|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 70 OF 2021
BETWEEN:
ROBIN AFEKE
Plaintiff
AND:
PATILIAS GAMATO, Electoral Commissioner of Papua New Guinea
First Defendant
AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Defendant
Goroka: Mugugia, AJ
2023: 14th March,
2023: 17th March
PRACTICE AND PROCEDURE – Defendants’ motion to dismiss proceedings for being time-barred - Whether the entire proceedings is time-barred pursuant to Section 16(1)(a) of the Frauds and Limitations Act 1988, and should be dismissed - Proceedings not time-barred - Alternatively, order sought to dismiss proceedings for want of Section 5 Notice to the State - Whether the proceedings should be dismissed for want of Section 5 Notice to the State - Issuance of Section 5 Notice to the State not in issue - Exercise of discretion - Defendants’ motion refused.
Case Cited:
Oil Search Oil Search Ltd. v. Mineral Resources Development Corporation Ltd. (2010) SC1022
Richard Yombon, for the Plaintiff
Kaiyoma Akeya, for the Defendants
RULING ON APPLICATION TO DISMISS PROCEEDINGS
17th March, 2023
1. MUGUGIA, AJ: The Defendants filed a Notice of Motion on 2nd February 2023, seeking an order to dismiss the proceedings for being time-barred, and alternatively, for dismissal of the proceedings for want of Section 5 Notice to the State. The motion was contested by the Plaintiff’s lawyer Mr Yombon. I heard this motion on 14th March 2023, and reserved my ruling to 17th March 2023. I now deliver my ruling.
FACTUAL BACKGROUND
2. The Plaintiff’s claim is that the management of the Second Defendant’s office in Goroka requested him to provide accommodation, meals and catering services to officers from Henganofi who were involved in the conduct of the election and counting in the 2012 National Election, and 2013 Local Level Government election.
3. The allegation is that the Second Defendant’s officer one James Piapia assured the Plaintiff that he would be paid at the conclusion of the elections. The Plaintiff agreed and provided the services that were required. This was based on an oral agreement. The Plaintiff provided an invoice dated 12th September 2013 for K138,000.00. Payment of this invoice was not made and delayed. This resulted in the institution of the current proceedings.
THE DEFENDANTS’ MOTION SEEKING DISMISSAL OF THE ENTIRE PROCEEDINGS
4. The Defendants’ lawyer Mr Akeya of Ponepai Lawyers made his clients’ application. The law firm had received a formal
brief out letter from the current Electoral Commissioner Mr Simon Sinai to act for the Defendants in this matter. Evidence confirming
this was filed in court. Mr Yombon of Counsel for the Plaintiff took no issue with this.
.
5. The Defendants sought these orders in their motion:
“(i) The entire proceedings be dismissed for being time-barred pursuant to Section 16(1) and (2) of the Frauds and Limitations Act 1988.
(ii) In the alternative, for want of Section 5 Notice pursuant to the Claims By and Against the State Act 1996.”
ISSUES FOR DETERMINATION
6. The two issues arising from the Defendants’ motion are:
(i) Whether the entire proceedings is time-barred pursuant to Section 16(1)(a) of the Frauds and Limitations Act 1988, and should be dismissed.
(ii) Whether the proceedings should be dismissed for want of Section 5 Notice to the State.
THE LAW
7. Section 16(1)(a) of the Frauds and Limitations Act 1988 applies to an action founded on simple contract or tort. An action that is founded on simple contract must be brought within 6 years from the date that the cause of action accrues pursuant to Section 16(1)(a) of the Frauds and Limitations Act.
8. In Oil Search Ltd. v. Mineral Resources Development Corporation Ltd. (2010) SC1022, the Supreme Court held that:
“(1) A proper determination of whether an action involving alleged breach of contractual obligations is time-barred entails a finding on three matters:
(a) identification of the cause of action;
(b) identification of the date on which the cause of action accrued;
(c) categorisation of the cause of action according to whether it is "founded on a simple contract" or "an action upon a speciality.”
9. Notice to the State under Section 5 of he Claims By and Against the State Act 1996 is a condition precedent to instituting a claim against the State. If no Section 5 notice is issued prior to bringing an action against the State, the proceedings is bound to be dismissed for being an abuse of the process of the Court.
Defendants’ Arguments
10. Mr Akeya of Counsel for the Defendants relied on the First Defendant’s affidavit in support filed on 2nd February 2023, and his written submissions filed on 14th March 2023. The Defendants’ arguments were as follows:
11. Mr Akeya referred to the case of TSC Industries Ltd. v. Koim (2019) N8781.
Plaintiff’s Arguments
12. Mr Yombon of Counsel for the Plaintiff relied on his client’s affidavit filed on 13th March 2023. In opposing the Defendants’
application, Mr Yombon presented these arguments:
• The Defendants’ evidence is vague.
• The Plaintiff’s cause of action arose in 2017.
• On whether the Plaintiff’s claim is time-barred, an application for extension of time was made in OS No. 145 of 2020,
Robin Akefe v. Independent State of Papua New Guinea, and an extension of time was granted to the Plaintiff. The State lawyer Mr
Russell Uware of the Office of the Solicitor General had argued the issue to oppose the Plaintiff’s application for extension
of time. The argument advanced by Mr Uware was that the claim is time-barred, and there was no utility in extending time to give
notice to the State. The Court (per Neill J) considered the parties’ arguments, and granted an extension of time to the Plaintiff
on 18th June 2020. Time started running on 18th June 2020. Mr Yombon submitted that the issue of whether the action is time-barred
was already addressed.
• The rationale in Koime v. Motor Vehicles Insurance Limited (2004) N2783 applies in the present case.
• Oil Search Ltd. v. Mineral Resources Development Corporation Ltd. (2010) SC1022 is relevant here.
• The Defendants have failed to file a defence and raise such issues. Pleadings become the basis for such issues. The Defendants
have inappropriately raised such issues without pleading the basis, and the Court should not allow such application.
Preliminary Point
13. I noted at the outset that the Defendants’ motion did not refer to the Court’s jurisdictional basis to make the orders sought, for example, Order 12, Rule 40 or Order 12, Rule 1 of the National Court Rules. Order 4, Rule 49(8) of the Motions (Amendment) Rules 2005 states that all Motions must contain a concise reference to the Court’s jurisdiction to grant the orders being sought. Here, the Defendants’ Motion does not contain such reference. It is non-compliant with the Rules. Do I have the jurisdiction to grant the orders sought? I am of the view that the Plaintiff is not prejudiced by the Defendants’ failure to comply with the Rule. For this reason, I will proceed to rule on the Defendants’ motion.
WHETHER THE ENTIRE PROCEEDINGS IS TIME-BARRED PURSUANT TO SECTION 16(1)(a) OF THE FRAUDS AND LIMITATIONS ACT 1988, AND SHOULD BE DISMISSED
14. Section 16(1)(a) of the Frauds and Limitations Act 1988 read:
“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) ...
(c)...
(d) ...
shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.
15. Section 16(1)(a) of the Frauds and Limitations Act 1988 applies to an action founded on simple contract or tort. An action that is founded on simple contract must be brought within 6 years
from the date that the cause of action accrues pursuant to Section 16(1)(a) of the Frauds and Limitations Act.
16. To determine the issue of whether the proceedings are time-barred, I am guided by the decision of the Supreme Court in Oil Search Ltd. v. Mineral Resources Development Corporation Ltd. (2010) SC1022. The Supreme Court said that a finding on an application for dismissal of proceeding for being time-barred depends on three matters which are:
(a) Identification of a cause of action;
(b) Identification of the date on which the cause of action accrued; and
(c) Categorisation of the cause of action.
17. I adopt and apply (a), (b) and (c) to the case before me.
Identification of a cause of action - What is the Plaintiff’s cause of action?
18. The Plaintiff’s pleading is that there was an oral agreement between the Plaintiff and the Second Defendant’s officer James Piapia. I find that the Plaintiff’s cause of action against the Defendants is breach of agreement (contract).
Identification of the date on which the cause of action accrued - When did the Plaintiff’s cause of action accrue?
19. The Plaintiff pleads in his statement of claim that it provided an invoice of K138,000.00 by way of an invoice dated 12th September 2013. He waited for payment but it was delayed. He issued several documents to the Defendants. The latest document to the Defendants was a letter dated February 2017.
20. The Defendants contended that the Plaintiff’s cause of action arose on 12th September 2013 when the Plaintiff provided the invoice. On the other hand, the Plaintiff contended that the cause of action arose in 2017. The Plaintiff was granted an extension of time to give Section 5 Notice to the State on 18th June 2020, and time starts running on this date.
21. I find that the cause of action accrued in February 2017.
Categorisation of the cause of action.
22. I am of the view that the category that the Plaintiff’s cause of action falls under is contract.
23. The Defendants did not file a defence. The statutory defence that the action is time-barred is not pleaded. I find that there is no foundation for raising this statutory defence.
24. I made a finding above that the Plaintiff’s cause of action accrued in 2017. The Plaintiff instituted his court proceedings on 8th March 2021. I am satisfied that the Plaintiff commenced the proceedings within 6 years after the cause of action accrued. I find that the proceedings is not time-barred pursuant to Section 16(1)(a) of the Frauds and Limitations Act 1988.
25. This is a clear case where the Plaintiff’s claim is not time-barred for it to be dismissed. Based on the reasons given above, and in the exercise of my discretion, I will not dismiss the proceedings on the ground that it is time-barred.
WHETHER THE PROCEEDINGS SHOULD BE DISMISSED FOR WANT OF SECTION 5 NOTICE TO THE STATE
26. The alternative order sought by the Defendants is for dismissal of the proceedings for want of Section 5 Notice to the State.
I have considered the documents placed before me, and Counsels’ submissions on this issue. I agree with Mr Yombon that Section
5 Notice is not an issue. The proceedings will not be dismissed based on this ground.
CONCLUSION
27. I am of the view that the Defendants have not properly made out their claim based on the grounds raised for the proceedings to be dismissed. Pursuant to Order 12, Rule 1 of the National Court Rules, I refuse the Defendants’ motion.
COSTS
28. An order for cost is discretionary. Costs follow the event. I order that the Defendants pay the Plaintiff’s costs.
FORMAL ORDERS:
29. The formal orders of the Court are:
1. The Defendants’ Notice of Motion filed on 2nd February 2023 to dismiss the entire proceedings is refused.
2. The Defendants shall pay for the Plaintiff’s costs of and incidental to this application, which shall, if not agreed, be taxed.
3. Time for entry of these orders is abridged to the date and time of settlement of these orders by the Registrar which shall take place forthwith.
The Court orders accordingly.
________________________________________________________________
Setao Lawyers: Lawyer for the Plaintiff
Ponepai Lawyers: Lawyer for the Defendants
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2023/44.html