N10278

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 182 OF 2018

BETWEEN:
LYNETTE K TUMU
Plaintiffs

AND:
NATIONAL HOUSING CORPORATION
First Defendant

AND
FOOD TECH LIMITED
Second Defendant

AND
BENJAMIN SAMSON – Registrar of Titles for Department of Lands
& Physical Planning
Third Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Ganaii, AJ
2023:  01st, 02nd, 07th March

CIVIL - Application seeking dismissal of proceedings – Order 12 r40 – National Court Rules - Reasonable cause of action - Frivolous or vexatious - Abuse of the process of the court - Particulars of fraud – Discretionary matter - Public interest of finality to litigation – Fraud is actual or constructive fraud – Directions to amend originating summons 

Held:

1. 	The purpose of Order 12, Rule 40 of the National Court Rules is to give the Court power to terminate actions or claims which disclose no cause of actions. 

2.	The power conferred on the National Court to dismiss a proceeding in its entirety is discretionary and must be exercised based on proper principles. 

3.	Proper principles require the Court to have regard to the public interest of finality to litigation and equally preserving the right of the plaintiff to litigate and not to shut out or have the plaintiff “driven from the judgment seat” in a summary way. Kerry Lerro v Philip Stagg, Valentine Kambori & The State (2006) N3950; Philip Takori v. Simon Yagari (2007) SC905 and George Solomon v. David Raim (2020) N8428 

4.	Discretion may be exercised against dismissal of a proceeding even where there is lack of particulars or lack of proper pleadings to identify the cause of action. Where there is an opportunity, the plaintiff should be allowed to have the deficiencies cured by appropriate amendments to the pleadings. Papua Club Inc v Nusaum Holdings Ltd [2002] PGNC 50; N2273 (16 August 2002).

Cases Cited

Camilus v Mota [2022] PGSC 17; SC2210 
George Solomon v David Raim (2020) N8428
Kerry Lerro v Stagg & Other (2006) N3050
Mt Hagen Urban Local Level Government v Sek No. 15 (2009) SC1007
Papua Club Inc v Nusaum Holdings Ltd [2002] PGNC 50; N2273 
Rage Augerea & Maureen Augerea v Bank South Pacific Limited (2007) SC869
Takori v Yagari & Ors (2008) SC905 

Counsel

No Appearance, for the Plaintiff
No appearance, for the First Defendant
Mr. J. Wohuinangu, for the Second Defendant
No appearance, for the Third and Fourth Defendants 

RULING ON APPLICATION FOR DISMISSAL

07th March, 2023

1.      GANAII, AJ: This is a ruling on an application seeking orders for dismissal of the proceedings in its entirety.  
2.	In its’ application by an amended Notice of Motion filed on 15th of May 2019, the Second Defendant (Food Tech Ltd) sought a dismissal order of the proceedings and relief claimed by the Plaintiffs. The grounds for seeking this dismissal order as stated in the amended notice of motion are 1) that there is no reasonable cause of action disclosed; and 2) that this is an abuse of the court’s process. 
3.	Order 12 r 40 (1) (a), (b) and (c) of the National Court Rules were relied on in the motion.
4.	The evidence in support of the orders sought in the motion were contained in the affidavit of Mr. Goiye Gileng, lawyer and partner of Gileng and Co lawyers, representing the Second Defendant, filed on the 15th of May 2019.

5.	I heard the Second Defendant’s application on the 01st of March 2023. There was no appearance by the Plaintiffs’ lawyer after notice was served and he had become aware of the hearing date. Lawyers for the first Defendant (NHC) and Third Defendant (State) also were not in appearance. As it were, there was no representation by the Plaintiff and First and Third Defendants. 
 
Background to the Plaintiffs’ claim

6.	As per the originating summons filed on 28th of March 2018, the Plaintiff seeks two principle reliefs by way of declaratory orders concerning a property described as Section 51, Allotment 151, Konedobu, Granville, NCD, and two orders in the nature of prohibition preventing the Defendants and their agents or servants, whomsoever from applying any form of violence, threats and intimidation, insults, assaults, harassment and disturbance to the plaintiff of its normal or peaceful enjoyment of the said property; and further orders restraining the defendants, their servants or agents whomsoever from going onto the said property, namely that they keep 200 meters away from it.   

7.	The plaintiff’s cause of action arose almost five years ago on the 28th March 2018. The plaintiff claims she had acquired a legitimate title to the said property on the 09th of April 2013. She claimed that after she had obtained legitimate title, a new title was issued against the same property to the second defendant, Food Tech Ltd. She alleges that the Third Defendant, the Registrar of Titles, Mr. Benjamin Samson had evil intentions to deprive her of her property by destroying her legitimate documents from the Department of Lands and the Physical Planning file and had fraudulently sold the property to the Second Defendant, Food Tech Ltd. The plaintiff also alleged that the Third Defendant (the Registrar of Titles) had facilitated this illegal deal by removing the plaintiff’s legitimate documents from the Department of Lands and the Physical Planning file and replacing them with documents of the fraudulent sale. Based on these, the plaintiff concludes that the First (NHC), Second (Food Tech Ltd) and Third (Registrar of Title) Defendants have conspired and defrauded her of her property.  

Defence

8.	The Second Defendant filed a defence arguing that he is the registered proprietor having purchased the property from the First Defendant. He says he has an indefeasible title pursuant to s 33 of the Land Registration Act of 1981.

Issues 

9.	The issue arising in this motion is whether the proceedings filed by the plaintiff should be dismissed for failing to show a reasonable cause of action; or the proceedings are frivolous or vexatious and or the proceedings are an abuse of the process of the court.
 
Submissions

10. 	Mr. Wohuinangu of learned counsel for the Second Defendant submitted this is a case ripe for dismissal for the reason that in the relief sought and where fraud is alleged, the proceedings do not particularize the nature of the fraud, the misrepresentation, breach of trust and wilful default or undue influence on which she relies on. Counsel relied on Order 8 r 30 of the National Court Rules (NCRs) which provides in mandatory terms that “A party pleading fraud shall give particulars of any fraud, misrepresentation, breach of trust, wilful default or undue influence.”

11. 	Counsel submitted that the law on this is well settled, and the plaintiff has 
failed to comply with strict adherence to the requirements for pleading such cases, including failing to commence the proceedings in the right mode of proceedings namely by way of a Writ of Summons as opposed to an Originating Summons. Cases of William Maki v Michael Pundia and Another [1993] PNGLR 337, Woods J) and Andakelka Ltd V Petronas Ltd [2020] PGNC 4, N3976 Davani J, were cited and relied upon. 

12.	Counsel also submitted that since the Defendant had given notice to move this application, the plaintiff had not amended the mode of proceedings and therefore the proceedings were wrongly commenced and should be dismissed in its entirety.

The Law 

13. 	Rule 40 of Order 12 of the National Court Rules provides for ‘Frivolity, etc.’. Rules 40 (1) (a), (b) and (c) reads:
 
“(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings –
 
(a) no reasonable cause of action is disclosed; or
 
(b) the proceedings are frivolous or vexatious; or
 
(c) the proceedings are an abuse of the process of the court
 
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.”

14. 	Rule 30 of Order 8, under Division 2 provides for particularization of a claim in the pleadings generally and for allegations of fraud. It reads:

“A party pleading shall give particulars of any fraud, misrepresentation, breach of trust, wilful default or undue influence on which he relies on.”

15.	Order 8 r 50 is under Division 4, which deals with amendments. It is in these terms:
“50.General.

(1) The Court may, at any stage of any proceedings, on application by any party or of its own motion, order, on terms that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit.
(2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings”.

16.	The rules and the numerous case laws have set the precedent that where it is proper to do so, and where the allegations for trial show that the issues can be properly vetted in a full and proper trial, then the plaintiff can convert the originating summons to a writ of summons and can file a Statement of Claim to particularise the pleadings. (See Papua Club Inc v Nusaum Holdings Ltd [2002] PGNC 50; N2273 (16 August 2002).

Consideration 

17. 	The power conferred on this court to dismiss a proceeding in its entirety is discretionary and must be exercised based on proper principles. I adopt and apply the case authorities of  Kerry Lerro v Stagg & Others (2006) N3050, Takori v Yagari & Ors (2008) SC905 and Mt Hagen Urban Local Level Government v Sek No. 15 (2009) SC1007.

18. 	The general rule is that this Court’s power to dismiss or strike out a proceeding is discretionary and must be exercised having regard to the public interest of finality to litigation and equally preserving the right of the plaintiff to litigate and not to shut out or have the plaintiff “driven from the judgment seat” in a summary way: Kerry Lerro trading as Hulu Hara Investments Ltd v. Philip Stagg, Valentine Kambori & The State (2006) N3950 and cited with approved by the Supreme Court in Philip Takori v. Simon Yagari (2007) SC905 and recently referred to by Narokobi J in George Solomon v. David Raim (2020) N8428 in an application to dismiss under Order 12, rule 40 (1) of the NCRs.
19. 	The discretion may be exercised against dismissal of a proceeding even where there is lack of particulars or lack of proper pleadings to identify the cause of action. Where there is an opportunity, the plaintiff should be allowed to have the deficiencies cured by appropriate amendments to the pleadings: Kerry Lerro case (supra), and Philip Takori v. Simon Yagari (supra) and Rage Augerea & Maureen Augerea v. Bank South Pacific Limited (2007) SC869.
20. 	I remind myself of these principles and requirements, including the principle that: “A plaintiff or claimant should not be driven from the judgment seat in a summary manner and that the Court should be cautious and slow in exercising its discretionary power”.

21. 	I also remind myself that the purpose of Order 12, r 40 of the NCRs is to give the Court power to terminate actions or claims which disclose no cause of actions. 

Findings 

22.	I have read the originating summons, the affidavit of the plaintiff in support of the originating summons and the Defendant’s defence. 

23.	The plaintiff claims that she had acquired a legitimate title to the property.  After obtaining the title, the plaintiff claims that a new title was issued against the same property to the second defendant, Food Tech Ltd in a fraudulent manner. 

24.	The plaintiff alleges that the Third Defendant, the Registrar of Titles, Mr. Benjamin Samson had evil intentions to deprive her of her property by destroying her file within the Department of Lands and Physical Planning and fraudulently selling the property to the Second Defendant (Food Tech Ltd). Plaintiff also alleges that the Third Defendant (the Registrar of Titles) had facilitated this illegal deal by removing the plaintiff’s documents from the file and placing documents of the fraudulent sale on the records. Based on these, the plaintiff concludes that the First Defendant (NHC), the Second Defendant (Food Tech Ltd) and the Third Defendant ((Registrar of Title) have conspired and defrauded her of her property and fraudulently obtained the title.  

25.	In my view, based on these, there are clear and triable issues that must go to full trial.
26.	I am mindful also that ‘fraud’ for the purpose of s 33 (1) (a) of the Land Registration Act 1981 means actual fraud or constructive fraud. Consequently, as a matter of practice, when fraud is pleaded, it would be open to the court to find actual fraud or, in the alternative, constructive fraud in circumstances where, for instance, the process of transfer of title or lease was irregular or unlawful or unconscionable: Camilus v Mota [2022] PGSC 17; SC2210 (4 March 2022).
27.	The Supreme Court in Camilus v Mota (supra) at para 69, in quoting Gavara Nanu, J Papua Club Inc v Nasaum Holdings Ltd said “if there are serious and gross or flagrant breaches of the mandatory statutory procedures as set out in the Land Act, in the issuance of a title, then such breaches would operate to vitiate the validity and the indefeasibility of the title”.
28.	The allegations of fraud against the grant of title to the Second Defendant is a serious matter, alleging serious breaches of the law and irregularity. If this court was to allow the matter to proceed to trial on the originating summons and without requiring the first respondent to particularise the allegation of fraud as required by Order 8, rr 2, 3 and 30 of NCRs, and without allowing the matter to go to trial to determine whether there was fraud, and whether indefeasibility of title can be vitiated, may be an abuse of the court’s process.
29.	I note that the plaintiff had failed to file a reply to the Second Defendant’s defence; had failed to amend or convert the originating summons into a writ of summons by filing a Statement of Claim; that it had been seven years since filing of the originating summons and five years since the Defendant filed this motion to dismiss these proceedings and that no actions were taken by the plaintiff to progress the case. However, this Court can exercise discretion by giving specific directions to progress the matter to trial rather than to remove the plaintiff from the judgment seat. 
30.	Based  on the above, I am inclined to give directions to the above effect, in the exercise of my discretion, and to give the plaintiff the opportunity, to be allowed to have the deficiencies cured by appropriate amendments to the pleadings: Kerry Lerro case (supra), and Philip Takori v. Simon Yagari (supra) and Rage Augerea & Maureen Augerea v. Bank South Pacific Limited (supra)and Papua Club Inc v Nusaum Holdings Ltd (supra).
31. 	Consequently, I will refuse the application seeking to have the entire proceedings dismissed. 
Orders 

32.     I hereby make these orders.
 
1.	The Second Defendant’s application by amended Notice of Motion filed on 15 May 2019, seeking to dismiss the proceedings in its entirety is refused. 
 
2.	The Plaintiff is directed to convert the originating summons by filing a statement of claim within two weeks from today which will be due by 21 March 2023, before 4:06pm; and

3.	Failing which, the Defendants are at liberty to file and move any necessary applications.

The Court orders accordingly.

________________________________________________________________
Lakakit and Associate Lawyers: Lawyer for the Plaintiff
Gileng and Company Lawyers:  Lawyer for the Second Defendant