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 practice of entering judgment upon an application after failure to respond to a Notice to Admit Facts, is one that is discouraged by the Courts, for many reasons, but the obvious one being the nature of the facts sought to be admitted. In Opre Wamabiang v. Alia Palme and the State (2012) N4714, the Court refused to grant the judgment sought for failure to admit facts or respond and held that the Court must consider all the circumstances surrounding the application and that the Court's objective must always be that this exercise will serve a useful purpose and that justice is dispensed with.

13.	In Nauwin Wee Ltd v. Richard Maru (2012) N4874, the plaintiffs applied for summary judgment because the defendant had failed to respond to a Notice to Admit Facts. The Court held that deemed admissions pursuant to O. 9 R. 29 (2) of the NCR are not sufficient to obtain judgment as of right. The Court held further that the Notice was irregular and an abuse of process because it basically repeated the claims for negligence that were pleaded in the Statement of Claim and asked that the Defendant agree to them.

14.	In NPF Board of Trustee v. Jimmy Maladina (2003) N2486, the Court held that the issuing of a Notice to Admit Facts is sometimes a punitive exercise. The Court emphasized the need for counsel to properly plead their parties cases to give the other side the opportunity to prepare itself for trial. The Court held that this was because our system of justice allows for fair play and not one of ambush, attrition and evasion. The Court in that case referred to and relied on Public Officers Superannuation Fund Board v. Salais Imanakuan (2001) SC 677 and PNGBC v. Jeff Tole (2002) SC 694 where similar sentiments were expressed.

15.	Another factor which Mr Narakobi failed or omitted to submit on, is the normal standard acceptable practice in this area of the law, that judgment on admissions is a discretionary power. The common law position is that 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. The Court will commonly grant the relief that the admissions properly justify – particularly if the application is based on an admission formally made in the proceedings. But a Court is not bound to act on the admissions. (See Termijtelen v. Van Arkel [1974] 1 NSWLR 525 at 528).

16.	In fact, an order 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 (see Termijtelen v. Van Arkel (supra); Gramorphone Co. Ltd v. Magazine Holder Co (1911) 28 RPC 221 at 225 – 7).

17.	PNG's O. 9 R. 29, is also in similar terms to O.27 R. (1) and (2) of the United Kingdom's Supreme Court Practice Rules of 1985 ('Supreme Court Practise'). 

18.	O. 18 of the Supreme Court Practice, is in similar terms to the O.9 R. 29 and is found in the part on pleadings. 

19.	The commentary in the Supreme Court Practice states that in relation to admissions and denials which is O. 18 R. 13, that parties ought properly to admit facts to which there is really no controversy. That a defendant ought not to deny plain and acknowledge facts which it is neither to his interest nor in his power to disprove. (page 295 of Supreme Court Practice Rules; Lee Conservancy v. Button (1879) 12 Ch.D.383, affirmed 6 App. CAS.685). (my emphasis)

20.	In this case, the Notice To Admit Facts in question, was filed on 8th May, 2013 document no. 31 in the Court file. Those purported facts, 10 in all, are matters that are, in my view, for evidence and would require evidence to be called by the plaintiff to be proven. These are not matters to be accepted by the Court as admitted facts, on the face of it. I will set those facts out later below. 

21.	Firstly, I must also add that these are matters that the plaintiff must prove by evidence and should also have pleaded in a statement of claim, to which the defendants would respond to, by way of a Defence and/or, for interlocutories to follow later.

22.	The facts in the Notice to Admit Facts are clearly disputed facts. I set these out in full, below.

"1. Plaintiffs belong to Pakien clan and the clan owns approximately 6 hectares of land within Porgera Special Mining Lease (SML) Area.

2. All clans (seven clans) within Porgera SML area have representatives in first and second defendant except Pakien clan.

3. Pakien clan is one of SML landowning clans but does not have a representative in First and Second defendant like all other SML clans.

4. Some members of the Pakien clan benefit from royalty and equity payments even though their clan is not included in the Memorandum of Agreement of 1989 as a SML clan which indicates that Pakien is a genuine SML clan.

5. Pakien clan was wrongly omitted from the 1989 MOA even though they were affected SML Landowners so they should be given recognition.

6. Plaintiffs have customary land within SML and therefore equally entitled to receive their fair share of royalties and equity and to have a trustee or representative in first defendant as well as in second defendant and partake actively in dealing with all landowner issues.

7. Pakien clans members are equally entitled to dividend payments from second defendant company as they are shareholders in terms of their landowning interest similar to other seven (7) SML clans.

8. Fifth defendant failed to include Pakien clan as SML landowing clan in 1989 MOA.

9. Community Affairs Division of third Defendant did not include or recognize Pakien clan as an SML Landowning clan even though it was aware that Plaintiffs clan was genuine landowners.

10. Some Pakien clan members do receive occupation payment monies paid for purpose of occupying the SML area. This demonstrates that Pakien clan is an SML clan and beneficiary similar to other seven (7) SML clans.

If you do not deny the fact within 14 days than they remain admitted.

Dated this day of May, 2013.
(Signed)
Camillus N. Narokobi
By his employed lawyer
Bosky Kokeo of Narokobi Lawyers Lawyers for the plaintiffs"

23.	No doubt, these 10 requisitions are not facts to be admitted because they are clearly, facts that require evidence to be called on and proven. And, this scenario is a repeat of what occurred in Nauwin Wee Ltd v. Richard Maru (supra) and therefore, the Notice to Admit Facts, which repeats the orders sought in the Originating Summons, is a clear abuse of process and is deemed to be irregular.

24.	I find that submissions on Admissions by Mr Narokobi, are without any merit and will be dismissed by this Court.

25.	This now takes me to the issue of whether the proceedings are stature barred under sections 16(2) of the Frauds Act. Section 16 (2) reads;

"16. LIMITATION OF ACTIONS IN CONTRACT, TORT, ETC.
... 

(2) An action for an account shall not be brought in respect of any matter which arose more than six years before the commencement of the action.
 (my emphasis)

26.	To understand Mr Mawa's submissions, I set out below what is stated in the Originating Summons which was filed on 9th June, 2012 and is made up of seven paragraphs. It reads as follows;

"1. Pursuant to Order 1 Rule 12 of the National Court Rules, an Order that the proceeding is well commenced.

2. The plaintiff clan of Pakien Clan is located inside the Porgera Special Mining Lease Area, in Enga Province.

3. An Order that the Pakien clan is recognized as a member of the Porgera Landowners Association and the Plaintiff be included in all decision making on issues affecting the landowners of the Porgera Gold Mine.

4. The Pakien clan is entitled to take part in all Porgera Special Mining Lease (SML) landowner activities such as Community Issues Committee and Porgera Landowners Association.

5. That the Plaintiffs representative be included as trustee Shareholder in the Second Defendant Company.

6. An order that the Pakien clan be paid its due royalty and equity payments backdated to 1992 and be paid Dividends from Shares from the Mineral Resource Enga Limited.

7. Costs be met by the Defendants.

8. Any other order the Court deems fit."

27.	The orders sought at paragraph no. 6 are that the Pakien Clan be paid its royalties and equity payments that are supposedly due to it, backdated to 1992. It also seeks to be paid dividends from shares from the Mineral Resources Enga Limited. The first flaw I can see is that this claim is for payment of monies which would require that the Court also consider the defendant's position, which unfortunately, the Court is unable to because all that is before the Court are the plaintiffs' affidavits which depose to insurmountable facts and figures, and which places the defendant in a very precarious position because it cannot plead its Defences because the mode of proceedings commenced by the plaintiff does not allow the defendant to do that. 

28.	This serious procedural flaw, is considered together with Mr Mawa's submissions that this is a claim in contract, and is statute-barred, because the plaintiff seeks payment of outstanding royalties which must be backdated to 1992. On perusing the 8 paragraphed reliefs, I note that although the claim was filed in 2012, the cause of action, as stated in par. 6 of the Originating Summons, arose prior to 1992 and that the plaintiff seeks that the calculations be back dated to 1992, approximately 22 years ago. Clearly, this claim is statute-barred.

29.	This claim can be dismissed on that basis alone because that is the sole and only claim by the plaintiffs, i.e, the claim for assessment, calculation of and payment of equity and royalty payments.

Second Issue: whether the National Court can deal with or has jurisdiction to hear issues relating to customary land

30.	Paragraphs 2 and 3 of the Originating Summons, referred to above, states that the Court is required to make a finding that the Pakien Clan is located inside or within the Porgera Special Mining Lease Area. 

31.	Paragraph 3 of the Originating Summons, referred to above, also seeks that the Court find that the Pakien clan be recognized as a member of the Porgera Landowners Association. 

32.	Clearly, the plaintiff is requesting that the Court exercise powers that are not available to it. These powers are available to the Local Land Court or the Provincial Land Court, and which is provided in the Land Disputes Settlement Act. Additionally, 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.

33.	In relation to this Court's powers to hear claims or disputes over customary land, time and time again, both the National and the Supreme Court has reminded the many litigants that come before it, of this plain fact and position at law, that the National Court does not have jurisdiction to hear issues that concern customary land. (See Land Disputes Settlement Act Chapter No. 45; Elia Ah v. Ahduang Dawon (2013) N5091; The State v. Lohia Sisia [1987] PNGLR 102; Sioti Bauf and Lavoi Nodai v. Poliamba Pty Ltd [1990] PNGLR 278)

34.	With the finding that the Court does not have jurisdiction to hear such a claim, means that this claim or matter must be dismissed. However, I will proceed to consider the next issue.

Third Issue: whether the proceedings are an abuse of process

35.	The Plaintiffs claim, as shown above, is that it wants to be recognized as a landowner, a trustee shareholder and is claiming monies from the fourth defendant. In my view, this requires that a writ of summons be filed and supported by a statement of claim showing the plaintiff's relationship with all defendants and particularly, pleading the relationship of trust and setting out or particularizing such a relationship. 

36.	Although Mr Narokobi submits that the plaintiffs can choose to come by originating summons because they own the land and that the plaintiffs are customary landowners and entitled to receive benefits, in my view, these are facts that must be proven. Although Mr Narokobi states that his clients own the land, I have not been referred to any evidence of such ownership and albeit, undisputed ownership. 

37.	Nevertheless, the issue of ownership is not one to be determined by this Court and if it is an issue that has already been decided by an authority, then plaintiffs' counsel must plead that in his originating process, which he has not done and to put the evidence before the Court, which is not done, in this case.

38.	Additionally, although Mr Narokobi submits that the defendants should have filed affidavits to show that the plaintiffs do not own land, I find such a submission to be quite nonsensical because it is not for a defendant to do that, rather, it is the plaintiff who must do that, albeit, the person or entity claiming to have title.

Fourth Issue: Whether the proceedings disclose a cause of action

39.	The six paragraphs set out by Mr Narokobi in the originating summons, which I set out in full above, do not plead a cause of action. What is stated in the originating summons are matters the plaintiff says he is entitled to as of right when that is not the case. 

40.	The proceedings, in my view, do not disclose a cause of action.

Plaintiffs other submissions

41.	A submission raised by Mr Narokobi is that Mr Mawa should not have relied on his own affidavit in this application. He submits that Mr Mawa's affidavit must be struck out and rejected by the Court.

42.	On perusing this affidavit, I note that Mr Mawa only states what he considers to be the technical and legal flaws exhibited in the originating summons. It is not based on facts.

43.	I accept that a lawyer should not swear an affidavit and to rely on it in an application however in this case, Mr Mawa appears only to point out the legal, technical flaws in the proceedings now before the Court.

44.	Even if I were to reject that affidavit, I still find myself in a position where, sitting as a Court of Law, that I must control this proceedings now before me. (See William Maki v. Michael Pundia [1993] PNGLR 337; Karl Paul v. Aruai Kispe, the Regional Manager, PNG Forest Authority-Lae (2001) N2085). Of course, it will entail this Court exercising the power to scrutinize documents before it which includes its form and contents (State v. Alphonse Wohuinangu (1991) N966). This I have done, without resorting to the use of affidavits, in a bid to put a stop to what is clearly very bad pleadings, abuse of process and to put a stop to what will be uneventful, costly litigation, not only for the plaintiffs, but the defendants as well and also, a waste of the Courts valuable time.

45.	To do that, I will, with a view to controlling this particular proceeding, and with or without affidavit filed in support, in the exercise of my discretion, apply my powers to determine the fate of this matter. And the Court's power to determine the fate of a proceeding can be exercised, even without there being a formal application before the Court, as long as it is a proper exercise of discretion, based on the evidence now before me.

Conclusion

46.	Having found that the proceedings should be dismissed, it is clear that these proceeding should never have been filed in that form. I should add also that no amount of amendment can cure the fact that the plaintiff's claim is clearly statute barred and that this Court does not have jurisdiction to hear claims in relation to declaration of ownership to customary land.

47.	It is for those reasons that this Court will dismiss this claim in its entirety.

Formal Orders;

48.	These are the formal orders of the Court;

1. The Originating Summons filed on 9th June, 2012 by Narokobi Lawyers is dismissed in its entirety;

2. It follows that all orders and interlocutories filed are also set aside;

3. That the plaintiff will pay the first, second, fourth and fifth defendants' costs of the application and the proceedings, to be taxed if not agreed.
____________________________---____________________________________
Narokobi Lawyers: Lawyers for the Plaintiffs 
Mawa Lawyers: Lawyers for First, Second and Fourth Defendants 
Yapao Lawyers: Lawyers for Fifth Defendant