SC2674      

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 116 OF 2023

BETWEEN:
ROMAN CATHOLIC ARCHDIOCESE OF RABAUL
Appellant

AND:
KUTT PAONGA in his capacity as the Deputy Chief Commissioner as Lands Titles Commission
First Respondent

JACKSON GAH in his official capacity as the Deputy Chief Commissioner
Second Respondent

LANDS TITLES COMMISSION
Third Respondent

DEPARTMENT OF JUSTICE & ATTORNEY GENERAL
Fourth Respondent

ALE ANE in his official capacity as the Secretary for Lands & Physical Planning
Fifth Respondent

BENJAMIN SAMSON in his capacity as Secretary for Lands & Physical Planning
Sixth Respondent

DEPARTMENT OF LANDS & PHYSICAL PLANNING
Seventh Respondent

SAMSON SARU in his capacity as Chairman of Mali Immer Kiliga Incorporated Land Group
Eight Respondent

MALI IMMER KILIGIA INCORPORATION LAND GROUP
Ninth Respondent

WAIGANI: TOLIKEN J, AUKA J, NUMAPO J
30 JULY & 19 DECEMBER 2024

SUPREME COURT – PRACTICE & PROCEDURE – Objection to Competency of an Appeal– Use of correct Form 9 – Order 7 Rule 15 SCR – Objection to competency is filed out of time and is incompetent - Requirement to state the correct jurisdictional basis to grant the relief sought- Order 12 Rule 40 NCR – Section 5 of Claims Act does not invest in the Court the jurisdiction to dismiss a proceeding – Section 5 notice is a condition precedent that must be complied with in commencing a claim against the State – Notice is only required for claims involving monetary relief or considerations – Claims seeking equitable relief (declaratory orders and/or injunctive relief) do not require notice under Claims Act – Appeal is upheld.

Cases cited:

The Director of District Administration v. Methodist Overseas Mission Trust Association; In Re: Vunagamata [1971] PGSC 12). 
The Papua Club Inc. v. Nusam Holdings Ltd (No.2) (2004) N2630)
Pyali v. Kabilo [2003] PGNC 21; N2492 
Cullinan v. Australia & New Zealand Banking Group (PNG) Ltd (2004) N2754
Melina Ltd v. Martens [2001] PGNC 2183; N2183 
Ihari v. Motor Vehicles Insurance Ltd (2006) SC1317 
Ok Tedi Mining Limited v. Niugini Insurance Corporation and Ors [1988-89] PNGLR 355.
PNG Deep Sea Fishing Ltd v. Critten (2010) SC1126
Kalinoe v. Paul Paraka Lawyers (2014) SC1366
Paul Tohian & The State v. Tau Liu (1998) SC566
Mission Aseki v. Zurenuoc, Provincial Administrator (2005) SC797
Mathew Sisimolu v. Lihila Naua, as Acting Secretary, Department of Petroleum & Ors (2020) SCA 20 
Simon Kauba v. Alphonse Willie (2021) SC2162
Mal v Commander, Beon Correctional Institution (2017) N6710
Rahmati v Independent State of Papua New Guinea [2018] PGNC 325; N7468
Punangi v, Brown, Minister for Public Service & Ors (2004) N2661
Peter Neville v. National Executive Council of Papua New Guinea (2015) SC1431
Kimbu v. Pakira [2023] PGSC 28; SC2389
Hon. Havila Kapo v. Hon. Mark Maipakai, MP (2010) SC1067
Jessie Yai-Pupu v. Yai-Pupu, the Administrator of the Estate of the Late Michael Yai-Pupu SC2364
Gary McHardy v Prosec & Communications Limited [2000] PNGLR 279
Yaluma v. The State [2010] PGNC 91: N4088
Kurumbukari Ltd v Saud [2015] PGNC 99; N590
Kupo v. Westpac Bank PNG Ltd [2014] PGNC 227; N5881

Counsel

D. Kopunye for the appellant
E. Paisat for the eight & ninth respondents

1.	BY THE COURT:  The Appellant filed a notice of appeal against the decision of the Court below on a consolidated proceedings where it dismissed the entire proceedings on the basis that it offends against Section 5 of the Claims By And Against The State Act 1996 (‘Claims Act). 

2.	Appellant appeals the decision of the primary judge in dismissing the consolidated proceedings for offending Section 5 of the Claims Act with costs. 

A.	BACKGROUND

3.	    The ruling of the Court below was in respect of a decision on an application moved by the State on behalf of the 1st - 7th Defendants/Respondents to dismiss the entire proceedings on the basis that there was no valid Notice issued by the Plaintiff/Appellant prior to suing the State, as required by Section 5 of the Claims Act. The above-named Defendants/Respondents are all entities, agents and/or servants of the State. 

4.	    The Plaintiff/Appellant is the Roman Catholic Archdiocese of Rabaul, a corporate body established by Section 2 of the Roman Catholic Archdiocese of Rabaul Act 1969. 

5.	    The Plaintiff/Appellant, at different times, in the course of 2020, issued proceedings seeking to dismiss two separate proceedings namely, WS No. 292 of 2020 and WS No. 736 of 2020. The two claims were consolidated and heard together.

6.	    Proceeding WS No. 292 of 2020 against the Defendants/Respondents were in respect to the issuance of the titles by the fifth Defendant/Respondent to the eighth and ninth Defendants/Respondents over portions of land described as; Portion 435C, Portion 580, Portion 806, Portion 807C Milinch Kokopo, Rabaul, East New Britain Province that covers a total of 309,730 hectares of land. 

7.	    Appellant/Plaintiff alleges that the acts, conduct and misrepresentation made by the first - ninth Defendants/Respondents resulted in the issuance of five (5) separate titles in the name of the ninth Defendant/Respondent for Portions 435C, 580, 806, 807C and 808C constituted acts of fraud and misrepresentation. 

8.	    With respect to proceedings styled WS No. 736 of 2020, it was against the Defendants/Respondents 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 4th Defendant/Respondent.

9.	     In both proceedings, the Appellant/Plaintiff claimed to have indefeasible title over the portions of land described. The fourth and ninth Defendants/ Respondents also claimed to have titles over the same portions of the land respectively.

10.	     It became clear to us that Section 5 Notice under the Claims Act was not issued with respect to proceedings WS No. 736 of 2020. It is also not disputed that the Plaintiff/Appellant did not plead Section 5 in the pleadings or in the discovery.

11.	    The learned primary judge then ruled that the failure to give Section 5 Notice renders the Plaintiff’s/Appellant’s claim against the State invalid in respect to WS No. 736 of 2020. 

12.	    With respect to proceedings WS No. 292 of 2020, the Plaintiff/Appellant issued a Notice pursuant to Section 5 of the Claims Act. The Notice was duly served and was also pleaded in the Statement of Claim.

13.	    The Defendants/Respondents acknowledged that the Section 5 Notice was issued with respect to proceedings WS No, 292 of 2020 but that it was issued outside of six (6) months period prescribed by Section 5 (2) (a) of the Claims Act.

14.	    The Court below found that the Section 5 Notice was issued two years after the decision to issue the titles for the portions of land was made hence, out of the time period prescribed by law.

15.	    Plaintiff/Appellant contended that it gave Section 5 Notice within the six (6) months period as required by Section 5 (2) (a) of Claims Act and that the cause of action continued to accrue as the 5th Defendant/Respondent had neglected to give the requisite notice to the Plaintiff/Appellant of his intention to issue the titles.

16.	    Plaintiff/Appellant alleged that the 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 the issuance of the titles to the date the Writ of Summons was filed.

17.	    Plaintiff/Appellant further submitted that 1st, 3rd, 4th, 5th and 6th Defendants/Respondents admitted to the fact that Section 5 Notice was served on the State. 

18.	    The parties generally agreed that it is a condition precedent that Plaintiff give notice under Section 5 of Claims Act of its intention to make a claim against the State prior to commencement of proceedings against the State.

19.	    With respect to the cause of action being regarded as accruing and continuing, the primary judge ruled that there is nothing in the Plaintiff’s pleadings that the cause of action being pleaded is capable of being regarded as a continuing cause of action. Plaintiff/Appellant has not pleaded continuous fraud.

20.	    The trial judge held that the occurrences out of which the claims arose, took place on the 26th January 2018 and 01st February 2018 respectively, when the titles of the properties in contention were issued. Those dates were times where the Plaintiff/Appellant alleges a series of fraudulent acts, omissions and misrepresentations. The time starts from those dates for purposes of claim against the State contemplated by Section 5 of the Claims Act. 

21.	    We agreed with the learned trial judge that the fact that the 1st, 3rd, 4th, 5th, 6th and 7th Defendants/Respondents admitted that Section 5 Notice was filed against the State for WS No. 292 of 2020 as stated in the Statement of Claim, does not necessarily mean that the Notice was valid. The Defendants/Respondents were simply acknowledging receipt of Notice. The validity of Notice depends on whether it complied with Section 5 (2) (a) of the Claims Act.

B.	OBJECTION TO COMPETENCY

22.	We deal firstly with the objection to competency of the appeal. 
 
23.	The 8th and 9th Respondents filed an objection to competency challenging the competency of the appeal pursuant to Order 7 Rule 15 of the Supreme Court Rules (SCR).

24.	Order 7 Rule 15 states: 

“A respondent who objects to the competency of an appeal or an application for leave to appeal shall, within 14 days after service on him of the notice of appeal –

(a)	File an objection in accordance with Form 9; and
(b)	Serve a copy of the objection on the appellant.

25.	The 8th and 9th Respondents objects to the competency of Ground 4 of the Appeal submitting that the Appellant’s appeal on Section 5 of the Claims Act is incompetent for the reason that the argument was not raised and argued in the Court below and therefore, it cannot be a ground of appeal as no determination was made on it by the Court below.

26.	Before we delve into the principles of law governing objections to competency of appeals such as on the question of jurisdiction, threshold issues concerning the legality or the viability of the appeal, the grounds of appeal that might be misleading, vague or false including factual questions that goes to determining whether leave should or should not be granted (see: Michael Kuman & Ors v. Digicel (PNG) Ltd (2017) SC1638; and PNG Law Society v. Cooper [2016] PGSC 69; SC1553), it is important that we satisfy ourselves firstly that the objection to competency complies with the requirements of the Supreme Court Rules (SCR) to be competent. 

27.	In this case, we note that the notice of appeal was served on the 8th and 9th Respondents on the 18th December 2023. The Respondents then filed their objection to competency of the Appeal on 13th February 2024 and served on the Appellant on the 16th February 2024. Clearly, it is out of time. Respondents have not complied with Order 7 Rule 15 of the SCR by filing the objection outside of the required time period of 14 days.  

28.	We did a computation on a number of days after the appeal was served on the Respondents, and found that it has taken the Respondent nearly 46 days after they were served, to file their objection. It is well outside of the 14 days’ time limitation under the Rules. 

29.	We find the objection to competency to be incompetent on two grounds. Firstly, the competency of the objection itself is very important. It must comply with the Supreme Court Rules (SCR) which requires that a respondent who objects to the competency of an appeal must file the application in accordance with Form 9 of the Rules within 14 days after the service of the appeal to the appellant pursuant to Order 7 Rule 15 of the SCR. Respondents have failed on this ground by filing out of time. Secondly, a copy of the Objection must be served on the Appellant. The Supreme Court has made these requirements clear in; Peter Neville v. National Executive Council of Papua New Guinea (2015) SC1431; and Kimbu v. Pakira [2023] PGSC 28; SC2389). Although, the Respondents served the Objection on the appellant, it was served out of time. Service was effected some 49 days later.

30.	We rule therefore, that the objection to competency filed by the 8th and 9th Defendants/Respondents is incompetent. 

31.	Accordingly, the objection to competency is dismissed.

C.	TWO PROCEEDINGS IN THE NATIONAL COURT

(i)	OS (JR) NO. 269 OF 2018: Roman Catholic Archdiocese of Rabaul &    Ors v. Benjamin Samson, Registrar of Titles & Ors [2018] N8145.

32.	There were two separate proceedings instituted by the Plaintiff/Appellant regarding the Putput Freehold Land in the Court below. The first case was a judicial review proceedings. The Plaintiff/Appellant has not appealed against the decision of the Court in this case. We decided however, to include it for purposes of completeness.

33.	In this case, the Plaintiff/Appellant through a judicial review proceedings pursuant to Order 16 Rule 5 (2) of the National Court Rules (NCR) sought to review and quashed the decision of the 1st Defendant (6th Respondent) to issue or register a title to the 3rd Defendant (9th Respondent) with respect to piece of land described as Portion 808C, Volume 37, Folio 147, Milinch Kokopo, Fourmil, Rabaul. 

34.	  Leave to institute review proceedings against the 1st Defendant (6th Respondent) was granted. One of the grounds raised in the substantive judicial review alleged fraud in the registration of titles in the name of the 3rd Defendant (9th Respondent) which was illegal, a recognized ground for judicial review.

35.	 The Court below found however, that the Plaintiff/Appellant does not hold registered titles to the portions of land referred to and there is no Court Order as such, confirming proprietorship of Putput portion of land in particular, Portion 808C, Volume 37, Folio 147, Milinch Kokopo, Fourmil, Rabaul. 

36.	 The Court further held that, the ‘Sacred Heart Property Trust’ from whom the Plaintiff claims to have inherited the land, who once had historical dealings and connections with the land, is not backed by evidence of proprietorship or ownership that such rights or interests could have been inherited by the Plaintiff. 

37.	  The decision by the Lands Titles Commission (LTC) taken on 21st April 1965, is that the Sacred Heart Property Trust did not have “restorable interest” in the land known as Putput Mill Site.

38.	  A Conversion Order was made by the LTC together with a certified conversion plan and a notice under Section 14 of the Land (Tenure Conversion) Act issued calling upon any person(s) who may be aggrieved by the Conversion Order and wishes to appeal, may do so by requesting a review of the LTC or lodging an appeal with the National Court, within 90 days of the date shown on the Order.

39.	  It appears that the Plaintiff/Appellant has not lodged any appeal on the notice published by the LTC on the Conversion Order within the 90 days.

40.	 The title was registered after the 90 day appeal period has expired as required under Section 34 (1) of the Land Titles Commission Act 1962.

41.	 The primary judge ruled that the Plaintiff/Appellant has failed to raise its complaints with the LTC on the Conversion Order and any issues or complaints regarding the conversion should have been directed at the LTC and not the 1st Defendant (6th Respondent).   

42.	The 1st Defendant (6th Respondent) is only required, upon receipt of the decision of the LTC, to make such entries in the register in his capacity as Registrar of Titles, that he has received a copy of the decision of the LTC pursuant to Section 152 (b) of the Land Titles Commission Act 1962. 

43.	The learned trial judge concluded that the 1st Defendant (6th Respondent) is not a relevant authority to contest any title of land conferred to any person by the LTC. The relevant authority is the LTC (see: The Director of District Administration v. Methodist Overseas Mission Trust Association; In Re: Vunagamata [1971] PGSC 12). 

44.	His Honour further held that, once a title has been registered in favour of any person, the owner maintains indefeasibility of title which cannot be invalidated by any unregistered interest (see: The Papua Club Inc. v. Nusam Holdings Ltd (No.2) (2004) N2630).

45.	Having found so, the learned primary judge ruled that the grounds raised by the Plaintiff/Appellant were not sufficiently strong to grant the relief sought and are infact completely overshadowed by the principle of indefeasibility of title. Furthermore, even if the registration process is fundamentally flawed in law, (which is not the case) such registration, in the absence of fraud and other grounds contemplated by Section 33(1) of the Land Registration Act cannot defeat the indefeasibility of title that is accrued to the 3rd Defendant (9th Respondent). 

46.	The judicial review proceedings was dismissed with costs.

(ii)	WS No. 292 of 2020: Roman Catholic Archdiocese of Rabaul v. Kutt Paonga as Acting Commissioner of Lands Titles Commission [2020] N10401 and WS No. 736 of 2020. 

47.	The appeal arose out from this second case that involved two separate proceedings which were consolidated and heard together. The Appellant appealed against the decision made from this consolidated proceedings. 

48.	The grounds of appeal from this consolidated proceedings were as follows:

(i)	     After fixing a date for trial of the consolidated proceedings the primary judge then vacated the trial and adjourned it to a later date for the hearing and determination of an interlocutory application (which was a Notice of Motion to dismiss proceedings for failure to give Section 5 Notice) filed on the date of the trial by the State on behalf of the 1st, 2nd, 3rd, 4th, 5th, 6th & 7th Defendants/Respondents. There was no Notice of Motion filed and no motion was moved to vacate the trial;

(ii)	     The learned trial judge erred in law in permitting the State on behalf of the 1st, 2nd, 3rd, 4th, 5th, 6th and 7th Defendants/Respondents to move an interlocutory application filed by the State on the same day of the trial date raising the issue of Section 5 Notice of Claims Act despite the issue not being pleaded in any defence filed or raised the Defendants/Respondents during any stage of the interlocutory or discovery;

(iii)	The Defendants/ Respondents neglected to raise earlier in the proceedings the issue of non-compliance of Section 5 Notice as anticipated by Order 10 Rule 9A (Listings Rules 2005) and Sub-Rule 7 (4) (c) and (d) (Mentions);

(iv)	Parties in the consolidated proceedings had no time previously agreed in a Statement of Agreed and Disputed Facts and Issues for Trial that the alleged failure to comply with Section 5 of the Claims Act, will be an issue for trial;

(v)	 By allowing the Notice of Motion on Section 5 Notice of the Claims Act to be filed on the same day and be heard and determined when it has not been pleaded in any defence filed nor raised by the Defendants/ Respondents during or at any stage of the interlocutory and discovery, amounts to a trial by ambush consequently, denying the Plaintiff/Appellant procedural fairness and a just determination of its claim in the consolidated proceedings as provided for under the National Court Rules. 

(vi)	The learned trial judge erred in law in dismissing the consolidated proceedings when the State on behalf of the 1st, 2nd, 3rd, 4th, 5th, 6th and 7th Defendants sought for, amongst other orders, the following order:

(a)	The consolidated proceedings against the Defendants/ Respondents be dismissed for failure to issue a Notice of claim against the State pursuant to Section 5 of the Claims Act, and

(b)	There was no application for the entire consolidated proceedings to be dismissed as against all Defendants/ Respondents.

(vii)	The learned trial judge erred in dismissing the consolidated proceedings on the alleged failure to give Section 5 Notice of the Claims Act when;

(c)	there was no claim for a monetary remedy or relief by the Plaintiff/Appellant in the consolidated proceedings; and

(d)	 given the nature of the claim and the relief sought by the Plaintiff/Appellant in the consolidated proceedings, notice was not required.

D.	CONSIDERATION

49.	    The grounds of appeal are in many respects, repetitive. They relate mainly to failure to give Section 5 Notice under the Claims Act. They are combined and addressed together.

50.	   The two main issues for determination are:

(a)	 whether the Appellant was denied the right to be heard on the substantive claim when the learned primary judge vacated the trial and adjourned to a later date, to hear and determine an interlocutory application relating to want of Section 5 Notice under the Claims Act, and

(b)	 whether the learned primary judge fell into error in dismissing the  substantive proceedings in its entirety when the Respondents failed to cite the Court’s jurisdictional basis to grant the relief sought including to dismiss the consolidated proceedings.

51.	    As regards to the first issue, our discussions will be in the context of adjournment of trial pursuant to Order 10 Rule 9A (13) of the Listing Rules 2005 and Order 10 Rule 11 of the National Court Rules (NCR). Order 10 Rule 9A(13) (1) of the Listing Rules 2005 states that a trial once fixed shall not be adjourned except by leave of the Court upon sufficient cause being shown. Essentially, it means that once a matter is set down for trial, the trial should proceed on the date set. In Pyali v. Kabilo [2003] PGNC 21; N2492, the Court held that; “once a Notice to Set Down for Trial is filed, the Court should not entertain any interlocutory applications by either party, the matter should proceed to trial, unless of course counsel either seeks leave of the court, or the parties agree to the application proceeding or the parties agree that the matter is not ready for trial.” 

52.	   The National Court has power to grant or refuse an application for adjournment of a proceedings set down for trial under Order 10 Rule 11 of the NCR. In Cullinan v. Australia & New Zealand Banking Group (PNG) Ltd (2004) N2754, Gavara-Nanu J held that; “When deciding whether or not to grant or refuse an adjournment, the Court must have regard to all the circumstances and be guided by what is fair and just to all parties. This, if the Court refuses to grant an adjournment, it must be satisfied that the party applying for adjournment would be denied justice, and that it is in the interest of justice.”

     In Melina Ltd v. Martens [2001] PGNC 2183; N2183, the court held that; “…the consent of the parties to vacate the trial date is not binding on the Court….”

53.	    The Court has an inherent jurisdiction to vacate a trial and adjourn it on a proper application being made and that such jurisdiction is discretionary. The Court has to strike a balance as to the convenience of the parties and the requirement of justice: Ihari v. Motor Vehicles Insurance Ltd (2006) SC1317; Ok Tedi Mining Limited v. Niugini Insurance Corporation and Ors [1988-89] PNGLR 355.

54.	    In this case, we note that neither the Appellant nor the Respondents made any application seeking such relief (i.e. vacate the trial). In the absence of a formal motion, it is not open to the Court, in our respectful view, to use its inherent power and exercise its discretion to unilaterally, on its own volition vacate a trial after the trial date has been fixed. The Court must inform the parties of its intention to adjourn or vacate a trial and the reasons for doing so. This is so that neither of the parties are inconvenienced or prejudiced or denied justice: PNG Deep Sea Fishing Ltd v. Critten (2010) SC1126; and Kalinoe v. Paul Paraka Lawyers (2014) SC1366. 

55.	    With respect to the decision to dismiss the substantive proceedings, we ascertained that there was no notice of motion per se that was filed and moved by the Respondents seeking to dismiss the consolidated proceedings in its entirety. The learned primary judge therefore, erred in dismissing the consolidated proceedings when there is no application seeking such relief.

56.	    Having found so, we concluded that the Plaintiff/Appellant was denied his right to be heard on the substantive claim when the learned primary judge prematurely and without cause dismissed the consolidated proceedings. 

57.	   The second issue goes to the question of jurisdictional basis of the Court to dismiss on a notice of motion and grant the relief sought including to dismiss the proceedings. Numerous case law precedence have reaffirmed time and time again that Section 5 of the Claims Act does not give the court the jurisdictional basis to grant the relief sought by the Respondents including to dismiss the proceedings for want of Section 5 Notice. It (section 5) does not confer on the Court the power to dismiss the proceeding:  Paul Tohian & The State v. Tau Liu (1998) SC566; Mission Aseki v. Zurenuoc, Provincial Administrator (2005) SC797.

58.	    For the Court to assume jurisdictional basis to dismiss a proceedings, the notice of motion must state concisely the nature of the order sought which is a requirement under Order 4 Rule 40 (1) (c) of the National Court Rules (NCR). Pursuant to Order 4 Rule 49 (8), all motions must contain a concise reference to the court’s jurisdiction to grant the orders being sought. A motion that does not contain a concise reference to the jurisdiction of the court to grant such orders being sought, renders the orders void. Order 4 Rule 49 (8) of the NCR makes this requirement mandatory under the Rules. It states:

Order 49 (8). Motions (Amendment) Rules 2005

Rule 8: Form of Motions

“All Motions must contain a concise reference to the Court’s jurisdiction to grant the orders being sought. Motions not containing such reference will not be accepted for filing. If accepted by the Registry staff without such reference, and it goes before the motions judge, the Court may strike out the motion for being incompetent and for lack of form. The motion must state the following: “…..move the Court for Order pursuant to (e.g. section 5 of the Claims By and Against the State Act…)”. 

59.	    A motion that does not state the jurisdictional basis for the relief sought will be in breach of Rule 8 of the Motions (Amendment) Rules 2005. Such a motion is incompetent and should be dismissed (where substantive relief was sought in the Motion): Yaluma v. The State [2010] PGNC 91: N4088.

60.	    In addition, the Court may exercise its power under Order 12 Rule 40 of the NCR, on a proper notice of motion filed and moved, to dismiss proceedings where no reasonable cause of action is pleaded, or where the proceeding is frivolous or vexatious or where it tantamount to an abuse of process. 

61.	    Section 5 of the Claims Act does not give the Court the jurisdictional basis to dismiss proceedings therefore, the decision of the primary judge to dismiss the consolidated proceedings in its entirety without the Respondents specifically pleading the concise jurisdiction of the Court to grant the relief sought in their motion, including an order to dismiss the proceedings, is therefore, wrong and unsustainable in law; Simon Kauba v. Alphonse Willie (2021) SC2162.

62.	We are unanimous in our decision that the relief sought by the 1st - 7th Defendants/Respondents, including to dismiss the proceedings for want of Section 5, does not find support under the law. It is in breach of Order 4 Rule 49 (8) of NCR which requires that the motion must state the concise reference to the jurisdiction of the Court in making such Orders. 

63.	    In so far as interlocutory application is concerned, we say that it deals largely with procedural matters which usually occur after the close of pleadings but before trial. Essentially, orders obtained from interlocutory application do not make a final determination in respect of the rights, duties and obligations of the parties, but are consequential to the management of the litigation and which are designed to preserve status quo pending the hearing and final determination of the substantive proceedings. Therefore, it is our view and indeed our decision that the learned trial judge erred in both law and practice in dismissing the consolidated (substantive) proceedings effectively bringing to an end the entire proceedings based on an interlocutory application. 

64.	    Furthermore, Order 4 Rule 9 of the NCR clearly states that; “except as otherwise expressly provided in the Rules, Motions shall be for relief on interlocutory matters only and not for the substantive relief claimed in the originating process”: A motion seeking substantive relief, not interlocutory relief is an abuse of process: Kurumbukari Ltd v Saud [2015] PGNC 99; N590; Kupo v. Westpac Bank PNG Ltd [2014] PGNC 227; N5881.

65.	   In the present case, we found that the primary judge erred in law on two fronts with respect to motions. Firstly, the notice of motion does not contain a concise reference to the Court’s jurisdictional basis to grant the orders being sought including to dismiss the case; and secondly, the notice of motion in the interlocutory application by the Respondents seeking to dismiss the substantive relief claimed in the originating process is an abuse of process and in breach of Order 4 Rule 9.

E.	RELIEF SOUGHT BY THE PLAINTIFF/APPELLANT

66.	    Ground (viii) of the appeal relates to the claim and the relief sought by the Plaintiff/Appellant in the consolidated proceedings. 

67.	    The claim and the type of relief sought is contained in the Statement of Claim and the Writ of Summons as follows:

(i)	    Plaintiff/Appellant sought a declaration that the 2nd Defendant/Respondent’s purported letter of the 10th November 2017 relating to Putput Mill Sites, Portion 808, Sinivit LLG and/or purported Order of 20th October 2016 to be declared null and void and of no legal effect. 

(ii)	    A further declaration that an Order that a Certificate of Title issued for Land Portions 808C, 435C, 580, 806 and 807C Milinch of Kokopo, Fourmil Rabaul, East New Britain Province issued to the 9th Defendant/Respondent on various dates between 20th December 2017 through to 01st February 2018 were issued by misrepresentation and fraud and therefore null and void and of no legal effect. 

(iii)	    Plaintiff/Appellant sought further Order that the 5th Defendant/Respondent recall and cancel all titles issued to the 9th Defendant/Respondent namely; Portions 808C, 435C, 580, 806 and 807C Putput Mill Sites, Milinch of Kokopo, Fourmill, Rabaul, East New Britain Province forthwith.

(iv)	    A declaration that the Plaintiff/Appellant is the registered proprietor of freehold land known as Marambu, Portion 580 and freehold land known as Putput Land comprising Portions 806 and 807.

(v)	    A declaration that the Plaintiff/Appellant is the legal owner and has registrable interest in the Portions of land described above.

68.	The relief sought by the Plaintiff/Appellant in the consolidated proceedings were basically equitable remedies in the form of declarations and injunctive relief involving a number of portions of the Putput freehold land. 

We discuss further (below) the relevance of Section 5 Notice and its application. 

F.	SECTION 5 NOTICE
 
69.	Section 5 Notice of the Claims Act has been the subject of many judicial deliberations in the past. A recent Supreme Court decision in the case of Mathew Sisimolu v. Lihila Naua, as Acting Secretary, Department of Petroleum & Ors (2020) SCA 20 has reinforced once again the view held in many similar cases in the past that Section 5 of the Claims Act 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. The provision is otherwise, a statutory defence available to the State and its bodies, entities and instrumentalities against a claim in contract or tort or any action based on sections. 57 and 58 of the Constitution.  

70.	Section 5 of Claims By and Against the State Act 1996 provides:

(1)	No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this Section by the claimant to –

(a)	the Departmental Head of the Department responsible for justice matters; or
(b)	the Solicitor-General.

(2)	 A notice under this Section shall be given –
(a)	within a period of six months after the occurrence out of which the claim arose; or
(b)	where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach; or
(c)	within such period as –
(i)	the Principal Legal Adviser; or
(ii)	the court before which the action is instituted,
   on sufficient cause being shown, allows.    

71.	  In Paul Tohian v, Tau Liu (1998) SC566; the Supreme Court when hearing an appeal to strike the proceedings for failure to comply with Section 5 notice requirement, held that Section 5 notice did not apply where the originating process (Writ of Summons) was filed and served within 6 months of the cause of action hence, constitute sufficient notice for purpose of Section 5 of the Claims Act. The Supreme Court went further and held that the requirement of Section 5 is a condition precedent to commencing a claim against the State that must be complied with. 

72.	Section 2 of the Claims By and Against the State Act provides:

(1)	A person making a claim against the State in contract or in tort may bring a suit against the State, in respect of the claim, in any court in which such a suit may be brought as between other persons.

(2)	The provisions of this Act apply to applications for the enforcement against the State of a right or freedom under Section 57 (Enforcement of guaranteed rights and freedoms) of the Constitution and for damages for infringement of a right or freedom under Section 58 (Compensation) of the Constitution. 

73.	Section 2 (1) defines the types of claims against the State in which notice under Section 5 would be required. Notice is required for claims made in contract or tort that a person may bring against the State. In addition, subsection (2) of Section 2 provides for enforcement of human right and freedom under sections 57 and 58 of the Constitution in which compensation and damages in monetary considerations is provided for infringement of these rights and freedoms. 

74.	   There are only two types of claims that would require a Section 5 notice according to section 2, and they are; (i) claims based on contract or tort and, (ii) for infringement of a right and freedom under sections 57 and 58 of the Constitution where compensation is paid for the breach and enforcement of these rights and freedom is proven. The third category of claim where Section 5 notice is required, is where the claim although is not monetary in nature, but if it involves a direct cost or prejudice the State as a consequence of the order sought, then notice of such is required.  The intention of Parliament is made clear through this legislation that any claims made against the State that may have financial implications requiring the State to pay using public funds, notice must be given. 

75.	In Punangi v, Brown, Minister for Public Service & Ors (2004) N2661, Injia DCJ (as he then was), when considering the relevance of Section 5 for claims brought under contract or tort against the State consistent with section 2 of the Claims Act held that:

 “Section 2 of the Act actually defines the ambit of a “claim” against the State   for which State may be used under the Act. Subsection (1) defines “claims” to mean “claims” in “contract or tort”.  These are usually all personal actions in law for damages in tort or contract under the principle of common law and equity as modified by statute, such as claims for debt in money, goods or property; or compensatory breaches of a statutory duty…. The entire National Court Rules except O 16, (Judicial Review) sets out rules of procedure for commencing actions for damages in tort or contract or for breach of statutory duty. This procedure also applies to proceedings commenced against the State”.  

His Honour went on further by stating that:

“Subsection (2) than adds applications for enforcement of constitutional rights made under s.57 and claim for damages under s.58 of the Constitution, to the list of “claims” under Subsection (1). The procedure for application for enforcement of Constitutional rights is separate from the procedure for instituting actions in tort or contract. Currently, the procedure under s.57 and s.58 of the Constitution is still in its development stages. 

“It is clear that the purpose of the Bill and the subsequent passing of Claims By and Against the State Act of 1996 is for claims that are monetary in nature for actions and suit in court for damages or compensation in contract or tort or for breach of human rights under Sections 57 and 58 of the Constitution”.

76.	Section 2 is very specific on the type of claims and relief where Section 5 notice is required. According to section 2, a Section 5 notice is only required for claims seeking monetary relief or considerations. It does not include claims seeking declaratory or injunctive relief. The law is very clear. 

77.	The types of claim requiring notice under Section 5 was expressly stated in Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797, where the Supreme Court held that:

“Firstly, the notice requirements of the Claims By and Against the State Act apply only to actions that are founded on contract or tort or a breach of constitutional rights; and secondly, section 5 does not apply to actions seeking orders in the nature of prerogative writs commenced under Order 16 of the National Court Rules…”(emphasis ours)

78.	In Rahmati v Independent State of Papua New Guinea [2018] PGNC 325; N7468, Tamate J after considering the relevant case laws regarding Section 5 notice held that: 

“Taking into consideration the term “claim” and the “intention of Parliament” discussed in the case of Aisi (supra) and State v Downer (PNG) Ltd [2009] PGSC51; Sc979, I am of the view that Section 5 Notice is not required for actions that are not monetary claims in damages or compensation.” 

79.	With respect to sections 57 and 58 of the Constitution, the relief sought will determine if section 5 notice is required or not. The distinction was made clear in Mal v Commander, Beon Correctional Institution (2017) N6710 where the Court held that, although Section 5 notice was not given, the applicant argued that this was not necessary as the present application does not involve any claim for damages or compensation or any other similar remedy; it is simply an application for early release from custody under a human right application. 

G.	DETERMINATION

80.	  Having considered Sections 2 and 5 of the Claims Act, and the relevant case laws discussed, we determined that Section 5 notice is only required for claims relating to contract or tort that involves monetary relief or considerations. It does not apply to claims or actions seeking injunctive and declaratory reliefs such as the Plaintiff/Appellant’s claim in this case. However, where an application for a declaratory or injunctive relief involves a direct cost or prejudice to the State then the State must be given notice.  There is no evidence suggesting that the relief sought by the Appellant if granted, would involve any such cost or prejudice to the State, especially the 1st - 7th Respondents in their respective capacities as servants, agents or entities of the State.   

81.	  It is clear to us that the claim and the relief sought by the Plaintiff/Appellant in the Court below was for declaratory orders seeking to declare as null and void and of no legal effect, the issuance of the Certificate of Titles to the 8th and 9th Defendants/Respondents concerning land described as Portions 435C, 580, 806, 807C and 230 Milinch Kokopo, Rabaul, East New Britain Province covering a total of 309,730 hectares of land. 

82.	 The Plaintiff/Appellant sought further orders that the 5th Defendant/Respondent recall and cancel all the titles issued to the 9th Defendant/Respondent namely; Portions 808C, 435C, 580, 806 and 807C of the Putput Mill Sites, Milinch Kokopo, Rabaul, East New Britain Province. 

83.	  Furthermore, a declaration that the Plaintiff/Appellant is the registered proprietor of freehold land described as Portions 580, 806 and 807. 

84.	  Finally, a declaration that the Plaintiff/Appellant has a registrable interest and is a legal owner of the Portions of land described above.

85.	The Plaintiff/Appellant sought these declaratory orders concerning the Putput freehold land, Milinch Kokopo, Rabaul, East New Britain Province. The relief sought do not include any monetary relief or benefits nor would it involve any direct cost or prejudice to the State hence, Section 5 notice is therefore, not required.

G. CONCLUSION

86.	 Based on what we have said so far, we concluded that the action commenced by the Plaintiff/Appellant in the consolidated proceedings involving WS No. 292 of 2020 and WS No. 736 of 2020 in the Court below were for declaratory orders seeking specific performance as described above. The relief sought does not involve any monetary relief or benefits nor would it have any direct cost or prejudice to the State. As for costs, like in many similar cases in civil claims, the Plaintiff/Appellant would have given an undertaking on security as to costs to help defray any cost on damages that may be suffered consequent to this proceedings. 

87.	In respect to WS No. 736 of 2020, we note that Plaintiff/Appellant has not issued Section 5 notice with respect to this proceedings and rightly so, given the nature of claim and the relief sought does not require notice to be served to the State. Furthermore, the Plaintiff/Appellant is not required to plead Section 5 in the pleadings or in the discovery for the reason alluded to above.

88.	We concluded therefore, that the primary judge has erred in law in making a finding that the Plaintiff /Appellant’s failure to give Section 5 Notice in respect to WS No. 736 of 2020 renders the proceedings invalid.  We maintained that the Plaintiff/Appellant is not required to give Section 5 Notice under the Claims Act for seeking equitable relief. 

89.	As for WS No. 292 of 2020, although Section 5 Notice was served, it was issued out of the time limit of six (6) months prescribed by Section 5 (2) (a) of the Claims Act. Even if the notice was served within the prescribed time limit, the relief sought in this proceeding does not require notice for the same reason as stated in WS No. 736 of 2020 which is that, Section 5 Notice is not required given the equitable nature of the relief sought. 

90.	All in all, we are satisfied that the relief sought by the Plaintiff/Appellant does not fall under the types of claims defined under section 2(1) and (2) of the Claims Act which requires a notice under Section 5. 

91.	We find therefore, that the learned primary judge erred in law in making a finding that all claims (including those seeking equitable relief for specific performance) made against the State and its entities requires a notice to be given under Section 5 of the Claims Act.

92.	Furthermore, we are satisfied that the Plaintiff/Appellants’ claim is not one that is founded on contract or tort nor is it seeking damages for breach of human rights and freedom under sections 57 and 58 of the Constitution hence, Section 5 notice is not required. 

93.	In addition, the claim is not monetary in nature and therefore, the Plaintiff/Appellant is not required to give notice under Section 5 especially to the 1st - 7th Defendants/Respondents.

94.	Orders sought by the Plaintiff/Appellant in the originating processes (Writ of Summons) were principally for declaratory orders that do not require a Section 5 Notice under the Claims Act. 

95.	The learned primary judge erred in holding that lack of Section 5 notice can be sufficient ground to grant the orders sought by the Respondents including to dismiss the proceedings.

96.	The learned primary judge erred in law in dismissing the consolidated proceedings in its entirety on an interlocutory application when such a relief has not been specifically sought by the Respondents citing the appropriate jurisdictional basis of the Court, including to dismiss it.

97.	Furthermore, a motion in the interlocutory application seeking to dismiss the substantive relief claimed in the originating process is an abuse of process.

H.	INTERIM INJUNCTION

98.	Appellant further sought interim orders against the Respondents pending the hearing of the substantive appeal. Appellant submitted that the Supreme Court exercises its discretion under Section 5 (1) of the Supreme Court Act to issue an interim injunction against the Respondents from taking any steps to dispose of or deal with the Putput freehold land comprising of Registered Portions 508, 806, 807, 534 and 808. In addition, the Respondents are restrained from taking steps from evicting the occupants currently settling on the land described above. Finally, a Levi Orong of the First Respondent and his servants and agents be restrained from taking steps from evicting occupants from Portions 580, 806, 807, 534 and 808. And any other orders the Honourable Court sees appropriate.

99.	The principles governing the grant of interim orders pending an appeal in the Supreme Court is well settled in our jurisdiction. It is similar in many respects to the principles governing stay applications with a slight variations but the effect of the orders are very much the same. 

100.	Applicant seeking interim injunctions are required to show that there is; (i) a serious question to be tried, (ii) balance of convenience lies in favour of granting the interim injunction, (iii) the risk that execution of the judgment at the first instance will render the appeal nugatory, (iv) arguable grounds of appeal, (v) interest of justice lies in favour of grant of the interim injunction, and, (vi) whether damages would be adequate remedy (Hon. Havila Kapo v. Hon. Mark Maipakai, MP (2010) SC1067; Jessie Yai-Pupu v. YAI-Pupu, the Administrator of the Estate of the Late Michael Yai-Pupu SC2364 and Gary McHarty v, Prosc & Communications Limited [2000] PNGLR 279 (2000) SC 646).

101.	The Appellant through in its notice of appeal has sufficiently demonstrated to us an arguable case to be granted the interim orders sought. Interest of justice lies in granting the interim orders to maintain status quo until the full determination of the substantive dispute relating to the Putput freehold land. There is also the risk of further dealings and/or interference with the land in question if the interim injunction is not granted. The balance of convenience lies in favour of granting the interim injunction. 

102.	Application for interim injunction is granted in the following terms:

(i)	Pursuant to Section 5 (1) of the Supreme Court Act, the Respondents are restrained from taking any steps to dispose of or deal with the Putput freehold land comprising of Registered Portions 508, 806, 807, 534 and 808 until the proceedings in the National Court are concluded.

(ii)	 The Respondents are further restrained from taking steps to evict the occupants currently settling on the Portions of land described above.

(iii)	A Levi Orong of the First Respondent and his servants and agents are especially and similarly restrained from taking steps to evict occupants from Portions 580, 806, 807, 534 and 808.

I.	ORDER

(i)	    Appeal is upheld.

(ii)	    The decision of the primary judge is quashed and set aside.

(iii)	    The National Court proceeding is reinstated and/or restored forthwith. 

(iv)	    The matter is remitted back to the National Court for a re-trial on the substantive proceedings.

(v)	    Respondents to pay for the cost relating to this appeal, to be taxed, if not agreed.  

Orders Accordingly
________________________________________________________________
Lawyer for the appellant: Kopunye Lawyers
Lawyer for the eight & ninth respondents: Paisat Lawyers
Lawyer for first – seventh respondents: No Appearance