Nirasang v Abraham [2005] PGDC 59; DC259 (26 July 2005)

DC259

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 2342 OF 2005

BETWEEN

Nick J. Nirasang
First Complainant

Renai Nirasang
Second Complainant

V

Joseph Kumbari Abraham
Manager, Asset Management
First Defendant

Richard Marru
Managing Director, Rural Development Bank Limited
Second Defendant

Port Moresby: Bidar, Pm
2005: 26th July.

District Court - Practice and Procedure - Notice of Motion seeking setting aside of Ex parte Orders and dismissal of proceedings - District Court Act, s.25

25th July 2005

RULING

BIDAR, PM: Defendants by Notice of Motion filed on 4th July 2005 seeks the following Orders:-

"(1) The Ex Parte Orders obtained on 1st July 2005 be removed or set aside.

(2) The proceedings DC2342 of 2005 be dismissed for disclosing no cause of action and being frivolous and vexatious.

(3) The complainants Nick Nirasang and Renai Nirasang, their servants, associates or agents are restrained from entering the property located at Section 228, allotment 14, Hohola, National Capital District.

(4) The complainants Nick Nirasang and Renai Nirasang, their servants, associates or agents are further restrained from intimidating, harassing, abusing and physically interfering and threatening the new owner of the property at Section 228, Allotment 14, Hohola, National Capital District as well as and agents of Rural Development Bank Limited.

(5) Complainants pay the costs of these proceedings."

To appreciate the Orders sought it is necessary to state in brief the background to this proceedings.

On 30th June 2005 complainants filed summons upon complaint against the defendants, claiming inter alia, general damages, for various allegations as pleaded in their statement of claim, including length of residency by Renai Nirasang on the said property.

Complainant Renai was previously married to one Napoti Buru, former member of Parliament. Napoti Buru obtained a loan from Rural Development Bank on 7th September 2000 and as a condition to loan he offered the property at Section 228 Allotment 14, Hohola, National Capital District as security to the loan. He was the legal owner of the property. Shortly after obtaining the loan he began to fall behind on his loan repayments and was in breach of his loan agreement. Due to the breach, the bank exercised its mortgagee’s power of sale, by selling the property. It was advertised by public tender and Tua Apmelledy Billam was the successful bidder and purchased the property.

As a consequence Contract of Sale of land was signed by both parties and 10% deposit was paid by the purchaser.

On 20th May 2005 the transfer instrument was signed by all parties and lodged with the Lands Department. At the time of execution of contract of sale of land, complainants had been living on the said property.

On 17th June 2005 Notice of Motion to vacate the property was served on the complainants giving them 48 hours to do so.

On the 1st July 2005 complainants applied to this Court ex parte and obtained restraining orders against the defendants. The granting of those Orders is the subject of the present proceedings.

In support of the Orders sought the defendants rely on affidavit of Joseph Kumbari Abraham sworn and filed on 4th July 2005. Various annexures annexed to his affidavit, including the contract of sale of land between the defendant Bank and one Tua Apmelledy Billaim.

For complainants they rely on oral submissions by Nick Nirasang and other documents filed earlier, including his own affidavit sworn and filed on 30th June 2005.

Upon reading the affidavit of Josepa Kumbari Abraham and hearing counsel for the defendants as well as Nick Nirasang and in all the circumstances of the case, I am satisfied on the balance of probabilities, that the reasons advanced by defendants are valid and legal. The Court sympathises with the complainants particularly, the situation they are placed in. It is something they may have to take to other forum to deal with. In all the circumstances, I grant the motion by defendants.

I make the following Orders:-

(1) The Ex Parte Order obtained on 1st July 2005 is set aside.

(2) The proceedings DC2342 of 2005 filed on 30th June 2005 is dismissed as disclosing no reasonable cause of action.

(3) The complainants Nick Nirasang and Renai Nirasang, their servants, associates or agents are restrained from entering the property located at section 228 allotment 14, Hohola, National Capital District.

(4) The complainants Nick Nirasang and Renai Nirasang, their servants, associates or agents are further restrained from intimidating, harassing, abusing and physically interfering and threatening the new owner of the property at section 228 allotment 14, Hohola, National Capital District as well as staff and agents of Rural Development Bank Limited.

(5) In relation to costs, which is a discretionary matter taking into the situation the complainants are placed in, I order that parties pay their own costs.

Rules accordingly.

Nick Nirasang: Complainant
Bemau: Defendant