N9515

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 167 OF 2021 

BETWEEN:
NATIONAL CAPITAL DISTRICT COMMISSION
 Plaintiff

AND:
SIXTH ESTATE LIMITED
First Defendant

AND:
ALA ANE,
 ACTING REGISTRAR OF TITLES,
LANDS DEPARTMENT
Second Defendant

AND:
BENJAMIN SAMSON, 
SECRETARY FOR LANDS & PHYSICAL PLANNING
Third Defendant

Waigani: Tamade AJ
2022: 18th February, 28th March 

FRAUDS & LIMITATIONS ACT – Sections 16 and 18 – Time-barred - action based on fraud - whether cause of action accrues without knowledge of aggrieved party – cause of action accrues at the latest date of registration of the transfer of title.

Cases Cited

Mamun Investment Ltd v Koim [2015] PGSC 9; SC1409 
Nodepa Plantation Ltd v Balat [2020] PGSC 25; SC1927 
SCA NO. 109 OF 2017-Albert Camilus and Anor v David Mota and Ors (2022) SC2210

Counsel	

Mr Moses Israel Saka, for the Plaintiff
Mr Timil Tape, for the First Defendant

28th March, 2022

1. 	TAMADE AJ: This is a ruling on an interlocutory application filed by the First Defendant by way of a Notice of Motion filed on 2 July 2021 seeking orders to dismiss these proceedings on the basis that the claim is statute barred, that the Plaintiff does not have standing to bring these proceedings etc.

2. 	The Plaintiff, NCDC brings these proceedings to challenge the grant of an Urban Development Lease granted to the First Defendant on 26 January 2011 and which was converted into 42 individual State Leases and granted to the First Defendant on 6 November 2012.

3. 	The Plaintiff states that it is responsible for city development and had developed a city development plan for the Morata One New Block area between 2016 and 2017 whereby the settlers on the land would be identified and the blocks occupied by settlers would be converted to individual leasehold titles with all amenities being water, electricity, sanitation etc to be provided by relevant authorities.

4. 	The Plaintiff states that unbeknown to them, the subject land it was intending to acquire was already granted to the First Defendant and they only discovered this fact after 6 March 2020 by way of a newspaper publication. The Plaintiff therefore is claiming that the First Defendant had acquired this land by fraudulent and illegal means and pleads fraud and illegality in the transfer and registration of the subject land to the First Defendant in its Statement of Claim.

5. 	This matter has a history of several court proceedings on the subject land and therefore I set out below a brief background as submitted by the First Defendant and agreed to by the Plaintiff.

Chronology of matters

a)	WS 767 of 2013 - Kaivaga ILG & Ors v Sixth Estate Limited
This proceeding challenged the UDL of the subject land on the basis that it was customary land and not State Land but was dismissed by the Court on 18 June 2015 for want of proper mode of proceeding or abuse of process as the Court was of the view that the proceedings should have commenced by way of a judicial review and not by way of a Writ of Summons.

b)	SCA No.77 of 2015 - Otto Philip & Ors v Sixth Estate Limited
This is the appeal on WSSS 767 of 2013. The appeal was dismissed on 12 August 2016 for abuse of process.

c)	OS (JR) 589 of 2013-Kaevaga Land Group Incorporated & Morata 1 New Block Association Inc v Sixth Estate Limited & Ors
This proceeding was filed at the time WS 767 of 2013 was still on foot and was dismissed on 29 April 2014 for being an abuse of the Court’s process.

d)	DC 349 of 2016- Sixth Estate Limited v Pepa Watinga & Ors
Sixth Estate Limited commenced ejectment proceedings at the District Court. Applications for ejectment were refused by the District Court.

e)	DC 862 of 2016 - Sixth Estate Limited v Otto Philip and Romney Tengere & Ors
Sixth Estate Limited sought eviction orders at the District Court which was granted by the District Court.

f)	CIA 143 of 2016 - Otto Philip and Romney Tangere v Sixth Estate Limited
This is the National Court Appeal from the District Court eviction orders in DC 862 of 20116. This appeal was dismissed by the National Court.

g)	SCA 19 of 2018 - Otto Philip, Romney Tangere & Ors v Sixth Estate Limited & Ors
This is the Supreme Court Appeal filed by the Appellants in CIA 143 of 2016. The appeal was refused by the Supreme Court.

h)	OS No 42 of 2017- Sixth Estate Limited v Luther Sipison & State
These were proceedings by Sixth Estate to challenge the Registrar of Titles attempt to forfeit these State Leases issued to Sixth Estate. Sixth Estate was successful with orders in their favour in this proceeding and they were declared as holding indefeasible titles to the subject State Leases.

i)	WS 198 of 2020- Romney Tangere & Ors v Sixth Estate Limited & Ors
These were proceedings filed by the settlers which challenged the State Leases issued to Sixth Estate Limited. This proceeding was dismissed on 7 April 2021 for non-compliance of previous orders of the Court.

j)	SCA 46 of 2021- Romney Tangere & Ors v Sixth Estate Limited and Ors
This is an appeal by the Appellants in WS 198 of 2020. The Supreme Court is yet to decide on this appeal.

6. 	NCDC has never been a party in all these proceedings listed above.

7. 	The First Defendant however made submissions that in 2009, NCDC was never an applicant to the UDL. In 2010, the Land Board awarded the UDL to a company called Watermark (PNG) Ltd and Sixth Estate appealed to the Minister against the Land Board’s decision to grant the UDL to Watermark (PNG) Limited. Sixth Estate was successful in its appeal and the UDL was granted to Sixth Estate Limited.

8. 	Watermark (PNG) Limited then appealed the decision of the Minister for Lands by way of judicial review in proceedings OS (JR) 85 of 2011- Watermark (PNG) Limited v Sixth Estate Limited and Ors however those proceedings were dismissed by the National Court on 3 May 2011.

9. 	The Plaintiff however filed proceedings in OS 5 of 2020- NCDC v Sixth Estate Limited and Ors on 11 March 2020. NCDC however sought leave of Court and withdrew those proceedings on 16 April 2021.

10. 	This brings me to the current case. It was filed on 16 April 2021 challenging the grant of the 42 State Leases to Sixth Estate Limited based on fraud and illegality and seeking that these State Leases be set aside and that the matter goes back to the drawing board so to speak for NCDC to apply for the subject land.

11. 	The First Defendant seeks a dismissal of these proceedings on a number of grounds as follows:

a)	Whether the proceedings are time barred?
b)	Whether the proceedings disclose a reasonable cause of action?
c)	Whether the Plaintiff has the standing to issue these proceedings?
d)	Whether the principles of issue estoppel or estoppel by judgment or finality of litigation bars the Plaintiff from issuing these proceedings.

12. 	 I am minded to address the first issue of time bar and if that ground is successful, there is no need for me to consider the other issues.

13. 	To consider the issue of time bar, the Court should enquire as to when did the cause of action accrued. The Urban Development Lease was granted to Sixth Estate on 26 January 2011 and the 42 State Leases were granted to Sixth Estate on 26 November 2012. The cause of action challenging the grant of the UDL and the subject State Lease which comprised the “land” would commence on or about 26 January 2011.

14. 	These proceedings were filed about 10 years after 2011 when the UDL was granted to Sixth Estate Limited and 9 years after the grant of the 42 State Leases being granted to Sixth Estate Limited.

15. 	Section 16(1) of the Frauds & Limitations Act states that:
16. LIMITATION OF ACTIONS IN CONTRACT, TORT, ETC.
(1) Subject to Sections 17 and 18, an action–
(a) that is founded on simple contract or on tort; or
(b) to enforce a recognisance; or
(c) to enforce an award, where the submission is not by an instrument under seal; or
(d) to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture,
shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.

16. 	In the case of Mamun Investment Ltd v Koim [2015] PGSC 9; SC1409 (24 February 2015), the Supreme Court decided on whether a matter seeking declarations by way of Originating Summons fell within the ambit of section 16(1) of the Frauds & Limitations Act and or under section 18 of the Frauds & Limitations Act. The Supreme Court said:
“In this instance the underlying basis for the declaratory relief claimed is not in equity. It is based upon a breach of a contract of sale and upon the tort of fraud. After giving consideration to the above authority, in our view the relief claimed in the Originating Summons cannot be categorised as "other equitable relief" in s. 18 Frauds and Limitations Act and so the respondents' claims do not come within the wording of s. 18 Frauds and Limitations Act. Given this it is now necessary to consider the first ground of appeal.”
17. 	The Supreme Court in Mamun v Koim went on to find in relation to the point that it is immaterial when a party discovered the alleged fraud complained of. The cause of action of when the alleged fraud occurs happens on the date of the registration of the transfer of the State Lease and or the legal interest on the Title Deed at the Registrar of Titles Office. The Supreme Court stated that:
“Given the above and that our Frauds and Limitations Act does not provide for the exceptions referred to and in particular in respect of a cause of action based on fraud, we are of the view that the decision in Tau Gumu's case (supra) should not have been followed and that the trial judge erred in so doing and in finding as he did that the plaintiffs' cause of action accrued from the date of the discovery of the alleged fraud. The date that the plaintiffs' cause of action accrued at the latest, was 13th December 1990, the registration date of the transfer of title. Consequently, as the respondents' action is founded on simple contract and on tort and it was brought after the expiration of six years commencing on the date on which the cause of action accrued, it is caught by s. 16 (1) Frauds and Limitations Act.”
18. 	In the Supreme Court case of Nodepa Plantation Ltd v Balat [2020] PGSC 25; SC1927 (14 February 2020), the Supreme Court referred to the case of Manun v Koim and stated that:

29. In Mamun Investment Ltd v Nixon Koi (2015) SC 1409, the Supreme Court approved of the view propounded in English cases mentioned there that a cause of action accrues, and time begins to run irrespective of the plaintiff’s lack of knowledge. It disapproved of the decision in Tau Gumu v Papua New Guinea Banking Corporation (2001) N2288 where the National Court observed that in an action based on fraud, the period of limitation does not begin to run until the aggrieved party has discovered the fraud. We subscribe to those views. In Mamun Investment Ltd v Nixon Koi (2015) SC 1409, the Supreme Court said that the cause of action accrued at the latest from the date of registration of the transfer of title.
30. In the present case, the transfer of the title from the deceased to the first applicant occurred on 7 March 2003. The instrument of transfer was produced for registration on 7 March 2003 and entered on 13 April 2004.
31. Section 27 of the Land Registration Act is relevant in considering the effective date of registration. It states:
27. Effective date of registration.
(1) An instrument, when registered, takes effect from the date when it was produced to the Registrar for registration which date shall be specified in the certificate of title or other instrument issued by the Registrar.
(2) The date of production of an instrument to the Registrar for the purpose of registration shall be deemed to be the date of registration of the instrument.

32. Clearly, in the present case, the effective date of registration was 7 March 2003 being the date of production of the transfer for registration. The cause of action at the latest accrued from 7 March 2003.

33. The National Court proceedings initially were filed on 25 February 2011. Clearly, they were filed after the expiration of six years. They are caught by Section 16(1). The effect of that is the National Court proceedings were incompetent and they did not disclose any reasonable cause of action and also amounted to an abuse of the process of the Court.
19. 	Order 12 Rule 37 of the National Court disallows summary disposal of a matter where the Plaintiff alleges fraud however to my mind, where the cause of action is time barred pursuant to section 16(1) of the Frauds & Limitations Act, it is passed the jurisdiction of the Court and should not be in Court.

20. 	The pleadings in the Statement of Claim clearly plead fraud and illegality of the title held by the First Defendant and therefore to my mind, having read the decision of the Supreme Court in the recent case of  SCA NO. 109 OF 2017 Albert Camillus and Anor v David Mota and Ors (2022) SC2210, I am of the view that this is a matter caught under section 16(1) of the Frauds & Limitations Act and is therefore filed outside the 6 year time limitation and should be dismissed with costs.

21. 	 I therefore make the following orders:

1)	The Plaintiff’s claim is refused, and these proceedings are dismissed in its entirety.

2)	Plaintiff shall meet the First Defendant’s costs of these proceedings to be taxed if not agreed and such costs should be met prior to instituting any other new proceeding on the subject land.

Orders accordingly.
_____________________________________________________________	
M Saka Lawyers: Lawyers for the Plaintiff
Kandawalyn Lawyers: Lawyers for the First Defendant