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Tapako v Ane [2023] PGNC 485; N10622 (14 August 2023)

N10622

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 600 OF 2022

BETWEEN:
JIM TAPAKO
Plaintiff

AND:
ALE ANE as the REGISTRAR OF TITLES
First Defendant

AND:
JOHN ROSSO as the MINISTER RESPONSIBLE FOR THE
DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Defendant

AND:
SAM WANGE as the PNG LAND BOARD CHAIRMAN
Third Defendant

AND:
BENJAMIN SAMSON as the SECRETARY FOR THE
DEPARTMENT OF LANDS & PHYSICAL PLANNING
Fourth Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Lae: Dingake J
2023: 14^th August

PRACTICE AND PROCEDURE – application for default judgment- Order 12 Rules 27 and 32(1) of the National Court Rules (NCR). – six (6) pre-conditions that the Court should consider in granting or refusing default judgment as per Urban Giru v Luke Muta [2005] PGNC 83 N2877, – consideration of - even where the six (6) conditions have been met, Court may still in exercise of its discretion, for good reason, and or cause, refuse to grant the default judgment - date when the cause of action accrued is not pleaded -pleadings are embarrassing and bad in law and fail to disclose reasonable cause of action – plaintiff has not prosecuted his case with due diligence for the past 19 years leading to dismissal of proceedings for want of prosecution - application for default judgment is dismissed

PRACTICE AND PROCEDURE – application to file defence out of time – defendant attributes the delay to the inconvenience caused by the renovation of Eda Tano Haus, where the Department of Lands & Physical Planning is housed and shortage of staff - explanation as good enough to warrant the leave to file the defence out of time - draft Defence the Defendants propose to file demonstrates that the defence is not frivolous and may prevail – application to file defence out of time is granted

Cases Cited:
Urban Giru v Luke Mutu [2005] PGNC 83; N2877
Kante Mininga v Independent State of Papua New Guinea [1996] PGNC 8; N1458.

Counsel:
Mr. Johnah Langah, for the Plaintiff
Ms. Salome Maliaki, for the Defendants

RULING

14^th August 2023

1. DINGAKE J: Before me are two (2) applications; (a) application for default judgment and (b) application for leave to file the defence out of time.
   
2. The application for default judgment is brought in terms of Order 12 Rules 27 and 32(1) of the National Court Rules (NCR).
   
3. The leading case on default judgment is the case of Urban Giru v Luke Mutu [2005] PGNC 83 N2877, where the Court, per Cannings J, listed six (6) pre-conditions that the Court should consider in granting or refusing default judgment.
   
4. In this case, the Plaintiff has established all the six (6) pre-conditions.
   
5. It is trite law that even where the six (6) conditions have been met the Court may still in exercise of its discretion, for good reason, and or cause, refuse to grant the default judgment.
   
6. This is one such case where I am not inclined to grant the default judgment even though the six (6) conditions have been met.
   
7. In order to fully appreciate my reasons for refusing to grant the default judgment, it is important to outline briefly the background.
   
8. On the 5^th of December 2022, the Plaintiff sued the Defendants seeking damages for loss of property and business to be assessed and costs incurred in legal fees and associated costs, interest at 8% in the judgment sum and cost of the proceedings.
   
9. The damages claimed were alleged to be as a result of the Defendant’s predecessor’s negligence, actions, omissions and inactions. The Plaintiff also alleged that he incurred costs in legal fees in defending and prosecuting claims arising out of the First Defendant’s negligence, actions, omissions and inactions both at the National and Supreme Courts.
   
10. In his Statement of Claim, the Plaintiff says that on the 10^th of October 2001, he purchased the property described as Section 2 Allotment 27, Lae, Morobe Province, being the whole piece of land contained in State Lease Volume 3 Folio 20 (“the Property”) from the National Housing Corporation for K50,000.00 and became the registered proprietor on the 12^th of October 2001.
    
11. The Plaintiff says that he then engaged contractors to design a commercial building, do earthworks and erect a fence in preparation for construction of a high rise building on the property.
    
12. The Plaintiff alleges that as a result of the irregularities, omissions and mistake by the predecessors of the Second, Third and Fourth Defendants, the Third Defendant’s predecessor cancelled the Plaintiff’s State Lease in May 2004, and a new State Lease was issued by the Land Board to PNG Toner & Ink Supplies Limited in 2005. The Plaintiff says this happened without his knowledge and that he only became aware of the Defendant’s actions in 2007.
    
13. The Plaintiff avers that he then challenged the cancellation of his State Lease in proceedings titled OS(JR) No. 357 of 2007, which was dismissed for Want of Prosecution on the 12^th August 2009. The Plaintiff then refiled the same proceeding in WS No. 1075 of 2009, which was dismissed by the then Acting Justice R Thompson on the 30^th of September 2011.
    
14. The decision of Acting Justice Thompson was appealed to the Supreme Court (SCA No. 135 of 2011) but was dismissed for Want of Prosecution in 2017.
    
15. The Plaintiff alleges, in his Statement of Claim that whilst the matter was serving before the Supreme Court, the Department of Lands and Physical Planning conducted an internal investigation and that on the 5^th of December, the then Acting Registrar of Titles, Shirley Pohei made an admission that the Department of Lands was in the wrong, as a result of which the Plaintiff’s State Lease was cancelled in 2004.
    
16. The Plaintiff also says that on the 5^th of December 2016, the Acting Registrar unsuccessfully attempted to correct the mistake made in 2004, but again made further mistakes by relying on the wrong provision of the law under Section 89(1) of the Land Registration Act 1981, instead of Sections 16 and 161 of the Land Registration Act, 1981.
    
17. It is clear from the Statement of Claim that the relief the Plaintiff seeks is based on alleged negligence attributed to the Acting Registrar of Titles. It is not clear from the pleadings when exactly the cause of action accrued. The date when the cause of action accrued is not pleaded, and the pleadings are in my view embarrassing and bad in law and fail to disclose a reasonable cause of action.
    
18. The unsatisfactory manner in which the case of the Plaintiff has been pleaded makes me cautious not to grant the default judgment as prayed.
    
19. In my considered opinion this is not a good case to grant the default judgment given the vague nature of the pleadings and or that they do not disclose a reasonable cause of action.
    
20. I am fortified in the view I hold by the remarks of Injia J (as he then was) in the case of Kante Mininga v Independent State of Papua New Guinea [1996] PGNC 8 N1458, when he stated that:

“Order 12 r. 32 of the Rules gives the Court wide discretion to enter default judgement. Even when proof of due service of process on a defendant and proof of the default is established by the Plaintiff/applicant, the Court still has a discretion to refuse to enter default Judgement in cases where for instance, the effect of the default judgement would prejudice the rights of other co-Defendants, or that the pleadings are so vague or do not disclose a reasonable cause of action or that the default judgment cannot be sustained in law.”

21. The other disconcerting feature of this case that makes this Court reluctant to grant the default judgment sought, is that the Plaintiff had commenced several Court proceedings over a period of nineteen (19) years over the same property, which on the main were not diligently prosecuted leading to same being dismissed for want of prosecution. This in my view amounts to abuse of Court process.
    
22. In the result, for one or all of the reasons stated above, the Plaintiff’s application is liable to be dismissed.
    
23. I turn now to consider the Defendant’s application to be granted leave to file their defence out of time.
    
24. The reasons advanced for the delay in filing the defence out of time are contained in the Affidavit of Benjamin Samson an employee of the Department of Lands & Physical Planning sworn on the 9^th of August 2023.
    
25. The Department attributes the delay to the inconvenience caused by the renovation of Eda Tano Haus, where the Department of Lands & Physical Planning is housed and shortage of staff. I accept this explanation as good enough to warrant the leave to file the defence out of time being granted. I must also add that I have read draft Defence the Defendants propose to file. It demonstrates that the defence is not frivolous and may prevail.
    
26. Before issuing the final Order of this Court, I must say something about costs. I notice that both parties pray for costs. Although the Plaintiff has not succeeded to obtain the relief he sought, I think the Defendants are not entitled to costs given that their delay are the primary reason why the Plaintiff had to apply to the Court for the default judgment. This is not a case where a costs order against any party is appropriate.
    
27. In the result, the Court Orders as follows:
    
    1. The application for default judgment is refused.
       
    2. The application by the Defendant to be granted leave to file a defence out of time is granted.
       
    100. The Defendants are to file their defence within fourteen (14) days from the date this decision is read in open Court.
         
    4. Each party is to pay its own costs.
       

_______________________________________________________________
Albright Lawyers: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the Defendants