Polume v Kamu [2010] PGNC 72; N4061 (9 July 2010)

N4061

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 342 OF 2007

BETWEEN:

BONOAN POLUME
Plaintiff

AND:

KARO KAMU
First Defendant

AND:

NATIONAL HOUSING CORPORATION
Second Defendant

Mount Hagen: Makail, J
2010: 9th July

INJUNCTIONS - Interlocutory mandatory injunctions - Equitable remedy - Principles of - Grant of - Granted in circumstances where it will be fair and just.

REAL PROPERTY - Property dispute - Clear title - Indefeasible title - Error in demarcation of boundary of property - Allegation of fraud - Land Registration Act, Ch 191 - Section 33.

Cases cited:

John Mur -v- Les Kewa (2010) N4016

Counsel:

Mr P Kopunye, for Plaintiff
Mr K Sino, for First Defendant
Mr J Pera, for Second Defendant

INTERLOCUTORY RULING

9th July, 2010

1. MAKAIL, J: This is an application by the plaintiff by his amended notice of motion filed on 23rd October 2008 seeking an order that "there be Judgment for possession of land, Section 16, Lot 52, Kundiawa in favour of the Plaintiff." There are also other orders being sought in the amended notice of motion but he does not ask the Court to grant them in this application. Therefore, this ruling is confined to and in relation to the first order sought by the plaintiff.

2. From the various affidavits filed and relied upon by the plaintiff and the first defendant, it is noted that there is no dispute that the plaintiff is the registered proprietor of the property described as section 16, allotment 52 in Kundiawa, the subject of this dispute, the title having been granted to him on or around 11th July 2001. On it initially were two houses, one big one described as a high covenant house and the other, described as a 2 bedroom IMQ house. The high covenant house been destroyed by fire some years back.

3. As for the 2 bedroom IMQ house, the first defendant has been occupying it since 1997 pursuant to a Tenancy Agreement with the second defendant, even after the property was sold and title was transferred by the second defendant to the plaintiff on or around 11th July 2001. The first defendant has been paying rent to the second defendant and has refused to vacate the 2 bedroom IMQ house despite numerous notices to quit by the plaintiff, the earliest being 27th October 2007 in a letter from the plaintiff to him.

4. The first defendant says that there was an error in the boundary demarcation of the property in that, the 2 bedroom IMQ house should have been located on a separate property and steps have been taken with the assistance of the second defendant to rectify this error so that a separate title be issued to him. That is why he continues to remain on the property separately from the plaintiff and continues to pay rent to the second defendant. The second defendant has made attempts to sort out the dispute between the parties but has been not been able to reach an agreement or settlement to date.

5. It should be stated here, the nature of the order sought by the plaintiff in this application for possession of the property is indeed an interlocutory mandatory injunction because he seeks an order to have the first defendant vacate the property based on his clear title to the property which covers and includes the 2 bedroom IMQ house which the first defendant occupies. The principles applied and considered by the Court before an interlocutory mandatory injunction is granted have been frequently discussed by the Court in many past cases and I had the opportunity to discuss them in a recent decision in the case of John Mur -v- Les Kewa (2010) N4016, which was a case involving a dispute over a property known as "Banz club" in Banz town. In that case, I said, a plaintiff or applicant must satisfy the Court that:

1. There is a strong case or a real prospect of success at trial in relation to the issues raised in the proceeding;

2. There will be less damage or less injustice to the opposing party in the event the applicant is unsuccessful at trial; and

3. The prejudice and hardship to the applicant is disproportionate to the prejudice and hardship to be caused to the defendant in performing the order.

6. Applying these principles to the present case, first, there is no doubt in my mind that there are no serious factual issues raised here because, there is no dispute as the title of the property of the plaintiff. Hence, he has every right and interest in the property including the 2 bedroom IMQ house which the first defendant occupies. He has an indefeasible title free of any encumbrances except if there was fraud: see 33 of the Land Registration Act, Ch 191.

7. Secondly, there is no dispute that the 2 bedroom IMQ house is within the boundary of the property of the plaintiff although the defendants seem to suggest that there is an error in the demarcation of the boundary of the property and further suggesting that the 2 bedroom IMQ house should have been a separate property to that of the plaintiff's property. That suggestion is not supported by evidence of a subdivision of the one and same property into two and must therefore, fail. Finally, the tenancy agreement between the first defendant and the second defendant should have ceased upon the plaintiff becoming the registered proprietor of the property on or about 11th July 2001. There was therefore, no basis for the first defendant to remain on the property if the plaintiff wants him out.

8. In the circumstances, I am satisfied that the plaintiff has a strong case or real prospect of success at trial. But that is not the end of the matter, as I need to be satisfied also that less injustice will be caused to the defendants if it turns out that the plaintiff is unsuccessful at trial and finally, that the prejudice and hardship is disproportionate to the prejudice and hardship to be caused to the defendants in performing the order. In other words, if the interlocutory mandatory injunction is granted, whose interest will be less prejudiced or inconvenienced?

9. In the present case, as I alluded to above, there is no dispute that the first defendant is still residing in the 2 bedroom IMQ house in the same property to date. On the other hand, there is no evidence that the plaintiff is living on the property although it is no dispute that the high covenant house has been destroyed by fire some years back. In my view, the plaintiff will not suffer substantial prejudice or hardship if the interlocutory mandatory injunction is not granted, except say he has been deprived of the occupation of the property to date. However, I am not satisfied that the first defendant will not be substantially prejudiced or suffer substantial hardship if the interlocutory mandatory injunction is granted.

10. To my mind, if the first defendant is ordered to vacate the property today, he would face hardship and difficulty in relocating himself and his family, especially where he and his family have lived on the property for so long. To my mind, the prejudice and hardship that will be caused to the first defendant and his family will be disproportionate to the prejudice and hardship that will be caused to the plaintiff if an interlocutory mandatory injunction is granted. After all, an interlocutory mandatory injunction is an equitable remedy and must be granted in circumstances where it will be fair and just to all parties and in the present case, while the plaintiff has shown that he has a strong case or real prospect of success at trial, in my view, it is best for all parties that, the status quo remain intact until the dispute is finally determined.

11. The formal orders of the Court therefore, are, the plaintiff's amended notice of motion filed on 23rd October 2008 is refused with cost to be in the cause. Cost shall be in the cause because the defendants have not persuaded me that this was a frivolous and vexatious application after all.

Ruling and orders accordingly.

____________________________________
Kopunye lawyers: Lawyers for the Plaintiff
Sino & Co Lawyers: Lawyers for the Plaintiff
In House Lawyer: Lawyers for the Second Defendant