Minia v Gisoba [2005] PGNC 78; N2875 (21 July 2005)

N2875

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE, LAE]

WS. 475 OF 2005

PINNA MINIA
(Plaintiff)

AND:

EDWARD YOUNG GISOBA

(Defendant)

LAE: Davani, J
2005: 18th & 21st July

PRACTICE AND PROCEDURE – leave to file Defence out of time – application to be supported by applicants affidavit – affidavit must depose to material facts showing defence on the merits – lawyers affidavit is insufficient and is lawyers opinion.

PRACTICE AND PROCEDURE – registered proprietor – has indefeasibility of title – property interests sufficient to grant injunctive orders.

Cases cited:
• Robinson v National Airline Commission [1983] PNGLR 476;

• Mudge v Secretary for Land & The State [1985] PNGLR 387;

• Provincial Government of North Solomons v Pacific Architecture Pty Ltd [1992] PNGLR 145;
• Curtain Brothers (Queensland) Pty Ltd and Kinhill Kramer Pty Ltd v The State [1993] PNGLR 285;
• Leo Duque v Aria Andrew Paru [1997] PNGLR 378;
• MVIT v Viel Kamapu (1998) SC587.

Counsel:

R. Uware for the Plaintiff

K. Gamoga for the Defendant

RULING

21st July, 2005

DAVANI, J: Before me are two applications, amended cross-motion filed by the defendant on 5th July, 2005 and the plaintiff’s motion filed on 8th April, 2005.

The plaintiff’s motion filed by Gamoga & Company Lawyers, seek the following orders:

"1. That the defendant give peaceful possession of the property State Lease Volume 39, Folio 238, Section 108, Allotment 7, Lae to the plaintiff forthwith, either with or without Police assistance, until further orders;

2. That the defendant, his servants and agents be restrained from harassing or threatening the plaintiff or the plaintiff’s tenants or agents whatsoever and howsoever;
   
3. That the defendant upon giving peaceful possession of the property to the plaintiff refrain from removing any chattels or white goods from the property that were part and partial of the property when he took possession in April 2004;
   
4. That the plaintiff upon taking possession of the property, conduct a stock take of the contents of the property and provide a report of the state of the property to the Court within twenty one (21) days;
   
5. Such other orders as the Court deems appropriate."
   

The defendant, by it’s amended cross-motion filed by the Office of the Public Solicitor seeks the following orders:

"1. The whole proceedings and/or the Notice of Motion filed by the Plaintiff on 8th April, 2005 be dismissed for abuse of process pursuant to Order 4 rule 3 of the National Court Rules (NCR) or alternatively;

2. Leave of Court to file Defence out of time pursuant to Order 7 rule 6 of the National Court Rules;
   
3. Costs of these proceedings to be awarded to defendant if order sought in paragraph 1 is granted;
   
4. Any or further orders the Court deems fit."
   

Both Applications

The plaintiff, by his Writ of Summons and Statement of Claim filed on 7th April, 2005, seeks various declaratory orders, including an interim order that the defendant give him peaceful possession of property, the subject of these proceedings. This property, described as State Lease Volume 39, Folio 238, Section 108, Allotment 7, Lae (‘the property’), is presently occupied by the defendant.

The plaintiff’s application is supported by his affidavit sworn on 23rd March, 2005 and filed on 13th May, 2005. The defendant’s application is supported by his affidavit sworn and filed on 23rd June, 2005 and 5th July, 2005 and the affidavit of Russell Uware sworn and filed on 23rd June, 2005. The affidavit material before me shows the following facts:

1. The plaintiff purchased the property from Steamships Limited on or about 12th August, 2003. The Contract of Sale is before me in evidence.
   
2. The property was purchased at K16,000.00, after which the plaintiff took possession then subsequently did renovations worth more than K15,000.00 to the property.
   
3. The copy of the title deed before me shows the following transactions to have occurred on the property:
   
   • (i) Residence lease was granted to the Housing Commission on 10th July, 1969 for 99 years. Transfer to David Young Gisoba produced 7th January, 1976 and entered 12th January, 1976.
     
   • (ii) Mortgage to Housing Commission no. 19431 produced 7th January, 1976 and entered 12th January, 1976.
     
   • (iii) Discharge of Mortgage no. 19431 produced 13th May, 1985 and entered 10th June, 1985.
     
   • (iv) Transfer to Thomas Charles Bullen produced 31st May, 1985 and entered 20th June, 1985.
     
   • (v) Issue of official copy of State Lease on 12th December, 1989 because the owners copy of the State Lease had been lost or destroyed.
     
   • (vi) Note: the next two transactions are illegible.
     
   • (vii) Transfer from Steamships Limited to Pinna Minia produced on 10th August,2004 and entered on 12th August, 2004.
     
4. On or about 21st April, 2004, the defendant forcefully evicted the tenant on the property claiming that Thomas Charles Bullen had defrauded David Young Gisoba. The defendant presently resides on the property.
   
5. The defendant has refused to vacate the property despite many requests to him to vacate. He wrote a threatening note dated 20th April, 2004, to Steamships Company Secretary/Lawyer stating and asserting his position that the property was stolen from his father by Thomas Bullen, and that if anybody wants him to leave the property, that they must "shoot me down and get my house" (see annexure "F" to Pinna Minia’s affidavit).
   
6. Letter dated 19th April, 2004, from Steamships Limited to the defendant, states that Steamships purchased the property under the auspices of its Home Ownership Scheme in 1989 for a former Steamships employee named Malu Madi and that the owner of the property at that time was Thomas Charles Bullen. The letter also advised that the Steamships file did not contain any reference to David Young Gisoba (see annexure ‘G’ to Pinna Minia’s affidavit).
   

Apart from opposing the applicant’s application, the defendant also, seeks leave to file his Defence out of time or alternatively, to have the proceedings struck out for abuse of process. However, after verbal exchange between the bench and Mr Uware, counsel for the defendant, Mr Uware now accepts that O.4 R.3 of the National Court Rules, the provision on which he relies in seeking the relief that the proceedings be struck out, does not apply. And this was because of the obvious situation before me that the facts of this case are substantially in dispute. (see O. 4 R. 3 (2) of National Court Rules).

As to the filing of Defence out of time, Mr Uware relies on his affidavit to which is attached a draft Defence. In that affidavit, Mr Uware deposes at paragraph 2:

"After taking instructions from the defendant, I have formed the view that the defendant has merits in his Defence!"

The affidavit is very short, containing only four paragraphs, and the paragraph with any substance in context, that is referred to above – paragraph 2.

On questioning defendant’s counsel as to why has the defendant’s draft Defence is attached to his affidavit and why it is that the defendant has not filed an affidavit deposing to a Defence on the merits, Mr Uware responded that I should use my discretion, considering the facts before me, to give leave to the defendant to file his Defence out of time.

Mr Uware has put before the Court material that he does not have direct knowledge of except through instructions from his client. This belief is not affirmed by his client. He has merely listed some probable area of argument for a defence (see Curtain Brothers (Queensland) Pty Ltd and Kinhill Kramer Pty Ltd v The State [1993] PNGLR 285 at 293; MVIT v Viel Kamapu (1998) SC587; Provincial Government of North Solomons v Pacific Architecture Pty Ltd [1992] PNGLR 145 at 148).

In Leo Duque v Aria Andrew Paru [1997] PNGLR 378, the Supreme Court held as follows:

"It is clear to us from the authorities we have set out earlier in our judgment and subsequent cases in this jurisdiction that as a matter of practise, an applicant must in an affidavit, state material facts showing a defence on the merits.

In the present case, it was the responsibility of the Appellant to state material facts showing a defence on the merits. As we have indicated before, the appellant filed an affidavit setting reasons why judgment was entered but he failed to state any facts which show any defence on the merits. A proposed defence prepared by the lawyer is not capable of serving this purpose. The expression of opinion by the lawyer that there is a good prospect of success can only amount to legal opinion. It is not capable of raising the material facts." (My emphasis)

Mr Uware cannot ask the Court to exercise its discretion to grant leave when the appropriate affidavit material is not before the Court. It would be foolish of this Court to accept those submissions when without doubt, the paragraph in Mr Uware’s affidavit deposing to a defence on the merit is only Mr Uware’s opinion.

Without hesitation, I find that the application does not disclose a defence on the merit or a meritorious defence.

As to the plaintiff’s application, the Supreme Court in Mudge v Secretary for Land & The State [1985] PNGLR 387, held that the registration of leases under the provisions of the Land Registration Act Chapter 191 is effective to vest an indefeasible title in the registered proprietor subject only to the exceptions enumerated in section 33 of that act. Neither counsel raised this in their submissions. So relying on the principle of indefeasibility of title and without expanding any further in my reasons, I find that the Plaintiff has indefeasibility of title because the evidence before me shows he is the registered proprietor of the property.

The plaintiff’s purchase of the property from Steamships Limited was properly done. Purchase is supported by the many correspondence from Mr Ere Kariko, lawyer and Company Secretary for Steamships Limited, and which are in evidence before me. I find that the defendant illegally entered property that the plaintiff is the registered proprietor of.

If the defendant has a claim for fraud against Thomas Bullen, then he should pursue those proceedings. The defendant claims that the plaintiff obtained the property through fraudulent means from the defendant’s father or from him. He claims that the plaintiff conspired with Thomas Bullen, Arthur Strachan Real Estate and Steamships Limited to then resell the property to Steamships Limited, who then transferred the property to the plaintiff. But the history of the registrations on the title deed which I set out above tells me prima facie, that there was a mortgage to the Housing Commission in 1976 which was discharged in 1985, then a transfer effected to Thomas Bullen in 1985. The plaintiff only purchased the property in 2004, some 19 or 20 years later. I find that line of argument raised by Mr Uware to be without any basis at all.

A lawyer has a duty to properly advise his client of the remedies available to him. It his client’s case is weak, he must put that to him. If there are other alternatives available to his client, then he must pursue them. In this case, a lawyer has allowed his client to conduct an illegal act and persists in providing the same advice. That is most unethical.

As I intimated earlier, the defendant has a claim against Thomas Bullen and possibly the Lands Department but the defendant should not be allowed to remain on the plaintiff’s property. He can pursue his claim for fraud whilst residing away from the property.

As to the restraining orders sought by the plaintiff, the plaintiff is the registered proprietor of the property. To maintain the balance of convenience and the status quo, the plaintiff should return to his property whilst the defendant pursues his claim for fraud in the Courts. The plaintiff must satisfy the principles set in Robinson v National Airline Commission [1983] PNGLR 476 at 480, before he can succeed. Andrew J said:

"What the plaintiff must prove is that he has a serious, not a speculative case which has a real possibility to ultimate success and that he has property interests which might be jeopardized if no interlocutory relief were granted. (My emphasis)

In order to determine this, the Court will have regard to such factors as the adequacy of damages, the possibilities of alternative remedies, whether there has been any laches and delay, the strength of the grounds of defence suggested by the defendant, what, if any, undertakings the defendant is prepared to give and most importantly, hardship and the balance of convenience."

Clearly, the plaintiff has property interests which will be jeopardized if the injunction is not granted. He has a real possibility of ultimate success because of the principle of indefeasibility of title and because the fraud, if any, would have occurred some 20 years ago, and that several people purchased the property before he did. So his likely involvement is very minimal.

Again, the evidence shows that the defendant is using threats of violence to intimidate the plaintiff. He cannot come to Court and expect the Court to provide a remedy when he is not co-operating. The Court will not accept or tolerate threats of violence and intimidation perpetrated by litigants who, at the same time, with no hesitation, exercise their rights to come to Court to seek redress and justice. There are procedures the defendant can utilize and with the assistance of the Public Solicitor, he will hopefully achieve his goal.

The orders I make are in terms of the Notice of Motion filed by the plaintiff on 8th April, 2005; with the exception of orders as to the filing of undertaking as to damages and costs. These are;

1. That the defendant give peaceful possession the property State Lease Volume 39, Folio 238, Section 108, Allotment 7, Lae to the plaintiff forthwith, either with or without Police assistance, until further orders;
   
2. That the defendant, his servants and agents be restrained from harassing or threatening the plaintiff or the plaintiff’s tenants or agents whatsoever and howsoever;
   
3. That the defendant upon giving peaceful possession of the property to the plaintiff, refrain from removing any chattels or white goods from the property that were part and partial of the property when he took possession in April 2004;
   
4. That the plaintiff upon taking possession of the property, conduct a stock take of the contents of the property and provide a report of the state of the property to the Court within twenty one (21) days;
   
5. That the matter is referred to the Registry for the Registrar to allocate a hearing date in September 2005;
   
6. Time is abridged to time of settlement to take place forthwith;
   
7. Costs are reserved to the hearing of the substantive application.
   

________________________________________________________________________

Lawyer for the Defendant : Public Solicitor’s Office
Lawyer for the Plaintiff : Gamoga & Co. Lawyers