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Aisi v Nikent [2018] PGNC 449; N7564 (2 November 2018)

N7564

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1663 OF 2016

BETWEEN

SHIELA AISI
Plaintiff

AND
JOE KOI NIKENT
First Defendant

AND
JOHN DEGE
Second Defendant

AND
NATIONAL HOUSING CORPORATION
Third Defendant

Waigani: Dingake J
2018: 24 May, 14 June, 6 & 29 September

Cases Cited:

Johannes Leahy v Tom Otri (2009) N3860
William Maki and Others v Michael Pundia and PNG Motors [1993] PNGLR 337

Counsel:

Mr. Roger Gileng Otto, for the Applicant
Ms. Karen Nugi, for the Respondent

2 November, 2018

1. DINGAKE J: This is an application by the first defendant to dismiss the plaintiff’s claim for non compliance with the requirement to plead specific particulars of fraud pursuant to Order 8 Rule 30 of the National Court Rules.
2. At the hearing of this application, the applicant abandoned the order sought in paragraph one (1) of the notice of motion filed with this Court on the 16^th of July, 2018, and reserved his right to pursue orders sought in paragraph three (3) of the its notice of motion, should the ground mentioned in paragraph one (1) hereof not succeed.
3. The issue that falls for determination is whether the plaintiff’s proceedings should be dismissed for non compliance with Order 8 Rule 30.
4. Order 8 Rule 30 provides:
   • “30. Fraud, etc. (16/2)
     • A party pleading shall give particulars of any fraud, misrepresentation, breach of trust, willful default or undue influence on which he relies.”
5. The first defendant contends that the plaintiff failed to plead the alleged fraud with sufficient particularity and set out particulars relating to when, who and particulars of dishonesty alleged in the amended statement of claim.
6. The plaintiff on the other hand contends that she has pleaded the fraud alleged with sufficient particularity.
7. In her statement of claim, the plaintiff alleges that the officers of the third defendant conspired with the first defendant to deprive the plaintiff of the opportunity to purchase the vacant land located at Section 16, Allotment 59, Hohola, National Capital District. The plaintiff pleads, inter alia, that officers of the third defendant had fraudulently misrepresented the status of the property and its value to enable the first defendant to purchase the property.
8. The plaintiff seeks, inter alia, an order declaring that the contract of sale executed on the 23^rd of September, 2015, before the first and third plaintiff is fraudulent and null and void abintio.
9. At paragraph 14 of her amended statement of claim, the plaintiff pleads the following particulars of the fraud:

“14. ......

Particulars

(i) The site inspection report prepared by the officers of the third defendant for and behalf of the first defendant misrepresented the current state of the property;

(ii) The valuation report prepared by the officers of the third defendant for and behalf of the first defendant grossly undervalued the property;

(iii) The contract of sale and subsequent transfer of the property to the first defendant was made dishonestly.

10. As is plain from the above, the plaintiff does not say how the value of the property was misrepresented and how it was grossly undervalued. The plaintiff also alleges that the contract of sale and subsequent transfer at the property to the first defendant was made dishonestly but does not give the details of the dishonesty.
11. In the case of Johannes Leahy v Tom Otri [2009] N3860, the Court stated that it is important the plead the particulars of fraud in order to enable parties to identify issues of fact and law implicated by the evidence and to determine what kind of evidence may need to be led.
12. In the case of William Maki and Others v Michael Pundia and PNG Motors [1993] PNGLR 337 N1137, Court emphasized the importance of sufficient particularity in pleading fraud and made it clear that general allegations of fraud are unacceptable.
13. In my mind the requirement to plead fraud with sufficient particularity serves two purposes. Firstly, it enables the defendant to what case he/she is called upon to meet and to answer intelligibly. Secondly, it enables the court to weed out unmeritorious allegations.
14. In pleading fraud the plaintiff must plead facts which show how, when, by what means and the persons involved.
15. In pleading fraud it is not sufficient to merely employ words like ‘dishonest’ or ‘fraudulent’ as this does not answer the question of what was done, by, who, when and why it was deceitful or dishonest.
16. In so far as the plaintiff seems to suggest in her pleadings that the officers of third defendant colluded with the first defendant by employing deceitful or dishonest means to deny her of her property, opportunity or a legal right she must provide the details indicated above.
17. The particulars of fraud captured by paragraph 14 of the Statement of Claim in particular, and indeed the entire pleadings fall far short of the particularity required as stated above.
18. Reading the particulars supplied, I do not know who did what, where and when – and how whatever is alleged to have been done was dishonest or deceitful, done with the intention to deny or deprive the plaintiff of property, opportunity or legal right.
19. In the result, this application is merited and ought to succeed.
20. The Court orders that;
    1. The proceedings are dismissed for non compliance with Order 8 Rule 30 of the National Court Rules.
    2. The plaintiff pays first defendant costs.

_______ ____________________________________________________
Themis Lawyers: Lawyers for the Applicant
Pang Legal Services: Lawyers for the Respondent