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Karapen v Onguglo [2021] PGNC 596; N9426 (15 December 2021)

N9426

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS (HR) NO. 4 OF 2020 [IECMS]


BETWEEN:
MAX KARAPEN
Plaintiff


AND:
MEK ONGUGLO
First Defendant


AND:
HARRIET KOKIVA AS ACTING REGISTRAR OF COMPANIES
Second Defendant


Waigani: Miviri J
2021: 10th & 15th December


PRACTICE & PROCEDURE – Human Rights – Notice of Motion Pursuant to Order 12 Rule 1 & 32(1) of the NCR – S155 (4) Constitution – Application for Entry of Judgment – Fraud in Name Registered – He Who Alleges Must Prove – Grounds to Enter Judgment – Basis in Law – Evidence Do Not Support – Balance not Discharged – Motion refused – Cost follow event.


PRACTICE & PROCEDURE – Human Rights – WS facts subject of Criminal Conviction Forgery & Uttering – Plaintiff Prisoner 7 years Imprisonment for Forgery Uttering Section 462 & 463 CCA – Application for Entry of Judgment – Abuse of Process – Res Judicata – Motion refused – Cost follow event.


Cases Cited:


National Capital District Commission v Internal Revenue Commission [2021] PGNC 277; N9142
Kitipa v Auali [1998] PGNC 93; N1773
State v Karapen [2019] PGNC 145; N7840
Kunkene v Rangsu [1999] PGNC 80; N1917
Laki v Alaluku [2000] PGNC 60; N2001
Christian v Namaliu [1996] PGSC 34; SC1583
Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906


Counsel:
M. Karapen, Plaintiff in Person
M. Onguglo, First Defendant in Person
T. Sause, for Second Defendant


RULING

15th December, 2021

  1. MIVIRI, J: This is the ruling on the Plaintiffs notice of motion following the exchanges from the bench with the applicant in person, has led that it is no longer the amended notice of motion, as leave has not been obtained to amend. Therefore, that amended motion is not before the Court. That the application is based on the earlier filed notice of motion of the 1st September 2021 seeking:
  2. Order 12 Rule 1 is headed General Relief, which is discretion upon the Court that at any stage of the proceedings by application by any party to the proceedings, it may direct the entry of such Judgement or make such orders, as the nature of the case calls, notwithstanding that the application made does not and is not a specific relief extending to the Judgement or order sought. In other words, it is not what is specific to the cause of action instituted primarily but is open given the facts and circumstances. It is not specifically claimed but may arise from that given situation by its facts and circumstances disclosed.
  3. A challenge was made to the appearance of counsel in the proceedings as not being properly sanctioned by law as he even though was admitted to practise, and did practise before the Courts, he did not have the compliance with Employment of Non-Citizens Act 2007 acquiring a General Work Permit, and therefore he was not eligible to practise before the Court. The application was founded on Order 12 Rule 1 and also section 155 (4): National Capital District Commission v Internal Revenue Commission [2021] PGNC 277; N9142 (20 September 2021). The Court dismissed the motion with Costs on an indemnity basis as the balance was not discharged to grant as applied. Arguably the plaintiff has invoked this jurisdiction in the application he has filed. That pursuant to order 12 Rule 32, the defendants have allegedly breached court orders that have been issued against all, and they have defaulted in compliance and therefore the plaintiff is entitled to the writ he has issued. This is really discretionary and would follow in favour if the facts circumstances and the law warrants, not otherwise. And this point is made out by Rule 2 of the Order, “Notwithstanding sub-rule (1), the Court shall not, under that Sub-rule, direct the entry of judgement for the possession of land unless satisfied of the matters mentioned in Rule 30 (2) and (4)”. It is upon the plaintiff to discharge that balance before he qualifies its fruits.
  4. Here the writ is allegedly against the name Moitaka Development Corporation Limited registered in the IPA records, and which entity holds land and is sued and can be sued. It is inadvertently against that fact. It is not a light matter considering. Because reported jurisprudence says that, “ In deciding how to exercise its discretion, the Court can take into account a wide range of considerations including: (1) whether the Statement of Claim raises serious allegations of fraud or deceit, in which the interest of Justice may require those allegations to be proved by evidence in a trial before Judgement is given on the merits, Kitipa v Auali [1998] PGNC 93; N1773 (25 September 1998).
  5. Here it is clear that the applicant Plaintiff has been convicted of that fact the subject of the writ of summons here. The conviction has laid to rest that it is no longer an allegation of fraud or deceit. It is the criminal offences of Forgery Section 462, and Uttering 463, of which the plaintiff is a convicted prisoner of the State, handed down by this Court on the 09th May 2019, presided by the Chief Justice Sir Gibbs Salika, in State v Karapen [2019] PGNC 145; N7840 (9 May 2019). And the very same facts cover what is now before me pursued by the prisoner here under a human Rights Writ of Summons. The address on the cover of the writ for the plaintiff is C/- Bomana Corrective Institution, P. O. Box 5161, Boroko, National Capital District. Which is clear evidence that the plaintiff was a prisoner convicted of the very facts that he now seeks to rely on to push this writ of summons before this Court that convicted him of very serious criminal offences on the 09th May 2019.
  6. These facts do not enlighten that it was a human rights issue:

“The Prisoner after a trial on 3 counts of Forgery and 1 count of Uttering was found guilty of those charges by the Court. The respective charges were laid under S.462 (1) (3) (b) and S.463(2) of the Criminal Code Act.

2. On 24 June 2013, the prisoner lodged forms 13, 15 and 16 at the Investment Promotion Authority office. The forms contained false information which purported to remove Mek Onguglo as the sole shareholder and director of Moitaka Development Corporation Limited and purportedly appointed the Prisoner and four others to be shareholders and directors of Moitaka Development Corporation. The IPA registry records were updated to effect the changes. Sometime later the Prisoner wrote a letter dated 3 June 2013 to Young and Williams Lawyers, the lawyers representing Moitaka Development Corporation Limited in the civil proceedings in WS 305 of 2011 against the Department of Education.


  1. The proceeding was a result of a claim by Moitaka Development Corporation Limited to the Education Department for the use of the land where the Moitaka Primary School is built. That piece of land is owned by Moitaka Development Corporation Limited of which Mek Onguglo is the sole shareholder and director.
  2. The letter to Young and Williams Lawyers was received on 4 July 2013. In the letter the Prisoner made false representations that:
    1. He was the new chairman of the Board of Directors for Moitaka Development Corporation Limited.
    2. A resolution was passed by the Board of Directors for Moitaka Development Corporation Limited on 2 July 2013 to terminate and withdraw instructions to Young and Williams Lawyers to cease acting for Moitaka Development Corporation Limited in proceedings WS 305 of 2011.
    1. Based on that resolution, Moitaka Development Corporation Limited will withdraw the proceedings WS 305 of 2011 and will not pursue the matter further.
    1. Mek Onguglo as the previous director of Moitaka Development Corporation limited was the subject of a joint fraud investigation by the Police and other relevant government agencies.
    2. Young and Williams Lawyers are instructed to take steps to comply by filling the appropriate notice at the National Court Registry.

6. The State proved that the Prisoner forged IPA forms 13, 15, and 16 when he lodged this forms on 24 June 2014.

7. The State also proved that the Prisoner uttered the IPA company extracts when he attached the extract to his letter of 3 June 2013 to Young and Williams Lawyers and made several false statements in that letter.”


  1. This evidence derails the cause by the motion that the plaintiff seeks. Because default judgment cannot be entered when the facts have been determined in criminal proceedings to be the offences of forgery and uttering against the Plaintiff. He is for all intent and purposes a convicted prisoner of the State who is at large. Where would the default be to put up a judgment favourable to him if the material and fundamental facts have been determined to be forgery and uttering. There really is no favour in his motion given.
  2. And the extent of the default is also a very relevant consideration that is considered by the Court in deciding, whether or not the default leads to sustaining the motion for default Judgment to be entered: Kunkene v Rangsu [1999] PGNC 80; N1917 (8 September 1999). In the case of the plaintiff in support of his motion he relied on the affidavit in support filed of the 1st September 2021, document 18. There he swore that the parties were ordered by the Court on the 02nd August 2021 to undertake certain steps to ensure that proceedings were made ready for trial by the 20th August 2021. And which orders he served on the defendants on the 02nd August 2021. He alleges that despite service of the orders by himself upon the defendants, they failed to file and serve affidavits between the 10th and the 13th August 2021 which was failing court order No. 2 of that order.
  3. Secondly the first defendant did not serve his notice of intention to defend and defence on the Second Defendant and the plaintiff between the 10th and 13th August 2021 which was a failure to comply with paragraph 3 of the Court Order.
  4. Thirdly, the Second Defendant did not serve her notice of intention to defend and Defence on the First Defendant between the 10th and 13th August 2021.
  5. Fourthly, the First Defendant attended Court on the 20th August 2021 but was not prepared to assist the Court instead sought to serve the plaintiff his notice of intention to defend and defence over the bar table, which was a failure to comply with Court Order paragraph 4,
  6. And fifthly the second defendant either in person or through counsel did not dutifully attended court on the 20th August 2021 thereby failing to comply with paragraph 4 of the Court order.
  7. And believes that the defendants do not have a genuine defence against his claim. And their defences cannot be verified and therefore he is entitled to default Judgement.
  8. The Writ was filed by the plaintiff on the 16th June 2020 and served on the 26th June 2020 on the second defendant. To which the Second defendant filed her notice of intention to defend on or about the 10th July 2021 and defence was filed on the 15th July 2020, both of which were served on the plaintiff on respective dates and acknowledged by the Plaintiff.
  9. In the case of the First Defendant, he filed his notice of intention to defend and defence on the 05th August 2021, document number 6 on the court file. And his defence is document number 7 on the Court file. He states at the outset that the subject is the very same subject in State v Karapen (supra), where plaintiff was convicted of forgery and uttering and sentenced to 7 years imprisonment. And from there right to July 2021 the matter was dormant without progress until service by the Plaintiff of a court order dated 05th August 2021 and on the second defendant on the 09th August 2021. There is no letter forewarning, even then it reverts back to the facts relied in the writ to sustain, which are now not allegations but have been held to be the criminal offences set out above against the Plaintiff.
  10. And even the allegation of breaches, allegedly against both defendants of the Court orders of the 05th August 2021, will not sustain because they have each filed their respective notice of intention to defend, and defence. Rather it shows compliance of the orders by the defendants together. Because both had their notice of intention to defend and defences files even before the 05th August 2021. In the case of the second defendant, it was immediately after the writ was served 10th July 2021 and defence was filed on the 15th July 2020, both of which were served on the plaintiff on respective dates and acknowledged by the Plaintiff.
  11. Further and relevant fact that is considered by the Court leading to the exercise of its discretion is, whether or not the defendants appear to have a good defence: Kunkene (supra). Here it is evident and very clear that the first and second defendants have a very good defence. It is the conviction that the Plaintiff has sustained as a result of the very same facts that he is pushing in the writ of Summons that he has filed. It was discharged beyond all reasonable doubt and he is a convicted prisoner of the State. And he was sentenced to seven (7) years imprisonment. The defence of both in each case are such that his motion does not advance in his favour.
  12. And still a very relevant factor that the Court considers in an application as the present is, whether the Statement of Claim amounts to an abuse of process: Laki v Alaluku [2000] PGNC 60; N2001 (10 November 2000). Here that is what it is for the plaintiff. It is an abuse of process because the same facts relied have led to his conviction State v Karapen (supra). It is by the same principal parties as is the subject of this proceedings, Mek Onguglo and the IPA arising out of the registration of the Company Moitaka Development Cooperation Limited. And in particular because the orders that are sought in that writ of summons details seeking to overturn the facts that were fundamental to the criminal conviction, sustained beyond all reasonable doubt against him, particulars which are set out above.
  13. It is an earlier judicial decision. And Judgment was pronounced in the conviction of the Plaintiff Prisoner and sentence to 7 years imprisonment for forgery and uttering pursuant to sections 462 and 463 of the Criminal Code Act. A competent Court the National Court in its criminal sittings determined the matter. It was a final decision subject to the appeal period of 40 days. The same question was determined and the actions of the Plaintiff was proved beyond all reasonable doubt of the crime of Forgery and Uttering sustaining convictions and the sentence that followed. And the parties are the same as was the earlier decision. It fits into the elements that were set out by Christian v Namaliu [1996] PGSC 34; SC1583 (18 July 1996) reaffirmed in Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906 (28 March 2008).
  14. This is grave for the motion of the Plaintiff, and it is basis in converse for the consideration of the motion that was filed by the first Defendant of the 31st August 2021 pursuant to Order 12 Rule 40 (1) (a) & (c) of the National Court Rules. Effectively the first defendant seeks, “Dismissal of the entire proceedings for disclosing no reasonable cause of action and being an abuse of process pursuant to Order 12 Rule 40 (1) (a) & (c ) of the National Court Rules;

Cost of the application be borne by the Plaintiff and any other orders in the discretion of the Court.”


  1. And in pursuing he relies on his own affidavit filed of the 31st August 2021 the same date of the motion, document number 16. He is the sole director and shareholder of the Moitaka Development Cooperation Limited registered in and with the IPA who issued a certificate of Incorporation number 1-31652 issued of the 29th October 1998, annexure “A” to his affidavit. “B” is a true copy of the lodgement registration fees confirmed in IPA letter of the 29th October 1998. And annual returns have always being filed since 29th October 1998, now 23 years in the making. It has never been deregistered alleged by the Plaintiff. Annexure “C” is rejection by the Registrar of Companies the false allegation that he raises. And he is a total Stranger never affiliated nor part of the Company in any way or form.
  2. The summary of this evidence is that it seals the forgery and uttering for which and upon this evidence found him guilty in the first instance. Mek Onguglo is the principal witness in that case leading. It is evident that this does not advance nor lift the case of the motion that the plaintiff moves. He adds more to the case of the first defendant than move his own. The aggregate is that his motion has not discharged the balance and accordingly is dismissed with Costs pursuant to Order 12 Rule 40 (1) (a) & (c) of the National Court Rules.
  3. Costs are discretionary by the Court. This is an action that was unnecessary not warranted in law and facts. What has happened here is unnecessarily abused the process to bring the first and Second defendants into the defence of this matter. Time money and logistics has been undertaken in the matter, when the position in law is explicit and clear. Judicial time has been pulled into court unnecessarily when this matter is already by process of law criminal convictions against the Plaintiff a prisoner of the State. This action is therefore a case where the law was clear, and the applicant has brought to Court that action. He will bear the costs in so doing but on an indemnity basis: Keko v Barrick (Niugini) Ltd [2019] PGSC 92; SC1870 (29 October 2019).
  4. Judicial time must be taken by matters that are indeed by the law and the facts deserving of the time taken up. Where it is simply a clear case in law, it would in all reasonableness be a matter that should not occupy dig into Judicial time. The Plaintiff has unnecessarily dragged into Court. Accordingly, the costs will follow the event on an indemnity basis against the Plaintiffs for the defendants. Technicalities of the law are to serve justice not without. There is no excess of jurisdiction here so that Paraka v Peng [2016] PGSC 86; SC1622 (29 March 2016) is applicable. It is clearly an abuse and the plaintiff will pay the cost of both defendants on an indemnity basis if not agreed to be taxed.
  5. The formal orders of the Court are:

Orders Accordingly.

__________________________________________________________________

IPA In house Lawyers: Lawyers for the Second Defendant

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