N8108

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 52 OF 2016

BETWEEN
MARK MOKONO
Plaintiff

AND
MERIA KUNAKO
First Defendant

AND
TAYAGO HAMONO
Second Defendant

AND
ANJOL YAPIN in his capacity as the Registrar of Titles,
Department of Lands & Physical Planning
Third Defendant

AND
LUTHER SIPISON in his capacity as the Acting Secretary,
Department of Lands & Physical Planning
Fourth Defendant

AND
THE INDEPENDANT STATE OF PAPUA NEW GUINEA
  Fifth Defendant

Waigani: Polume-Kiele J
2017: 5th December
2019: 4th September

PRACTICE AND PROCEDURE - Claim alleging fraud – transfer of title in land - notice under s. 5 of Claims By and Against the State Act (‘s. 5 notice’) not given – Statement of claim pleads details of particulars of fraud.

PRACTICE AND PROCEDURE - Limitation periods – Whether an action seeking equitable relief including consequential general damages is “an action … on simple contract” – Frauds and Limitations Act, Section 16(1) – Whether an action should be regarded as a claim for “specific performance of a contract or for other equitable relief” – Frauds and Limitations Act, Section 18 – action seeking equitable relief including consequential damages – not action on … simple contract – s 16 (1) – Frauds & Limitation Act – does not apply.

Facts

The plaintiff’s claim is one based on allegations of fraud. He seeks declarations that the purported transfer of title to the property described as Allotment 1 Section 26 Hohola, National Capital District on the 6 of October 2015 from Waralo Business Group Inc to the first and second defendant was fraudulent, illegal and therefore the transfer was void ab initio. The plaintiff also seeks orders that the transfer to the first and second defendant be cancelled and the title to the property be restored to his name. The plaintiff also claims for general damages.

Held:

(1)	No Notice of Claim has been given by the Plaintiffs under s.5 of the Claims By and Against the State Act 1996. No leave had been granted by the Attorney-General or the Court prior to institution of these proceedings. Consequently, there is no claim against the State.

(2)	The first and second defendants   are private persons capable of suing and being sued in their own name and style. The requirements of Section 5 Notice under the Claims By and Against the State does not apply to them. 

(3)	Title to the property was registered in the name of the Business Group, Waralo Business Group Inc who has since sold the property to the first and second defendants.

(4)	The Waralo Business Group Inc. is added as the Sixth Defendant to these proceeding so any issues in respect to ownership to subject property be heard and determined.

(5)	Action seeking equitable relief including consequential damages – not action on … simple contract – s 16 (1) – Frauds & Limitation Act – does not apply.

Counsel:

Mr. A Jerewai, for the Plaintiff
Mr. R Joseph, for the First and Second Defendant
Mr. J Wane, for the Third, Fourth and Fifth Defendants

RULING ON MOTION

4th September, 2019

1.	POLUME-KIELE J: 	On the 5 December 2017, two motions were moved before me. The first motion was filed on the 10 of November 2017 by the first and second defendants which was supported by an affidavit of Mr. Ricky Joseph sworn and filed on the 10 of November 2017 (Document No. 40). The motion sought dismissal of the entire proceedings for being time barred pursuant to s 16 (1) of the Frauds & Limitation Act and Order 12 Rule 1of the Rules. 

2.	The second motion was filed on the 8 of November 2017 by the third, fourth and fifth defendants and supported by an affidavit of Mr. Joseph Wane sworn on the 6 November 2017 and filed on the 8 of November 2017. This motion also sought orders for dismissal of the entire proceedings for lack of s 5 notice to make a claim against the State under the Claims By and Against the State Act 1996, s 5 (2).

3.	The plaintiff opposes the application and says that the claim is equitable in nature and therefore s 18 of the Frauds & Limitation Act applies. He relies on his own affidavit sworn and filed on the 13 of September 2017. On the issue of the s 5 Notice, there appears to be no evidence of the plaintiff’s compliance with the s 5 Notice requirements.

4.	This is my ruling on the applications.

Hearing of motion

5.	Upon hearing counsels for the defendants on their respective applications and the response from the plaintiff’s counsel. I caused an enquiry of the material documents on the Court file and upon conducting such an enquiry, I note the following:

(i)	On 10 February 2016, the plaintiff filed these proceedings at the Waigani Registry. 

(ii)	Whilst I note that there is no affidavit of service on the Court file, it is apparent that all the defendants have filed their respective Notices of Intention to Defend to the claim. In this regard, the first and second defendants filed their Notice of Intention to Defend (Document No. 2) on the 24 of February 2016 and similarly, the third, fourth and fifth defendants also filed their Notice of Intention to Defend on the 2 of March 2016 (Document No. 3) on the Court file.

(iii)	On the 4 of May 2016, the third, fourth and fifth defendants filed their Defence to the Claim (Document No. 5) on the Court file. They now raise the lack of s 5 Notice as the basis of their application to have the entire proceedings dismissed.

(iv)	Since then, these proceedings have progressed this far followed by a series of notice of motions which have been filed commencing from 31 October 2016, filed by the first and second defendants seeking leave of court to file a defence out of time. What became of this application, it remains to be clarified? However, I do note that the first and second defendants filed their Defence to the claim on the 8 of December 2016, there appears to be no Court file endorsement as to the Court granting leave to extent time to the first and second defendants to file a defence out of time.  In any case, I leave these matters here for now as there also appears to be no objections raised by the plaintiff with regard to this defence

(v)	On the 13 of January 2017, the first and second defendants filed a further motion seeking dismissal of the entire proceedings. This notice of motion was dismissed on the 16th of February 2017. Being unsuccessful on the first attempt to dismiss the entire proceedings, the first and second defendants have again filed a notice of motion, seeking dismissal of the entire proceedings on the basis that the claim is statute barred or time barred under s 16 (1) of the Frauds & Limitation Act 1988. 

6.	In this present case, the plaintiff pleads frauds in relation to the transfer of title to the property described as Allotment 1 Section 26 Hohola, Port Moresby, National Capital District from the Waralo Business Group Inc. to the first and second defendants. The history of the facts leading to the allegation of fraud is detailed in the pleadings in the statement of claim. 

7.	The plaintiff also relies on his own affidavit sworn and filed on the 13 of September 2016 (Document No. 10) on the Court file to support his claim. Further, the plaintiff claims several equitable reliefs including a claim for general damages, the relevant parts of the Plaintiff’s Statement of Claim are restated below:  

“D. 	AND THE PLAINTIFF THEREFORE CLAIMS: 

	Substantive Relief Sought

1.	An order in the nature of a Declaration that the purported sale and transfer of the property facilitated by the Third Defendant from Waralo Business Group Inc. to the First and Second Defendants between 4th August 2004 and 8th October 2015 is illegal, null and void ab initio.

2.	An order in the nature of a Declaration that the First and Second Defendants never acquired, and therefore, never held title to the property at Allotment 1 Section 26 Hohola, Port Moresby National Capital District

3.	An order that the third defendant, within 7 days, amend the Register of Titles relevant to the Property and record Waralo Business Group Inc. as the legal proprietor and transfer the title to the Plaintiff

4.	General damages against the defendants for the mental and physical stress, anxiety, hardship, inconvenience, and pain and suffering experienced by the plaintiff

5.	Interest at 8% per annum on the amount award which shall accrue from the date of filing of the writ

6.	Costs of the proceedings to be borne by the defendants through apportionment as the Court deems appropriate

7.	Such other orders as this Honourable Court may deem appropriate

Interim Relief

8.	Until further orders or pending determination of the substantive issues in these proceedings, an Order in the nature of an injunction restraining the first and second defendants from dealing with the property, Allotment 1 Section 26 Hohola, Port Moresby, National Capital District in any manner pursuant to Section 155(4) of the Constitution, Order 14 Rules 9 and 10, Order 12 Rule 1 of the National Court Rules and the inherent jurisdiction of the National Court

9.	Until further orders or pending determination of these proceedings, an Order in the nature of an injunction restraining the first and second defendants and their agents and relatives from entering the property and harassing or intimidating the plaintiff and his family.

10.	Other orders the Honourable Court deems appropriate”

Consideration of the application

8.	Upon hearing Counsels on their respective submissions, I note the following matters raised in their respective notices of motions. Firstly, the third, fourth and fifth defendants raised issues relating to statutory defences under s 5 of the Claims By and Against the State Act 1996. In respect of the first and second defendants; they raised a statutory defence of time limitation under s 16 (1) of the Frauds & Limitation Act 1988.

9.	In relation to the defence of the lack of s 5 Notice raised by the third, fourth and fifth defendants, I have caused an enquiry of the matters raised in their defence filed on the 4 of May 2016, and upon perusal of the defence filed, find that the defence of lack of s 5 Notice under the Claims By and Against the State Act 1996 or a statutory time limitation or bar were not pleaded in their defence filed, which is (Document No. 5) on the Court file. In fact, of the 14 paragraphs of pleading in their defence filed on the 4 of May 2016, there is no specific pleading of the lack of or want of s 5 Notice of Claim against the State or a time limitation or a bar to the claim being raised by the third, fourth and fifth defendants in their defence.

10.	On a similar note, I also conducted an enquiry of the first and second defendants’ defence filed on the 8 of December 2016 (Document No. 17) on the Court file. I also find that the Defence did not raise the issue of time limitation or a bar to the claim. In fact, of the 4 paragraphs of pleading in their defence filed on the 8 of December 2016, there is no specific pleading of the time limitation under s 16 (1) of the Fraud and Limitations Act 1988 being raised as a defence by the first and second defendants to the plaintiff’s claim.

11.	Further, whilst I note that there appears to be no affidavit of service of the writ on all the defendants, all the defendants have filed a notice of intention to defend. The third, fourth and fifth defendants filed their notice on the 24 of February 2016 and the first and second defendants filed their notice on the 2 March 2016 respectively. The filing of the notices of intention to defend is noted as confirmation of service on all the defendants named in these proceedings.

12.	These proceedings have been before the court for various reasons and several applications listed before the Court for hearing, have been withdrawn as confirmed by the File endorsements. However, this ruling is in regard to the two motions heard before me on the 2nd of August 2018.

Section 5 Notice - Claims By and Against the State Act

13.	Firstly, the issue in relation to the lack of and or want of giving of s 5 Notice under the Claims By and Against the State Act 1996. Essentially s 5 Notice states:

“5.	NOTICE OF CLAIMS AGAINST THE STATE
(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
within such further period as –
(i)	the Principal Legal Adviser; or
(ii)	the Court before which the action is instituted,
						on sufficient cause being shown, allows.
		
(3)      A notice under sub-section (1) shall be given by –
(a)	personal service on an officer referred to in Subsection (1); or
(b)	leaving the document at the office of the officer with the person apparently occupying the position of personal secretary to that officer between the hours of 7.45 am and 12 noon, or 1.00 pm and 4.06 pm, or such other hours as may from time to time be declared by or under the Public Services (Management) Act 1995 to be the normal public service hours of duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Chapter 321).

14.	Section 5 Notice is a threshold issue. It is to give the State early notice of an impending claim against it so that, it can carry out its own investigations while the trail of evidence is still fresh to enable it to meaningfully decide whether or not to settle the intended claim.  No such investigations could be carried out if no details of the kind spoken of by the other judgments are disclosed or given.   A simple statement of “I give you notice that I will make a claim against you” serves no useful purpose particularly, when the State in this case, is not itself responsible for an action or omission which gives rise to the possible claim against it (see Rundle v MVIT; Paul Tohian v Tau Liu).

15.	However, this has not been raised initially by lawyers for the third, fourth and fifth defendants. The lack of or want of s 5 Notice or a statutory defence such as s 16 (1) of the Frauds & Limitation Act are statutory defences and in this regard, I would presume that these defences be raised at the outset upon service of the writ and or upon perusal of the pleadings. 

16.	It would have been a matter of course when perusing the statement of claim and appraising oneself of the nature of the claim that a Counsel having carriage of the matter or file would have taken steps to determine the nature of the claim and determining as to whether the pleadings disclose a reasonable cause of action against the respective defendants. It seems such a waste of resources to me, when statutory defence such as these are not raised at the outset. 

17.	For a claim against the State, essentially, s 5 of the Claims By and Against the State Act (the “Claims Act”) is relevant. Perhaps for academic purposes I would set out the processes involved in processing the requirements of the Section 5 Notice of a claim against the State. In this regard, I set out as I understand it, the normal processes that are undertaken in relation to compliance with and the purpose of the s 5 Notice. I would in this regard state that for all lawyers employed in the Office of the Solicitor General or any in-law counsel employed by every State agency, and statutory authorities that the requirements of s 5 Notice should be raised automatically as soon as they are served with a Writ. 

18.	This is because, if the Section 5 Notice was given by a potential claimant, who intends to make a claim against the State, his or her Section 5 Notice (if given) would have already been registered by Solicitor General and a file already created and kept in the custody of the Solicitor General prior to the filing of a writ of summons at the National Court Registry or complaint or summons at the District Court Registry. Once, a s 5 Notice has been given, the Solicitor General in this case, should have not be taken by surprise at all. This is because, all the details of the potential claimant and the nature of his claims are already registered and records of his or pending claims are kept in the custody or possession and within the knowledge of the Solicitor General and or the Attorney General. 

19.	Further and in addition, it is also presumed that all relevant briefs and instructions have already been sought by the Solicitor General from the alleged tortfeasor and is available to the Solicitor General. All things being equal, and in such case; the Solicitor General is prepared and ready to respond to the claim once served with a writ.  If no s 5 Notice has been given, then this is raised as a defence immediately. It is not rocket science. 

20.	The law is trite that, no claim can validly proceed against the State without meeting the Section 5 Notice requirements. Many judgments of both the Supreme and the National Court clearly show that, the requirement for notice is a condition precedent, without which there can be no claim: (see Paul Tohian v Tau Liu (supra); Daniel Hewali v. Papua New Guinea Police Force & The State).  The reason for this was as explained by Kandakasi J., in Daniel Hewali v State (supra) where his Honour stated:

“That reason is simply that, both the MVIT and the State are themselves not necessarily responsible for that which gives rise to a claim against them.  They instead become responsible or liable by reason of the law.  In the case of the MVIT it is because of the MVIT Act and in the case of the State, is based on the principles of common law in some cases and in other cases based on statute.   In most cases, they do not have any personal involvement and knowledge of matters giving rise to a cause of action against them.   Of course, common law does not override any statutory law.  Instead, under our hierarchy of laws as set out in s.9 of the Constitution, the principles of common law are subject to any relevant Act of Parliament.”

21.	In applying this principle to this current case, if this Court were to allow this claim without the plaintiff meeting the condition precedent of the s. 5 of the Claims By and Against the State1996, then this would be giving rise to an illegal claim against the State (see Brian Josiah v Steven Raphael where the Supreme Court stated:

“The law cannot simply permit one illegal claim to proceed merely because another illegal claim proceeded.  After all, one wrong or illegal act does not justify or correct another”.

22.	It is settled law that the s 5 Notice is a mandatory requirement prior to the filing of any proceedings against the State (Paul Tohian v Tau Liu (supra).  The Defence filed by third, fourth and fifth defendants on the 1 of June 2016 (Document 5), however omitted to plead the lack of s 5 Notice as a defence to the claim.  

23.	The State, its agents and or servants are separate parties to these proceedings. Similarly, the State’s interest as the fifth defendant in this proceeding must be put forward independently and separately. It is my understanding that the State is being sued separately by the plaintiff in this proceeding by virtue of the Claims By and Against the State Act 1996 (paragraph 5 of statement of claim). Although not specifically pleaded, I presumed that it is a reference to s 2(1) of the Claim Act. In this case, s 2 states:

“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.” 

24.	The same however cannot be said in relation to proceedings where private individuals or entities are being sued in their respective personal capacities (as defendants or plaintiffs). In such circumstances, it is obvious that the requirements and obligations established under s 5 Notice of the Claims By and Against the State Act 1996 do not apply to a private individual or an entity capable of suing and being sued under their own names and style. On that note, I make reference to a recent unreported judgment on a similar matter which I handed down in the matter of WS NO 1440 OF 2015, Wainetti Kirori v Peter Magos, the State & 2 Ors(5 July 2019, Unreported); in which I expressed a view that: 

“The fact that the plaintiff has not given s 5 Notice, should not be used as the determining factor in considering the merits of the plaintiff’s claim on allegations of fraud against the first defendant. To me, this claim on allegations of fraud against the first defendant can be pursued personally against the first defendant. The claim can subsist.”

25.	I adopt and apply the same sentiments in relation to this current case. The first and second defendants here are private individuals (persons) being sued in their personal capacity. The requirements and obligations established under Paul Tohian v Tau Liu (supra) of the s 5 Notice under the Claims By and Against the State Act 1996 do not apply to them as private individual or persons being sued in their personal capacity individually and severally. The first and second defendants are not being sued as agents and or servants of the State. The defence of the lack of or want of s 5 Notice under the Claims Act is not available to the first and second defendants.

26.	Having reached this conclusion, I adopt and apply the measures applied in the case of Karl Paul and Aruai Kispe and the Regional Manager – PNG Forest Authority, Lae and PNG Forest Authority, where his Honour, Injia. J (as he then was) in his discussion on that case said that the Court must control and conduct proceedings before it to ensure that the conduct of proceedings is subject to jurisdictional limits set by the Court. In that case, his Honour Injia J, said:

“The Court has wide powers to control the conduct of proceedings before it, subject of course, to jurisdictional limitations fixed by statute.  It is in the inherent jurisdiction of the Court to take firm control of the proceedings to ensure that the business of the Court is conducted in an orderly and fair and timely manner and to ensure that justice is done in the particular case.” 

27.	His Honour, went further to discuss the Courts discretion when acting on its own initiative to screen and weed out claims.  He said:

“There is a wide discretion vested in the Court by the National Court Rules to screen and weed out claims which do not disclose a reasonable cause of action, are frivolous and vexatious or an abuse of process of the Court (O.12 r.40) or the documents filed in Court is scandalous, irrelevant or otherwise oppressive (O.2 r.29) or on the ground of irregularity. That discretion is normally exercised upon application by an interested party.  Nevertheless, it goes without saying that the Court may exercise that discretion on its own initiative.  It is open to the Court to raise and determine questions concerning the regularity (O.1 r.1-9) or competency of proceedings at any stage of the proceedings with or without application by an interested party.” 

28.	Further, in the case of Siaman Piri & Anor v Simon Nusen & Ors (1995) N1375, the Court stated, a statement (referred to in the case of Karl Paul and Aruai Kispe and the Regional Manager – PNG Forest Authority, Lae and PNG Forest Authority (supra) which I adopt and apply to this present case. The Court stated:

“It is the Court’s duty to ensure that legislated procedures are complied with”. … 

29.	In this case, the State had filed a motion seeking dismissal because it believed notice was not given. The defence of lack of compliance with the s.5 notice however is not pleaded in the third, fourth and fifth defendants’ Defence. Given the principles stated in the Karl Paul and Aruai Kispe and the Regional Manager – PNG Forest Authority, Lae and PNG Forest Authority (supra) above, I find that this Court’s duty is to ensure that legislated procedures are complied with and in the instance where s 5 Notice has not been given, then the Court’s duty is to ensure compliance with Statute even if the lack of compliance with s 5 Notice is not pleaded as a defence to the claim.

30.	Having arrived at this finding and upon further conduct of an enquiry of the pleadings, it is obvious that the plaintiff pleads particulars of allegation of fraud against the first and second defendants and not the third, fourth and fifth defendants. In these circumstances, since the first and second defendants are individual persons being sued in their own personal capacity; this must mean that the plaintiff’s claim against the first and second defendant can survive or subsist. Here the first and second defendants are not being sued in their capacity as servants and or agents of the State. Therefore, the requirements established under s 5 Notice of the Claims By and Against the State Act 1996 does not apply to the first and second defendants.

31.	As regards the plaintiff’s claim against the first and second defendants, this claim could subsist (see WS NO 1440 OF 2015, Wainetti Kirori v Peter Magos  , the State & 2 Ors (5 July 2019, unreported). 

32.	As regards, the issue of whether the plaintiff has standing to institute the proceedings, that is a matter for trial and I leave it there.

33.	On the other hand, this Court will not hear a claim against the State that was not properly instituted. Numerous authorities exist where Courts have held that when suing the State, it is mandatory that the Plaintiff comply with the requirements of s.5 of the Claims Act (see Paul Tohian (supra) in which the Supreme Court held that: 

“The purpose of the requirement to give notice remain the same whether or not the notice is required to be given within the 6 months or within such further period as may be granted by the Principal Legal Adviser or the Court.  It is clear to us that the notice of intention to make a claim is a condition precedent to issuing a writ of summons in all circumstances.”

34.	It is apparent that No Notice of Claim has been given by the Plaintiffs under s.5 of the Claims By and Against the State Act 1996. Further, no leave has been granted by the Attorney-General or the Court prior to institution of these proceedings. 

35.	The s 5 Notice, strictly speaking has not been given. It is my respectful view therefore that no action lies against the State (see Paul and Mary Bal v Kenny Taiya (2003) N2481). In this regard, there is no action on foot as against the third, fourth and fifth defendants. 

36.	On the other hand, if this Court were to adopt the approaches taken  by the Court where his Honour Canning J in the case of Mark Tunugu Kale v Kutubu Ipata & Ors (2012) N4806 and Willie Gawi and Olga Kari v The State (2012) N4818 in which no Section 5 Notice had been given and in the exercise of discretion allowed further time to the plaintiff under Section 5(2) of the Claims By and Against the State Act, which states:

A notice [of intention to make a claim against the State] 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 further period as—

(i)	the Principal Legal Adviser; or
(ii)	the court before which the action is instituted,
on sufficient cause being shown, allows. [Emphasis added.]

37.	In these cases, his Honour Cannings J considered that sufficient cause was shown by the plaintiffs and allowed the proceedings to continue under Section 5(2)(c)(ii) a further period within which notice was to be given. His Honour Cannings J took the view that the court can, after proceedings have commenced, allow a further period to give notice. He states further that:

“the court can waive the requirement for a plaintiff to give notice under Section 5 prior to commencement of proceedings, by allowing, on sufficient cause being shown, a further period to give such notice, which may be a date before or after the date of commencement of the proceedings”.

38.	In Willie Gawi and Olga Kari v The State (supra), the Public Solicitor did not file an affidavit of service in regard to the Section 5 notice. This was contrary to the directions of 20 December 2011. Ms. Wurr for the plaintiffs could not give a good explanation for the absence of an affidavit of service but insisted that the notice had been served within the time set by the court. In that case, the Court was of the view that there has been a failure to comply with the Court order of 20 December 2011 in that no affidavit of service had been filed. But does it follow that the proceedings must be dismissed? The State was in a good position to apply by motion to have the proceedings dismissed on the ground of failure to comply with directions of the court. However, no motion was filed and the issue had not been raised until the trial and then only in the form of an oral application (supported by written submission).  The Court in those circumstances refused to dismiss the proceedings. If the State fails to apply to have the proceedings dismissed despite obvious grounds for doing so and allows a matter to be progressed to trial, especially if it acquiesces in obtaining directions for trial, it is by its conduct and as a matter of equity and justice estopped from relying on alleged breaches of the Claims By and Against the State Act or other procedural irregularities as a defence at trial and the matter proceeds to trial on its merits.

39.	Now coming back to this case, I note that the State had the opportunity to file a defence of lack of s 5 Notice and should have pleaded the lack of or want of s 5 Notice in its defence filed on the 4 of May 2016. It failed to do so. It is only now that the State is raising non-compliance of s 5 Notice. If the State has under the circumstances allowed the proceedings to progress this far despite obvious grounds for doing, then the conduct for having acquiesces in failing to raise the s 5 notice defence as a matter of equity and justice estopped from relying on alleged breaches of the Claims By and Against the State Act or other procedural irregularities as a defence.

40.	However, in these circumstances, I do not regard that the requirements to give Section 5 Notice should be waived as common law does not override any statutory law because under our hierarchy of laws as set out in s 9 of the Constitution, the principles of common law are subject to any relevant Act of Parliament. Hence, this approach is inconsistent with the principles established in Paul Tohian, Minister for Police and the State v. Tau Liu; Daniel Hewali v. Papua New Guinea Police Force & The State (supra) the Court stated:

“That reason is simply that, both the MVIT and the State are themselves not necessarily responsible for that which gives rise to a claim against them.  They instead become responsible or liable by reason of the law.  In the case of the MVIT it is because of the MVIT Act and in the case of the State, it based on the principles of common law in some cases and in other cases based on statute.   In most cases, they do not have any personal involvement and knowledge of matters giving rise to a cause of action against them.   Of course, common law does not override any statutory law.  Instead, under our hierarchy of laws as set out in s.9 of the Constitution, the principles of common law are subject to any relevant Act of Parliament.”

Time bar- Section 16 (1) of the Frauds & Limitation Act 1988

41.	I now briefly discuss the application for dismissal of the proceedings for being time-barred. Section 16 (1) of the Frauds & Limitation Act 1988 states:

“16.	Limitation of actions in contract, tort, etc.

(1)	Subject to Sections 17 and 18, an action—

(a)	that is founded on simple contract or on tort; or
(b)	to enforce a recognisance; or
(c)	to enforce an award, where the submission is not by an instrument under seal; or
(d)	to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture,
shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.

(2)	An action for an account shall not be brought in respect of any matter which arose more than six years before the commencement of the action.
(3)	Subject to Subsection (4), an action upon a specialty shall not be brought after the expiration of twelve years commencing on the date when the cause of action accrued.
(4)	Nothing contained in Subsection (3) shall be construed as affecting any action for which a period of limitation is specified by any other Act, and that subsection shall be read and construed accordingly.
(5)	An action shall not be brought upon any judgment after the expiration of twelve years commencing on the date when the judgement became enforceable.
(6)	No arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years commencing on the date when the interest became due.
(7)	Subject to Subsection (8), an action to recover any penalty or forfeiture, or sum by way of penalty or forfeiture, recoverable by virtue of any enactment shall not be brought after the expiration of two years commencing on the date when the cause of action accrued.
(8)	For the purpose of Subsection (7) the word "penalty" does not include a fine to which any person is liable on conviction of a criminal offence”

42.	Section 18 states:

“18.	Claims for specific performance, etc.

Section 16 does not apply to any claim for specific performance of a contract or for an injunction or for other equitable relief”. 

43.	In determining the above matters, I make reference to the case of Oil Search Limited v Mineral Resources Development Corporation Limited (2010) SC1022, where the Supreme Court made some useful observations as to when an application to dismiss proceedings for being time-barred should be made. The Court held that except in the clearest of cases, such applications are best left for thorough determination at trial.  The court stated at paragraph 23 that:
“If a claim is clearly time-barred and provided the statutory defence is pleaded in the defence, a motion for dismissal is warranted and it would be quite appropriate for the National Court to hear and determine it. Where, however, the case for dismissal is not clear-cut, the decision-making process of first, identifying the cause of action, secondly, identifying the date on which the cause of action arose and then, deciding the question of whether the cause of action is founded on a simple contract or is an action upon a specialty, can only efficaciously be carried out at a trial.”

44.	I adopt these observations and apply them here. I am of the view that the plaintiff in this present case, has shown according to the contents of his affidavit sworn on 13 September 2016 in which he attests to being from Waralo Village, Tari, Hela Province and a founding member of a then “unincorporated” Business Group known as “Waralo Business Group Inc” formed in 1978. The Waralo Business Group Inc was funded through counter funding from their former local Member, Sir Matiabe Yuwi. These are matters which should be heard and determined during a trial proper. 

45.	The plaintiff acknowledges that both the first and second defendants are also members. The plaintiff also claims to be a substantial financial member of the Business Group which has several assets (PMV and hire cars including hops in Mt Hagen and Tari). Following the formation of the Business Group, he then travelled to Port Moresby and gained employment with Air Niugini Catering Division and he left the affairs of the Group to the first and second defendants and other clansmen to manage. 

46.	In regard to this current cause of action, the plaintiff claims that the property in dispute is owned by him personally as he had used his own money to purchase the property from a Peter Tegelebe for a total price of K26,000.00. However, he did register the property in the name of Waralo Business Group Inc, not in his own name. This is the property which he now claims has been fraudulently transferred and registered in the name of the first and second defendants as joint tenants sometime on or about 8 October 2015, an action which he alleges is fraudulent. 

47.	According to his affidavit, he claims that the fraudulent activities initially commenced sometime in 2002 when the first and second defendants are alleged to have initiated changes to the membership of a Business Group entity known as Waralo Business Group Inc., with the Investment Promotion Authority (IPA) making themselves as the Management Committee and one unknown person namely Bruce Tegele as the treasurer. In 2004, further changes were made to the IPA register where an application was made to the composition of the Business Group Committee membership which then included the plaintiff as the Secretary to the Group (which he states that he did not consent to and forging his simple signature on the IPA Application Form.

48.	Having completed the changes to the records held by the IPA, the plaintiff alleged that it was the first defendant who then proceeded to lodge an application at the Office of Registrar of Titles for a replacement of title pursuant to Section 162 of the Land Registration Act upon a false declaration that his Owner’s Copy of the title deed was lost in a fire when his house on the same land was burnt to ashes during a fight amongst the soldiers and nearby residents on 8th April 2004. On the 4th of August 2004, the first and second defendants entered into a contract with Waralo Business Group Inc, to themselves as Joint Tenants for a sum of K20,000.00. Title to the property was transferred and registered to their joint names on 8th October 2015. In late 2015, the plaintiff was served a notice to vacate the property by the first and second defendants by their lawyers. This was the period that the plaintiff became aware of the change in ownership of the property. 

49.	In order to determine this question, a proper examination of the facts and evidence must be presented to arrive at a ruling as to whether this action is time-barred. A case on point here is that of George Kila v Shichun Zhu (2017) N7043 in which the Court stated that a finding on an application for dismissal of a proceeding for being time barred depends on three matters These are: 

“(a)	identification of the cause of action;
(b)	identification of the date on which the cause of action accrued;
(c)	categorisation of the cause of action according to whether it is “founded on a simple contract” or “an action upon a speciality”.

50.	In adopting and applying this rationale to the present case, I note that the plaintiff pleads mostly equitable reliefs in the writ of summons which are set out as follows: 

“D. 	AND THE PLAINTIFF THEREFORE CLAIMS: 

	Substantive Relief Sought

11.	An order in the nature of a Declaration that the purported sale and transfer of the property facilitated by the Third Defendant from Waralo Business Group Inc. to the First and Second Defendants between 4th August 2004 and 8th October 2015 is illegal, null and void ab initio.

12.	An order in the nature of a Declaration that the First and Second Defendants never acquired, and therefore, never held title to the property at Allotment 1 Section 26 Hohola, Port Moresby National Capital District

13.	An order that the third defendant, within 7 days, amend the Registrar of Titles relevant to the Property and record Waralo Business Group Inc. as the legal proprietor and transfer the title to the Plaintiff

14.	General damages against the defendants for the mental and physical stress, anxiety, hardship, inconvenience, and pain and suffering experienced by the plaintiff

15.	Interest at 8% per annum on the amount award which shall accrue from the date of filing of the writ

16.	Costs of the proceedings to be borne by the defendants through apportionment as the Court deems appropriate

17.	Such other orders as this Honourable Court may deem appropriate

Interim Relief

18.	Until further orders or pending determination of the substantive issues in these proceedings, an Order in the nature of an injunction restraining the first and second defendants from dealing with the property, Allotment 1 Section 26 Hohola, Port Moresby, National Capital District in any manner pursuant to Section 155(4) of the Constitution, Order 14 Rules 9 and 10, Order 12 Rule 1 of the National Court Rules and the inherent jurisdiction of the National Court

19.	Until further orders or pending determination of these proceedings, an Order in the nature of an injunction restraining the first and second defendants and their agents and relatives from entering the property and harassing or intimidating the plaintiff and his family.

20.	Other orders the Honourable Court deems appropriate”

51.	In considering the pleadings set out in the statement of claim, I note that the reliefs appear equitable in nature and applying the principles held in Mamun Investment Ltd v Nixon Koi (2015) SC1409, the Supreme Court stated that:

“equitable remedies are discretionary in nature and that in deciding whether to grant such relief the court is bound to take into account, according to the doctrine of laches, any undue delay by the plaintiff in commencing the proceedings” (Louis Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1144, Fred Angoman v IPBC of PNG (2011) N4363, Letina Rau v Albert Kone (2014) N5804).

The Court stated further that:

“only where the relief sought by a plaintiff is confined to specific performance of a contract or an injunction or other equitable relief can an action fall within Section 18. It is, however, not sufficient for a plaintiff to seek specific performance or an injunction or some other equitable relief if such remedies are sought in addition to non-equitable remedies. It is only where the plaintiff seeks purely equitable relief that the action will fall within Section 18”. 

52.	In adopting and applying these principles set out in Mamun Investment Ltd v Nixon Koi (supra) to this present case, whilst I note that paragraph 14 of the statement of claim pleads a claim for “General damages against the defendants for the mental and physical stress, anxiety, hardship, inconvenience, and pain and suffering experienced by the plaintiff; I view this paragraph to be consequential in nature as the main relief sought here is for the restoration of the title to the plaintiff or his business entity. The claim for damages can be viewed as consequential in nature in relation to the alleged fraudulent transaction.  

53.	Here the principle is that “Actions only fall within Section 18 if the relief being sought is confined to specific performance, injunction or other equitable relief. 

54.	In John Hiwi v Rendle Rimua (2015) SC1460, the appellant, who claimed that he was the executive of an incorporated landowners’ association, commenced proceedings by writ of summons in the National Court claiming payments totaling K74.5 million due to the landowners under three agreements with the respondents regarding a gas project. The appellant claimed that the agreements commenced operation in March-April 1990. He commenced the National Court proceedings in November 2009. The third respondent, the State, moved a motion in the National Court seeking dismissal of the proceedings on the ground that they were time-barred. The motion was upheld and the National Court dismissed the proceedings as being time-barred under Section 16(1)(a) of the Frauds and Limitations Act 1988, which provides that “an action that is founded on simple contract … shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued”. The National Court held that the cause of action was breach of simple contracts, which accrued at least 20 years ago, and that the proceedings were statute-barred. The appellant appealed against the order for dismissal of the proceedings, on the grounds that: (1) Section 16(1)(a) did not apply as: (a) the agreements that he was seeking to enforce were not ‘simple’ contracts; (b) the cause of action was not breach of contract; and (c) he was seeking specific performance of the agreements and therefore under Section 18 of the Frauds and Limitations Act (which provides that “Section 16 does not apply to any claim for specific performance of a contract …”) his claim was not caught by the six-year limitation period in Section 16(1); (2) the respondents had not filed a defence and should not have been permitted to argue that the proceedings were time-barred; (3) the primary Judge erred in law by criticising the appellant’s counsel for not putting submissions and authorities to the Court which were, in fact, put to the Court. The appellant sought orders quashing the order appealed from and remitting the matter to the National Court. In determining the appeal, the Supreme Court stated: 

“23	We agree with the approach recently taken by the Supreme Court (Sakora J, David J and Hartshorn J) in Mamun Investment Ltd v Nixon Koi (2015) SC1409 that only where the relief sought by a plaintiff is confined to specific performance of a contract or an injunction or other equitable relief can an action fall within Section 18. It is, however, not sufficient for a plaintiff to seek specific performance or an injunction or some other equitable relief if such remedies are sought in addition to non-equitable remedies. It is only where the plaintiff seeks purely equitable relief that the action will fall within Section 18.

24.       The rationale is that equitable remedies are discretionary in nature and that in deciding whether to grant such relief the court is bound to take into account, according to the doctrine of laches, any undue delay by the plaintiff in commencing the proceedings (Louis Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1144, Fred Angoman v IPBC of PNG (2011) N4363, Letina Rau v Albert Kone (2014) N5804).3 

55.	Further in Simon Puraituk v The State (2007) N3204, the issue before the Court was whether the proceedings should be dismissed for being time barred. The proceedings were in relation to a war relic, aircraft, described as a Boeing B-17E no. N.41-2446 otherwise known popularly as the “Swamp Ghost”.  This war relic is a second World War US Air Force flying fortress.  It was salvaged from the Agiambo swamp in the Oro province and transported to Lae where it is awaiting transportation to the United States of America. The war relic was subject to an a Memorandum of Agreement (MOA) which had been entered into in 1999 between the PNG National Museum and Arts Gallery with a Californian based aircraft registration company known as Military Aircraft Restoration Corporation (‘MARC’) permitting it to salvage and remove the Swamp Ghost to the United States of America (‘USA’) to be restored for display purposes in the USA.  This agreement was executed by Mr Soroi Eoe on behalf of the PNG National Museum and Arts Gallery, the first plaintiff in these proceedings. The first and second defendants before the Court moved an application seeking dismissal of the entire proceedings on grounds that the action is time barred. The plaintiff in this case pleaded an action seeking equitable relief. In determining this application; the Court stated:

“21	A declaratory relief is an equitable remedy or relief.  This is confirmed by the common law and by decisions in this jurisdiction.  I refer to NCDIC v Bogibada Holdings Pty Ltd [1987] PNGLR 135, N601, decision by Kapi DCJ delivered on 24 July, 1987 where he said and confirmed the position at common law that a declaratory relief is an equitable remedy.  Again, in Manufacturers Council of Papua New Guinea Inc. v. Commissioner-General (2003) N2441, a case where injunctive and Declaratory orders were sought by the plaintiff in an originating summons and where there the court noted that injunctive and Declaratory reliefs sought were equitable remedies and that parties seeking them must fulfil the equitable conditions entitling  them to those reliefs.  In SCR 2 of 1985; Massive v Okuk and Kendarop [1985] PNGLR 263 SC 301, the Supreme Court consisting of Kidu CJ, Pratt. J, Bredmeyer. J, Amet. J and Woods. J also discussed the nature of Declaratory reliefs.  The Court held that a declaration is an equitable remedy and is discretionary in nature.  
22	Therefore, s. 16 of the Frauds Act does not apply to this claim because s. 18 specifically excludes claims for equitable relief”. 

56.	In addition, in the case of Oil Search Limited v Mineral Resources Development Corporation Ltd (2010) SC1022, the Court cautioned against the practice of hearing motions for dismissal of proceedings on the ground that they were time-barred, as distinct from requiring that the issues be pleaded in a defence and argued at trial, the caution was qualified by the proviso that hearing such motions can be justified in clear-cut cases. 

57.	Given these principles, I hold the view that this is not a clear-cut case. The reliefs sought are equitable reliefs. These reliefs are confined to specific performance, declarations and injunctions and other equitable reliefs.  Reliefs which fall within Section 18 of the Frauds & Limitation Act 1988. The pleadings are sufficiently clear. For instance, in paragraph 21 of the statement of claim, the plaintiff pleads as follows: 

“21	On 30th June 2004, the first defendant lodged an application for a replacement of the Title pursuant to Section 162 of the Land Registration Act and made a false declaration that his Owner’s copy of the title to the property was lost in a fire when his house on the same land was burnt to ashes during fight amongst soldiers and nearby residents on 8th April 2004 when knowing that the first and second defendants do not own or live on the property and the house was burnt on 9th April 2004”. 

22	On 4th August, the first and second defendants with the assistance of their lawyers Rageau Elemi & Kikira Lawyers facilitated and executed a Contract of Sale of the property from Waralo Business Group Inc., to themselves as Joint Tenants for a sum of K20,000.00 which the plaintiff is not aware of.

23	The title to the property was then transferred and registered under the First and Second Defendants name as Joint Tenants on 8th October. 2015”.
58.	Here, the third, fourth and fifth defendants have not pleaded a defence of lack of or want of s 5 notice under the Claims Act. Similarly, the first and second defendants also have not pleaded a defence of s 16 (1) of the Frauds & Limitation Act. As both these defences have not been pleaded in their Defences filed on the 1 of June 2016 and 8 December 2016 respectively; these cannot be raised (see Margaret Tini Parua v Patilias Gamato)

59.	Further, in the case of Cresseri & Korowi v Halla Resources Corporation, the Court stated that – “the function of pleadings is to give fair notice of the case which has to be met and to define the issues which the court will have to decide…”In that case, the matter for determination before the Court was a claim based on the guarantee. The plaintiff’s pleadings did not sufficiently plead the guarantee which was not obviously clear to the defendants which could have allowed them to plead the Statute of Frauds by way of defence to it. Where the details of the claim were not clear, opportunities were available to the defendants to have obtained details of the guarantee by a request for particulars before framing their defence. They did not request for particulars and they missed their chance to plead the statute. Or they could have sought leave to file an amended defence. None of these opportunities were taken.

60.	In applying the principles set out in that case to this current, the pleadings are sufficiently clear. It is obvious to the first and second defendants that the claim relates to a transaction involving ownership to a state lease. It is also clear to them to plead the Statute of Fraud by way of a defence. Similarly, it was equally clear to the third, fourth and fifth defendants to plead non-compliance with the section 5 Notice compliance. The Claims By and Against the State Act, s 5 requires that s 5 Notice should have been given within six months of the occurrence of the act giving rise to the cause of action. In essence it means that the Office of the Solicitor General would have been in possession of a Section 5 Notice prior to the service of a writ. A proceeding once filed at the Registry and served follows the service of the requisite s 5 Notice. In this case, the Solicitor General need not seek instructions from the alleged tortfeasor to confirm service of the Section 5 Notice. It is established law that the Solicitor General and or the Departmental Head responsible for justice matters are authorised officers to receive the Section 5 Notice under the Claims By and Against the State Act 1996, see Section 5 (1) and Section 5 (3) of the Claims By and Against the State Act.(see Daniel Hewali v. Papua New Guinea Police Force and The Independent State of Papua New Guinea) (2002) N2233), Tohian & The State v Tau Liu (1998) SC 566; Minato v Kumo & The State (1998) N 1768; Badastal Limited v Dr. Puka Temu, Minister for Lands & Physical Planning & Others (2011)SC1092). Further, specified time frames or extended time frames are also prescribed under the Claims Act (s 5 2) for compliance (see Paul Tohian v The State & Tau Liu, (supra) William Trnka v The State (2000) N1957 and Chef Secret Limited v National Capital District & Others (2011) N4217

“5.	NOTICE OF CLAIMS AGAINST THE STATE

(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)	…

(3)	A notice under sub-section (1) shall be given by –

(a)	personal service on an officer referred to in Subsection (1); or

(b)	leaving the document at the office of the officer with the person apparently occupying the position of personal secretary to that officer between the hours of 7.45 am and 12 noon, or 1.00 pm and 4.06 pm, or such other hours as may from time to time be declared by or under the Public Services (Management) Act 1995 to be the normal public service hours of duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Chapter 321)”. 

61.	Further, the plaintiff is clearly not a party to the contract for sale and is not claiming damages against the first and second defendants for breach of contract (see George Kila v Shichun Zhu (supra)). 

62.	In relation to the issue of standing, this issue was not sufficiently argued before me. Given that Mr. Mokono has provided sufficient materials in his affidavit filed on the 13 of September 2016 (Document No. 10), I am of the view that in the interest of equity, the pleadings should not be dismissed for the reason that the plaintiff, Mr. Mark Mokono may not have standing. The pleadings do sufficiently show that he has an interest in the subject property and his interest should not be substantially determined in this application. Relying on the case of Karl Paul v. Awai Kispe (2001) N2085 which were cited with approval in Brian Josiah’s case (supra):

“there is a wide discretion vested in the Court by the NCR to screen and weed out claims which do not disclose a reasonable cause of action, are frivolous and vexatious or an abuse of process of the Court, (O12 r40) or the documents filed in Court are scandalous, irrelevant or otherwise oppressive (O2 r29), or on the ground of irregularity.  That discretion is normally exercised upon application by an interested party.  Nevertheless, it goes without saying that the Court may exercise that discretion on its own initiative.  It is open to the Court to raise and determine questions covering the regularity (O1 r1-9) or competency of proceedings at any stage of the proceedings with or without application by an interested party.”

63.	Given all of the above, and adopting and applying all the principles cited in the cases set out above. In the exercise of discretion, I conclude as follows: 

(i)	No Section 5 Notice has been given by the plaintiff of a claim against the State. However, to make a ruling on the application to have the entire proceedings dismissed for non-compliance with s 5 Notice of the Claims By and Against the State would greatly prejudice the plaintiff’s claim against the first and second defendants. 

(ii)	The plaintiff’s claim raised against the first and second defendant survives the non-compliance with the requirements of s 5 Notice under the Claims By and Against the State Act 1996. Further, the requirements of s 5 Notice do not apply to the first and second defendants. 

(iii)	Secondly, whilst I do note that the third, fourth and fifth defendants have not applied to have them removed as parties to the proceedings. I will in the exercise of my discretion make a ruling that they be removed as parties to the proceedings. However, if the plaintiff wishes to make a claim against the State then the requirements of s 5 Notice would apply irrespective.

(iv)	Furthermore, the reliefs sought in the proceedings are equitable in nature and therefore s 16 (1) of the Frauds & Limitation Act 1988 does not apply. Consequently, I will in the exercise of discretion allow the continuation of this proceedings and make a ruling that the Waralo Business Group Inc, be added as a Sixth Defendant to the proceedings so that all issues raised in the proceedings be heard and determined accordingly.

Orders of the Court

64.	The orders of the court are in the following terms: 

1.	The second and third defendants’ application to have the entire proceedings dismissed for being time-barred under s 16 (1) of the Frauds & Limitation Act 1988 is declined.

2.	The third, fourth and fifth defendants are removed as parties to the proceedings.

3.	The Waralo Business Group Inc. is joined as the sixth defendant to these proceedings.

4.	The plaintiff is granted leave to amend the statement of claim in these proceedings and to have the amended statement of claim filed within 14 days from the date of this ruling.

5.	Costs are in the cause
_______________________________________________________________
Jerewai Lawyers:	Lawyers for the Plaintiff
Rageau Manua Kikira Lawyers:	 Lawyers for the First and Second Defendants
Solicitor General:	Lawyer for the Third, Fourth & Fifth Defendants