N11571

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 1243 OF 2019

BETWEEN:
TAROSI ANGORI
Plaintiff

AND
ANDREW AUGWI
First Defendant

AND
ELIZABETH BOADA
Second Defendant

AND
NATIONAL HOUSING COMMISSION
Third Defendant

LAE: DOWA J
16 NOVEMBER 2022;18 AUGUST 2023; 31 OCTOBER 2025

CIVIL PROCEEDINGS-Plaintiff claims damages for loss of property due to fraudulent and illegal actions on the part of the Defendant- defendant raised competency issues- whether Plaintiff complied with Section 5 of the Claims by and against the State Act-Whether the proceedings were statute barred under section 16 of the Frauds & Limitations Act-

Held:

Proceedings were incompetent for non-compliance of section 5 Notice and for being time-barred under section 16 of the Frauds & Limitation Act. 

Cases cited
Yooken Paklin v The State (2001) N2212 
Samot v Yame (2020) N8266
Jonathan Mangope Paraia v The State (1995) N1343
National Broadcasting Corporation v Tasion (2019) N8083
Kopyoto Investment Ltd v National Housing Corporation (2022) SC2339
Paul Tohian v Tau Liu (1998) SC566
Habolo Building & Maintenance Ltd v Hela Provincial Government [2016]  SC1549; 
Public Curator of Papua New Guinea v. Kara [2014] PGSC 58; SC1420.
Wialu v Andreas [2020] PGSC 60; SC1970

Counsel
G Guri, for the plaintiff
A Luke, for the defendants

DECISION

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

The Plaintiff’s Claim

2.	The Plaintiff is a former public servant. He moved into a property described as Allotment 41 Section 32, Eriku, Lae city, Morobe Province in 1992 when the former tenant late Darious Tali took up a position to teach outside of the city. The Plaintiff alleges he was not advised that the property was earmarked for sale to late Darious Tali earlier in 1989. He then entered a tenancy agreement with the National Housing Commission in 1993. He regularly paid for the rents and resided on the property for 15 years until he was evicted in 2011. Plaintiff alleges that as a faithful tenant he was entitled to buy the property from the National Housing Commission. Instead, the property was transferred to late Darious Tali in February 2011 and after the death of late Darious Tali, it was transmitted to Gordon Tali who subsequently sold the property to Pais Polu.

3.	The Plaintiff alleges that the Defendants transferred the property to late Darius Tali by fraud for reasons that: 1) National Housing Commission failed to advise him that the property was up for sale under the National Housing Sales Scheme; 2) late Darias Tali failed to fully pay for the property by 1999 being the final year for making such payment under the National Housing Sales Scheme; 3) the property was transferred to late Darias Tali after his death in 2010 and 4) he was not given the first right of refusal as sitting tenant to buy the property pursuant to Sections 37 and 38 of the National Housing Corporation Act.

4.	The Plaintiff alleges that because of the alleged fraudulent and irregular actions of the Defendants, he suffered loss and damage. Aggrieved, he instituted the current recovery proceedings.

Trial

5.	The trial was conducted by tender of Affidavits. The Plaintiff relied on the following Affidavits:

a.	Affidavit of Tarosi Angori filed 2nd October 2020 - Exhibit P1
b.	Affidavit of Tarosi Angori filed 20th November 2020-	Exhibit P2
c.	Affidavit of Tarosi Angori filed 6th April 2021-	Exhibit P3
d.	Affidavit of Tarosi Angori filed 10th November 2022-Exhibit P4

Defence

6.	The Defendants did not file a Defence but relied on the Affidavit of the first Defendant, Andrew Augwi, filed 9th June 2022-Exhibit D1.  The Defendants submitted that the proceedings be dismissed for the following reasons:

a.	 Plaintiff failed to serve Section 5 Notice under the Claims by and Against the Sate Act.
b.	Plaintiff’s Court proceedings are time barred by virtue of Section 16 of the Frauds and Limitations Act.
c.	Defendants are not liable to the Plaintiff even on the merits of the claim as the property was earmarked for late Darius Tali in the Government Sale Off Scheme and no one else including the Plaintiff.

Burden of Proof 
	 
7.	The burden of proving the claim rests on the Plaintiff and he must discharge the burden on the balance of probabilities. Refer: Yooken Paklin v The State (2001) N2212,  Jonathan Mangope Paraia v The State (1995) N1343, and Samot v Yame (2020) N8266.

Issues

8.	The main issues for consideration are:

a.	Whether the Plaintiff has served Section 5 Notice under the Claims by and Against the State Act.
b.	Whether the Plaintiffs action is time barred under Section 16 of the Frauds and Limitations Act 
c.	Whether the Defendants are liable. 

a.	Whether the Plaintiff has served Section 5 Notice under the Claims by and Against the State Act.

9.	The Defendants submitted that the National Housing Commission is a state entity and the Plaintiff failed to give notice of a claim under Section 5 of the Claims by and Against the State Act within six months. The Plaintiff did not make any submissions in response. As it is an important competency issue that goes to the jurisdiction of the Court, the Court proceeded to hear arguments although the matter was not previously raised in any pleading.

10.	 Section 5 reads:

“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
(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.....”

11.	The law on notice under section 5 is clear: No proceedings to enforce a claim based on tort, breach of contract and constitutional rights lie against the State or a State entity unless notice of intention to make a claim is served within six (6) months of date of occurrence or breach. Refer:  Kopyoto Investment Ltd v National Housing Corporation (2022) SC2339, Paul Tohian v Tau Liu (1998) SC 566. National Housing Commission is a State entity and notice under section 5 of the Claims by and against the State Act is required to be served on the State before any proceeding is filed in Court.

12.	The evidence shows the Plaintiff was a tenant of the subject property until he was evicted in March 2011 by virtue of an Eviction Order issued by the Lae District Court dated 31st March 2011.  The last of the fraudulent and irregular actions of the Defendants took place when the property was transferred to late Darius Tali on 14th February 2011. Notice of claim should have been given on 14th August 2011. I have perused the statement of claim and note there is no pleading on Section 5 notice being served on the State.

13.	I have also perused the four Affidavits filed by the Plaintiff and note there is no evidence of Section 5 Notice being served on the State. Section 5 Notice is a mandatory requirement.  The Plaintiff failed to comply with the statutory requirement invoking the jurisdiction of the National Court to hear the matter against a state entity. The proceeding is therefore incompetent and shall be dismissed on this ground alone.

b. The claim is time barred by virtue of Section 16 of the Frauds and Limitations Act.

14.	The Defendant submitted that the Plaintiff’s claim is time barred under Section 16 of the Frauds & Limitations Act. Counsel for the Plaintiff made no submissions in response. The Court noted it is a legal issue that goes to the competency of the proceedings, although it was not previously raised in any pleading.

15.	The law under section 16 (1) of the Frauds and Limitations Act is settled. An action for a simple contract shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued. The cause of action can accrue on a specific date or recur on subsequent dates or a series of occurrences: see Wialu v Andreas [2020] PGSC 60; SC1970, Habolo Building & Maintenance Ltd v Hela Provincial Government [2016] PGSC 67; SC 1549; and Public Curator of Papua New Guinea v. Kara [2014] PGSC 58; SC1420.

16.	In the present case, Plaintiff pleaded that the last acts of fraud and irregularity on the part of the Defendants took place when they executed a contract for the transfer of the Title to late Darius Tali which transfer was registered in the name of the deceased on 14th February 2011. The last date for the cause of action in tort therefore accrued on 14th February 2011. The last date for the filing of an action in Court lapsed on 14th August 2017.

17.	The Plaintiff filed the current proceeding on 7th October 2019, more than two (2) years after the lapse of the statutory period. The proceedings are therefore time barred and shall be dismissed.

Conclusion

18.	In the end I find that the proceedings are incompetent for non-compliance of Section 5 of the Claims by and Against the State Act and for being statute barred under Section 16 of the Frauds and Limitations Act. Having reached this conclusion, it is not necessary for the Court to consider the merits of the claim. The proceedings shall be dismissed.

Costs

19.	Cost is discretionary. Although the Defendants have succeeded in defending the proceedings, they did not file a Defence pleading the Defences clearly available and open to the Defendants.  They failed to raise the competency issues at the very beginning of the proceedings to avoid costs. They raised these important and obvious legal issues belatedly wasting precious time and resources. I will therefore order that the parties bear their own costs.  

          ORDERS

20.     The Court orders that:

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

Lawyer for the plaintiff: Public Solicitor
Lawyer for the defendants: NHC-in-house lawyer