Paul Apakali v Porgera (SMLl) Landowners Association

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 18 July 2014
• Citation: (2014) N5671
• Court: National Court
• Year: 2014
• Judgement Number: N5671

Full : OS NO. 349 OF 2012; Paul Apakali for himself and on behalf of Pakien Clan whose names are listed in Schedule A v Porgera (SMLl) Landowners Association and Kupiane Yuu Anduane Company Limited and Porgera Joint Venture (Barrick (PNG) Limited) and: Mineral Resources Enga Limited and Mineral Resources Authority and The Independent State of Papua New Guinea (2014) N5671

National Court: Davani J

Judgment Delivered: 18 July 2014

N5671

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 349 OF 2012

BETWEEN:

PAUL APAKALI FOR HIMSELF AND ON BEHALF OF PAKIEN CLAN WHOSE NAMES ARE LISTED IN SCHEDULE A

Plaintiff

AND:

PORGERA (SML) LANDOWNERS ASSOCIATION

First Defendant

AND:

KUPIANE YUU ANDUANE COMPANY LIMITED

Second Defendant

AND:

PORGERA JOINT VENTURE (BARRICK (PNG) LIMITED)

Third Defendant

AND:

MINERAL RESOURCES ENGA LIMITED

Fourth Defendant

AND:

MINERAL RESOURCES AUTHORITY

Fifth Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Sixth Defendant

Waigani: Davani .J

2014: 8th, 18th July,

PRACTISE AND PROCEDURE – Notice to Admit Facts – when to issue – function and purpose of – Judgment - O.9 R. 29, 30 of the National Court Rules

PLEADINGS – to plead cause of action – incorrect mode – courts powers to control proceedings

Facts

The plaintiffs are a landowner group and seek payment of royalties due to them. Their claim is by way of an Originating Summons where they seek to be declared or recognized as landowners over the land in question and to also have royalties paid to them and which must be backdated to 1992. The defendants filed an application seeking to have the proceedings dismissed because;

- The claim is statute barred;

- The Originating Summons is the incorrect mode of proceedings and that the proceedings should have commenced by way of Writ of Summons and Statement of Claim;

- That the proceedings are an abuse of process.

The plaintiffs also, relying on a Notice to Admit Facts to which it did not receive a response from the defendant, asks for judgment.

Held:

1. The main purpose of a Notice to Admit Facts is to allow the litigant the opportunity of requiring an opponent either to admit matters that are not genuinely in dispute or face the risk of an order to pay the costs incurred in establishing them by evidence.

2. A party is not entitled as of right to judgment on admissions even where the fact of the admissions having been made is not in issue.

3. An order for judgment should not be made under this rule if it appears to the Court that an admission made whether by failure to plead or otherwise, is contrary to the true facts.

4. The power, that any individual or entity be recognized as a member of an Association, lies in the Constitution of that association, not with the Court.

5. The Courts power to determine the fate of a proceeding can be exercised, even without there being a formal application before the Court and is an exercise of the Court’s discretion, to control proceedings before it.

Cases cited

Papua New Guinea cases

The State v. Lohia Sisia [1987] PNGLR 102

Sioti Bauf and Lavoi Nodai v. Poliamba Pty Ltd [1990] PNGLR 278

State v. Alphonse Wohuinangu (1991) N966

Samson Kai v. the State (1992) N1079

William Maki v. Michael Pundia [1993] PNGLR 337

Public Officers Superannuation Fund Board v. Salais Imanakuan (2001) SC 677

Karl Paul v. Aruai Kispe, the Regional Manager, PNG Forest Authority-Lae (2001) N2085

PNGBC v. Jeff Tole (2002) SC 694

NPF Board of Trustee v. Jimmy Maladina (2003) N2486

Opre Wamabiang v. Alia Palme and the State (2012) N4714

Nauwin Wee Ltd v. Richard Maru (2012) N4874

Elia Ah v. Ahduang Dawon (2013) N5091

Overseas Cases

Lee Conservancy v. Button (1879) 12 Ch.D

Gramorphone Co. Ltd v. Magazine Holder Co (1911) 28 RPC 221

Termijtelen v. Van Arkel [1974] L NSWLR 525

Counsel:

Mr C. Narokobi, for the Plaintiffs/respondents

Mr P. Mawa, for the first, second and fourth defendants/applicants

Ms R. Kalepo, for the fifth Defendant/respondent

DECISION

18th July, 2014

1. DAVANI .J: Before the Court for hearing is Notice of Motion filed on 10th March, 2014 by Mawa Lawyers and which motion seeks that the proceedings be dismissed on the following basis;

i. That the land, the subject of the proceedings, is customary land and that the plaintiffs are requesting the Court to deliberate on matters involving customary land when it does not have jurisdiction to do so, which is specifically stated in the Land Disputes Settlement Act, Chapter No. 45;

ii. That the proceedings be dismissed for failing to disclose a reasonable cause of action and for being an abuse of process, application moved pursuant to order 12 rule 40 of the National Court Rules;

iii. That the proceedings are statute barred, by virtue of section 16 (2) of the Frauds and Limitations Act (‘the Frauds Act)’;

iv. That the plaintiffs are pursuing this action under a wrong mode when the claim should have been by way of Writ of Summons and Statement of Claim and this is because the plaintiff is;

- claiming damages; and

- the issues are disputed; and

- the plaintiffs seek orders that royalty be paid which means it must be assessed and, which will require that these royalties be particularized in a Statement of Claim and that evidence of this be called at a trial.

Issues

4. The plaintiff submits these to be the issues;

i. Whether the proceedings are statute barred under s. 16(2) of the Frauds Act;

ii. Whether the National Court can deal with or has jurisdiction to hear issues relating to customary land;

iii. Whether the proceedings are an abuse of process;

iv. Whether the proceedings disclose a cause of action?

Analysis of evidence and the issues

I. First Issue – whether the proceedings are statute barred under s. 16 (2) of the Frauds Act (and the related issue of the Notice to Admit Facts)

5. The general claim pleaded in the originating summons is for royalties to be paid to the plaintiffs.

6. The originating summons states that the production of gold commenced in 1989 and that the plaintiff’s claim seeking payment of royalties be backdated to 1992.

7. Mr Narokobi submits that Mr Mawa’s submissions do not have any merit because he had issued a Notice to Admit Facts (‘the Notice’) pursuant to O. 9, R. 29 (30) of the National Court Rules (‘NCR’) and that the defendants have not responded to it. He submits that the lack of a response means that the plaintiff is entitled to judgment on the questions posed in the Notice.

8. Mr Narokobi made those submissions, without substantiating them either with case law or Common Law principles. I say this because the law on Admissions is very clear in that this interlocutory process is available to parties when the issues are uncontested and settled. It is also a procedure that is availed of to save a party the expense of proving facts (see Samson Kai v. the State (1992) N1079). In this case, the issues are far from being uncontested and settled.

9. O. 9 Division 3 of the NCR, the Division on Admissions, is based on R. 18.1 to 18.6 of Ritchie’s Supreme Procedure of New South Wales (‘Ritchies’). This is the document on which our National Court Rules is based and the rule on which O.9 R. 29 was created. The rule in Ritchies can be found under part 18, the part titled “Admissions”. The introductory note in that part reads;

“[18.0.0] Introductory Note

The main purpose of this Part is to save time and expense. It allows the litigant the opportunity of requiring opponents either to admit matters that are not genuinely in dispute or face the risk of an order to pay the costs incurred in establishing them by evidence. The Part compliments the Court’s powers in s.82 of the Supreme Court Act 1970 as well as the interrogatory procedure provided in Pt 24. Rule 18.1 of Ritchies is in the same terms as PNG’s order 9 rule 28.”

(my emphasis)

10. Clearly, this only confirms what I stated above, that this process should only be utilized where it is clear that there are undisputed facts which must be admitted prior to the matter proceedings to trial because these admitted facts will not form the issues and facts, that will go to trial and it assists in shortening trial time.

11. Rule 18.2 of Ritchies is in the same terms as PNG’s O. 9, R. 29 of the NCR. I set out in full O. 9 R. 29 which reads;

“29. Notice to Admit Facts (18/2)

(1) A party to proceedings may, by notice served on another party, require him to admit, for the purpose of the proceedings only, the facts specified in the Notice.

(2) If, as to any fact specified in the notice, the party on whom the notice is served, does not, within 14 days after service, serve on the party serving the notice to admit facts, a notice disputing that fact, that fact shall, for the purpose of the proceedings, be admitted by the party on whom the notice to admit facts is served in favour of the party serving the notice.

(3) A party may, with the leave of the Court, withdraw an admission under sub-rule (2).”

12. The...