Losu Realty Ltd v ANZ Banking Group (PNG) Ltd [2010] PGDC 19; DC959 (7 June 2010)

DC959

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

CASE No DCC 32 OF 2010

BETWEEN:

LOSU REALTY LTD
Complainant

AND:

ANZ BANKING GROUP (PNG) LTD
Defendant

Madang: J Kaumi

2010: 7th APRIL 13th 27th MAY 3rd 7th JUNE

SUMMARY CIVIL PRACTICE & PROCEDURE – Summary Ejectment proceedings-Summary Ejectment Act Ch.No. 202-Section 4-Recovery of Premises when rent in arrears-Proceedings under this Act- Holders of clear legal title can avail themselves to the provisions of the Act-Holders of rights or other interests short of a clear legal title cannot seek relief available by this Act.

PRACTISE AND PROCEDURE-Proceedings under the Summary Ejectment Act Ch.No. 202- Cannot be used to claim title or be used for declaration of title- District Court has no jurisdiction where title not clear.

PRACTISE AND PROCEDURE- District Court as an inferior court-Subject to orders of the National Court made in relation to the subject property.

PRACTISE AND PROCEDURE- Proceedings are misconceived.

The complainant filed eviction proceedings against the defendant for non payment of rental monies. It seeks the eviction of the defendant fro Section 20 Allotment 8, Madang and an order for the defendant to pay rental monies due since July 2007 and costs.

Cases Cited:

Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74 (27 April 1984)
Scholly Lang & Losu Realty Ltd v Paul Wagun, Public Curator & Official Trustee & Independent State of PNG OS NO 575 OF 2006.

Held:

(1).The effect of the absence of any leave granted by the National Court to Losu Realty Ltd for the assigning, transferring or otherwise dealing of the estate of the late Galeng Lang is to remove any jurisdiction given to this Court by sections 4 of the Summary Ejectment Act.

(2).Indeed the Summary Ejectment Act cannot be used to establish clear legal title to property nor can proceedings under the said Act be used to declare legal title to property; rather the party seeking relief under the provisions of the said Act must come to it with the pre requisite clear legal title and I find that in these proceedings that the complainant has not come with a clear legal title. See Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74 (27 April 1984).

(3).The orders of the National Court in OS 575 of 8/04/09 are legally binding upon this Court and as a consequence cannot be separated, isolated or simply ignored as a matter of course by the District Court, as to do so would be in direct contravention of the said Orders.

(4).For the reasons above these proceedings are struck out for being misconceived.

Counsel:

Mr. B Meten, for the Complainant
Mr. Y Wadau for the Defendant

19th April 2010

INTRODUCTION

1 Kaumi, M The matter before me this morning is a summons upon complaint by the complainant claiming that the Defendant has since December 2007 failed to pay the Complainant rental money for the lease of property described as Section 20 Allotment 8, Madang, Madang Province and as such institutes this proceedings pursuant to Section 4 of the Summary Ejectment Act and seeks the following orders;-

(i) An order that the Defendant be evicted from the property described as Section 20 Allotment 8, Madang forthwith.

(ii) The Defendant shall pay the Complainant all rental monies due and owing to the Complainant since July 2007 forthwith.

(iii) Costs of this proceedings.

(iv) Such other orders as the Court deems fit.

RELEVANT BACKGROUND

(2) The following is the background of the matter:-

(i) On 31/03/10 the Summons to a person upon complaint and complaint was filed at the District Court Registry and the matter scheduled to be mentioned on 27/04/10.

(ii) On 27/04/10 Mr. Meten appeared for the Complainant whilst Mr Wadau appeared on behalf of Gardens Lawyers for the defendant. Mr. Wadau informed the Court that he had received a Notice of Intention to Defend yesterday from Gadens Lawyers and that they instructed that there is a matter of Losu Realty Ltd v Public Curator OS 575/06 pending before the National Court from 2006 and that they should have been included as a party. Court directed Mr. Wadau to file the Notice of Intention to Defend with the Registry and any other document he wished to file. That the Complainant file the Proof of Service. Matter adjourned to 13/05/10.

(iii) On 13/05/10 Mr. Meten informed Court that he was ready to proceed but Mr. Wadau sought an adjournment to file a defence that Mr. Robert Lindsay of Gadens Lawyers said that he didn’t get the Statement of Claim. Further that on 11/05/10 Mr. Meten gave him those documents and that the National Court had made orders in relation to the same property in which Galeng Lang had died inter state and that the National Court was to appoint a Liquidator. Mr. Meten stated in response that they had filed everything in Court and served them on 9/04/10 and that he was ready for trial and that if the Court was to adjourn they would ask for costs and agree only to a one (1) week adjournment. The court made the following directions:-

(a). Mr. Wadau to file a defence and supporting affidavits.

(b). Costs of the day’s proceedings awarded to the Complainant.

(c). Mr. Meten to file documents pertaining to OS 575/06 and the National Court orders in the matter.

(d). Matter adjourned to 27/05/10 for mention at 9:00am.

(iv) On 27/05/10 Mr. Meten appeared and Court stated that it was in receipt of the said National Court documents which he had filed and told Mr. Meten to file a submission to court explaining the said documents. Mr. Meten also informed Court that the defendant had not filed any documents and this was noted by the Court and matter adjourned to 3/06/10 for mention. No appearance by Mr. Wadau.

(v) On 3/06/10 Mr. Meten appeared but no appearance by Mr. Wadau. Matter adjourned to 7/06/10 for Ruling by Court on its Jurisdiction to hear the matter in the light of the National Court documents and Orders pertaining to OS 575/06.

RELEVANT EVIDENCE

(3) The complainant has filed two affidavits in support of his proceedings, the first one sworn on 24/03/10 and filed 31/03/10 and the second supplementary one sworn on 19/05/10 and filed on 21/05/10.

(4) The complainant’s affidavit of 24/03/10 basically outlines the description of the subject property including its Title, Account Statement of the complainant with the defendant, final Statement of Account and that the Defendant had not paid any rental monies to the complainant after December 2007.

(5) The complainant’s supplementary affidavit of 19/05/10 covers the National Court proceedings of Scholly Lang & Losu Realty Ltd v Paul Wagun, Public Curator & Official Trustee & Independent State of PNG (1), including the Originating Summons, a copy of the National Court decision in the said proceedings dated 8/04/09 and a copy of the formal Court Orders taken out.

(6) The only document filed by the defendant was a Notice of Intention to Defend.

PRELIMINARY ISSUE

(7) A preliminary issue arises as a result of this Court’s perusal of the National Court Orders of OS 575 dated 8/04/09 and that is whether or not this Court has jurisdiction to adjudicate in these proceedings in light of the said National Court Orders?

DOES THE DISTRICT COURT HAVE JURISDICTION TO ADJUDICATE IN THESE PROCEEDINGS IN LIGHT OF THE ORDERS OF A SUPERIOR COURT (NATIONAL COURT)?

(8) The parts of the documents filed by the complainant that are relevant to the issue for determination by this Court are contained in the supplementary affidavit and these are, paragraph 8 and 10, the Question and Answer (3) of the National Court judgment and Order (6).

(9) These relevant parts are as follows:-

(a) firstly, paragraph 8 states "I want to stress here that the National Court proceeding is related to the estate of my late father while the District Court proceedings is related to the rental payable by the Bank to Losu Realty Limited, a company registered under the Company Laws of PNG and has a separate legal entity".

(b) secondly, paragraph 10 states "The complainant company is our family company in that my late father has 25% shareholding while my mother, who is still alive has 75%".

(c) thirdly, Question and Answer (3) are, Should the Court declare that the ownership of properties be vested in Losu Realty Ltd? No, the court is in no position to make such declaration. It would defeat the purpose of having the estate administered independently to make this sort of pre-emptive decision.

(d) fourthly, Order (6),"Until the appointment of an administrator by the Court under Order No (4) no interest in or any part of the property of the estate shall be assigned transferred or otherwise dealt with, without the leave of the National Court".

(10) There are some facts that emerge from that background:-

(a) That Losu Realty is owned 75% by Mrs. Lang and 25% by her late Husband.

(b) The National Court did not make a declaration of the ownership of properties to be vested in Losu Realty Limited as it would defeat the purpose of having the estate administered independently by making such a pre-emptive decision.

(c) That until an administrator was appointed by the National court under Order No (4), no interest in or any part of the estate shall be assigned, transferred or otherwise dealt with, without the leave of the National Court.

(11) Corollary to the above emerged facts are the following:-

(a) I have not sighted any leave granted by the National Court to the complainant for the assigning, transferring or otherwise dealing of the estate of the late Galeng Lang since the date of issuance of the Order (4) of 8/04/09.

(b)I have not sighted any notice of an Administrator being appointed by the National Court to administer the estate of the late Galeng Lang under Order (4).

(12) The effect of the absence of any leave granted by the National Court to Losu Realty Ltd for the assigning, transferring or otherwise dealing of the estate of the late Galeng Lang is to remove any jurisdiction given to this Court given by sections 4 of the Summary Ejectment Act. In fact any granting of leave to Losu Realty Ltd to otherwise deal with the said property would in the words of His Honour Cannings.J, "...defeat the purpose of having the estate administered independently ...".

(13) This court has viewed the registration documents of Losu Realty Ltd and notes what Elvis has attested to that his mother has a 75% shareholding in the said company. On the same token this Court as an inferior court is bound by the superior National Court Order (6) and unless it can established before this Court through the normal evidentiary way that a duly appointed Administrator by the National Court has declared that the ownership of the properties of the estate of the late Galeng Lang be vested in Losu Realty Ltd this Court has no jurisdiction in a Summary Ejectment proceeding where there is no clear title.

(14) Indeed the Summary Ejectment Act cannot be used to establish clear legal title to property nor can proceedings under the said Act be used to declare legal title to property; rather the party seeking relief under the provisions of the said Act must come to Court with the pre requisite clear legal title and I find that in these proceedings that the complainant has not come with a clear legal title. See Gawi v PNG Ready Mixed Concrete Pty Ltd (2).

(15) Elvis Lang either from ignorance, misapprehension or by design misses the point here at paragraph 8 of his affidavit when he attempts futilely to separate the National Court proceedings from the endeavors of Losu Realty Ltd through its District Court proceedings to evict ANZ BANKING GROUP (PNG) LTD for non payment of rent. At this juncture in time Losu Realty Ltd has to wait for a duly appointed Administrator by the National Court who will administer the estate of the late Galeng Lang. Simply put Losu at this point in time has no authority to deal otherwise with the estate of the late Galeng Lang. The orders of the National Court in OS 575 of 8/04/09 are legally binding upon this Court and as a consequence cannot be separated, isolated or simply ignored as a matter of course by the District Court, as to do so would be in direct contravention of the said Orders.

(16) I note further that in the affidavit of Elvis Lang of the 24/03/10 he makes absolutely no mention of the National Court Orders of 8/04/09 despite the fact that the implications of the said Orders were absolutely crucial to the outcome of these proceedings and for the proper administration of justice and further that it was only after this Court’s directions that copies of the said National Court Orders were made available to it. Whether this was by design or default it must be noted that had these vital documents not been furnished the possibility of a travesty of justice occurring was real however I make no more comments on this matter suffice to say that I am disappointed with all concerned.

DETERMINATION

(17) For the reasons above these proceedings are struck out for being misconceived.

(18) Costs awarded to the defendants.

Narakobi Lawyers for the Complainant
Gadens Lawyers for the Defendant

______________________________________
1. OS 575/2006
2. [1984] PNGLR 74 (27 April 1984)