N8557

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 303 OF 2009

BETWEEN:
KAKALE AMENA PINGIPE
Plaintiff

AND:
NIXON MANGAPE as Trustee of Wuape Sub-Clan
First Defendant

AND:
PORGERA DEVELOPMENT AUTHORITY
Second Defendant

AND:
KUPIANE YU ANDUANE COMPANY LTD
Third Defendant

AND:
PORGERA JOINT VENTURE
Fourth Defendant

AND:
PORGERA LANDOWNERS ASSOCIATION
Fifth Defendant

AND:
JIMMY KAPAP YUWI – in his capacity as an agent of Tiene Wuape Tara Sablan
Sixth Defendant

Waigani: Manuhu, J
2020: 5th September, & 2nd October

PRACTICE AND PROCEDURE – Summary Judgment – No notice of intention to defend – no defence – striking out of defence.

Case Cited.

Nil

Counsel:

B Lakakit, for the Plaintiff.
P. Mawa, for the First, Second and Fifth Defendants 

2nd October, 2020

1.	MANUHU, J:  This is an application under Order 10 Rule 9A (15) (1) (a) and (2) (c) of the National Court Rules (“The Rules”) for the Court to enter judgment on liability against the First Defendant, Second Defendant, and Fifth Defendant.

2.	Under Order 10 Rule 9A (15) (1)(a) and (2)(c) of the Rules, the Court may summarily determine a matter on application on the basis of non-compliance of any order or directions previously made or issued by the Court at any of the listing processes.

3.	It was submitted by Mr. Mawa that the application is brought under the wrong rule.  The application should be for default judgment under Order 12 of the Rules.  The factual basis of this application is that the defendants failed to comply with an order of the Court.  I am of the view therefore that the Plaintiff is entitled to make an application under the mentioned rules as it is wide enough to cover the circumstances of this case.

4.	Generally, summary disposals come in two main forms.  They are either summary judgment in favour of a plaintiff or summary dismissal in favour of a defendant.  A summary disposal may be in the nature of striking out of a matter on a Judge’s own motion.  Where summary judgment is sought by plaintiff, as in this case, it has to be shown, for instance, that the defendant has no defence to the claim; or that his defence is incompetent.

5.	In this case, the proceeding was filed on 24 March 2009.  On 3 March 2010, an amended writ was filed.  The claim is for loss of benefits arising out of the development of Porgera Mine in Enga Province.  The Plaintiff pleaded that he received two payments initially in 2007 and since then has completely missed out on all subsequent payments which prompted him to file this proceeding.

6.	The sixth defendant joined the proceeding and filed his defence on 15 April 2016.  The other defendants have not filed any notice of intention to defend or defence.  Notwithstanding that, they were granted leave on 11 May 2018 to file a defence within 14 days.

7.	To date, which would be more than 11 years since the proceeding was filed, more than two years since leave was granted, the defendants have not filed a defence, even after leave was granted for them to file their defence on 11 May 2018.

8.	In the circumstances, I am satisfied that the Plaintiff has shown that summary judgment is warranted.

9.	It was not denied that the defendants have not filed any defence.  It was submitted on behalf of the defendants that it was practically impossible to file a defence when, first, on 11 May 2018, the proceeding was stayed and, secondly, the defendants could not file a defence without the decision on customary ownership of the subject land.

10.	I am of the view that these are lame excuses.  When a Judge orders a stay of proceeding, it does not prevent filing of a defence within the ordered period.  The defendants did not have to wait for a decision on customary land dispute to be resolved.  They could have pleaded in their defence that subject to the decision by the Local Land Court, the Plaintiff was not entitled to the subject benefits, which would suffice for the purpose of preparing the matter for trial.

11.	The defendants’ failure to file a defence over a period of eleven years demonstrates a total lack of interest, most likely because they have no defence to the claim.  Initially, the Plaintiff received two payments.  This suggests that the Plaintiff is entitled to receive subsequent payments also.  The land dispute over land from which the benefits are derived has been resolved in favour of the Plaintiff.  If payment was stopped due to the land dispute, that dispute has been resolved in the Plaintiff’s favour.

12.	It is up to the defendants to challenge the decision on the land dispute.  They cannot claim that they were not aware of the decision because the First Defendant and Sixth Defendant were parties in the land court matter.  Until they challenge and set it aside, the standing decision is in favour of the Plaintiff.

13.	Therefore, on the basis that the defendants do not have a defence to the claim as confirmed by lack of interest to file a defence, the Plaintiff is entitled to summary judgment.

14.	The second leg of the application is against the Sixth Defendant (“Yuwi”) only.  The Plaintiff is asking the Court to strike out his defence and enter summary judgment against him pursuant to Order 12 Rule 1 of the Rules.

15.	Yuwi’s defence was filed on 15 April 2016.  It reads:  

“Unless expressly admitted the 6th Defendant denies each and 	every allegation contained in the statement of claim. 
“The 6th Defendant will object that the statement of claim does 	not disclose a cause of action and this proceedings is an abuse of process on the ground that s.3 of the Land Disputes Settlement Act 1975 is law that all disputes as to interests in customary land, or as to the position of boundaries of any customary land is 	regulated through the process and procedures set out by the provisions of the Land Disputes Settlement Act.”

16.	I agree with counsel for the Plaintiff that there is no substance in Yuwi’s defence.  Bare denial and mere objection do not constitute valid defences.  In any case, he was a party in the land dispute decision of 5 December 2019, which ruled in favour of the Plaintiff.  And he has not challenged the land dispute decision.

17.	In the circumstances, I order that Yuwi’s defence filed on 15 April 2016 be struck out.

18.	In relation to the application for summary judgment against Yuwi, the striking out of his defence places him in the same boat as the other defendants except that the Plaintiff relies on a different rule, namely Order 12 Rule 1.

19.	Order 12 Rule 1 provides:

“The Court may, at any stage of any proceedings, on the application of any party, direct the entry of such judgement or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgement or order in any originating	process.”

20.	I am satisfied that the Plaintiff has invoked the correct rule for me to enter summary judgment against Yuwi.

21.	The third leg of the Plaintiff’s application is for me to endorse the Local Land Court decision of 5 December 2019 in declaring that the Plaintiff is a descendent from Paname-Wuape subclan of Teine Clan and is entitled to claim his benefits/shares from Tiene Wuape Sub clan lands Zone 7 of the SML area, Porgera Joint Venture.

22.	The application is simply without legal basis as the Plaintiff has failed to plead any statutory provision to support his application.  The decision of the Local Land Court, until quashed or set aside, is as good as any decision of any court and should be given effect. It is not necessary for this Court to endorse it.  This Court does not have the jurisdiction to deal with customary land disputes. 
	
Orders accordingly.
________________________________________________________________
Lakakit & Associates Lawyers: Lawyers for the Plaintiff
Paul Mawa Lawyers: Lawyers for the Defendants