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Tindipu v Poe [2023] PGNC 472; N10638 (29 December 2023)

N10638

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (HR) NO 7 OF 2023

KEVIN LAI TINDIPU
Plaintiff

V

JOHN BAPTIST POE
First Defendant

JOE JARPER
Second Defendant

REGISTRAR OF TITLES
Third Defendant

Waigani: Cannings J
2023: 14^th, 19^th, 29^th December

LAND – State Lease – allegation of fraud in transfer of State Lease – whether proceedings should be commenced by writ of summons, National Court Rules, Order 4 rule 2 – requirements re pleading fraud, National Court Rules, Order 8 rule 30 – whether proceedings should be dismissed summarily on own motion of Court, National Court Rules Order 12 rule 40.

The plaintiff applied to the National Court for declarations and orders that would see him become the registered proprietor of the State Lease over an urban property. He claimed that the current registered proprietor acquired the State Lease by fraud. None of the three defendants including the Registrar of Titles filed a notice of intention to defend or appeared in Court to respond to the plaintiff’s claims.

Held:

(1) Though the defendants took no interest in the proceedings the Court must be vigilant in ensuring that parties do not abuse the Court’s processes and do make a reasonable attempt to comply with the pleading requirements of the National Court Rules regarding proceedings based on fraud.

(2) The present proceedings were defective, having been commenced by originating summons, when they should have been commenced by writ of summons (as required by Order 4 rule 2) and because there was non-compliance with the requirements of Order 8 rule 30.

(3) The proceedings were dismissed on the own motion of the Court under Order 12 rule 40(1)(a) and (c) of the National Court Rules for disclosing no reasonable cause of action and being an abuse of process.

Cases Cited

No cases are cited in the judgment.

Counsel

K L Tindipu, the plaintiff, in person

29^th December 2023

1. CANNINGS J: The plaintiff, Kevin Lai Tindipu, has applied to the Court by originating summons for declarations and orders that would see him become the registered proprietor of a State Lease over a property in the town of Madang, Section 3 Lot 6. He claims that the current registered proprietor, Joe Jarper (the second defendant) acquired the State Lease by fraud. He claims that his father and mother raised their children including him on this property after it was left to them by an Englishman who used to live in the property.

2. He claims that for many years several doctors working at Modilon Hospital, Madang, lived in the property but none of them were lawful occupiers. He claims that a 99-year State Lease was issued by the Minister for Lands and Physical Planning to “John Baptist Poe” (first defendant) on 29 November 2012, and that only five days later the property was transferred to the current registered proprietor, Joe Jarper. The plaintiff claims that they are ghost names and all the entries on the State Lease are fraudulent.

PARTIES

3. The Registrar of Titles was joined to the proceedings as third defendant by order of the Court.

4. None of the three defendants including the Registrar of Titles filed a notice of intention to defend or appeared in Court to respond to the plaintiff’s claims. In any event it seems that the first two defendants were not served with the originating process. The Registrar of Titles was served but has shown no interest in the case.

DETERMINATION

5. The allegations made by the plaintiff are very serious, but as serious as they are, it must be said that there is little credible evidence to support them. The plaintiff has told a fascinating story of the history of this property in Madang and though it is not so far-fetched as to be dismissed for being unbelievable, it is a story based on allegations of fraud. For that reason there are special requirements of the National Court Rules that apply.

6. Though the defendants took no part in the proceedings the Court must be vigilant in ensuring that parties do not abuse the Court’s processes and do make a reasonable attempt to comply with the pleading requirements of the National Court Rules regarding proceedings based on fraud.

7. The present proceedings are fundamentally defective, having been commenced by originating summons, when they should have been commenced by writ of summons (as required by Order 4 rule 2) and because there has been non-compliance with the requirements of Order 8 rule 30.

8. The proceedings must be dismissed on the own motion of the Court under Order 12 rule 40(1)(a) and (c) of the National Court Rules for disclosing no reasonable cause of action and being an abuse of process.

CONCLUSION

9. I suggest that if the plaintiff wishes to pursue his interest in the subject property he should get legal advice and assistance. The case is being dismissed summarily, not on its merits, and he might be able to commence a new case, properly pleaded and supported by much better evidence. He might approach the Public Solicitor and make an application for legal aid.

10. There is one other suggestion I make. This is a case about land and in my view every case about land has a natural home and that is the registry of the National Court (if the case is within the jurisdiction of the National Court) that is closest to the land. This is a case about land in Madang town and if there is another case about this land commenced by the plaintiff or any other person it should be filed in the National Court Registry in Madang. That registry has long had a reputation for being among the busiest and most efficient in the country. That is where any other case that might be commenced concerning Section 3 Lot 6 Madang belongs.

ORDER

(1) The proceedings are entirely dismissed on the own motion of the Court under Order 12 rule 40(1)(a) and (c) of the National Court Rules for disclosing no reasonable cause of action and being an abuse of process.

(2) The parties shall bear their own costs.

(3) The file is closed.

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