N11424

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 460 OF 2021

BETWEEN:
SAMSON BAL MUA
Plaintiff

AND
BERNARD PONDROS MATAMBUAI
First Defendant

AND
BERNIKA ENTERPRISES LIMITED
Second Defendant

LAE: DOWA J
5, 20 DECEMBER 2022; 14 AUGUST 2025

CIVIL PROCEEDINGS-Plaintiff claims damages for improvements in state land and costs associated with pursuing his interests in the subject state land where land was fraudulently dealt with-Whether pleadings disclose a reasonable cause of action- whether proceedings are an abuse of the process under the doctrine of res judicata-whether Plaintiff discharged the onus of proof-Plaintiff failed to prove liability-case dismissed.

Cases cited
Yooken Paklin v The State (2001) N2212 
Papua New Guinea Banking Corporation Ltd v Jeff Tole (2002) SC694
PNG Forest Products vs. State [1992] PNGLR 84 - 85
Ronny Wabia vs. BP Exploration Co. Ltd [1998] PNGLR 8
Wabia vs. BP Petroleum (2019)) N4337
Philip Takori v Simon Vagari (2008) SC905
Mt. Hagen Urban LLG vs. Sek No. 15 (2009) SC1007
National Provident Fund vs. Maladina & Others (2003) N2486
Wambunawa Holdings Ltd. vs. ANZ Bank (2020) N8310
Titi Christian v Rabbie Namaliu (1996) SC1583
National Airline Commission v Lysenko [1990] PNGLR 266
AGC (Pacific) Ltd v Sir Albert Kipalan (2000) N1944
 Kundu Consultants Ltd v The State (2001) N2128 
 Telikom PNG Ltd v ICCC (2008) SC906
Maki v Pundia and PNG Motors [1993] PNGLR 337

Counsel
S. Bal Mua, Plaintiff in person 
S. Toggo for the defendants

DECISION

1.	DOWA J: This is a decision on both issues of liability and damages.

The Facts 

2.	The proceedings concern a property described as Allotment 6 Section 158, Lae, Morobe Province, State Lease, Volume 76, Folio 109. The property was previously owned by a deregistered company known as Pioner Corporation Limited. The Plaintiff alleges he was permitted by the Lands Department to occupy the property until it was transferred to him. Based on the promises of the Lands Department, the Plaintiff made improvements to the property to the value of K 541,172.17.

3.	The Plaintiff alleges between July 2010 and August 2021, the Defendants fraudulently obtained title to the property and had it subsequently sold to a company called Jay L W Contractors for K 400,000.00. Being aggrieved the Plaintiff filed recovery proceedings in WS No 534 of 2013 -Samson Bal Mua v Bernika Enterprises Limited, Jay L.W Contractors Limited, the Registrar of Titles and the State. 

4.	On 8th April 2019, by consent of parties, the property was vested in the Registrar of Companies. The Plaintiff alleges that the Defendants in consenting to the orders in WS NO 534 of 2013 admitted to the allegations of fraud in that proceeding.

5.	The Plaintiff alleges that it has cost him substantial amount of money in attending to the Lands Department in Port Moresby totaling K 23,806.00.

6.	The Plaintiff alleges that due to the fraudulent dealings and actions of the Defendants it has cost him about K 200,000,00 in legal costs for both defending and initiating court proceedings including the matter WS 534 of 2013.

7.	The Plaintiff therefore seeks damages for the improvements to the property, legal costs and for emotional and psychological pain and stress.

Defence

8.	The Defendants did not file Defence but opposed the claim in their submissions.

Trial and Evidence

9.	The trial was conducted by tender of affidavits. The Plaintiff relies on the following affidavits:

a.	Affidavit of Samson Bal Mua filed 4th February 2022 exhibited P1
b.	Affidavit in Support of Samson Bal Mua filed 1st December 2021 exhibited P2
c.	Supplementary Affidavit of Bal Mua filed 28th July 2022 exhibited P3.

Summary of evidence

10.	This is the summary of the Plaintiff’s evidence. He bought the property Allotment 5 Section 158, Lae in 2000. He noticed the adjoining property; Allotment 6 was vacant. He wanted to acquire that property and made relevant enquiries with the Lands Department. He was informed by the Lands Department that he could apply for the property after the existing State Lease was forfeited. He developed plans and waited for the forfeiture before he could apply for consolidation of the two allotments. He spent money on improving the property. While waiting for the forfeiture, he learnt that the second Defendant fraudulently transferred the property to Jay L W Contractors Limited for K 400,000.00. Through further enquiries he established that the second Defendant fraudulently acquired the property through a purported amalgamation with the registered owner, Pioneer Development Corporation Pty Ltd, the latter being a deregistered company. Thereafter several court proceedings ensued between the parties, the latest being WS No 534 of 2013 filed by the Plaintiff against the second defendant and Jay L W Contractors. On 8th April 2019, parties in proceedings WS 534/2013 obtained Consent Orders nullifying the transfer of title to the Jay L W Contractors and vested the subject property to the Registrar of Companies. Because of the fraudulent activities of the Defendants, the Plaintiff has suffered financial loss and seeks redress in this proceeding. 
 
11.	The Defendants offered no rebuttal evidence. 

Submissions

12.	The Plaintiff submitted that because of the Defendants’ fraudulent acquisition and subsequent transfer of the property to Jay L W Contractors, the Plaintiff suffered loss of the property and the cost of improvements in the property, the costs of initiating recovery proceedings and defending various legal challenges, the cost of attending to the Lands Department to resolve the conflicts brought about by the actions of the Defendants.

13.	The Defendants submitted that the proceedings be dismissed on the grounds that the pleadings do not disclose a reasonable cause of action.

Issues
14.	The issues for consideration are:

a.	 Whether the Plaintiff has a reasonable cause of action
b.	Whether the Plaintiff is entitled to the reliefs sought in the proceedings.

a. Whether the Plaintiff has a reasonable cause of action 

15.	The law on pleadings is settled in the case Papua New Guinea Banking Corporation Ltd v Jeff Tole (2002) SC694 that …unless there is foundation in the pleadings of a party, no evidence and damages or relief of matters not pleaded can be allowed. It is trite law that pleadings drive the evidence, and a party is not entitled to a relief not specifically pleaded.

16.	 Order 8 Rule 27 and Order 12 Rule 40 (1) of the National Court Rules are relevant, and they are set out below:

		a. Order 8 Rule 27
		“27. Embarrassment, etc (15/26
		(1) Where a pleading— 
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; or 
(c) is otherwise an abuse of the process of the Court, 
the Court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleading be struck out.
(2) The Court may receive evidence on the hearing of an application for an order under sub-rule (1). ”

b. Order 12 Rule 40

“Frivolity, etc. (13/5)
(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.”
17.	The case law on Order 8 Rule 27and Order 12 Rule 40 of the National Court Rules is well settled.  Refer:  PNG Forest Products vs. State (1992) PNGLR 84–85, Ronny Wabia vs. BP Exploration Co. Ltd (1998) PNGLR 8, Wabia vs. BP Petroleum (2019)) N4337, Philip Takori v Simon Vagari (2008) SC905, Mt. Hagen Urban LLG v Sek No. 15 (2009) SC1007, National Provident Fund vs. Maladina & Others (2003) N2486; and Wambunawa Holdings Ltd. vs. ANZ Bank (2020) N8310.

18.	The principles of law settled and emanate from the above cases are:	
	
a.	A claim may be disclosing no reasonable cause of action if the facts pleaded do not clearly show all necessary facts and legal elements to establish a claim known to law.

b.	A claim may be frivolous if it can be shown that it is obviously untenable that it cannot possibly succeed or is bound to fail it if proceeds to trial.

c.	Proceedings are vexatious where the case is a sham, amounting to harassment of the opposing party, or where the opposing party is put to unnecessary trouble and expense of defending the case.
 
d.	The Court has an inherent jurisdiction to protect and safeguard its processes from abuse. 

e.	The Court cannot readily dismiss a case for lack of disclosing a reasonable cause of action or for frivolity or abuse of process unless it is shown that the case is clearly untenable and that it is unlikely to succeed even if it proceeds to trial.

Allegations of fraud

19.	The Plaintiff pleaded in paragraphs 8 to 11 of the statement of claim that the Defendants acquired the subject property by fraud and had it transferred to Jay L W Contractors Limited.

20.	 Order 8 Rule 30 of the National Court Rules provides that a party pleading fraud shall give particulars of fraud on which he relies. Fraud is a serious allegation and the party relying on it must specifically plead the facts constituting the fraudulent act. Refer; Maki v Pundia and PNG Motors (1993) PNGLR 337.

21.	In the present case, the Plaintiff did not specifically set out the particulars of fraud. Instead, the Plaintiff pleaded in paragraph11 of the statement of claim that fraud was proven in a separate and earlier proceeding in WS No 534 of 2013 whereby consent orders were granted nullifying the transfer to Jay L W Contractors Limited. The Plaintiff pleaded that fraud was pleaded in paragraphs 11 to 16 of the statement of claim in WS 534 of 2013 and that the allegations of fraud were proved by virtue of the consent orders and the Plaintiff seeks to rely on the pleadings and consent order in the earlier proceeding WS 534 of 2013. 

22.	In my view, the pleadings are not sufficient in meeting the mandatory requirement of setting out particulars of fraud under Order 8 Rule 30 of the National Court Rules. The particulars of fraud in the earlier proceeding in WS N0 534 of 2013 do not form part of the current matter as they are separate and distinct. Since the issues raised in that proceeding were resolved by consent orders, it could mean and open to argument that the current proceedings are an abuse of the process. I will say more about this later in the judgment.

Rights of the Plaintiff

23.	The Plaintiff pleaded that it has an equitable right in the subject property. The Plaintiff pleaded that the Department of Lands and Physical Planning assured him that he would be given the land after it was forfeited and relying on that assurance, he spent money improving the land.
 
24.	In my view, the Plaintiff does not have valid interest in the subject land. The land concerned is a State Lease registered in the name of Pioneer Development Corporation Pty Limited, a deregistered company. On deregistration of the registered proprietor, the State Lease was vested in the Registrar of Companies by operation of law under Section 373 of the Companies Act. The Plaintiff took a risk in making improvements to the land that he did not own and cannot blame anyone including the Defendants.

Consent Orders in WS No 534 of 2013

25.	The Court notes in earlier proceedings WS No 534 of 2013, the Plaintiff sought two main reliefs: that a declaratory order that he is the equitable owner of the property and that the acquisition and subsequent transfer from Bernika Enterprises Limited to Jay L W Contractors Limited is a nullity based on fraud. The parties resolved the issues raised in the proceeding by consent. That the acquisition and transfer was declared nullity and that the title to the property be vested in the Registrar of Companies. The equitable relief sought by the Plaintiff was not granted. The consent orders are valid, effective and are currently in force. I take judicial notice of the proceedings in WS No 534 of 2013 and note that the parties, the cause of action and the issues raised in that proceeding are the same except that in the present case the Plaintiff seeks damages against the Defendants. In my view the matter that has been adjudicated by a competent court and therefore cannot be pursued further by the same parties. It is an abuse of the process under the common law principles of res judicata.

26.	The law and principles on the doctrine of res judicata are set out by the common law. They are adopted and applied in the cases; Titi Christian v Rabbie Namaliu (1996) SC1583, National Airline Commission v Lysenko [1990] PNGLR 266; AGC (Pacific) Ltd v Sir Albert Kipalan (2000) N1944, Kundu Consultants Ltd v The State (2001) N2128 and Telikom PNG Ltd v ICCC (2008) SC906.

27.	 The basic principles emerge from these cases are that, for the defence of res judicata to succeed, a party relying on the doctrine must show:

a. The parties in both cases are the same.
	b. The issues(s) in both cases are the same.
c. 	The previous judgment extinguished the foundation of the claim or the right to set up the action. The result is final and conclusive, and it binds every other Court.
	  	     d. 	A Court of Competent jurisdiction made the first decision.

28.	In the earlier proceedings the Plaintiff consciously signed the consent orders, apparently abandoning the relief for personal recognition of his interest in the property and his costs. The Plaintiff had that opportunity then and is now estopped from raising it in this proceeding.

Time Bar

29.	Finally, the pleadings are not clear. The Plaintiff alleges that because of the fraudulent acts of the Defendants he lost money for improvements and associated costs. The fraudulent acts complained of took place in 2010. That is, the cause of action accrued in 2010. The Plaintiff filed this proceeding in August 2021, eleven years after. The action could therefore be time-barred under Section 16 of the Frauds and Limitations Act which provides that “an action
 that is founded on simple contract or on tort ...shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued”.

30.	The basis of the claim is fraudulent action of the defendants that took place in July 2010. The statutory period of six years lapsed in July 2016. It is clear this proceeding being filed in 2020, is time barred. 

     b. Whether the Plaintiff is entitled to the reliefs sought in the proceeding

31.	 The burden of proving the claim rests on the Plaintiff and he must discharge the burden on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and hope to be awarded damages claimed. Refer: Yooken Paklin v The State (2001) N2212, Peter Wanis v Fred Sikiot and The State (N1350),  Jonathan Mangope Paraia v The State (1995) N1343. 

32.	 In the present case, the Plaintiff has not clearly pleaded a cause of action. The facts are convoluted. He has not clearly set out facts of his rights and interests and how those rights and interests have been affected by the wrongful acts of the Defendants. 

33.	Even on the evidence, the Plaintiff has not proved that he has a legal or equitable interest in the subject property. There is no evidence that the Defendants have directly or indirectly wronged the Plaintiff. The alleged fraudulent acts of the Defendants affected the proprietary interests of registered owner of the subject property and not the Plaintiff. There is no evidence that the Defendants owed a duty of care to the Plaintiff. Furthermore, as the cause of action is based on fraud, it is time barred.

Conclusion

34.	In the end, I am not satisfied that the Plaintiff has proven his claim. I will therefore dismiss the proceedings.

Costs

35.	Cost is discretionary. The Plaintiff has not succeeded in his claim. Ordinarily costs would follow the event. However, I will not order costs against the Plaintiff. Despite being served all Court process, the Defendants have not filed any documents and made no appearances until the last few weeks before trial. It is not just to award costs in their favor. I will order that the parties bear their own costs

          ORDERS

36.     The Court orders that:

1.	The Plaintiff’s proceeding is dismissed.
2.	The parties bear their own costs.
3.	Time be abridged.

______________________________________________________
Samson Bal Mua: Plaintiff in person 
Lawyers for the defendants: Daniels & Associates