5 Notice to the State was served outside the time limits prescribed by the Claims By and Against the State Act (CBASA),

7.2 the proceeding being time barred pursuant to section 16 of the Frauds and Limitations Act 1988 (FLA),

7.3 the cause of action disputes customary land ownership which the Court does not have jurisdiction,

7.4 the proceeding should be summarily dismissed for being frivolous, vexatious or an abuse of process for the above reasons, and

7.5 the proceeding should be dismissed for want of prosecution.

9. On 26^th September 2024 the National Court delivered its reserved ruling where the matter was summarily dismissed on the basis that the claim was filed 12 years from the date the cause of action accrued, which was on or around 11^th March 2008, and therefore was time barred under section 16(1) of the FLA.

10. The National Court relied on section 155(4) of the Constitution and Order 12(1) of the National Court Rules (the NCR) as jurisdictional basis to dismiss the entire proceeding.

11. The Appellant filed this appeal on 3^rd October 2024.

ISSUES

12. The Appellant raised nine (9) grounds of appeal in its submission. They are as follows:

11.1 The Notice of Motion of the First Respondents filed on 25^th April 2023 to dismiss the proceedings for statute barred under section 16(1) of the FLA was non-compliant with Order 4, Rule 49(8) of the NCR. The motion cited references to jurisdiction of the Court which were irrelevant. The motion judge should have dismissed the application to dismiss for want of competence and abuse of process however failed to do so which is considered unfair.

11.2 The cause of action was not based on fraud but constructive fraud or equitable fraud to which section 16 did not apply. Pursuant to section 18 of the FLA, a claim in equity, such as constructive fraud, is not affected by section 16. However the motion judge erred in mixed fact and law in failing to examine the pleadings in order to determine the true nature of the cause of action and the reliefs sought and further proceeded to dismiss the proceedings on the ground of time bar when there was no clear set of facts neither was it a clear-cut case warranting summary disposal of the matter contrary to the principle in Oil Search Limited v Mineral Resources Development Corporation Ltd [2010] SC1022.

11.3 After reserving judgment on the application to dismiss the proceedings, the Court identified several conflicting Supreme Court authorities on the meaning of fraud under section 33(1)(a) of the Land Registration Act 1981 (the LRA) where the issue of whether section 18 of the FLA applies to constructive fraud cases to render inapplicable the time limit of six years in section 16 of the FLA was not authoritatively decided. Parties did not address the court on the issue. Pursuant to the Constitution sections 59 and 158, the Court should have invited the parties to provide further submissions or arguments on the issue. However, the motion judge erred in law when she failed to conduct the proceedings fairly and failed to give paramount consideration to the dispensation of justice.

11.4 The motion Judge erred in mixed fact and law when she failed to distinguish the decision in Mamun Investment Limited v Koi [2015] SC1409 on the basis that unlike in that case, in this case, the underlying basis for seeking declaratory relief was based upon serious allegations of non-compliances and or irregularities committed by the Department of Lands and Physical Planning which clearly disclosed a claim in equitable fraud within the definition of ‘other equitable relief’ in section 18 of the FLA.

11.5 The motion Judge erred in mixed fact and law in wrongly dismissing the claim for being time barred pursuant to section 16 of the FLA when the cause of action based on tort or fraud or constructive fraud accrued on 9^th December 2022 when the Registrar of Titles summoned the First Respondents to surrender the Owner's Original Copy of the State Lease (SABL) for cancellation.

11.6 The motion judge erred in mixed fact and law when she failed to exercise the discretion of the Court judicially in the interest of justice by refusing the application to dismiss the proceedings in circumstances where:

a. Given the common knowledge of the topography of the entire Simbu Province and high population density, it is practically impossible for the First Respondents to be issued a SABL title covering customary land area of 16.7 hectares to the exclusion of all other customary landowners including the Sixth Respondents was a material consideration which the motion judge failed to consider;

b. The...