Mark Mokono v Meria Kunako and Tayago Hamono and Anjol Yapin in his capacity as the Registrar of Titles, Department of Lands & Physical Planning and Luther Sipison in his capacity as the Acting Secretary, Department of Lands & Physical Planning and the Independant State of Papua New Guinea (2019) N8108

• Jurisdiction: Papua New Guinea
• Judge: Polume-Kiele J
• Judgment Date: 04 September 2019
• Court: National Court
• Citation: (2019) N8108
• Docket Number: WS No 52 of 2016
• Year: 2019
• Judgement Number: N8108

Full Title: WS No 52 of 2016; Mark Mokono v Meria Kunako and Tayago Hamono and Anjol Yapin in his capacity as the Registrar of Titles, Department of Lands & Physical Planning and Luther Sipison in his capacity as the Acting Secretary, Department of Lands & Physical Planning and the Independant State of Papua New Guinea (2019) N8108

National Court: Polume-Kiele J

Judgment Delivered: 4 September 2019

N8108

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 52 OF 2016

BETWEEN

MARK MOKONO

Plaintiff

AND

MERIA KUNAKO

First Defendant

AND

TAYAGO HAMONO

Second Defendant

AND

ANJOL YAPIN in his capacity as the Registrar of Titles,

Department of Lands & Physical Planning

Third Defendant

AND

LUTHER SIPISON in his capacity as the Acting Secretary,

Department of Lands & Physical Planning

Fourth Defendant

AND

THE INDEPENDANT STATE OF PAPUA NEW GUINEA

Fifth Defendant

Waigani: Polume-Kiele J

2017: 5th December

2019: 4th September

PRACTICE AND PROCEDURE - Claim alleging fraud – transfer of title in land - notice under s. 5 of Claims By and Against the State Act (‘s. 5 notice’) not given – Statement of claim pleads details of particulars of fraud.

PRACTICE AND PROCEDURE - Limitation periods – Whether an action seeking equitable relief including consequential general damages is “an action … on simple contract” – Frauds and Limitations Act, Section 16(1) – Whether an action should be regarded as a claim for “specific performance of a contract or for other equitable relief” – Frauds and Limitations Act, Section 18 – action seeking equitable relief including consequential damages – not action on … simple contract – s 16 (1) – Frauds & Limitation Act – does not apply.

Facts

The plaintiff’s claim is one based on allegations of fraud. He seeks declarations that the purported transfer of title to the property described as Allotment 1 Section 26 Hohola, National Capital District on the 6 of October 2015 from Waralo Business Group Inc to the first and second defendant was fraudulent, illegal and therefore the transfer was void ab initio. The plaintiff also seeks orders that the transfer to the first and second defendant be cancelled and the title to the property be restored to his name. The plaintiff also claims for general damages.

Held:

(1) No Notice of Claim has been given by the Plaintiffs under s.5 of the Claims By and Against the State Act 1996. No leave had been granted by the Attorney-General or the Court prior to institution of these proceedings. Consequently, there is no claim against the State.

(2) The first and second defendants are private persons capable of suing and being sued in their own name and style. The requirements of Section 5 Notice under the Claims By and Against the State does not apply to them.

(3) Title to the property was registered in the name of the Business Group, Waralo Business Group Inc who has since sold the property to the first and second defendants.

(4) The Waralo Business Group Inc. is added as the Sixth Defendant to these proceeding so any issues in respect to ownership to subject property be heard and determined.

(5) Action seeking equitable relief including consequential damages – not action on … simple contract – s 16 (1) – Frauds & Limitation Act – does not apply.

Counsel:

Mr. A Jerewai, for the Plaintiff

Mr. R Joseph, for the First and Second Defendant

Mr. J Wane, for the Third, Fourth and Fifth Defendants

RULING ON MOTION

4th September, 2019

1. POLUME-KIELE J: On the 5 December 2017, two motions were moved before me. The first motion was filed on the 10 of November 2017 by the first and second defendants which was supported by an affidavit of Mr. Ricky Joseph sworn and filed on the 10 of November 2017 (Document No. 40). The motion sought dismissal of the entire proceedings for being time barred pursuant to s 16 (1) of the Frauds & Limitation Act and Order 12 Rule 1of the Rules.

2. The second motion was filed on the 8 of November 2017 by the third, fourth and fifth defendants and supported by an affidavit of Mr. Joseph Wane sworn on the 6 November 2017 and filed on the 8 of November 2017. This motion also sought orders for dismissal of the entire proceedings for lack of s 5 notice to make a claim against the State under the Claims By and Against the State Act 1996, s 5 (2).

3. The plaintiff opposes the application and says that the claim is equitable in nature and therefore s 18 of the Frauds & Limitation Act applies. He relies on his own affidavit sworn and filed on the 13 of September 2017. On the issue of the s 5 Notice, there appears to be no evidence of the plaintiff’s compliance with the s 5 Notice requirements.

4. This is my ruling on the applications.

Hearing of motion

5. Upon hearing counsels for the defendants on their respective applications and the response from the plaintiff’s counsel. I caused an enquiry of the material documents on the Court file and upon conducting such an enquiry, I note the following:

(i) On 10 February 2016, the plaintiff filed these proceedings at the Waigani Registry.

(ii) Whilst I note that there is no affidavit of service on the Court file, it is apparent that all the defendants have filed their respective Notices of Intention to Defend to the claim. In this regard, the first and second defendants filed their Notice of Intention to Defend (Document No. 2) on the 24 of February 2016 and similarly, the third, fourth and fifth defendants also filed their Notice of Intention to Defend on the 2 of March 2016 (Document No. 3) on the Court file.

(iii) On the 4 of May 2016, the third, fourth and fifth defendants filed their Defence to the Claim (Document No. 5) on the Court file. They now raise the lack of s 5 Notice as the basis of their application to have the entire proceedings dismissed.

(iv) Since then, these proceedings have progressed this far followed by a series of notice of motions which have been filed commencing from 31 October 2016, filed by the first and second defendants seeking leave of court to file a defence out of time. What became of this application, it remains to be clarified? However, I do note that the first and second defendants filed their Defence to the claim on the 8 of December 2016, there appears to be no Court file endorsement as to the Court granting leave to extent time to the first and second defendants to file a defence out of time. In any case, I leave these matters here for now as there also appears to be no objections raised by the plaintiff with regard to this defence

(v) On the 13 of January 2017, the first and second defendants filed a further motion seeking dismissal of the entire proceedings. This notice of motion was dismissed on the 16th of February 2017. Being unsuccessful on the first attempt to dismiss the entire proceedings, the first and second defendants have again filed a notice of motion, seeking dismissal of the entire proceedings on the basis that the claim is statute barred or time barred under s 16 (1) of the Frauds & Limitation Act 1988.

6. In this present case, the plaintiff pleads frauds in relation to the transfer of title to the property described as Allotment 1 Section 26 Hohola, Port Moresby, National Capital District from the Waralo Business Group Inc. to the first and second defendants. The history of the facts leading to the allegation of fraud is detailed in the pleadings in the statement of claim.

7. The plaintiff also relies on his own affidavit sworn and filed on the 13 of September 2016 (Document No. 10) on the Court file to support his claim. Further, the plaintiff claims several equitable reliefs including a claim for general damages, the relevant parts of the Plaintiff’s Statement of Claim are restated below:

“D. AND THE PLAINTIFF THEREFORE CLAIMS:

Substantive Relief Sought

1. An order in the nature of a Declaration that the purported sale and transfer of the property facilitated by the Third Defendant from Waralo Business Group Inc. to the First and Second Defendants between 4th August 2004 and 8th October 2015 is illegal, null and void ab initio.

2. An order in the nature of a Declaration that the First and Second Defendants never acquired, and therefore, never held title to the property at Allotment 1 Section 26 Hohola, Port Moresby National Capital District

3. An order that the third defendant, within 7 days, amend the Register of Titles relevant to the Property and record Waralo Business Group Inc. as the legal proprietor and transfer the title to the Plaintiff

4. General damages against the defendants for the mental and physical stress, anxiety, hardship, inconvenience, and pain and suffering experienced by the plaintiff

5. Interest at 8% per annum on the amount award which shall accrue from the date of filing of the writ

6. Costs of the proceedings to be borne by the defendants through apportionment...