SC2717

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NO. 25 OF 2024

PACIFIC NETWORK SERVICES LIMITED
 Appellant

AND 
SUN PACIFIC INVESTMENTS LIMITED
First Respondent

AND
ALE ANE in his capacity as REGISTRAR OF TITLES
Second Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

WAIGANI: SALIKA CJ, KANGWIA J, BERRIGAN J
25, 28 MARCH 2025

APPEAL – failure to disclose reasonable cause of action – statutory time bar – Appeal dismissed. 

Cases cited
William Maki v Michael Pundia and PNG Motors [1993] PNGLR 337
Mamun Investment Ltd v Koim (2015) SC1409
Kove v Po’o (2022) SC2231 

Counsel
S G Dewe for the appellant 
M Muga for the first respondent 
No appearance for the second and third respondents 

DECISION ON APPEAL

1.	BY THE COURT: This is an appeal against the decision of the National Court in OS No 149 of 2023, Pacific Network Services Limited v Sun Pacific Investments Limited in which the Court dismissed the proceedings for being an abuse of process and for failing to disclose a reasonable cause of action pursuant to Order 12 Rule 40(1)(c) and Order 8 Rule 27(1)(c), National Court Rules1983, respectively. 

BACKGROUND

2.	The Appellants commenced proceedings OS No 149 of 2023 in the National Court on 29 May 2023 seeking declarations concerning a piece of land described as Portion 3425, Granville, Port Moresby, National Capital District. In particular, the Appellant sought to have the contract of sale for the land between the Appellant (the plaintiff in the National Court) and the First Respondent (the First Defendant in the lower Court) declared “null and void by virtue of admitted fraud on the part of the First Defendant”. 

3.	The OS proceedings had been filed almost three months after judicial review proceedings, OS (JR) No 18 of 2023 had been filed by the First Respondent against the Appellant and Second and Third Respondents seeking to quash the decision of the Registrar of Titles to cancel the First Respondent’s State Lease and issue it to the Appellant for failing to comply with ss 160 and 161, Land Registration Act, amongst other grounds. 

CONSIDERATION

4.	The Appellant raised several grounds on appeal including that the trial judge erred in dismissing the proceedings for failing to disclose a reasonable cause of action. 

5.	We find no such error on the part of the learned trial judge. 

6.	The Appellant commenced the proceedings by way of originating summons. In doing so the Appellant failed to comply with Order 4, Rule 2(1)(b), National Court Rules which provides that proceedings “shall be commenced by writ of summons where a claim made by the plaintiff is based on an allegation of fraud”.  

7.	In addition, the Appellant failed to provide any particulars of the alleged fraud in compliance with Order 8, Rule 30, National Court Rules, which provides that “a party pleading shall give particulars of any fraud, misrepresentation, breach of trust, wilful default or undue influence on which he relies”.

8.	It is well settled that “fraud is a very serious allegation, and the courts have required strict adherence to requirements for pleadings in such cases. Courts have never allowed general allegations of fraud. Courts have required that a person pleading fraud should set out facts, matters, and circumstances relied on to show that the party charged had or was actuated by a fraudulent intention. The acts alleged to be fraudulent must be stated fully and precisely with full particulars. It is not enough just to say that the person lied or swore a false affidavit. The facts, matters and circumstances which make such statements lies must be particularized”:  William Maki -v- Michael Pundia and PNG Motors [1993] PNGLR 337 at 338-339 and the cases applying. 

9.	It was no answer to those failings for the Appellant to argue that the proceedings were brought on the basis of “admitted fraud” on the part of the First Respondent. 

10.	Fraud was very much disputed by the First Respondent as the Appellant was well aware. In addition, nowhere in the memorandum of agreement upon which the Appellant relied did the First Respondent admit fraud. At its highest the memorandum stated that the land was “wrongly or mistakenly transferred” to the First Respondent, which assertion was also in dispute.

11.	Furthermore, whilst not necessary to our decision, even assuming that the claim was properly pleaded with respect to fraud, there was no error on the part of the trial judge in dismissing the proceedings for being time barred.

12.	Supreme Court authority holds that a cause of action for fraud accrues irrespective of the plaintiff’s knowledge of that fact: Mamun Investment Ltd v Koim (2015) SC1409. Whilst there is support in the decision of Kandakasi DCJ in Kove v Po’o (2022) SC2231 for the proposition that time starts to run from the time that a plaintiff becomes aware of the fraud, that was not the issue before the Court in that case and the comments were obiter. 

13.	In this case the Appellant failed to state clearly when it became aware of the fraud or “error” as it is described in the affidavit of its Managing Director.

14.	Furthermore, it appears that the cause of action accrued at the latest on 12 October 2016, the date on which the title was registered, which was some six years, 8 months before the originating summons was filed on 29 May 2023. Thus the proceedings were brought outside the statutory period provided under s 16(1), Fraud and Limitations Act, 1988: Mamun Investment Ltd v Koim applied.

15.	Accordingly, the Appellant has failed to demonstrate an error on the part of the trial judge for dismissing the matter for failing to disclose a reasonable cause of action and for being time barred. 

16.	Given our findings it is not necessary to consider the other grounds.

17.	We make the following orders.

ORDERS

(1)	The appeal is dismissed.
(2)	The orders of 6 March 2024 are affirmed.
(3)	The Appellant shall pay the costs of the First Respondent to be taxed if not agreed.
________________________________________________________________
Lawyers for the appellant: Dewe Lawyers	
Lawyers for the first respondent: Simpson Lawyers