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Katumani Land Group Inc No. 646 v Kabyiom Clan of the Yamap People of Baini Village [2025] PGNC 348; N11490 (12 September 2025)

N11490

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

W.S. NO. 160 OF 2025

BETWEEN:
KATUMANI LAND GROUP INCORPORATED NO. 646 of the Baiune area of the Bulolo District of Morobe Province
First Plaintiff

AND:
PNG FOREST PRODUCTS LIMITED
Second Plaintiff

AND:
KABYIOM CLAN OF THE YAMAP PEOPLE OF BAINI VILLAGE, Bulolo District of Morobe Province
First Defendant

AND:
LANGAN ENGINEERING AND ENVIRONMENTAL SERVICES LIMITED
Second Defendant

WAIGANI: DINGAKE J
18 AUGUST, 12 SEPTEMBER 2025

PRACTICE AND PROCEDURE – motion by plaintiffs to strike out defendant’s defence and enter summary judgment in their favour – grounds of application for summary judgment - not disclosing reasonable defence and being an embarrassment - pleading, such as a Defence, that is bereft of sufficient details to appreciate or understand; or otherwise, vague or unintelligible and obscures the real issues between parties, or is evasive and makes rational engagement difficult, discloses no reasonable defence and is liable to be struck out - Defence is so fundamentally lacking in material particularity that the whole Defence should be struck down - Defendants Defence discloses no reasonable defence – defence is an embarrassment – Defence struck out and summary judgment entered for the plaintiffs

Cases cited
Katumani Incorporated Land Group v Yawing [2020] PGNC 285; N8481
Katumani Land Group Incorporated (Reg ILG No 646) v Advance Construction Ltd [2022] PGNC 226; N9656
Esso Highlands Ltd v Willie [2015] PGNC 105; N6010
Kuman v Digicel (PNG) Ltd [2013] PGSC 10; SC1232

Counsel
Ms. Vanessa Rambua, for the plaintiffs
No appearance, for the defendant

JUDGMENT

1. DINGAKE J: INTRODUCTION: By way of Notice of Motion filed on the 4^th of August 2025, the Plaintiffs/Applicants, seek, inter alia, orders of this Court, in the main, to strike out the Defendants defence filed on the 17^th of July 2025 for disclosing no reasonable defence and being an embarrassment and to enter summary judgment in favour of the Plaintiffs.
   
2. On the date the Notice of Motion was heard, the Defendants despite being duly served did not appear.
   
3. The First Plaintiff is the registered proprietor of Special Business Agricultural Lease described as Portion 482C.
   
4. The First Plaintiff subleased a portion of the land within Portion 482C Located in Baiune to the First Defendant to develop and operate a Hydro Power Station which now supplies 25% of electricity to the Morobe Grid.
   
5. On or about the 2^nd of July 2010, Portion 428C, was leased to the Independent State of Papua New Guinea pursuant to an instrument of lease of customary land.
   
6. On the 15^th of October 2010, a Special Agriculture and Business Lease described as Volume 18, Folio 44, over Portion 482C, Milinch of Bulolo, Fourmil of Wau, in Morobe Province was issued to Katumani (SABL).
   
7. The Power Stations were the first projects in Papua New Guinea whereby a hydro power station has been built by a private organization as commercial venture for the sole purpose of supplying power to PNG Power Limited.
   
8. The Plaintiffs allege that the First Defendant, without authority and pretending to be owners engaged in negotiations with certain entities to build a road through Portion 482C. They say this enabled the Second Defendant to enter Portion 482C to begin road construction work.
   
9. The Plaintiffs express the fear that the road construction may occasion environmental damage and contaminate the waterway located on Portion 482C.
   
10. The Plaintiffs complain that the Second Defendant’s conduct amount to trespass and unlawful destruction of property.
    
11. On the 8^th of May 2025, the Plaintiffs filed their Writ of Summons endorsed with a Statement of Claim, in which they alleged, inter alia, that the First Defendant falsely represented to the Second Defendant that they:
    
    1. Were the customary landowner’s of Baiune area of Bulolo, Morobe Province;
       
    2. Had a valid agreement with the First Plaintiff to build a road through Portion 482C; and
       
    3. Entered into an agreement with the Second Defendant on behalf of the First Plaintiff for the road to pass through Portion 482C.
       
12. In their Statement of Claim the Plaintiffs allege that the First Defendant acted fraudulently in inducing the Second Defendant to construct the road.
    
13. The Plaintiffs alleges that as a result of the above conduct by the Defendants the Plaintiffs suffered loss and damages.
    
14. In consequence of the above the Plaintiff claims the following:
    
    1. A declaration that:
       
       1. The First Defendant is not the legitimate landowner of Baiune and Portion 482C.
          
       2. Consequently, the Road Access Agreement between the Defendants and the Plaintiff is unlawful, void and to be of no effect.
          
    2. A permanent injunction restraining the Defendants their servants, agents, clan members and/or whosoever associated with the Defendants from entering and/or have any dealing to do with Baiune and Portion 482C.
       
    100. Punitive damages in the amount of K200,000 to be awarded in favour of the Plaintiffs and to be paid equally by the Defendants.
         
    4. Interest at 5% per annum pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015.
       
    5. Costs of this proceeding against the First and Second Defendants on a Solicitor-Client basis.
       
    6. Any further or other relief this Court considers appropriate.
       
15. The First and Second Defendants filed a Notice of Intention to defend and subsequently a Defence, in which they deny the Plaintiff’s claims. They assert that the subject land was leased to the Independent State of Papua New Guinea under a lease agreement and later granted a Special Agriculture and Business Lease and that Government has revoked all Special Agriculture and Business Leases. They also say that the First Defendant owns land areas around which the First and Second Plaintiff get their water intake for purposes of Hydro Power and Water Supply.
    
16. The Defendants in their Defence, also say that the First and Second Plaintiffs were aware of the road construction and gave access to the Defendants to bring the road construction machinery to the construction site.
    
17. The Defendants state, in their Defence that:
    
    1. The road is a public infrastructure initiated by the Government of Papua New Guinea through Morobe Provincial Government and Department of Works for a public purpose to serve public and national interest and,
       
    2. The Government has contracted the Second Defendant to construct the road.
       
    100. The road will give access to 30,000 plus people living along Yamap to Salamaua and construction should be allowed to continue. Denial of this vital new road link will leave 30,000 plus lives at risk of not having access to government services including education and health.
         
    4. There is no utility in this proceeding since the Second Defendant is employed by the Independent State of Papua New Guinea to construct the road which is the property of the Independent State of Papua New Guinea.
       
18. The Defendants further say that the proposed road through portion 482C is part of the Connect PNG Program, an initiative of the National Government. They also say that the Second Defendant was contracted by the State to construct the road.
    
19. The Defendants did not respond to the Plaintiffs’ request for further and better particulars. The Plaintiffs requested the Defendants to provide further and better particulars as follows:
    

1. Particulars, such as the instrument and gazettal notice of the revocation of the SABL over Portion 482C;
   
   2. Description of the land area owned by the First Defendants;
      
   100. Details of names and roles of the members of the First Plaintiff that consented or represented their approval for the road construction along Portion 482C;
        
   4. Details of the meeting venues and ceremonies where consent was given;
      
   5. Names and roles of the representatives of the Morobe Provincial Government, Watut Rural LLG, Mumeng LLG, and Bulolo LLG that attended the groundbreaking ceremony;
      
   6. Documentations to prove that the road construction over Portion 482C is part of the PNG Connect program; and
      
   7. Copy of written agreement to confirm that the Second Defendant is an employee of the State and was contracted to construct the road.
      

ANALYSIS OF THE PLEADINGS AND THE EVIDENCE

20. In this application the Plaintiffs rely on the following evidence:
    
    1. Affidavit of Geame Katu sworn on 6 May 2025 and filed on 8 May 2025.
       
    2. Affidavit of Grant Jephcott sworn 6 May 2025 and filed 8 May 2025.
       
    100. Affidavit of Luke Wangi sworn and filed on 27 May 2025 (LW’s First Affidavit).
         
    4. Affidavit of Luke Wangi sworn and filed on 4 August 2025 (LW’s Second Affidavit).
       
    5. Affidavit of Geame Katu sworn and filed on 6 August 2025.
       
    6. Affidavit of Service of Noel Heni filed on 8 August 2025.
       
21. The evidence establishes that the Plaintiff has issued out a Writ of Summons claiming the relief earlier indicated. The evidence of the Plaintiffs (Annexure “D” Affidavit of Geame Katu) establishes that the First Plaintiff has indefeasible title of Portion 482C.
    
22. On the evidence, there is no Bonafide contestation over the title held by the First Plaintiff.
    
23. That the Plaintiffs have title over Portion 482C has been confirmed by two decisions of this Court, namely Katumani Incorporated Land Group Yawing (2020) PGNC 285 (Dowa J) and Katumani Land Group Incorporated v Advance Construction (2022) PGNC 226 (David J).
    
24. It is also the position of the law that where SABL Lease is granted, all customary rights of the people are suspended for the period of the lease. Section 11 of the Land Act provides that:
    

Division 4.

Acquisition of Customary land for Lease-leaseback purposes.

11. ACQUISITION OF CUSTOMARY LAND FOR THE GRANT OF SPECIAL AGRICULTURAL AND BUSINESS LEASE.
    

(1) The Minister may lease customary land for the purpose of granting a special agricultural and business lease of the land.

(2) Where the Minister leases customary land under Subsection (1), an instrument of lease in the approved form, executed by or on behalf of the customary landowners, is conclusive evidence that the State has a good title to the lease and that all customary rights in the land, except those which are specifically reserved in the lease, are suspended for the period of the lease to the State.

(3) No rent or other compensation is payable by the State for a lease of customary land under Subsection (1).

25. The Defendant’s Defence has many features that are unintelligible or unsatisfactory or could have been pleaded with more clarity or better detail. For instance, whilst the Defendants allege that the SABL was cancelled, the Defendants do not give any details of any revocation notice over the subject land, Portion 482C. The Defendants allege that the road construction is part of the Connect PNG Program, an initiative of the National Government, but does not disclose any helpful contract details.
    

THE LAW

26. Order 8 Rule 27(1)(2) and (3) of the National Court Rules provides that:
    

27. Embarrassment, etc (15/26)

(1) Where a pleading—

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; or

(c) is otherwise an abuse of the process of the Court, the Court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleading be struck out.

(2) The Court may receive evidence on the hearing of an application for an order under sub-rule (1).

27. Case law in this jurisdiction has confirmed that a pleading, such as a Defence, that is bereft of sufficient details to appreciate or understand; or otherwise, vague or unintelligible and obscures the real issues between the parties, or is evasive and makes rational engagement difficult, discloses no reasonable defence. A defence embodying all or some of the above characteristics is liable to be struck out.
    
28. In the case of Kerry Lero trading as Hulu Haro Investments Ltd v Philip Stagg (2006) N3050, at page, the court stated that:
    

“A statement of claim or a defence (as the case may be) must therefore clearly plead the form of action by pleading the necessary legal elements of the action and relevant and necessary facts (not the evidence) giving rise to the form or action. It follows therefore that where a statement of claim or defence is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified and instead leaves it to guess work, it should be struck out.” (emphasis is mine) (See also: Kuman v Digicel PNG Ltd (2013))

29. In this case, the Defence is bereft of essential details outlined in paragraph 19 of this judgment that would make it clear and intelligible. In my mind it is liable to be struck out for that reason. In my view in circumstances, where, as in this case, two separate judgements confirmed that the First Plaintiff holds title to the subject land, the Defendants should have been much clearer about their defence to facilitate rational pleadings and avoid what appears to be like harassment of the Plaintiffs or an abuse of Court.
    
30. It is my considered opinion that the Defence is so fundamentally lacking in material particularity that the whole Defence is liable to be struck down as I shall do in due course.
    
31. Without any defence, it seems to me that that the Plaintiffs have met the requirements of a summary judgment.
    
32. To succeed to obtain summary judgment the Plaintiffs must:
    
    1. Tender evidence proving the essential elements of the claim;
       
    2. That the Plaintiff or some other responsible person has given evidence that in his belief there is no defence.
       
33. In this case, the Chairman of the First Plaintiff, as a responsible person, has stated that, in his belief:
    
    1. The Defence fails to raise any triable issue of fact or law; and
       
    2. Assertions of public benefit or implied consent by the First Plaintiff are not valid defences or no defence to cause of actions in trespass, nuisance or unlawful interference with proprietary rights.
       
34. In the result, the Court orders as follows:
    
    1. Pursuant to Order 8 Rule 27(1)(a)(b) and (c) of the Rules and the inherent jurisdiction of the Court, that the Defendants Defence filed on 17 July 2025 disclose no reasonable defence, is an embarrassment and should be struck out, and or is hereby struck out.
       
    2. Pursuant to Order 12 Rule 38 of the Rules and the inherent jurisdiction of the Court, that summary judgment be entered in favour of the Plaintiffs.
       
    100. The Defendants to pay the Plaintiffs’ costs of and incidental to this application on a party-to-party scale, such costs to be taxed, if not agreed.
         
    4. The time for entry of these Orders be abridged to the date of settlement by the Registrar which shall take place forthwith.
       

Lawyers for the plaintiffs/applicants: Leahy Lewin Lowing Sullivan Lawyers