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Ripa v Wak, Registrar of Titles [1996] PGNC 17; N1462 (18 July 1996)

Unreported National Court Decisions

N1462

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 185 OF 1995
KOL RIPA - PLAINTIFF
V
KOMBAMONG WALLY WAK - 1ST DEFENDANT
THE REGISTRAR OF TITLES - 2ND DEFENDANT
THE INDEPENDENT STATE OF PNG - 3RD DEFENDANT

Mount Hagen

Akuram J
15 July 1996
18 July 1996

PRACTICE AND PROCEDURE - Originating process - Choice of - Allegation of Fraud in obtaining registered title over Customary Land - Plaintiff to institute proceedings by way of a Writ of Summons.

PRACTICE AND PROCEDURE - improper originating process - application to dismiss - not granted in the circumstances - proceedings to continue on pleadings on the Originating Summons - Order 4, Rule 35 (1) & (2) (a) of National Court Rule.

Counsel:

M Tamutai for Applicant/Defendant

P Dowa for Respondent/Plaintiff

INTERLOCUTORY RULING

18 July 1996

AKURAM J: This is an applic by w by way of Notice of Motion dated 18th June 1996 seeking orders that:

1. ـ҈ T60; That that the Originating Summons in this prings be dismissed,

2. & d That thet the Plaintlaintiff pays Defendants Costs,

as a result ofaim b Plaintiff by wayy way of a of an Originating Summons dated 15th May 1995 as a result of Customary land being included in a registered Certificate of title. It is alleged by the Piff tiff in the Originating Summons proceedings that such title was issued by the Second Defendant to the First Defendant by means of illegal and fraudulent means and is adverse to the interest of the Plaintiff. The particuof fraud as reqs required by Order 8, Rule 30 of the National Court Rules, were to be provided prior to the hearing.

The ground of Applicant’s application is based on Order 4, Rule 2 (1) (b) that the claimclaim by the Plaintiff on allegation of fraud should be by way of a Writ of Summons. The second grou the applicpplication is a follow up and that is, if fraud is alleged then, the fraud should be particularised as required under Order 8, Rule 30.

As to the first ground he submitted th is mandatory that if fraudfraud is alleged then it should be by way of a Writ of Summons.

Counsel submitted that Order 4, Rule 2 (3) sets out the exceptions and this is not one of them. Sub rule 3 reads:

(3) Sub-rule (1) does not apply to proceedings commenced by a person who desires to apply for:

(a) &#1ar of r or(b)&ـ1600; &160; an imte injunction; or

(

(c)&#1c) < &160;ټ medimmediate appoin of aivf aiver;p>

I agre agree wite with the Applicant’s Counsel that rdersht ar declareclarationations of s of rights, etc, under Order 4, Rule 2 (3) above but declarations that the title issued be null and void and of no effect including the survey plan and that the land be distributed according to custom prevailing in the area. Thre, the Plaintiff shouldhould have commenced the action by a Writ of Summons and not Originating Summons.

It should also id here that the purpose of a Writ of Summons is to allow parties to go through the proper oper pleadings to iron out the issues that the parties wish to sort out prior to trial proper. It isintended for matters ters which do not need detailed pleadings where issues are clear and straight forward which only need an Originating Summons. As in this cwhere fraud isud is pleadeds mandatory for the Plaintiaintiff to give particulars of fraud as required under Order 8, Rule 30 of the National Court Rules.