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
• Judge: David J
• Judgment Date: 21 May 2012
• Court: National Court
• Citation: (2012) N4715
• Docket Number: WS No.1293 of 2010
• Year: 2012
• Judgement Number: N4715

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

N4715

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS No.1293 of 2010

BETWEEN:

OPRE WAMABIANG

Plaintiff

AND:

ALICE PALME

First Defendant

AND:

ALISONS STRUGGLE LIMITED

Second Defendant

AND:

RAGA KAVANA

Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Mt. Hagen: David, J

2012: 11 & 21 May

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, Section 16.

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 Electoral Commission and The State (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 Limited v Thomason [1975] PNGLR 454

John Cybula v Nings Agencies Pty Ltd [1978] PNGLR 166

Anthony John Polling v MVIT [1986] PNGLR 230

Credit Corporation (PNG) Ltd v Gerald Jee [1988-89] PNGLR 11

PNG Forest Products Pty Ltd and Inchcape Berhad v The Independent State of Papua New Guinea, Jack Genia and the Minister for Forests [1992] PNGLR 85

Samson Kai v The State (1992) N1079

Komboro George v MVIT [1993] PNGLR 477

Titus Keran v Jerry Warun & Country Motors Pty Ltd [1994] PNGLR 130

Ronny Wabia v BP Exploration Operating Co Ltd [1998] PNGLR 8

Kappo No 5 Pty Limited 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 Nasaum Holdings Ltd (2002) 2273

Porgera Freighters Limited v Bank of South Pacific Limited (2004) N2662

Michael Kewa v Elias M. Kombo (2004) N2688

Kiee Toap v The Independent State of Papua New Guinea (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

Counsel:

Leslie Ako Kari, for the plaintiff

Veronica Palts, for the First & Second Defendants

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 Section 155 (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 Section 155 (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 the customary landowner of the land, but state that it was sold to the First Defendant for which payments were made hence the land was obtained legally. The land was then subdivided into 3 portions namely, Portions 2529, 2530 and 2531 and separate State Leases were issued over each portion following compliance with correct legal procedures. The First Defendant admits signing a statutory declaration to pay some customary compensation for the land, but states that it is not an agreement in law.

13. According to the Court’s record, the Third and Fourth Defendants have not filed any notice of intention to defend these proceedings or defence.

ISSUES

14. The primary issues arising from these motions for my consideration and determination are:

1. whether the proceedings should be dismissed for failing to file a verified list of documents?

2. whether the proceedings should be dismissed for failing to disclose a reasonable cause...