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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO. 742 OF 2014
BETWEEN
RAYMOND HAKENA & ORS
First Plaintiff
AND
RUNGUNAHANA LAND GROUP INCORPORATION
Second Plaintiff
AND
HERMAN TUGAN
First Defendant
AND
SIMON MALU, Director of Customary Land Alienation, Department of Lands & Physical Planning
Second Defendant
AND
ROMILY KILA-PAT, Secretary for Lands & Physical Planning
Third Defendant
AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant
Waigani: Linge AJ
2021: 29th September, 1st, 8th, 20th October, 9th November
PRACTICE AND PROCEDURES – Application for Summary Judgment - Judgment on Admission – Proceedings commenced by Originating Summons-Admission of liability-Assessment of damages
Cases Cited:
William Duma v Eric Meier (2007) SC898; PGSC 34
Bruce Tsang v Credit Corporation (PNG) Limited [1993] PNGLR 112
Chief Collector of Taxes v TA Field Pty Ltd [1975] PNGLR 144
Dep International Private Limited v Ambogo Sawmill Pty Ltd [1987] PNGLR 117
Kumul Builders Pty Ltd v Post and Telecommunication Corporation [1991] PNGLR 299
Curtain Brothers (Qld) Pty Ltd and Kinhill Kramer Pty Ltd v The State [1993] PNGLR 285
Commissioner for Internal Revenue v Bougainville Copper Limited (2009) N3988;
Ampaoi v Tauriko [2012] PGSC 3; SC1166
Nosrida Ltd v Nima Holdings Ltd [2010] PGNC 229
United Timbers (PNG) Pty Ltd v Mussau Timber Development Pty Ltd (1987) N645
Coecon Ltd (Receiver/Manager Appointed) -v-National Fisheries Authority (2002) N2182
Counsel:
Ms. Menchie Numi, for the Plaintiffs
Mr. Brian Lakakit, for the First Defendant
Ms. Grace Nindil -Awesa, for the Second, Third & Fourth Defendant
JUDGMENT
9th November, 2021
1. LINGE A J: This is a Ruling on a Notice of Motion filed by the Plaintiffs on the 13 September 2021 pursuant to Order 9 Rule 30 (1) and Order 12 Rule 38 of the National Court Rules.
2. The specific orders sought in the Notice of Motion inter alia are:
(i) That judgment be entered in favour of the First and Second Plaintiffs against Second, Third and Fourth Defendants jointly and severally for Five Million Kina (K5,000,000.00).
(ii) Interest at the rate of 8% p.a. pursuant to the Judicial Proceedings (Interest on Debt and Damages) Act.
Background and Brief Facts
3. This proceeding relates to payment of compensation for the land required for the development of the Buka Airport Extension described as Portions 331 and 332 Milinch Buka, Fourmil Bougainville.
4. On the 31 July 2014 the Department of Lands & Physical Planning raised a cheque in the sum of K 5 million made payable to Rugunahana Land Group Incorporated (RILG) as payment for the said Portions 331 and 332. Many clans who comprise the members of the RILG own different parts of the Buka Aerodrome land.
5. The First Plaintiff and the First Defendant are former customary landowners of the Buka Aerodrome land in the Autonomous Region of Bougainville and each claim parcels of land including Portions 331 and 332, Milinch Buka, Fourmil Bougainville.
6. The First Defendant is the Chairman of RILG and claimed that the payment should have been made to him, while Raymond Hakena of the First Plaintiffs who is a Clan Leader of Neboin clan, the customary owners of Portions 331 and 332 disagreed and as a result the cheque payment of K5, 000,000.00 made out to RILG, was withheld by the State.
7. This proceeding filed the 30 October 2014 seeks inter alia order for payment of K 5 million for Portions 331 and 332 immediately into the plaintiffs nominated account.
Issue
8. Whether portion 331 and 332 Milinch Buka Fourmil Bougainville constitute land acquired by the State and part of a larger Portion
273 or land subject to outright purchase?
Interlocutory Orders and Directions
9. His Honour Kariko J heard the application by the Second, Third and Fourth Defendants (collectively the State) to have the claims
by the plaintiffs dismissed pursuant to Order 12 Rule 40, National Court Rules for being frivolous and vexatious and being an abuse of process but the application was refused.
10. His Honour then ordered parties to meet with the State through the Office of the Solicitor General and the Department of Lands & Physical Planning to resolve whether or not portions 331 and 332, comprise land properly acquired by the State and formed part of former portion 273, Milinch Buka, Fourmil Bougainville.
11. The Court gave further Directions on the 9 October 2020 for the State to ensure that valuation is undertaken, and assessment made on the land consisting of the remainder of Portion 273 which is 39.95% or about 11 hectares of the Buka Aerodrome land for purposes of the acquisition process under Section 12 of the Lands Act by 6 November 2020.
12. On the 9 March 2021 the Court varied and extended its Direction / Order of 9th October 2020 for the State to complete valuation and assessment on the remainder of Portion 273 as aforementioned, Buka Aerodrome land by use of any appropriate mode of acquisition process under the Lands Act by or before 30th March 2021.
Valuation of Portion 392
13. In compliance with the Orders of 9 October 2020 the State resolved pursuant to a Valuation Report dated 22 April 2021 that only part of or the remainder of Portion 273, had not been previously acquired. For purpose of identification
the area is given a new description as Portion 392 comprising the outstanding 39.9%, an area measuring 11 hectares and valued at
K 3, 532, 000.00
This Application for Summary Judgement
14. I heard the Plaintiffs’ Notice of Motion filed as aforesaid on the 1 October 2021. The Plaintiffs seek orders pursuant to
Order 9 Rule 30 (1) and Order 12 Rule 38 of the National Court Rules for judgment to be entered in favour of the First and Second Plaintiffs against the Second, Third and Fourth Defendant jointly and
severally for Five Million Kina (K 5,000,000.00 and interest at 8% pursuant to Judicial Proceedings (Interest on Debt and Damages)
Act.
38. Summary Judgment (13/2)
(1) Where, on application by the plaintiff in relation to any claim for relief or any part of any claim for relief of the plaintiff-
(a) there is evidence of the facts on which the claim or part is based; and
(b) there is evidence given by the plaintiff or by some responsible person that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part, or no defence except as to the amount of any damages claims,
The Court may, by order, direct the entry of such judgment for the plaintiff on that claim or part, as the nature of the case requires.
(2) Without limiting Sub-rule (1), the Court may under that Sub- rule direct the entry of judgment for the plaintiff for damages to be assessed.
(3) In this rule, “damages” includes the value of goods.
Evidence
17. The Plaintiffs rely on the affidavit of Raymond Hakena sworn on the 13 September 2021, Affidavit of Malinda Mai sworn 19 September
2021 and Affidavit of Benjamin Samson sworn 18 June 2021.
18. Raymond Hakena provided the chronology of the long delay and the Court granting of interlocutory orders which paved the way for the State to assess and complete valuation of the subject land in the amount of K 3, 532, 000.00.
19. He also deposed that he had signed a draft consent order with the First Defendant to accept the K 3,532,000.00 valuation by the State, but the State had not executed the consent order.
20. Malinda Mai, a lawyer employed with in the State Solicitors Office, deposed that all parties including the State had resolved that only the remaining part of portion 273 about 39.95% or 11 hectares would be subject to State acquisition under Section 10 of the Lands Act.
21. Benjamin Samson the Secretary for Lands and Physical Planning confirmed that on the 22 April 2021 the assessed value of the said remaining parcel of portion 273 (about 39.95% or 11 hectares) now described as Portion 392, Milinch Buka, Fourmil, Bougainville for outright purchase is K3,532,000.00.
(i) Herman Tugan filed on the 21 November 2014 who disputed the involvement of Raymond Hakena and says that the restrain on K 5 million must remain until parties resolve the issue.
(ii) Herman Tugan filed 25 November 2014 who deposed that the K 5 million is for the whole airport and not the extension described as portions 331 and 332 and that as the chairman he must have a say in the distribution of monies owing to the Rugunahana Land Group Inc.
(iii) Valentine Kenehe filed on the 12 June 2015 who disputed Raymond Hakena as member of Naboen clan and that Raymond Hakena’s claim over portions 331 and 332 and that these portions are owned by himself and Herman Tugan.
(iv) Brian Lakakit filed 13 September 2021 who deposed that the Plaintiffs and the First Defendant had resolved to put away their
differences and had agreed by way of consent order on the distribution and manner of payment and thus the State should proceed to
pay.
23. The Second, Third and Fourth (collectively the State) rely on the said Affidavit of Benjamin Samson sworn 18 June 2021 who deposed
that only a remainder of portion 273 had been surveyed and given a legal description as Portion 392 and valued at K3,532,000.00 for
outright purchase.
Submissions on Summary Judgment
24. Ms Numi submits that the law in relation to summary judgment pursuant to Order 12 Rule 38 of the National Court Rules is well settled in this jurisdiction.
25. She cited the following cases which I will refer to in my consideration and summation and these are:
William Duma -v-Eric Meier (2007) SC 898; PGSC 34;
Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112; Curtain Brothers (Qld) Pty Ltd and Kinhill Kramer Pty Ltd v The State [1993] PNGLR 285; Commissioner for Internal Revenue v Bougainville Copper Limited (2009) N3988.
26. Counsel for the Plaintiffs submits that the issue whether portion 273 was part of the original acquisition, had been settled by the State when on the 22 April 2021 it confirmed the assessed value of the said remaining part of portion 273 (about 39.95% or 11 hectares) now described as Portion 392 to be K3,532,000.00.
27. She submits also that the dispute between the Plaintiffs and the First Defendant is now settled, and the Plaintiffs and the First Defendant had signed a draft consent order on the 20 July 2021 and 26 July 2021 respectively to accept and divide the K3,532,000.00.
28. Thus, Ms Numi submits that the Court has jurisdiction to enter summary judgment based on no defence filed, no dispute on the claim and that the State resolution to compensate the relevant parties as per the valuation of K3,532,000.00.
29. Finally, she submits that there are no other triable issues for the court to deal with and therefore the State has no reason to withhold the payment any longer.
30. Mr.Lakakit, of counsel for the First Defendant submits that the only dispute that his client had with the Plaintiffs on who should receive the outright purchase payment for Portion 392 has been resolved.
31. He also submits that the State valuation of K 3, 532, 000.00 is accepted by his client Herman Tugan on one side and Raymond Hakena
and others on the other side, and that they had signed a draft Consent Order as settlement of the claim which the State must proceed to pay.
32. Ms. Nindil of Solicitor General representing the State admitted liability on the part of the State. As regards the valuation of
K 3,532,000.00, she submits that pursuant to Section 12 (3) of Claim By and Against the State Act 1996, judgment against the State shall not be entered unless the claim relates to a debt only, and in other cases judgment shall
be entered for damages to be assessed.
33. Thus, she submits that she has no instructions and thus no ostensible authority to sign the draft consent order.
Finding of Facts
34. At the completion of submissions by counsels, I deduced the following conclusions as findings of fact.
(1) The dispute between the Plaintiffs and the First Defendant, former customary owners of the Buka Aerodrome land including the extension, as to who should be the recipient of compensation payment made available by the State has been resolved.
(2) That following interlocutory orders of 6 February 2019 for parties to resolve whether or not portions 331 and 332 comprise land properly acquired by the State and are a part of a larger portion known as Portion 273, it was resolved that what is outstanding, and had not been acquired (by the State) is about 39.95% or 11 hectares.
(3) The State had given a legal description to the 11 hectares as Portion 392 and carried out assessment and valuation culminating in the Valuation Report dated 22 April 2021 for outright purchase in the amount of K3,532,000.00.
(4) The Plaintiffs and the First Defendant have agreed to accept the K3,532,000.00 valuation of the said Portion 392 by the State and have signed a draft consent order.
(5) The only matter before the court for which a decision is required to be made pertains to the K 3,532,000.00 State valuation of portion 392 which had not been acquired (by the State), an area of about 39.95% or 11 hectares.
(6) The State had admitted liability but would not sign the draft consent order to determine the matter therefore this claim proceeds to assessment.
The Law
35. At the conclusion of submissions by counsels on the 1 October 2021 I ruled that there is admission by the State and no issue on liability,
and I adjourned the matter to 8 October 2021 for submission on assessment.
36. It is incumbent upon me therefore to set out the legal reasons for my arriving at this conclusion.
37. The Plaintiffs rely on both Order 12 Rule 38 and Order 9 Rule 30 of the National Court Rules in this application for entry of judgment.
38. An application for “summary judgment” under Order 12 Rule 38 and an application for “judgment” pursuant
to Order 9 Rule 30 are quite distinct and different although both have a common resultant effect and outcome, that is they both dispose
of proceedings in a summary way. see Ampaoi v Tauriko [2012] PGSC 3, SC 1166; Nosrida Ltd v Nima Holdings Ltd [2010] PGNC 229.
39. Counsel for the plaintiffs refer me to cases in support of Order 12 Rule 38 of the National Court Rules. She did not cite any cases nor make specific submission to assist the court in relation to Order 9 Rule 30 of the National Court Rules.
40. Courts have consistently considered and applied the law applicable in Order 12 Rule 38, of the National Court Rules for example, in Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112, the Court stated that the following elements must be proved:
(i) evidence of facts proving the essential elements of the claim; and
(ii) plaintiff or some responsible person gives evidence that in his belief there is no defence.
41. In Curtain Brothers (Qld) Pty Ltd and Kinhill Kramer Pty Ltd v The State [1993] PNGLR 285, the Supreme Court endorsed the two elements enunciated in Tsangs’s case and went on to expound on the second element that:
“ ... the plaintiff must show in the absence of any defence or evidence from the defendant, that in his belief, the defendant has no defence. If a defence is filed or evidence is given by the defendant, as in this case, the plaintiff must show that, upon the facts and/or the law, the defendant has no defence.
The plaintiff will not be entitled to summary judgment if there is a serious conflict on questions of fact or law. Whether a case should go to trial on these issues will be determined on the facts of each case.”
42. In William Duma -v-Eric Meier (2007) SC 898; PGSC 34 the Supreme Court reaffirmed the settled principle of law that summary judgment is discretionary power and may be granted if (a) there is evidence of facts on which the claim is based, and (b) evidence is given by some responsible person that in his belief the defendant has no defence to the claim or part of the claim.
43. The William Duma case (supra) is also relevant in this case, as it was commenced by Originating Summons and procedurally there is no requirement for defence to be filed.
44. The Supreme Court ruled that there is no prohibition on an application for summary judgment in proceedings commenced by way of Originating Summons and that the application for summary judgment was properly before the Court.
45. In Kumul Builders Pty Ltd v Post and Telecommunication Corporation [1991] PNGLR 299 the Court at page 300 said, “...Essentially the court will direct entry of judgment summarily, where there is sufficient, clear evidence before the court of the facts on which the claim is made to enable to conclude that there is no triable issue of fact, and no arguable defence in law.”
46. In United Timbers (PNG) Pty Ltd v Mussau Timber Development Pty Ltd (1987) N645 the Court stated, “The power to enter summary judgement is one to be exercised sparingly and with great care and only when it is clear there is no triable issue between parties”.
47. In Dep International Private Limited v Ambogo Sawmill Pty Ltd [1987] PNGLR 117, Woods J, expressed that the principle enshrined in Order 12 Rule 38 can be relied upon in a situation where a defendant makes an admission sufficient to support the claim against him/her, the plaintiff may apply for judgment based on admission.
48. Summary judgment should only be invoked in clear cases with great care. It should not be used to shut out a defendant unless it is quite clear upon the facts and/or law that where there is no defence. This is the view expressed by Raine J, at p.146 in Chief Collector of Taxes v TA Field Pty Ltd [1975] PNGLR 144.
49. In this case, it is evident from the outset that the State was prepared and indeed raised a cheque for K5 million for payment to the former customary owners of land required for the Buka Aerodrome extension identified at that time as portions 331 and 332.
50. However, since the interlocutory order by His Honour Kariko J on the 6 February 2019, the parties discussed and resolved that portions 331 and 332 are within a larger portion 273, of which about 39.95% or 11 hectares, is outstanding and had not been acquired by the State.
51. The State commitment to pay compensation to the former customary owners had not diminished, but rather this proceeding has enabled the State to verify and define the subject parcel of the Buka Airport land properly and has resolved that only 39.95% or 11hectares now allocated a new legal description as Portion 392 Milinch Buka Fourmil Bougainville is the only parcel of land for outright purchase by the State for K 3,532,000.00.
52. The State identification of Portion 392 for outright purchase in the amount of K3,532,000.00 is a clear admission of State liability in this proceeding.
53. The Plaintiffs and the First Defendant have agreed to accept the K3,532,000.00 valuation of the said Portion 392 by the State and have signed a draft consent order.
54. I am satisfied that this is a clear case where summary judgment should be granted as there is no serious triable issue of fact or law as the original issue of rightful recipient had been resolved and the Defendants have resolved the actual parcel of land being portion 392, about 39.95% or 11 hectares as the land the subject of outright purchase by the State.
55. The plaintiffs and the first defendant are entitled to the benefit of admission and clear evidence of liability on the part of the State, and the acceptance of same by the Plaintiffs and First Defendant.
56. Consequently, there is no utility in proceeding to trial and so I find that the Plaintiffs are entitled to summary judgment pursuant to Order 12 Rule 38 of the National Court Rules for damages to be assessed.
Submission on Assessment of Damages
57. The matter returned to court on the 8 October 2021 for assessment of damages. Parties tendered extract of their submissions.
58. Ms Numi of counsel for the plaintiff referred to Section 53 of the Constitution, protection from unjust deprivation of property and Section 20 (1) and (3) of the Lands Act where the National Court may make order for payment of money and where in special circumstances of a particular case compensation shall be determined accordingly.
59. She also referred to Section 47 of Lands Act, which provides for interest on Compensation payable on acquisition by compulsory process at the rate of 3% from date of acquisition of land to date on which payment is made to the claimant and submits this should apply for:
(a) assessment and order reflecting Item 1 in the Originating Summons in respect of portions 331 and 332, for K5 million and interest at 3% thereon, and
(b) the assessed and valuation of portion 392 following resolution by all parties as ordered on the 9 October 2020 valued at K 3,
532.00 plus 3% interest.
60. She also submits that the Court makes an order, in terms of the Consent Order inclusive of Plaintiffs’ costs, to be paid
by the State.
61. Mr. Lakakit for the First Defendant quoted the law and principle in the award of damages including the onus to prove the loss which always remains on the plaintiff.
62. He pointed out that the K5 million the State raised initially but withheld, due to the disagreement between the Plaintiffs and First Defendant, was for a claim on the Buka Airport land described as portions 331 and 332.
63. He submits that the State had changed its position and alleges that portions 331 and 332 had been previously acquired but agreed that Portion 392 which is part of a larger portion known as Portion 273, that was not acquired by the State, and now prepared to purchase for K 3, 532,000.00.
64. Mr. Lakakit submits that the K 3, 532,000.00 is acceptable to his client and as such they have reached agreement for it to be distributed in accordance with the consent order which his client had signed.
65. Finally, Mr. Lakakit submits that this Court makes orders to give effect to the draft consent order and other specific orders for the Second, Third and Fourth Defendants to pay the First Defendants costs of proceedings as the first Defendant incurred costs and time due to long delay by the Second, Third and Fourth Defendants in settling this matter.
66. Ms Nindil-Awesa of the State reiterated the State position that portions 331 & 332 are a part of a larger portion 273 of which only a small parcel containing 11 hectares or 39.9% of the entire portion 273 have not been acquired so a new legal description was given as Portion 392 which the State will acquire under Section 10 or 11 of the Lands act.
67. Ms Nindil- Awesa confirmed the State position that portion 392 has been valued and is subject to outright purchase for K 3,532,000.00.
68. In her submission she cited Coecon Ltd (Receiver/Manager Appointed) -v- National Fisheries Authority (2002), N2182 wherein Kandakasi J (as he then was), said “A survey of the authorities on assessment of damages after entry of judgment on liability mainly in default of a defendant’s defence clearly show the following:
2. Any matter that has not been pleaded but is introduced at the trial is a matter on which the defendant can take an issue on liability.
69. Ms Nindil Awesa submits that there is a breach of statutory process under Section 10 or 12 of the Lands Act, and that the payment for compensation for compulsory acquisition of Portion 392 in the amount of K3,532,000.00 satisfies the law.
70. Further, she submits that her client the State, has conceded that the Plaintiff and the First Defendant are only entitled to the valuation amount of K3, 532, 000.00.
Consideration
71. After hearing submissions on summary judgment and assessment by counsels, I make the following remarks.
(1) In relation to the Plaintiffs submission seeking payment of K5 million which was processed and issued on the 31 July 2014 in consideration of portion 331 and 332, I consider that this is untenable as the parties and the State have reached resolution on the status of Portions 331 and 332.
(2) The evidence points to a resolution by parties that portions 331 & 332 are a part of a larger portion 273 of which only a small parcel containing 11 hectares or 39.9% of the entire portion 273 have not been acquired and this is now described as portion 392, which is the subject of outright purchase by the State valued at K3,532,000.00.
(3) As to the claim for payment of K 5,000,000.00, I have not received any evidence to connect the purported payment to a particular portion of land in the Buka Airport land, it being accepted that the original portions 331 and 332 are subsumed into portion 273 of which a small parcel has been redesignated as Portion 392.
(4) The Deed of Release purportedly executed by the First Plaintiff and the Second and Third Defendant for the Fourth Defendant relating to portions 331 and 332, is not properly before me in evidence and I decline to make any ruling on it.
Order
72. It is ordered that:
(1) Pursuant to Order 12 Rule 38 of the National Court Rules judgment is entered in favour of the First and Second Plaintiffs and the First Defendant against Second, Third and Fourth Defendants jointly and severally for Three Million Five hundred and Thirty-Two Thousand Kina (K3,532,000.00).
(2) The sum of Three Million Five Hundred & Thirty-Two Thousand Kina (K3,532,000.00) as assessed and valued by the Department of Lands & Physical Planning be paid out in the following manner: -
(a) A sum of Two Million Sixteen Thousand Kina (K2,016,000.00) be made payable to Raymond Hakena.
(b) A sum of One Million Five Hundred & Sixteen Thousand Kina (K1,516,000.00) be made payable to Lakakit & Associates Lawyers Trust Account for Herman Tugan (First Defendant).
(3) This proceeding stands discontinued upon full payment of the said money by the Second, Third and Fourth Defendants.
(4) Messrs Raymond Hakena and Herman Tugan shall pay their own Lawyers costs of the proceedings.
(5) These orders be abridged to the time of settlement by the Registrar which shall take place forthwith.
(6) Interest at the rate of 3% pa pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act.
(7) State to undertake compulsory acquisition pursuant to Section 12 of the Lands Act.
________________________________________________________________
Young & Williams Lawyers: Lawyers for the Plaintiffs
Brian Lakakit Lawyers: Lawyers for the First Defendants
The Solicitor General: Lawyers for the Second, Third & Fourth Defendants
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