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Melro Wholesale and Food Distributor v Tolopa [2018] PGNC 303; N7421 (19 April 2018)

N7421

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 132 OF 2018

BETWEEN:
MELRO WHOLESALE AND FOOD DISTRIBUTOR
Plaintiff

AND:
OSWALD TOLOPA in his Official capacity as the Acting Secretary for the Department of Lands and Physical Planning
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Dingake J
2018: 19 April

PRACTICE AND PROCEDURE – Summary Judgment – Requirements met – Application granted.

Cases Cited:

Bruce Tsang -v- Credit Corporation (PNG) Limited [1993] PNGLR 112
Kappo No. 5 Pty Limited & Ors v. James Chi King Wong & Anor (1990) SC520
Pacific Helicopters Pty Ltd v The Department of North Solomons & The State (1998) N 1815

Counsel:

Mr. Anthony Waira, for the Plaintiff
Mr. K Akeya, for the Defendants

19^th April, 2018

1. DINGAKE J: This is an application for Summary Judgment made pursuant to Order 12 Rule 38 of the National Court Rules.

2. The Applicant prays that summary judgment for K8.5 million be entered against the Defendants together with a number of related declaratory reliefs captured in its Notice of Motion.

3. The Plaintiff was at all material times hereto the proprietor of the property described as portion 50, Milinch: Iaro, Fourmil: Karamui in the Southern Highlands Province before it was compulsorily acquired by the Second Defendant on the 9^th of December 2015.

4. The Plaintiff surrendered the title to the Department of Lands & Physical Planning, and same was subsequently registered under the Department of Correctional Services on the 15^th of June, 2017.

5. The Plaintiff caused the land to be valued and it was valued for K8.5 million and the valuation amount was communicated to the Defendants and a demand for payment made.

6. The above narration of the facts is confirmed by the Defendants. The Defendants do not deny liability and the amount claimed. They simply aver that there are no funds available to pay.

7. It is a matter of record that the Department of Treasury has requested the Department of Lands & Physical Planning to prioritise the matter so that funding can be procured.

8. The law on Summary Judgment is authoritatively set out in the case of Tsang v Credit Corporation (PNG) Ltd 1993 PNGLR 112 at page 117, where the Supreme Court held that two elements must be met before summary judgment is entered. These are:

1. There must be evidence proving the essential elements of the claim; and
2. That the Plaintiff or some responsible persons give evidence that in his belief the Defendant’s Defence cannot be sustained.
   

9. In this case, there is no issue in relation to the above elements. Both of them have been established and the Defendants do not contest that the two elements have been established.

10. It is trite learning that if the Defendant either expressly or impliedly by conduct admits a claim against him then summary judgment may be entered against him. (Pacific Helicopters Pty Ltd v The Department of North Solomons & The State (1998) N1815.

11. It is the law in this jurisdiction that a Plaintiff is entitled to judgment under Order 12 Rule 38 where sufficient admissions to support the claims are made, either formally or informally, as long as they are sufficiently clear and strong to be acted upon (Kappo No. 5 Pty Limited & Ors v Wong (1990) SC520).

12. The purpose of Order 12 Rule 38 is to enable the Plaintiff to obtain judgment without trial, if the Plaintiff can prove his claims clearly and if the Defendant is unable to provide a bona fide defence, or to raise an issue against the claim which ought to be tried.

13. In this matter, I am constrained to grant summary judgment as claimed or framed in the face of the prohibition is Section 12(3) of the Claims By and Against the State Act.

14. Section 12(3) of the Claims By and Against the State provides that:

“(3) Where in a claim against the State the State is in default within the meaning of the National Court Rules, then notwithstanding that a plaintiff's claim for relief is for a liquidated demand, judgment shall not be entered against the State for the sum claimed unless the claim relates to a debt only, and in all other cases judgment shall be entered for damages to be assessed and, where appropriate, for costs.”

15. The plaintiff claim is based on an evaluation report that put the value of the compulsorily acquired land at K8.5 Million. This qualified for being a liquidated demand.

16. In the face of the prohibition in Section 12(3) of the Claims By and Against the State it would not be competent for this Court to grant the Summary Judgment for the sum claimed, instead the Court hereby, enters judgment for damages to be assessed.

17. In the result, Summary Judgment is granted in the following terms:

1. Pursuant to Order 12 Rule 38 of the National Court Rules, summary judgment with respect to liability is hereby entered against the defendants; the damages thereof are to be assessed.
2. A declaration that the Second Defendant acquired the Plaintiffs land described as Portion 50, Milinch: Iaro, Fourmil: Karamui in the Southern Highlands Province consisting of 14.6000 hectares under the Compulsory Acquisition Process pursuant to section 12 [1] of the Land Act 1996.
3. A declaration that upon publication of the Notice of Compulsory Acquisition of the Plaintiff’s land described as Portion 50, Milinch: Iaro, Fourmil: Karamui in the Southern Highlands Province in National Gazette on the 9^th December, 2015, the interest of the Plaintiffs converted to compensation under section 14[1] of the Land Act 1996;
4. The defendants to pay costs of this application.

___________________________________________________________
Cappollo Lawyers: Lawyers for the Plaintiffs
Office of the Solicitor General: Lawyers for the Defendants