Unreported National Court Decisions
N1462
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS 185 OF 1995
KOL RIPA - PLAINTIFF
V
KOMBAMONG WALLY WAK - 1ST DEFENDANT
THE REGISTRAR OF TITLES - 2ND DEFENDANT
THE INDEPENDENT STATE OF PNG - 3RD DEFENDANT
Mount Hagen
Akuram J
15 July 1996
18 July 1996
PRACTICE AND PROCEDURE - Originating process - Choice of - Allegation of Fraud in obtaining registered title over Customary Land - Plaintiff to institute proceedings by way of a Writ of Summons.
PRACTICE AND PROCEDURE - improper originating process - application to dismiss - not granted in the circumstances - proceedings to continue on pleadings on the Originating Summons - Order 4, Rule 35 (1) & (2) (a) of National Court Rule.
Counsel:
M Tamutai for Applicant/Defendant
P Dowa for Respondent/Plaintiff
INTERLOCUTORY RULING
18 July 1996
AKURAM J:  This is an application by way of Notice of Motion dated 18th June 1996 seeking orders that:
1.       That the Originating Summons in this proceedings be dismissed,
2.       That the Plaintiff pays Defendants Costs,
as a result of a claim by the Plaintiff by way of an Originating Summons dated 15th May 1995 as a result of Customary land being included in a registered Certificate of title.  It is alleged by the Plaintiff in the Originating Summons proceedings that such title was issued by the Second Defendant to the First Defendant by means of illegal and fraudulent means and is adverse to the interest of the Plaintiff.  The particulars of fraud as required by Order 8, Rule 30 of the National Court Rules, were to be provided prior to the hearing.
The first ground of Applicant’s application is based on Order 4, Rule 2 (1) (b) that the claim by the Plaintiff on allegation of fraud should be by way of a Writ of Summons.  The second ground of the application is a follow up and that is, if fraud is alleged then, the fraud should be particularised as required under Order 8, Rule 30.
As to the first ground he submitted that it is mandatory that if fraud is alleged then it should be by way of a Writ of Summons.
Counsel submitted that Order 4, Rule 2 (3) sets out the exceptions and this is not one of them.  Sub rule 3 reads:
(3)      Sub-rule (1) does not apply to proceedings commenced by a person who desires to apply for:
(a)      a declaration of right; or
(b)      an immediate injunction; or
(c)      an immediate appointment of a receiver; or
immediate orders under Order 14 Rule 10 (the preservation of property).
I agree with the Applicant’s Counsel that the orders sought are not declarations of rights, etc, under Order 4, Rule 2 (3) above but declarations that the title issued be null and void and of no effect including the survey plan and that the land be distributed according to custom prevailing in the area.  Therefore, the Plaintiff should have commenced the action by a Writ of Summons and not Originating Summons.
It should also be said here that the purpose of a Writ of Summons is to allow parties to go through the proper pleadings to iron out the issues that the parties wish to sort out prior to trial proper.  It is not intended for matters which do not need detailed pleadings where issues are clear and straight forward which only need an Originating Summons.  As in this case, where fraud is pleaded it is mandatory for the Plaintiff to give particulars of fraud as required under Order 8, Rule 30 of the National Court Rules.
I need not go into the Applicant’s second argument based on Order 8, Rule 30 where a party pleading fraud should give particulars of the ground for two reasons:
(a)      The Plaintiff since the institution or filing of Originating Summons on 14th May 1995 has filed, on 11th July 1996, the particulars of fraud,
(b)      If I find that the originating process is the wrong process, then, whatever pleadings based on that is of no use until the proper process is initiated.
I agree with the principle enunciated by Woods J in William Maki v Michael Pundia and PNG Motors [1993] PNGLR 337 but that case was dealing with Order 8, Rule 30 where pleadings in an action commenced by Writ of Summons did not plead particulars of fraud etc.
There is another aspect of this application and that is, what should I do with this proceedings as the allegations are very serious.  If I dismiss this claim because the originating process is wrong, then, it will create problems for the Plaintiff as he has not argued the merits of the case.  I am therefore of the view that, I will not dismiss it as submitted by Counsel for the Applicant but will order that the proceedings continue on pleadings pursuant to Order 4, Rule 35 (1) and further order that affidavit of Plaintiff stand as pleadings (O. 4, R.35 (2) (a)) which is under Division 4 and Rule 23 saying that this Division applies only to proceedings commenced by originating summons.
I am also satisfied that the Plaintiff’s affidavit and the particulars of fraud are sufficiently set out as required under Order 8, Rule 30 of the National Court Rules.  However, there is a notice of intention to defend filed but no defence has been filed as yet.  Therefore, I will allow the Applicant/Defendant to go ahead and file their defence followed by the usual process of pleadings, that is Reply to the Defence by the Plaintiff and so on.
I order costs against the Plaintiff for this application.
There are however, other four (4) similar cases based on the same issues.  I do not wish to make orders concerning them as the Counsel for the Applicant does not act for the Defendants in those cases.  However, I trust that the Counsel for the Plaintiffs in those matters consider taking the appropriate action where he considers necessary after obtaining instructions from his clients.
Lawyers for Applicant/Defendant: Tamutai Lawyers
Lawyers for Respondent/Plaintiff: Dowa Lawyers