N10401

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 292 OF 2020

BETWEEN:
ROMAN CATHOLIC ARCHDIOCESE OF RABAUL
Plaintiff

AND:
KUTT PAONGA in his capacity as the ACTING CHIEF COMMISSIONER OF LAND TITLES COMMISSION
First Defendant

AND:
JACKSON GAH in his official capacity as the DEPUTY CHIEF COMMISSIONER OF LAND TITLES COMMISSION
Second Defendant

AND:
LAND TITLES COMMISSION
Third Defendant

AND:
DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL
Fourth Defendant

AND:
ALA ANE in his official capacity as the REGISTRAR OF TITLES OF DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Fifth Defendant

AND:
BENJAMIN SAMSON in his official capacity as SECRETARY OF THE DEPARTMENT OF LANDS & PHYSICAL PLANNING
Sixth Defendant

AND:
DEPARTMENT OF LANDS & PJYSICAL PLANNING
Seventh Defendant

AND:
SAMSON SARU in his official capacity as CHAIRMAN OF THE MALI IMMER KILIGIA INCORPORATED LAND GROUP
Eight Defendant

AND:
MALI IMMER KILIGIA INCORPORATED LAND GROUP
Ninth Defendant

Kokopo: Dingake J
2023: 8th June

PRACTICE AND PROCEDURE – Claims By and Against the State Act 1996, Section 5 (2) (a) – requirement to give notice of intention to make a claim against the State within a period of six months after the occurrence out of which the claim arose – identification of the date of occurrence – Held - the relevant occurrence occurred when the titles of the contested pieces of land were issued.

Cases Cited:

Asiki v Zurenuoc (2005) SC797
Public Curator and The State v Karait (2014) SC1420
Habolo Building and Maintenance Limited v Hela Provincial Government and Others SCA No 27 of 2016 – SC1549
Waim No. 85 Limited v The State & Rimua (2015) SC1405
Joe Kerowa v MVIL (2010) SC1100
Paul Tohian v Tau Liu (1998) SC566
Hewali v The State (1999) N2233

Counsel:

Samantha M Kiene, for the Plaintiff
Elsie Takoboy, for the First, Second, Third, Fourth, Fifth, Sixth, & Seventh Defendants
Epita T Paisat, for the Eight & Ninth Defendants

RULING

8th June, 2023

1.	DINGAKE J:   This is my ruling with respect to the application moved by First, Third, Fourth, Fifth, Sixth and Seventh Defendants to dismiss the entire proceedings on the basis that there was no valid Notice that was issued by the Plaintiff prior to suing the State, as required by Section 5 of the Claims By and Against the State Act (CBASA).

2.	The Plaintiff is the Roman Catholic Archdiocese of Rabaul and it is a corporate body established by Section 2 of the Roman Catholic Archdiocese of Rabaul Act 1969.

3.	The First, Third, Fourth, Fifth, Sixth and Seventh Defendants are all agents and or servants of the State.

4.	The Plaintiff, at different times in the course of 2020, issued proceedings now sought to be dismissed, namely, WS No. 292 of 2020 and WS No. 736 of 2020. These two claims were consolidated to be heard together.

5.	In proceedings WS No. 292 of 2020, proceedings against the Defendants were filed over the issuance of title by the Fifth Defendant over portions of land, as pleaded in the Statement of Claim. The said pieces of land included the following:

i)	Portion 435C Milinch, Kokopo, Fourmil, Rabaul, East New Britain Province for an area of 16,486 hectares.

ii)	Portion 580 Milinch, Kokopo, Fourmil, Rabaul, East New Britain Province for an area of 102.83 hectares.

iii)	Portion 806 Milinch, Kokopo, Fourmil, Rabaul, East New Britain Province for an area of 128.0784 hectares.

iv)	Portion 807C Milinch, Kokopo, Fourmil, Rabaul, East New Britain Province for an area of 154.177 hectares.

v)	Portion 230 or 435rem Milinch, Kokopo, Fourmil, Rabaul, East New Britain Province for an area of 2,673 hectares.

6.	The Plaintiff alleges that the acts, conduct and misrepresentation made by the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth and Ninth Defendants that resulted in the issuance of five (5) separate titles in the name of Ninth Defendant for Portions 435C, 580, 806C,807 and 808C constitute acts of fraud and misrepresentation.

7.	The Plaintiff also pleads that in consequence of the above alleged acts of fraud and misrepresentation it has been inconvenienced and has suffered economic loss.

8.	It is not necessary for the purposes of this ruling to reproduce the particulars of the fraud and misrepresentation claimed by the Plaintiff save to say that they are set out in detail from paragraph 25 – 43 of the Statement of Claim. (WS 292 of 2020)

9.	In proceedings styled WS No. 736 of 2020, proceedings against the Defendants were over the issuance of a title described as Portion 230 or 435 rem Milinch Kokopo, Fourmil, Rabaul, East New Britain Province for an area of 2,673 hectares to the Fourth Defendant.

10.	In both proceedings (WS No. 292 of 2020 and WS No. 736 of 2020) the Plaintiff claimed to have indefeasible title over the pieces of land outlined above, as opposed to the Ninth and Fourth Defendants respectively, who also have titles over the same portions of land.

11.	The facts upon which the fate of this application rests turns on a very narrow compass. 

12.	It is not disputed that a Section 5 Notice under the CBASA, was not issued with respect to WS No. 736 of 2020. It is also not in dispute that the Plaintiff did not plead, as required, that it issued the aforesaid Notice in WS No. 736 of 2020.

13.	The failure to issue Notice pursuant to Section 5 of CBASA, renders the Plaintiff’s claim against the State invalid with respect to WS 736 of 2020 as the said Notice is a condition precedent to a claim founded on tort against the State.

14.	I turn now to proceedings styled WS No. 292 of 2020. It is not in dispute, with respect to the above proceedings that the Plaintiff issued a Notice pursuant to Section 5 of CBASA dated the 15th of May 2020. This Notice was duly served on the 18th of May 2020. Such Notice is also duly pleaded in the Statement of Claim.

15.	The Defendants do not dispute that the Section 5 Notice was issued with respect to proceedings styled WS 292 of 2020. They contend that  it was issued outside the six (6) months period prescribed by Section 5 (2) (a) of the CBASA in that the Notice was served on the 18th of May 2020, when the actual decision to issue the titles in contention was on the 26th of January, 2018 and 1st of February 2018 – meaning that the Plaintiff issued the Notice more than two years after the decision to issue the titles was taken.

16.	The Plaintiff on the other hand contends that it gave the Section 5 Notice with respect to the titles in contention within the six (6) months period required by Section 5 (2) (a) of CBASA in that the cause of action continued to accrue as the Fifth Defendant had neglected to give the requisite notice to the Plaintiff of his intention to issue titles.

17.	According to the Plaintiff, its cause of action is based on fraud – a tort and therefore a cause of action arises daily as the tort continued from the respective dates of issuance of the titles to the date when the Writ of Summons was filed on the 25th of May 2020.  It relied on the case of Habolo Building Maintenance Ltd v Hela Provincial Government (2016) SC1549, for the proposition that the fraud claimed was continuing until it filed the writs.

18.	The Plaintiff also argues that the First, Third, Fourth, Fifth and Sixth Defendants admit the fact that Section 5 Notice was filed on the State.

19.	The Plaintiff contends that the cause of action continued to accrue as the Fifth Defendant had neglected to notify the Plaintiff of his intention to issue titles:
a)	In the instance of Portion 808 in the period from 20 December 2017 to March 2020, and that the writ was filed within six (6) years of the last date of accrual of the cause of action.
b)	In the instance of Portion 435 in the period from 26 January 2018 to March 2020, and that the writ was filed within six years of the last date of accrual of the cause of action.
c)	In the instance of Portion 580 in the period from 1 February 2018 to March 2020, and that the writ was filed within six (6) years of the last date of accrual of the cause of action.
d)	In the instance of Portion 806 in the period from 1 February 2018 to March 2020, and that the writ was filed within six (6) years of the last date of accrual of the cause of action.
e)	In the instance of Portion 807 in the period from 26 January 2017 to March 2020, and that the writ was filed within six (6) years of the last date of accrual of the cause of action.

20.	The Plaintiff says in its pleadings that on or about March 2020, it became aware of the decision of the Fifth Defendant to issue separate titles in the name of Ninth Defendant. The dates of issuance of the titles in contention according to paragraph 22 of the Plaintiff’s Statement of claim are the 26th of January 2018 and on the 1st of February 2018.

21.	It is therefore not in dispute that titles were issued on the 26th of January 2018 and 1st of February 2018.

22.	Section 5 (2) (a) of CBASA provides that no action to enforce any claim against the State lies against the State unless notice in writing of the intention to make a claim is given in accordance with this Section by the claimant within a period of six (6) months after the occurrence out of which the claim arose.

23.	The parties are agreed, correctly in my view, that it is a condition precedent to commencement of proceedings against the State that the Plaintiff give notice, prior to commencement of proceedings, of its intention to make a claim in accordance with Section 5 of the CBASA. (Asiki v Zurenuoc (2005) SC797; Public Curator and The State v Karait (2014) SC 1420); Paul Tohian v Tau Liu (1998) SC 566); Hewali v The State (1999) N2233.

24.	The parties do not agree, with respect to proceedings styled WS 292 of 2020 whether Section 5 (2) (a) of the CBASA was complied with or not. The Defendants say it was not and the Plaintiff maintains it complied.

25.	The question that arises is when did the occurrence out of which the claim (WS 292 of 2022) arose take place for purposes of Section 5(2) (a) of CBASA?

26.	In my respectful view the question of when the occurrence out of which the claim arose is materially a function of the pleadings. 

27.	In this jurisdiction it is settled law that if the cause of action being pleaded is capable of being regarded as a continuing cause of action, accruing on a daily basis, the corollary is that the occurrence out of which the claim arose” should be regarded as a series of occurrences.” (Para 17:  Habolo Building and Maintenance Limited v Hela Provincial Government and Others SCA No 27 of 2016 – SC 1549).

28.	In the case of Habolo Building and Maintenance referred to above the pleaded cause of action was trespass, which may be considered as continuous, and the cause of action regarded as accruing on a daily basis.
29.	A survey of the case law suggests that on the question of when the occurrence takes place, there are two principles that are useful in answering that question. Firstly, where there is a legal duty to do an act and so long as that duty remained undischarged, time does not run. The second principle is that in cases where there is a successive or ongoing breach, each successive breach constitutes a fresh or new cause of action. (Para: 86 Public Curator of Papua New Guinea v Konze Kara as Administrator of the Estate of Kibikang Kara (SCA No 54 of 2010).

30.	In this case the Plaintiff’s pleaded cause of action is fraud that culminated in the issuance of titles on the 26th of January 2018 and 1st of February 2018. 

31.	It is significant to note that there is nothing in the Plaintiff pleadings that suggests that the cause of action being pleaded is capable of being regarded as a continuing cause of action. 

32.	Significantly, the Plaintiff does not in fact plead continuous fraud. Furthermore, the pleadings do not allege that any of the Defendants had a duty that remained undischarged, with the result that time does not or did not run, nor does the Plaintiff allege that there is successive or ongoing breach.

33.	In my considered view, having regard to what I have stated above, the occurrence out of which the claim arose, took place on the 26th of January 2018, and the 1st of February 2018, when the titles of the properties in contention were issued. Those dates marked the culmination of what the Plaintiff says were a series of fraudulent acts, omissions or misrepresentations. The clock in my view started ticking from those dates for purposes of any claim against the State contemplated by Section 5 (2) (a) of CBASA.

34.	The fact that First, Third, Fourth, Fifth, Sixth and Seventh Defendants in their defence admit that Section 5 Notice was filed on the State as pleaded in the Statement of Claim, does not mean such Notice was valid. The Defendants were simply acknowledging receipt of the Notice, and nothing more.  The validity of the Notice depends on whether it complied with Section 5(2) (a) of the CBASA.

35.	Given the view I take as to when the clock started ticking, it is clear to me that such Notice was filed outside the six (6) months required by Section 5(2) (a) of the CBSA.

36.	I am fortified in the view I take as to when the clock starts or started ticking by the decision of the Supreme Court in the case of Waim No. 85 Limited v The State & Rimua (2015) SC1405. In the above case the court found that according to the statement of claim it is not breach or lapse of the seven-year trusteeship agreement that was the cause of action or the occurrence out of which the claim arose, but the commencement of the Oil and Gas Act. (Joe Kerowa v MVIL (2010) SC 1100)).

37.	In the circumstances, these proceedings are liable to be dismissed in their entirety.

38.	In the result, the Court orders as follows:
(a)	The Plaintiff’s proceedings (as consolidated) are dismissed for offending Section 5 of the Claims By and Against the State Act 1996 with costs – such costs to be taxed if not agreed.
_______________________________________________________________
Cornerstone Legal Services: Lawyer for the Plaintiff
Office of the Solicitor General: Lawyer for the First, Second, Third, Fourth, Fifth, Sixth & Seventh Respondents
Paisat Lawyers: Lawyer for the Eight & Ninth Respondents