Kelly v Kavie [2007] PGDC 76; DC628 (5 June 2007)

DC628

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DCCi 126 of 2007

BETWEEN

JOHN KELLY
Complainant

AND

ALEX KAVIE
First Defendant

AND

MOSES MORUBA
Second Defendant

Goroka: M IPANG
2007: June 05

Counsel
Complainant: Represented by Umba Lawyers
Defendants: In Person

05 June 2007

DECISION

M Ipang: The Complainant filed a Notice of Motion dated 28 May 2007 seeking to have their Motion heard on the 05 June 2007 at 9:00 am for the following orders, that the First Defendant hands over the certificate of Title of Section 63 Allotment 23, Goroka to the Complainant. And any such further orders this Honourable Court deems meet.

2. Perhaps, I will re-state some important facts surrounding the background to this case.

3. On the 15 May 2007 Complainant took out a Civil Summons for both defendants under Complaint No. 126 of 2007. The Complainant seeks eviction of Defendants out of Section 63 Allotment 23, Goroka. Complainant had initially sold the property to the First Defendant for a sum of K60, 000.00. First Defendant paid a sum of K47, 000.00 but took so long to pay the remainder of K13, 000.00. Complainant after waiting for so long took out summons to evict defendants with consent from Complainant and defendants, I made an eviction order. I have also advised both parties to resolve the issue of payment of K47, 000.00 because I lack jurisdiction to deal with that amount.

4. At that time when First Defendant paid K47, 000.00, the Complainant gave his title of the property Section 63 Allotment 23, Goroka to the First Defendant. Now that their agreement for sale of the said has not worked out well, defendants have been evicted out of complainant’s property and he has now come to this Court by way of Notice of Motion seeking return of his certificate of title.

5. My ruling was centred around the issue of abuse of Court process. Basically, the Complainant can not come to this Court by way of Notice of Motion when there is no substantive cause of Action on foot. The substantive matter has been effectively dealt with and was disposed off on the 15 of May 2007. By Complainant commencing a new action by way of Notice of Motion, in my view is an abuse of Court process. See Section 28 of District Courts Act, Chapter 40 and Section 22 of the District Courts Act, Chapter 40.

6. I refused to grant order(s) sought by the Complainant for the above reason. I have also noted the following findings.

1. It seems evident that Defendant is withholding the Certificate of Title to the property Section 63 Lot 23 as a bait to recoup his K47, 000.00 from the Complainant.
2. Complainant persistence claim that Defendant takes him to Court to get his K47, 000.00 back is not genuine. Both are friends and can settle this out of Court.
3. This issue needs negotiations and bargaining from both parties. It is a ‘give & take’ situation which will be less costly then allowing Court’s intervention. Since they have come to Court –
4. I suggest both parties go through the National Court to resolve the issue of K47, 000.00 as certificate of Title will be returned to the Complainant once K47, 000.00 issue is resolved.