Steamships Ltd v Sabadi [2013] PGNC 259; N5501 (27 November 2013)

N5501

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (Comm) NO. 34 OF 2004

BETWEEN

STEAMSHIPS LIMITED
Plaintiff

V

LEONARD SABADI
First Defendant

AND

HENRY WASA as REGISTRAR OF TITLES
Second Defendant

AND

LOA VANI PETER
Third Defendant

Lae: Sawong, J.
2013: 07th & 08th, 27th November

PRACTICE & PROCEDURE – Land Law – Special Agriculture and Business Lease – Cancellation of Title by Registrar of Title – Effect of Cancellation – Title no longer in existence – Land becomes customary land –

PRACTICE & PROCEDURE – Land Law – Cancellation of Title by Registrar of Titles – Claim against Registrar of Titles – Claim against State – Claims By & Against State Act 1996

PRACTICE & PROCEDURE – Claims against State –Notice of claim given outside of time prescribed – S.512) Claim By and Against State Act 1996 – Claim against state dismissed – claims against first defendant shows a reasonable cause of action – First defendant admits the plaintiff claim – Claim for specific performance incapable of being performed by First defendant as Title Cancelled. Judgment internal for plaintiff agent first defendant

Facts

The dispute between the parties was over a piece of land located at Burns Peak in the National Capital District. The land was originally customary land. Subsequently the State entered into a lease arrangement with the first defendant who claimed to be the customary owner of that land. Thereafter the State issued a Title Deed over the land to the first defendant. The first defendant then entered into a Contract for the Sale of the land to the plaintiff. The Contract was stamped and approved. In the meantime there had been complaints lodged by the third defendant with the Registrar of Titles. The Registrar of Titles cancelled the Title. As a result the contract between the plaintiff and the first defendant could not be completed.

As a result the plaintiff instituted proceedings by a Writ of Summons against the first defendant and the Registrar of Title as second defendant. The second defendant did not file its defence.

By a Notice of Motion the plaintiff sought default judgment against the second defendant. The second defendant then applied for leave to file a defence out of time. The third defendant applied to dismiss the proceedings as against the second defendant on the basis, inter alia, that the plaintiff had not given a notice to the State pursuant to section 5 of the Claims By and Against the State Act 1996.

Held

1. The plaintiff did not give Section 5 Notice to the State. As such the proceeding against the second defendant cannot be allowed to continue. The claim against the second defendant was dismissed.

2. As the claim against the second defendant was dismissed, the motions by the plaintiff for default judgment against the second defendant was rendered nugatory and was dismissed.

3. The motion by the second defendant for leave to file a defence out of time was also rendered nugatory and was dismissed.

4. Judgment was entered for the plaintiff against the first defendant for damages to be assessed.

5. As the title to the land had been cancelled, the claim by the plaintiff for specific performance by the first defendant could not be granted as it was incapable of performance.

Cases Cited:

John Kami v Dept of Works & The Independent State of PNG (2010) N4144

NCDC v Jim Reima & Balus Sokele & Robame Pisimi (2009) SC 993

Paul Tohian v Tau Liu [1998] SC566

Counsel

M. Goodwin, for the Plaintiff

B. Ovia, for the First Defendant

R. Avuti, for the Second Defendant

T.Yai, for the Third Defendant

RULING

27th November, 2013

1. SAWONG, J.: This is a dispute over a piece or part of a land generally described as Bubue (Portion 2579C, Volume 38, Folio 115, Granville, Port Moresby). This ruling covers four separate Notices of Motions. The motions are as follows:
   
   1. Amended Notice of Motion by the plaintiff seeking default judgment against the second defendant.
   2. Notice of motion by the second defendant seeking leave to file its defence out of time.
   3. Notice of motion by the third defendant for substitution of the name of the third defendant.
   4. Notice of motion by the third defendant to dismiss the entire proceedings.
      

2. As to the motion by the third defendant for the substitution of the name of the third defendant, this has been consented to by all the parties. An order settling this was made on 7th November 2013.

Background

3. The background to the proceedings are adequately set out in the written submissions of counsel for the plaintiff, the first defendant and third defendant. I adopt these with necessary modifications for the purposes of this ruling.
   
4. Prior to 11th November 2009, the land the subject of the current proceedings was customary land.
   
5. On that date (11 November 2009) a lease agreement was entered into between the State and the first defendant for the State to lease this land pursuant to the provisions of the Land Act.
   
6. Subsequently on 5th February 2010, a Special Agricultural and Business Lease Title was issued to the first defendant.
   
7. Following this, complaints and representations were made by the third defendant and his clan members to the Registrar of Titles, alleging fraud and other irregularities and urging him to cancel the Title.
   
8. On October 2010 the Registrar of Titles cancelled the Title Deed.
   

9. On or about 15 November 2010, the plaintiff and the first defendant entered a Contract for the sale of the land.

10. On 23rd November 2010, the Registrar of Titles entered the cancellation of the Title Deed on the Register.

11. On 25 November 2010 the Contract for Sale of land and the Transfer Instrument were duly approved by a delegate of the Minister for Lands.

12. After the said approvals were given, the parties to the agreement could not settle because the first defendant could not deliver the Title on settlement.

13. On 23 January 2012, the plaintiff instituted proceedings WS (Comm) No. 34 of 2012 by filing a Writ of Summons and a Statement of Claim.

14. On 24 January 2012, a sealed copy of the Writ of Summons and statement of claim, were served on second defendant at the Office of Solicitor General.

15. On 20 January 2012, the lawyers for the plaintiff served a notice of claim on the Solicitor General.

Course to Take

16. There are three applications to consider. Having heard the submissions and having read the various affidavit evidence relied on by each of the parties, I propose to deal with the application by the third defendant to dismiss the proceedings first. I do so, because if that application is accepted, then it would be unnecessary to consider the applications by the plaintiff and the second defendant.

Application by the third defendant to dismiss

17. By an amended notice of motion dated 28th August 2012 and filed 29th August 2012 the third defendant seeks the following orders:

1. Pursuant to Order 12, Rule 40 (1) (c) of the National Court Rules (NCR), the entire proceedings be dismissed for abuse of Court process.
   
2. Alternatively, pursuant to Order 8, Rule 27 (1) (a) & (c) of the NCR, the entire proceedings be struck out for disclosing no reasonable cause of action.
   

100. The entire proceedings be dismissed for not complying with section 5(2) of the Claims By and Against the State Act, 1996 (the Act).
     

4. Cost of the Applications.
   

18. In support of this application, the applicant relies on the affidavit of Loa Vani Peter sworn on 9th July 2012 and filed 10 July 2012, and the affidavit of Loa Vani Peter sworn and filed on 19th April 2013.

19. The application is supported by the second defendant.

20. The plaintiff and the first defendant oppose the application. They too rely on a number of affidavits.

21. All parties have filed written submissions and made oral submissions in respect of this particular application. I have read and considered carefully the evidence and the submissions regarding this application.

22. The submissions raise a number of issues to resolve. In my view these are:

1. Whether the entire proceedings should be dismissed for non-compliance with section 5 of the Claims By and Against the State Act. (the Act)
   
2. Whether the entire proceedings should be dismissed for abuse of Court process under Order 12, Rule 40 (1) (c) of the NCR.
   

100. Whether the entire proceedings should be dismissed for disclosing no reasonable cause of action pursuant to order 8, Rule 27 (1) (a) & (c) of the NCR.
     

23. I now consider each of the issues
    

Whether the plaintiff complied with the requirements of Section 5 of the Claims By and Against the State Act.

24. The essential facts leading to this applications are set out in the submissions of Mr. Yai and Ms Avuti. I adopt these for the purposes of resolving this issue.

25. There is no issue that the Registrar of Titles cancelled the Title on 10th October 2010 and such cancellation was recorded on the Register on 23rd November 2010.

26. There is also no dispute that the plaintiff gave notice to make a claim against the Registrar and the State on 20 January 2012.

27. It has been submitted by Mr. Yai and supported by Ms Avuti that the plaintiff has not given notice within the time prescribed by section 5 of the Act. They submit that as the notice given was outside the time limit prescribed, and no leave having being sought and obtained from the Court, or from the Principle Legal Adviser for an extension of time with which to give notice, the plaintiff's claim against the second defendant is time barred and ought to be dismissed.

28. Mr Goodwin for the plaintiff conceded that the notice given was outside the time limit prescribed. However, he then made a submission that the Court should exercise its powers under section 5 (2) (ii) of the Act and ratify the plaintiff's action on the basis that the time lapse was by a month only. He also submitted that the defendant's had not pleaded this particular ground and he was therefore caught by surprise.

29. Mr. Ovia did not make any submissions on this issue.

30. The submissions require consideration of Section Section 5 of the Act. It reads:

"1. No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this section by the claimant to-

(a) The Departmental Head of the Department responsible for justice matters; or

(b) The Solicitor-General

2. A notice under this section shall be given-
   
   • (a) within a period of six months after the occurrence out of which the claim arose; or
     
   • (b) where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach; or
     
   • (c) within such further period as-
     
     • (i) the Principal Legal Adviser; or
     • (ii) the court before which the action is instituted,
       

on sufficient cause being shown, allows......"

31. This provision has been considered by the Supreme Court and the National Court on many occasions (See John Kami v Dept of Works & The Independent State of PNG (2010) N 4144, NCDC v Jim Reima & Balus Sokele & Robane Pisimi [2009] SC 993, Paul Tohian v Tau Liu [1998] SC566.

32. In Paul Tohian & Others v Tau Liu the Supreme Court,

"The purpose of the requirement to give notice remains the same whether or not the notice is required to be given within the 6 months or within such further period as may be granted by the Principal Legal Adviser or the Court. It is clear to us that the notice of intention to make a claim is a condition precedent to issuing a writ of summons in all circumstances."

33. In my view, the authorities that I have referred to and many others makes it abundantly clear that no proceedings are to be instituted against the state (except in judicial proceedings), unless a claimant gives a prior written notice of a claim to the State as prescribed under section 5 of the Act. This requirement is a condition precedent to the instituting of proceedings.

34. In this case it is clear from the evidence, and there is no dispute between the parties as to the facts in regard to this issue. The Registrar of Titles cancelled the Title on the State Lease on 13 October 2010 and the cancellation was recorded in the Register on 23 November 2010. The cause of action against the defendant arose either on 13 October 2010 or on 23 November 2010.

35. The plaintiff's claim as against the second defendant is at best based on section 5 (2)(a) of the Act. That being the case, the plaintiff was required to give notice within six (6) months after the occurrence out of which the claim arose. The occurrence or the event which gave rise to the plaintiff's claim against the second defendant was the act of cancellation of the title which occurred on 13 October 2010. That was when the cause of action of arose as against the second defendant. However, and even if it said to have occurred on 23 November 2010, when the cancellation was entered in the Register, and the cause of action was said to have occurred then, this is of no assistance to the plaintiff. In either event, the six months time period ended on or about April or May 2011. The Notice of Claim was given on 20 January 2012, which is a period of over seven months.

36. It is clear and I so find that the plaintiff did not give proper notice to the State within the meaning of s.5 (2)(a) of the Act. The Plaintiff did not seek any extension of time from either the Principal Legal Advisor or the Court. The notice that was given was a 'nullity ab initio.' As no notice was given within the time stipulated under section 5(2)(a) of the Act, the proceedings against the second defendant cannot continue. As the condition precedent has not been complied with, I conclude that the claims against the second defendant must be dismissed.

37. Before, I finish I should add a further comment on the oral application by Mr. Goodwin for the Court to exercise it's powers under s.5 (2) (c) of the Act. As to that submission, in my view, there are two courses open to a claimant. First he or she can apply to the Principle Legal Advisor for an extension of time to give notice. The second option is for the claimant to apply to the National Court by Originating Summons, a Notice of Motion and affidavit material seeking an extension of time within which to give notice of an intended claim to the State.

38. In the present case, I decline to grant Mr. Goodwin the relief he seeks because there is no basis shown to exercise my discretion. In any case there is no proper application and no evidence before me to exercise my discretion.

39. As to his complaint that he was not given adequate notice of this particular ground, it is mischievous. He was served with the third defendant's amended Notice of Motion filed 29 August 2012 which pleaded this particular ground to challenge the proceedings. For those reasons I come to the conclusion that the proceedings against the second defendant cannot stand and is dismissed.

40. This then brings me to the related motions by the plaintiff for default judgment against the second defendant and the motion by the second defendant seeking leave to file its defence out of time.

41. As the proceedings against the second defendant has been dismissed, it follows that motions by the plaintiff and the second defendant are rendered nugatory. I would therefore dismiss the application by the plaintiff for default judgment.

Whether The Entire Proceedings Should Be Dismissed Either As Being Abuse Of Court Process Pursuant To Order 12, Rule 40 (1) ( C) Or For Disclosing No Reasonable Cause Of Action Pursuant To Order 8, Rule 27.

42. Order 12, Rule 40 (1) ( c) reads:

"Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings-

( c) the proceedings are an abuse of the process of the Court.

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings."

43. Order 8, Rule 27 (1)(a) and (c) reads:
    

" Where a pleading—

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(c) is otherwise an abuse of the process of the Court,

the Court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleading be struck out."

44. Extensive submissions have been made regarding these grounds for the third defendant, the first defendant and the plaintiff.
    
45. Mr Yai, for the third defendant submits that the decision to cancel the Title to the State Lease over the subject land by the Registrar of Titles was upon his satisfaction that the Title was not properly obtained and that was done in the exercise of his powers functions under the Land Registration Act and therefore his actions are administrative in nature.
    
46. He further, submits that the decision to cancel the Title over the said State lease still stands to date as it has neither been set aside nor quashed by any other administrative decision or order of a Court of competent jurisdiction nor is it challenged by the present proceedings.
    
47. He further submits that immediately upon cancellation of the Title over the said State lease, the status of the subject land has automatically reverted to customary land.
    
48. It is submitted that the reliefs sought by the Plaintiff in these proceedings are incapable of being granted by the court as the decision of the Second Defendant (Registrar of Titles) to cancel the Title over the said State lease still stands and therefore the subject land currently remains as a customary land by nature of its status.
    
49. Mr Yai, submits that the plaintiff has never shown anywhere in its pleadings or in the Statement of Claim that the decision by the Second Defendant (Registrar of Titles) was unlawful on the basis of which to seek a declaration to the effect that "the decision to cancel the Title or the act of cancelling the Title was unlawful". It is clear that no such Order or relief was sought in these proceedings.
    
50. It is submitted therefore that these proceedings filed by the Plaintiff in the current mode is not appropriate in the circumstances therefore abuse of Court process.
    
51. We further submit that all the Orders or relifs sought in the Statement of Claim should be consequential to an Order sought to setting aside or quashing the decision of the Second Defendant (Registrar of Titles) to cancel the Titles by some administrative decision or Order of a Court of Competent jurisdiction.
    
52. Finally it is submitted that the Plaintiff should have filed an action by way of judicial review to review the decision by the Second Defendant to cancel the Title over the State lease. Only then or thereafter the Orders currently sought in the Statement of Claim by the Plaintiff would become possible.
    
53. Mr Goodwin, in his consolidated written submissions opposes this ground of the application. For convenience, I restate what he submitted
    
54. The basis of the Registrar's decision is in private law, designed to affect private law rights. The Registrar of Titles is not empowered by any enactment, statute or subordinate legislation to obliterate and destroy the Official Copy of the Instrument recording the State Lease of the Land. Only the Minister can provide approval or denial for the transfer of a State Lease; and ministerial approval has been granted. In the circumstances of this case, the Registrar is not endowed by law with executive powers, or empowered by public law, to make a endowed by law with executive powers, or empowered by public law, to make a decision to approve or cancel the Instrument recording the State Lease of the Land. This power, under s 128 of the Land Act, rests only with the Minster and he has properly exercised his function.
    
55. In the current substantive proceedings, the Plaintiff is attempting to pursue its private contractual rights against a private individual for specific performance of a Contract for sale and purchase of Land. Ancillary to this is the Plaintiff's private right of action against the Registrar of Titles for interfering (unlawfully, and without being endowed or empowered by public law) in its private right to have the Contract specifically performed.
    
56. These actions have nothing to do with the Title to the Land, and the proceedings do not affect the Title of the original landowners of the Land. For the Applicant to this Notice of Motion to have any standing in the proceedings, he and/or the Bubue Land Group Incorporated, or any other customary land group or organization, must have more than an issue over Title to the land, or relating to Title to the Land.
    
57. The Plaintiff does not know, and it is not relevant, whether the Bubue Land Group Incorporated has a claim to be customary owners of the Land. Section 11 of the Land Act 1996 states:
    

"Acquisition of Customary Land for the grant of special agricultural and business lease

(1) The Minister may lease customary land for the purpose of granting a special agricultural and business lease of the land.

(2) Where the Minister leases customary land under Subsection (1) an instrument of lease in the approved for, executed by or on behalf of the customary landowners, is conclusive evidence that the State has a good title to the lease and that all customary rights in the land, except those which are specifically reserved in the lease, are suspended for the period of the lease to the State."

58. In the current proceedings, the Minister has exercised his power under Section 11 to lease the Land to the Plaintiff, and this is conclusive evidence that the State has a good Title to the lease and that all customary rights in the Land, except those which are specifically reserved in the lease, are suspended for the period of the lease.
    
59. Accordingly, as a matter of law, the Plaintiff has an indefeasible Title to the Land under the State Lease that has been approved by the Minister.
    
60. If the Applicant or the Bubue Land Group Incorporated has an issue with Title to the land, this not relevant to the current proceedings, and a determination of the current proceedings will have no effect on their claim to Title. The Third Defendant is not a party to the Contract for Sale of the Land between the Plaintiff and the First Defendant. Nor are his rights, or the rights of the Bubue Land Group Incorporated, affected by the Second Defendant's actions in cancelling the unilaterally obliterated and destroyed the Official Copy of the Instrument recording the State Lease of the Land. They may have a claim against the State, but have no claim on the Plaintiff's private rights.
    
61. In any event, the Land Court has jurisdiction in PNG to hear and determine matters and disputes over title to customary land, and this is the correct forum for the Applicant, or the Bubue Land Group Incorporated, to bring any action. Any such action, claiming Title, rights or related damages, should not involve the parties in the current proceedings, and would necessarily be a separate action against the Minster for Lands and/or the Independent State of Papua New Guinea.
    
62. The Applicant has in his Affidavit raised issues of fraudulent conduct in relation to the acquisition of the State Lease to the Land by the First Defendant. As a matter of law, allegations of civil fraud impose a very high standard of proof on the Applicant, at the higher end of the balance of probabilities. These allegations are no longer pleaded in the Defense of the Third Party, and this questions the validity of the grounds of the Third Defendant in defending these proceedings.
    
63. Under Order 8 rule 14 of the National Court Rules, if the Applicant was to have a Defence based on fraud, which is denied, he is required to plead specifically the fraud or any fact showing illegality. Under Order 8 rule 30 of the National Court Rules: "A party pleading shall give particulars of any fraud, misrepresentation, breach of trust, willful default or undue influence on which he relies." The Applicant has merely made assertions of fraud in his Affidavit sworn on 9 July 2012. He has not set out any facts or maters which prove his allegation, and he has not provided full particulars of the allegations, as he is required to do when making such a serious allegation, including in the Defence. In all respects the assertions cannot be sustained, are an abuse of process, and should be dismissed by this Honourable Court.
    
64. Further, and in the alternative, the Applicant does not set out any ground or basis upon which he, or the Bubue Land Group Incorporated, has suffered damage. The Notice of Motion and the Defence simply state that the Applicant/Third Defendant, or the Bubue Land Group Incorporated, is the customary land owner of the Land. The Applicant pleads no cause of action for Defence, damages or relief, and solely for this reason, it Motion and Defence should be dismissed.
    
65. Pursuant to Order 5 rule 8(1), the Applicant/Third Defendant had no valid reason to be joined as a party to the proceedings. The Plaintiff submits that the Application and Defence is unmeritorious inter-meddling. The Applicant/Third Defendant has no rights affected by the proceedings and has no standing in relation to the issues to be determined.
    
66. The Plaintiff submits that the Applicant/Third Defendant has not made out any ground which would entitle to him, or the Bubue Land Group Incorporated, to defend these proceedings. We respectfully submit that the Notice of Motion and Defence be dismissed, with costs awarded to the Plaintiff.
    
67. Mr Ovia also filed written submissions in respect of the application to dismiss. In so far as the ground founded on Order 12 Rule 40 (1) ( c ) of NCR he made the following submissions. Again, I restate what he set out in his written submissions.
    
68. The Plaintiff's claim for Specific Performance against the First Defendant is conceded but the First Defendant is unable to complete the Sale because of the actions of the Second Defendant in the purported cancellation of the title, conduct verging on illegality given that the Second Defendant as Registrar of Titles does not have the powers to cancel Titles.
    
69. The Title granted to the First Defendant was a Special Agriculture and Business Lease (SABL) pursuant to Section 102 of the Land Act.
    
70. Section 102 relevantly states:
    

"(1) The Minister may grant a lease for special agriculture and business purposes of land acquired under Section 11.

(2) A Special Agriculture and Business Lease shall be granted-

(a) to a person or persons; or

(b) to a land group, business group or other incorporated body, to whom the customary landowners have agreed that such a lease should be granted.

(3) A statement in the instrument of lease in the approved form referred to in Section 11(2) concerning the person, land group, business group or other incorporated body to whom a special agriculture or business lease over the land shall be granted, is conclusive evidence of the identity of the person (whether natural or corporate) to whom the customary landowners agreed that the agriculture and business lease should be granted.

(4) A Special Agriculture and Business Lease may be granted for such period, not exceeding 99 years, as to the Minister seems proper. "(Emphasis added).

71. On 5th February, 2010 the Minister granted the Lease to the First Defendant whom the Landowners agreed the lease should be granted. His name is nominated in the Instrument of Lease/Lease Back. (See Annexure "F"to Mr. Goodwin Poole's Affidavit of 26th April, 2012).
    
72. There is no prohibition against the grant of SABL's to be granted only to ILGs as the Second and Third Defendants seem to think.
    
73. There is no legal requirement for SABL's to be granted only to ILG's as the Second Defendant and Third Defendants seem to think.
    
74. The lease was of land tht had been acquired by the State pursuant to Section 11 of the Land Act.
    
75. Section 11 states:
    

"ACQUISITION OF CUSTOMARY LAND FOR THE GRANT OF SPECIAL AGRICULTURE AND BUSINESS LEASE.

(i) The Minister may lease customary land for the purpose of granting a special agriculture and business lease of the land.

(ii) Where the Minister leases customary land under Subsection (1), and instrument of lease in the approval form, executed by or on behalf of the customary rights in the land, except those which was specifically reserved in the lease, are suspended for the period of the lease to the State....."

76. The Lease over Portion 2579C to the First Defendant was granted by the Minister pursuant to Section 102 of the Land Act having acquired it pursuant to Section 11.
    
77. If the Third Defendant was aggrieved by the grant of the SABL then it had to seek Judicial Review rather than perhaps complaining to the Second Defendant, the Registrar of Titles. That is what the aggrieved landowners did in the case of Yanta Development Association Inc. Piu Land Group Inc. (2005) SC 798 where the grant of lease was disputed on the basis of lack of consent prompting the minister to revoke the lease which in turn resulted in a Court challenge by the Title Holder.
    
78. The Registrar of Titles, the Second Defendant has purported to exercise powers that it did not have thereby rendering his actions illegal, illegal interference of the First Defendant's property contrary to Section 33 of the Land Registration Act, Chapter 191.
    
79. Section 33 relevantly states:
    

"Protection registered proprietor.

(1) The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except-

(a) In the case of fraud; and

See; the often cited cases of Mudger –v- Secretary for Lands [1983] PNGLR 387 & Emas Estate Development Pty ltd –v- John Mea [1993] PNGLR 215.

80. As can be seen from the nature of the submissions from the plaintiff and the first defendant the arguments are concentrated on the issue involving the actions of the Registrar.
    

81. As the proceedings against the second defendant have been dismissed, these submissions based as they are on claims against the second defendant cannot be sustained.

82. In my view, the effect of dismissing the claim against the second defendant, means inter alia, that the decision of the second defendant to cancel the state lease remains in full force and effect. That decision has not been stayed or over turned by anyone.
    
83. The fact that the claim against the second defendant is dismissed does not necessarily put an end to the entire proceedings. The remaining proceedings is still on foot as between the plaintiff, the first defendant and the third defendant.
    
84. The plaintiff's relief against the first Defendant is for specific performance and in the alteration claim for general and exemplary damages. The first defendant has conceded to the plaintiff's claim. In so far as the claim for specific performance is concerned, in my view this maybe incapable of performance in that the Title Deed has been cancelled and destroyed. There is no title to deliver by the first defendant to the plaintiff. Thus to that extent the reliefs sought in paragraphs 1 and 2 of the statement of claim could not be granted. AS the first defendant has admitted the plaintiff's claim against it, there shall be judgment against the first defendant for damages to be assessed.
    
85. As to the third defendant there is really no claim by the plaintiff against the third defendant. I granted leave for the third defendant to join as party as it asserted and still asserts an interest over the land in question. In the end I do not propose to dismiss the proceedings as urged upon me by the third defendant. In that regard I note that the third defendant has filled a cross claim against the plaintiff and first defendant.
    
86. For those reasons I would make the following orders:
    
    1. The proceedings by the plaintiff against the second defendant is dismissed.
    2. The Motion by the plaintiff for default judgment against the second defendant is dismissed.
    3. The Motion by the second defendant is dismissed.
    4. Judgment is entered for the plaintiff against the first defendant for damages to be assessed.
    5. The plaintiff shall pay the costs of the second and third defendants, such costs to be agreed, if not taxed.
    6. The first defendant is to pay the plaintiff's costs, to be agreed, if not taxed.
       

___________________________________________

O'Briens Lawyers: Lawyers for the Plaintiff
Ketan Lawyers: Lawyers for the First Defendant
In house Lawyers: Lawyers for the Second Defendant
Bristle Lawyers: Lawyers for the Third Defendant