N10767
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO. 165 OF 2018

BETWEEN:
BILLY ARUA BOKO ON BEHALF OF 708 SETTLERS AT PORTION 161, 162, 1322 AND 69 LALOKI AND PART OF DA 600
Plaintiff

V

NATIONAL AGRICULTURAL RESEARCH INSTITUTE (NARI)
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Narokobi, J
2023: 4th August
2024: 19th April

PRACTICE AND PROCEDURE- Application to dismiss proceedings –  whether proceeding discloses reasonable cause of action- whether proceeding has tendency to cause prejudice, embarrassment and delay – whether proceeding is an abuse of process – whether consent to act provided for representative action.

CLAIMS BY AND AGAINST THE STATE ACT 1996 – Notice under s 5 of the Claims By and Against the State Act 1996 – Conflicting Supreme Court decisions - Non-compliance – whether notice necessary where declaratory orders only sought. 

FRAUDS AND LIMITATION ACT 1989 – Whether proceedings statute barred – Consideration of conflicting Supreme Court authorities- Dismissal not appropriate at this stage given conflicting authorities.

PRACTICE AND PROCEDURE – Compliance with Order 4 rule 20 of the National Court Rules – Order granted to rectify non-compliance

The plaintiffs commenced as a human rights application to prevent them from being evicted over a large area of land a number of them occupy. They claim both legitimate customary interest and equitable interest over portions 161, 162, 1322 and part of portion 69 (known as DA600 Laloki land) Milinch Granville (the land). The plaintiffs have since been ordered to file a statement of claim which they did on 12 May 2022, and the first defendant filed its defence on 30 November 2022. The first defendant after filing its defence has filed a notice of motion seeking to dismiss the proceedings or to have the proceeding struck out pursuant to Order 8 rule 27(1)(a )(b) (c ) as well as rule 30 of the National Court Rules for the reasons that it:

•	Non-compliance with s 5 of the Claims by and Against the State Act 1996;
•	Discloses no reasonable cause of action;
•	Has a tendency to cause prejudice, embarrassment or delay in the proceeding;
•	An abuse of the process of the court;
•	Fails to plead particulars of fraud and misrepresentation; and
•	Proceeding being statute barred under the Frauds and Limitation Act 1989.

Held:

(1)	 Following Sisimolu v Kaia (2024) SC2525, where the claim is not a money claim, there is no requirement to give notice under s 5 of the Claims By and Against the State Act 1996. The statement of claim of the plaintiff filed on 12 May 2022, seeks declarations, injunctions, general damages and exemplary damages. Considering the nature of the relief sought the proceeding should not be dismissed, although the claim for general damages and exemplary damages may be objected to at trial.

(2)	The question of whether the claim was statute barred under the Frauds and Limitation Act 1989 should be considered at trial after counsels adequately assisting the court on the application of conflicting Supreme Court decisions.

(3)	On the issue of pleading particulars of fraud, the first defendant has provided a comprehensive defence to the statement of claim. There is no disadvantage to the first defendants in terms of understanding and defending the claim against them, initiated by the plaintiff. The issue is whether the relevant legislation was complied with before the title to the land was issued to the first defendant. The issue is now crystalised upon the first defendant filing its defence. To entertain a motion to dismiss on the basis of failing to plead the particulars of fraud would be an exercise where procedural justice unnecessarily trumps substantive justice. There may be occasions where such an application is necessary to protect a defendant from spurious claims. This is not one of them.

(4)	The first defendant has raised a belated claim to non-compliance with Order 4 rule 20 of the National Court Rules. Giving paramount consideration to the dispensation of justice under s 158 of the Constitution, instead of dismissing the proceeding, the plaintiffs are ordered to file a consent of authority to act pursuant to Order 4 rule 20 of the National Court Rules within 14 days. Failure to comply will result in the dismissal of the proceedings.

(5)	Given the courts findings on the main issues, the balance of the objections are refused, and consequently the first defendants application to dismiss is refused.

Cases Cited:
Camilus v Mota (2022) SC2210
Emas Estate Development Pty Ltd v Mea, Swokin, and The State [1993] PNGLR 215
Kuman v Digicel (PNG) Ltd (2013) SC1232
H.R. Holdings Ltd v Taka [2023] PGSC 51; SC2411
Mali v The State (2002) SC690
Mamum Investment Ltd v Nixon Koi (2015) SC1409
Motor Vehicles Insurance (PNG) Trust v Etape [1994] PNGLR 596
Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370
Mudge and Mudge v Secretary for Lands, The State and Delta Developments Pty Ltd [1985] PNGLR 387
PNG Ready Mixed Concrete Pty Ltd v PNG Ors [1981] PNGLR 396
Saba  v Kaienge [2023] PGNC 117; N10243 (31 March 2023)
Sisimolu v Kaia (2024) SC2525

Statutes Cited:
Constitution
Claims By and Against the State Act 1996
Frauds and Limitation Act 1989

Counsel:
Ms E Bowada, as representative of the Plaintiffs
Mr D Wapu, for the First Defendant
Ms A Kajoka, for the Second Defendant

RULING

19th April 2024
		
1.	NAROKOBI J: The proceeding was commenced as a human rights application on 30 July 2018 to prevent them from being evicted over a large area of land a number of them occupy. They claim both legitimate customary interest and equitable interest over portions 161, 162, 1322 and part of portion 69 (known as DA600 Laloki land) Milinch Granville (the land). The plaintiffs have since been ordered to file a statement of claim which they did on 12 May 2022, and the first defendant filed its defence on 30 November 2022. The plaintiffs did not raise any issue with late filing of defence, and I do not consider it.

2.	The first defendant after filing its defence has filed a notice of motion seeking to dismiss the proceedings or to have the proceeding struck out pursuant to Order 8 rule 27(1)(a )(b) (c ) as well as rule 30 of the National Court Rules for the reasons that it:

•	Discloses no reasonable cause of action;
•	Has a tendency to cause prejudice, embarrassment or delay in the proceeding;
•	An abuse of the process of the court;
•	Fails to plead particulars of fraud and misrepresentation; and
•	Representative plaintiff has not provided consent to act from all the plaintiffs to initiate this proceeding as required by Order 4 rule 20 of the National Court Rules.

3.	The plaintiff also seeks dismissal on the basis that the proceedings are statute barred pursuant to s 16(1)(a) of the Frauds and Limitation Act 1988, and that s 5 of the Claims By and Against the State Act 1996 was not complied with.

4.	Costs were then sought by the first defendant against the plaintiffs on a solicitor/client basis.

5.	Supporting the first defendant, the second defendant also submits that the proceedings should be dismissed for the reasons submitted by the first defendant.

6.	The plaintiff relies on the affidavit filed by Warea Orapa, the acting Director-General of the first defendant. Warea Orapa deposes to the following matters:

•	The portions 161, 162, 1322 and part of portion 69 (known as DA600 Laloki land) Milinch Granville (the land) were initially owned by the State.
•	On 15 July 1992 a Deed of Release for the land was entered into between the State and the following persons – Madaha Geita, Gaudi Nuana, Maraga Tabu, Vaibori Ginata, Fred G. Nuana and Nebira Gorogo.
•	After the State purchased the land for K151,600 it granted to the first defendant, a certificate authorising occupancy or CAO.
•	Around 2005, the first defendant applied for the title to the land.
•	On 24 November 2005, the Land Board published in the National Gazette, No G172, its recommendation for the title to the land to be allocated to the first defendant.
•	On 22 March 2006, the first defendant accepted the terms and conditions of the lease and executed the State lease for the land.
•	On 23 May 2006 the Minister for Lands and Physical Planning granted a special purposes lease to the first defendant for 99 years commencing 24 November 2005 to 23 November 2104.
•	The map of the land shows it to be an area of 121.4 hectares, registered with the first defendant.
•	On 29 August 2017, a notice to quit was issued to the plaintiffs with other illegal settlers, to vacate the land within 12 months.
•	When the plaintiffs and other settlers failed to vacate the land, the first defendant obtained eviction orders and offered K1,000.00 to each of the settlers to vacate the place.

7.	The plaintiffs responded with the affidavit of Boio Morata. He says that he is the chief land controller and administrator of DA 600 and all SABL portions, the subject of these proceedings. He says the plaintiffs are not only settlers, but some are landowners, because the land belongs to Uhadi Ioragaha ILG, registered as 617. Landowners have lived there for three to four generations, and settlers also have lived there 20 to 25 years ago. They say that it is strange that they have not been made aware of the deed of release dated 15 July 1992, and the payment of K151,600.00. But he is aware of a payment for K191,000.00 for occupational fee. He says that this is necessary for a CAO to be issued to the first defendant. Boio Morata says that the first defendant has not complied with the necessary process for the customary land to be converted to State land. In this case, it was done by the Lands Board, but that should not have been the case, as the land was customary land, and the compulsory acquisition process requires consultation with the landowners. This was not done.  

8.	Let me deal with the question of s 5 notice under the Claims By and Against the State Act 1996 first. There has been a number of differing views from the Supreme Court. The most recent one is the case of Sisimolu v Kaia (2024) SC2525, where the Supreme Court by majority held as follows:

“(2) Section 5 of the Claims By and Against the State Act 1996 is a condition precedent which in effect is a statutory defence. It does not invest in the Court a jurisdiction or power to dismiss a proceeding.
(3) The notice of motion filed by the State and its entity which cited s. 5 of the Claims By and Against the State Act 1996 as the jurisdictional basis to dismiss the proceeding is not correct and therefore is incompetent and should be struck out or dismissed.
(4) The requirement to give notice of a claim under s. 5 of the Claims By and Against the State Act 1996 do not apply to declarations and injunctions which are not claims of monetary nature.”

9.	I am persuaded by the views offered by the majority of the judges in that case. Following this case, divests me of jurisdiction to dismiss a proceeding on the basis of a notice of motion. Furthermore, where the claim is not a money claim, there is no need to give notice under s 5 of the Claims By and Against the State Act 1996. I have examined the statement of claim of the plaintiff filed on 12 May 2022, it seeks declarations, injunctions, general damages and exemplary damages. But I cannot strike out the claim for general damages and exemplary damages by way of motion relying on s 5 of the Claims By and Against the State Act. It is not a jurisdictional basis to strike out proceeding in an interlocutory manner through a notice of motion. This is my reading of Sisimolu.

10.	The next objection I deal with is, whether the matter is statute barred under s 16 of the Frauds and Limitation Act. The title was issued to the first defendant on 23 May 2006. Should this be the date when the cause of action accrued that is when the title was issued on 23 May 2006 or should it be from the notice to quit on 29 August 2017. The first defendant says that it should be from when the title was issued on 23 May 2006, relying on the case of Mamum Investment Ltd v Nixon Koi (2015) SC1409. To answer this question, I have had regard to recent decisions of the Supreme Court. One line of authority beginning with Emas Estate Development Pty Ltd v. John Mea [1993] PNGLR 215 says that fraud can be constructive fraud. Another line of authority have recognised the case of Mudge v. Secretary for Lands & Ors [1985] PNGLR 387to say that fraud must be actual fraud. When it is constructive fraud, then the Fraud and Limitation Act does not apply (Albert Camilus -v-David  Mota  & others (2022) SC2210). I have alluded to these conflicting positions in Saba  v Kaienge [2023] PGNC 117; N10243 (31 March 2023) and referred the matter under s 15 of the Supreme Court Act for a five member bench to resolve. I am not aware of the Supreme Court resolving the matter.  In a situation where there are conflicting Supreme Court authorities, I am guided by what the Supreme Court said in H.R. Holdings Ltd v Taka [2023] PGSC 51; SC2411 (28 June 2023) at paragraph 46:

The duty of counsel appearing before a trial judge in cases where there are conflicting decisions of the Supreme Court becomes more critical. Counsel are duty bound to assist with well researched submissions as to which of the conflicting decisions a trial judge should adopt and apply or refer the conflicting decisions to the Supreme Court to resolve. Where counsels appearing before a trial judge fail in their duty, it would be open to the trial judge decided which line of the conflicting authorities it should follow or refer the issue of conflicting authorities to the Supreme Court to resolved.

11.	Since I am not assisted by counsels to decide this issue, I am not minded determining the matter in an interlocutory way. I will reserve this issue to be decided after the matter goes to proper trial.  

12.	I deal now with the question of whether the proceedings are adequately pleaded. In Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370 and Motor Vehicles Insurance (PNG) Trust v Etape [1994] PNGLR 596 the Courts held that, if a party fails to take objection to evidence being led at the trial of matters not pleaded, it could not later hack back at the pleadings and argue against any awards on such evidence on matters not specifically pleaded. The Court in Pupune adopted the principles in Gould and Birbeck and Bacon [1916] HCA 81; (1916) 22 CLR 490 at pp. 517. The relevant part of that judgment was by Isaacs and Rich JJ in a joint judgement in these terms:

"But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest. There is abundant authority for this, even if the matter were required to rest on authority only. See, for instance Nevill v. Fine Art and General Insurance Co [1896] UKLawRpAC 58; (1897) AC 68 at p 76; Browne v. Dunn 6 R 67 at p 75, the relevant passage being quoted fully in Rowe v. Australian United Steam Navigation Co [1909] HCA 25; 9 CLR 1, at p 24."

13.	I have considered the first defendant’s defence. They have provided a comprehensive defence to the statement of claim. There is no disadvantage to the first defendants in terms of understanding and defending the claim against them, initiated by the plaintiff. The issue is whether the relevant legislation were complied with before the title to the land was issued to the first defendant. The issue for the litigation to be contested is now crystalised upon the first defendant filing its defence. To entertain a motion to dismiss on the basis of failing to plead the particulars of fraud would be an exercise where procedural justice unnecessarily trumps substantive justice. There may be occasions where such an application is necessary to protect a defendant from spurious claims. This is not one of them. For these reasons I reject the claim that no reasonable cause of action is pleaded, and particulars of fraud has not been pleaded.

14.	The final objection is whether the plaintiff has provided consent to act from all the plaintiffs to initiate this proceeding as required by Order 4 rule 20 of the National Court Rules. This requirement has been affirmed in the Supreme Court in Mali v The State (2002) SC690. I note that the first defendant has not raised this issue earlier, and the proceeding has come this far. Giving paramount consideration to the dispensation of justice under s 158 of the Constitution, instead of dismissing the proceeding, I will order that the plaintiffs file a consent of authority to act pursuant to Order 4 rule 20 of the National Court Rules within 14 days from today. Failure to comply with this order will result in the dismissal of the proceedings.

15.	Given my findings and cases such as Kuman v Digicel (PNG) Ltd (2013) SC1232 it is not necessary to consider the other grounds of objections raised by the first defendant. I am able to discern a cause of action from the pleadings.

16.	For the reasons that I have offered, I will refuse the first defendants notice of motion filed on 7 December 2022 to dismiss the proceeding, and order that parties will bear their own costs. The final orders of the courts are:

1)	The plaintiffs file a consent of authority to act pursuant to Order 4 rule 20 of the National Court Rules within 14 days from today, failing which the proceeding will be dismissed.
2)	All orders sought by the first defendant in their notice of motion filed on 7 December 2022 are refused.
3)	Each party will bear their own costs.
4)	Time is abridged. 

Judgement and orders accordingly.

________________________________________________________________
Don Wapu Lawyers: Lawyers for the First Defendant
Solicitor General: Lawyers for the Second Defendant