WS NO 628 OF 2008; Robert Kittika and Pastor Peter Kapia for and on behalf of Banz Christian Life Centre Church, Banz Elementary School v Raga Kavana, Registrar of Titles Department of Lands & Physical Planning and Benjamin Samson, Deputy Registrar of Titles (Highlands) Department of Lands & Physical Planning and The Independent State of Papua New Guinea and Church of The Nazarene Highlands District Inc., Taime Diriye, Pastor Robin Mulom & Simon Gispe (2010) N4051

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Makail, J
• Judgment Date: 11 June 2010
• Citation: (2010) N4051
• Judgment Number: N4051
• Year: 2010

Full Title: WS NO 628 OF 2008; Robert Kittika and Pastor Peter Kapia for and on behalf of Banz Christian Life Centre Church, Banz Elementary School v Raga Kavana, Registrar of Titles Department of Lands & Physical Planning and Benjamin Samson, Deputy Registrar of Titles (Highlands) Department of Lands & Physical Planning and The Independent State of Papua New Guinea and Church of The Nazarene Highlands District Inc., Taime Diriye, Pastor Robin Mulom & Simon Gispe (2010) N4051

National Court: Makail, J

Judgment Delivered: 11th June 2010

N4051

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 628 OF 2008

BETWEEN

ROBERT KITTIKA

First Plaintiff

AND

PASTOR PETER KAPIA for and on behalf of BANZ CHRISTIAN LIFE CENTRE CHURCH, BANZ ELEMENTARY SCHOOL

Second Plaintiff

AND

RAGA KAVANA, REGISTRAR OF TITLES

DEPARTMENT OF LANDS & PHYSICAL PLANNING

First Defendant

AND

BENJAMIN SAMSON, DEPUTY REGISTRAR OF TITLES (HIGHLANDS)

DEPARTMENT OF LANDS & PHYSICAL PLANNING

Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

AND

CHURCH OF THE NAZARENE

HIGHLANDS DISTRICT INC., TAIME DIRIYE, PASTOR ROBIN MULOM & SIMON GISPE

Fourth Defendant

Mount Hagen: Makail, J

2010: 7th May & 11th June

PRACTICE & PROCEDURE - Setting aside of ex-parte order - Ex-parte order dismissing proceeding for failure to disclose a reasonable cause of action - Principles of - Grounds of - National Court Rules - Order 12, rule 8(3)(a).

PRACTICE & PROCEDURE - Pleadings - Fraud - Actual or constructive - Mandatory to plead particulars - Sufficiency of - National Court Rules - Order 8, rules 29 & 30.

Cases cited:

Peter Malt -v- Dean Queen and Christian Union Mission Inc (2009) N3577

Thomas Rangip & Fountain Finance Ltd -v- Peter Loko & National Capital District (2009) N3714

Green -v- Green [1976] PNGLR 73

Motor Vehicles Insurance (PNG) Trust Limited -v- Joseph Bure [1999] PNGLR 273

Mudge -v- Secretary for Lands [1985] PNGLR 387

Michael Maki -v- Michael Pundia & PNG Motors Ltd [1993] PNGLR 337

Rosemary John -v- James Nomenda & Ors: WS No 1818 of 2005 & OS No 446 of 2005 (Consolidated) (Unnumbered & Unreported Judgment of 18th January 2010)

Emas Estate Development Pty Ltd -v- John Mea & Ors [1993] [PNGLR 215

Steamships Trading Company Limited -v- Garamut Enterprises Limited & Ors (2000) N1959

The Papua Club Inc -v- Nusaum Holdings Limited (No. 2) (2004) N2603

Hi Lift Co Pty Ltd -v- Miri Setae & Ors [2000] PNGLR 80; (2000) N2004

Ramu Nickel Limited & Ors -v- Honourable Dr Puka Temu & Ors (2007) N3252

Elizabeth Kanari -v- Augustine Wiakar & Registrar of Titles (2009) N3589

Koitachi Farms Limited -v- Walter Schnaubelt (2007) SC870

Counsel:

Plaintiffs in person

Ms J Y Doa, for 1st, 2nd & 3rd Defendants

Mr K Peri, for 4th Defendant

RULING

11 June, 2010

1. MAKAIL, J: This is an application by the plaintiffs by their notice of motion filed on 24th April 2010 to set side an ex-parte order of 12th March 2010 which dismissed the within proceeding for failure to disclose a reasonable cause of action pursuant to Order 12, rule 40(1)(a) of the National Court Rules. The application is made pursuant to Order 12, rule 8(3) (a) of the National Court Rules.

2. I have heard submissions from all the parties and have read the supporting affidavits for and against the application. From the submissions and the affidavits, it is noted that there is no dispute that the plaintiffs and the fourth defendant have a dispute over a property described as allotment 1, section 3, Banz in the Western Highlands Province. It is registered as a State lease in Volume 3, Folio 147. Upon it are a dwelling house and church building which houses the Banz Christian Life Centre church congregation. It also has a school run by the same church group and the plaintiffs are the pastors and caretakers of these facilities.

3. It is further not disputed that the International Education Agency or International Education Agency of PNG Limited whom I shall refer to as the “IEA” for convenience sake, was the former registered proprietor of the property. On 24th January 2008, it transferred its title of the property to the fourth defendant and the title was registered in the name of the fourth defendant purportedly pursuant to an agreement of sale of land in consideration of K70,000.00. Aggrieved by the decision of the IEA to transfer the title to the fourth defendant, on 3rd June 2008, they commenced the within proceeding to challenge the transfer and registration of title to the fourth defendant.

4. It is also not disputed that on 12th March 2010, on the fourth defendant’s application for dismissal of the within proceeding, the National Court dismissed the within proceeding for failure to disclose a reasonable cause of action on the ground that, the plaintiffs failed to plead fraud against the defendants and a copy of the National Court transcript of 12th March 2010 is produced herein to confirm the decision of the Court. It is also not disputed that the plaintiffs were not present, and heard on the application before the Court dismissed the within proceeding.

5. The central issue therefore, is, should the ex-parte order be set aside? As noted, the application to set aside the ex-parte order is brought pursuant to Order 12, rule 8 of the National Court Rules which gives the National Court jurisdiction to set side its own orders. In Peter Malt -v- Dean Queen and Christian Union Mission Inc (2009) N3577, I heard an application to set aside an ex-parte order of 13th July 2007 which dismissed the proceeding for want of prosecution because the plaintiff failed to prosecute it. I dismissed the application, inter-alia, because I was not satisfied that the National Court had jurisdiction to set aside an ex-parte order dismissing the proceeding for want of prosecution. I had reached that conclusion because I was of the view that an order for dismissal of proceedings for want of prosecution was a final order, hence the dismissal brought to an end, the proceedings. In Thomas Rangip & Fountain Finance Ltd -v- Peter Loko & National Capital District (2009) N3714, Hartshorn, J took a different view where he held that the National Court has jurisdiction to set aside an ex-parte order dismissing a proceeding for want of prosecution.

6. The present case can be distinguished from those two cases on the basis that in the present case, the proceeding was not dismissed for want of prosecution but for failure to disclose a reasonable cause of action, on the ground that the pleadings did not disclose a case of fraud as required by Order 8, rules 29 & 30 of the National Court Rules. In other words, the Court heard substantive arguments from the fourth defendants on the application to dismiss the proceeding and upheld it in the absence of the plaintiffs. As it was made ex-parte, the National Court may set aside the order pursuant to its powers under Order 12, rule 8(3)(a) of the National Court Rules. In such an application, the onus is on the applicant to satisfy the Court:

1. why the order was allowed to be entered in the absence of the applicant;

2. if there is a delay in making the application to set aside, a reasonable explanation as to the delay; and

3. that there is an arguable case for the application on the merits of the substantive case.

7. These principles are applicable in applications for setting aside of default judgments established in Green -v- Green [1976] PNGLR 73 and many subsequent cases with modification: see Motor Vehicles Insurance (PNG) Trust Limited -v- Joseph Bure [1999] PNGLR 273.

8. Applying these principles to the present case, in so far as the first consideration is concern, I am satisfied with the plaintiffs’ explanation as to why the order was entered in their absence. I accept that they were not aware or given notice of hearing of 12th March 2010, and as a result, did not attend the hearing. This was because they were under the impression that Sino & Co Lawyers were retained by the fourth defendant and were waiting for them to inform them of the hearing date. Unbeknown to them, Warner Shand Lawyers were retained by the fourth defendant and moved the application without informing them of the hearing date. Further, as there were numerous adjournments of the application, the Court did not wish to delay the hearing and proceeded with the hearing of the application on 12th March 2010.

9. As to the second consideration, I am also satisfied with their explanation that, there was no delay in bringing the application. This is because as soon as the proceeding was dismissed on 12th March 2010 and upon becoming aware of the dismissal of the proceeding, on 24th April 2010, they filed the application. This was about a month and a half after the ex-parte order for dismissal of proceeding was made. I am therefore, satisfied that the application has been made promptly.

10. It is the third consideration that requires a careful consideration. As noted, the proceeding was not dismissed for want of prosecution. It was dismissed for failure to disclose a reasonable cause of action, on the ground that, the plaintiffs failed to plead fraud as required by Order 8, rules 29 & 30 of the National Court Rules. In order words, the Court heard substantive arguments from the fourth defendant in relation to whether or not the proceeding was maintainable against the...