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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 1348 OF 2014
BETWEEN:
POGE GEWANE
Plaintiff
AND:
ULLI KIKI
First Dependant
AND:
MAE LIMITED
Second Dependant
AND:
GERALD AISA
Third Dependant
AND:
BENJAMIN SAMSON, DEPUTY REGISTRAR OF TITLES
Fourth Dependant
AND:
MR RAGA KAVANA, THE REGISTRAR OF TITLES
Fifth Dependant
AND:
DEPARTMENT OF LANDS & PHYSICAL PLANNING
Sixth Dependant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Dependant
Waigani: Ipang J
2015: 23th June
2016: 25th February
CIVIL-MOTION - Plaintiff applying for an interim injunction against First & Second defendants, their servants, agents and relatives and any other third parties from carrying out the Construction work on the property Allotment 69 Section 16, Hohola, National Capital District.
PRACTICE & PROCEDURE- Grant of injunctive orders - principles applicable –Is there a serious issue to be tried?, Undertaking as to damages- would damages be an adequate remedy, does the balance & convenience favor the granting of interim injunction, do the interest of justice require that the interim injunction be granted.
RULING
25th February, 2016
(i) Pursuant to Section 155(4) of the Constitution order 14 Rule 10(1)and order 12 rules 1 of the National Court Rules an order for an interim injunction against the First and Second Defendant, their servants, against and relatives and any other third parties from carrying out the construction work that is currently taking place on the said property describe as Allotment 69 Section 16, Hohola, National Capital District being the whole land contained in the State Lease Volume 13 Folio 3033 and from carrying out any further dealings with and on the property in any manner or form until the determination of the substantive issues in the proceeding.
(ii) The above interim orders be made returnable on the date fixed by the court or at such other time as extended by the court from time to time.
(iii) Costs of this application are borne by the defendants.
Statement of Claim
2. At all material times, the plaintiff is the registered legal proprietor of the property described as Allotment 69,Section 16, Hohola, National Capital District being the whole land contained in the State Lease Volume 13 Folio 3033.(Herein after referred to as the "Property").
3. The Plaintiff, through an agent, namely Our Real Estate Limited, purchased the said property in good faith from the third Defendant, the former landlord /leaseholder, for a sum of K200,000.00 particulars of which are given herein below. The plaintiff then took vacant possession of the said property thereof.
Particulars
4. On or around 20th October 2008, the Third Defendant through Our Real State Limited as an agent advertised to sell the property
on his behalf for a sum of K200,000.00
5. On or around 20th October 2008, the plaintiff showed interest in the property and made enquiries.
6. On or around 26th October 2008, the Plaintiff inspected the Original Title Deed of the said property and after confirming the Third Defendant as the registered landlord of the property, he physically inspected the said property.
7. On or around 05th November 2008,the plaintiff entered into a Contract of Sale and Agreement with the Third Defendant On the same day,the Plaintiff also executed the transfer with the Third Defendant.
8. Around 06th November 2008, the Plaintiff through his agent, lodged both the executed Contact of Sale and the Transfer Instrument
with the Internal Revenue Commission.
9. On the 08th December 2008, the Plaintiff entered into a Housing Bank Loan Agreement with the Bank South Pacific for a sum K169,
400.00.
10. On 08th December 2008, the Plaintiff entered into a Mortgage Agreement with the Bank South Pacific.
11. On 29th October 2010, at about 3:10 pm, Fourth, Fifth and Sixth Defendants transferred and registered the Title of the said property to the Plaintiff.
12. On the 29th October 2010, at about 3:12pm, the Fourth, Fifth and Sixth Defendants registered the Bank South Pacific as the mortgagee of the said property.
13. Thereafter on the same day, the Plaintiff took vacant possession of the said property.
14. Subsequently on or around 10th November 2010 or thereof, the First Defendant together with a group of young men illegally entered the said property and forcefully removed the Plaintiff from the said property.
15. That illegal entry of the First Defendant on to the said property was occasioned by the Defendants when the said property was fraudulently transferred to the Second Defendant by the Fourth, Fifth and Sixth Defendants.
Particulars of Fraud
16. That on 8th September 2010, the Fourth, Fifth and Six Defendants, whilst having full knowledge and with the intention to commit a crime or fraud, willfully erased and changed the Fifth Defendants official copy of the Original Title deed to backdate and insert a Notice No.54843 under Section162 of the Land Registration Act, Chapter, 191 in order to illegally and fraudulently register and transfer the said property to the Second Defendant.
17. The Fourth, Fifth and Sixth Defendants whilst having full knowledge from their records that the Plaintiff has the owner original copy of the instrument of Title of the property registered under his name, and duly mortgaged to the Bank South Pacific, falsely and fraudulently erased, changed, back date and inserted a Notice No.54842 under Section162 of the Land Registration Act Chapter, 191 on the 8th September,2010 to accommodate the illegal and fraudulent transfer of the said property to the Second Defendant.
18. That the said Notice pleaded immediately above in sub paragraphs (a) & (b) was done in contravention of Section 162 (4) of the Land Registration Act Chapter 191.
19. The said notice pleaded herein above was not gazetted in the National Gazette and published in the Daily newspapers for fourteen (14) days as required under Section 162(4) of the Land Registration Act Chapter 191
20. The said Notice as pleaded herein above in paragraphs (16)(17),(18)and(19), if it was legally done which is denied ) was not done on the request of the Third Defendant or the plaintiff as the current registered proprietor of the said property .
21. That the said Notice as pleaded herein above was illegally and fraudulently produced one (1) day after the purported Gazettal Notice was illegally and fraudulently produced on 7th September, 2010.
22. That on the same day 07th September,2010 whilst having full knowledge of the existence of the plaintiffs Owners Original copy of the Title Deed of the said property which was mortgaged to the Bank South Pacific, and with full intention to defraud, the Fourth, Fifth and Sixth Defendants, fraudulently eroded, backdated and changed the Plaintiffs original copy of the Title Deed which was mortgaged to the Bank South Pacific and reproduced a new Owners original copy of the Titled Deed and registered it in the name of the Second Defendant in the Register of Titles as No.S.34844.
23. That on the same day on 07th September,2010 and on the 08th September 2010,whilst having full knowledge that there were no evidence of contract of sale duly exempted by the Stamp Duties Act, transfer instruments and payments in rental arrears and Ministerial approval, fraudulently transferred and registered the said property to the Second Defendant.
24. That the happenings described in paragraphs (16) to (23) herein above were all fraudulently done on the same day 7th and 8th September, 2010 under corrupt and fraudulent dealings between the First, Second, Fourth, Fifth and Sixth Defendants.
25. That the First and Second Defendants whilst having full knowledge and with intent to defraud and deprive the plaintiff of his property fraudulently allowed the said property to be transferred to his name under corrupt dealings as pleaded elsewhere herein above.
26. That on 18th May 2011, the Plaintiff filed District Court proceedings seeking to evict the First and Second Defendants from the said property which was struck out by the court for non attendance by the Plaintiff and his lawyer.
27. That as a result of the matters pleaded herein above and the illegal fraudulent transfer of the said property to the Second Defendants, the Plaintiff has suffered loss and damages.
Particulars of Loss &Damages
(a)Loss of ownership of the said property to the Second Defendant
(b) Loss of peaceful enjoyment on the property
(c) Hardships, stress and anxieties
(d) Loss of income the Plaintiff would have otherwise earned from the said property.(Particulars will be provide at or before the full hearing of this matter).
And the Plaintiff therefore claims:
(a) An Order declaring that the purported transfer of the property described as Allotment 69, Section 16, Hohola National Capital District being the whole of the land contained in the State Lease Volume 13 folio 3033, on the 7th and 8th September,2010 to the Second Defendant is fraudulent and is therefore null and void.
(b) An Order declaring that the purported sale and transfer of the property described as Allotment 69, Section 16, Hohola National Capital, being the whole of the land contained in the State Lease Volume 13 folio 3033, between the Third Defendant and the Second Defendant on the 7th and 8th September, 2011 is fraudulent and /or unconscionable and is therefore null and void.
(c) The Registrar of Titles to take appropriate steps to cancel the purported transfer of the said property to the Second Defendant and restore or register the plaintiff as the duly registered title holder of the said land.
(d) An Order for an interim injunction against the First and Second Defendants, their servants and agents, relatives and any other third parties from carrying out the construction work that is currently taking place on the said property described as Allotment 69 Section16,Hohola National Capital District, being the whole of the land contained in the State Lease Volume 13 folio 3033 ("the property") and from carrying out any further dealing with and on the property in any manner or form until the determination of the substantive issues in this proceeding.
(e) General Damages
(f) Exemplary damage
(g) Special damages interests and
(h) Cost of these entire proceedings.
(i) Any other orders the Honorable
(j) Court deems fit to make in the circumstances.
28. The notice of motion is supported by the plaintiff's affidavit sworn on and filed on the 30th October, 2014.
29. Plaintiff deposed of the fact that in 2008 he was interested to purchase a property in Port Moresby and Our Real Estate to identify a property. At the same time the property Allotment 59 Section 247 Hohola was for sale at K200,000.00. He applied for a bank loan at South Pacific Bank for K169, 400.00 and the equity contribution of K30, 600.00. However, around November, 2008 the owner of this property withdrew the sale.
30. Around that time Our Real Estate secured another property at Alloment 69 Section 16 Hohola, National Capital District (State lease Volume 13.Folio 3033) owned by the third Defendant .He applied for a loan variation and the variation were approved on the 6 November, 2008.
31. He entered in to a contract of sale on the 5th of November, 2008 and simultaneously executed the Transfer Instrument with the Internal Revenue Commission (IRC). Thereafter, on the 8 November, 2008, the plaintiff entered in to a Housing Bank Loan Agreement with the Bank South Pacific for K169, 400.00. Currently the Plaintiff is repaying the said loan. He also entered in to Mortgage Agreement with the Bank South Pacific. Plaintiff further deposed that on the 29th October, 2010 at around 3.10pm Defendants transferred and registered the title of the property to him and registered the Bank South Pacific as mortgage of the property .On the same date, The Plaintiff took possession of the property.
32. On or around 10th November,2010 the plaintiff claimed the First Defendant together with a group of young men illegally entered his property (the current property now in dispute ) with a copy of the title deed to the property and claimed to be the rightful owner of the said property and forcefully removed the plaintiffs family. Plaintiff says he inspected the Title Deed and confirmed the property was transferred to the Second Defendant on the 7th September, 2010.
33. Plaintiff says he belayed the illegal entry by the First Defendant in the property he occupied at that same time was occasioned by the Fourth, Fifth and Sixth Defendant when they illegally and fraudulently transferred his property to the Second Defendant.
34. Plaintiff says that he noticed there is heavy construction work been carried out on the subject property and would like an urgent interim injunctive order to restrain the First and Second Defendant and their servants, agents relatives and any other third parties from carrying out any construction work or make any further dealings with the said property until substantive issue are determined.
Response by the First Defendant
35. The First Defendant who is the Managing Director of the Second Defendant filed in an affidavit sworn and filed on the 5th December, 2014 in response to the plaintiff's motion.
36. First Defendant deposed that he is well aware of the current proceedings instituted by the plaintiff .He said the dispute is over title between the Second Defendant and the plaintiff over property described as Allotment 69,Section 16, Hohola, National Capital District being the whole of the land comprised in the state Lease Volume 13,Folio 3033.
37. First Defendant said similar proceeding involving the same parties was instituted by the Second Defendant in or around 2011 in proceedings OS.No.757 of 2011. He said the proceedings were fully determined in favour of the Second Defendant Mae Limited (the then plaintiff ) on about 24th November,2014.
38. The Substantive orders granted on the 24th of November, 2014 in OS. No. 575 of 2011 were as follow:
Court Analysis
39. The Plaintiff's filing of this proceeding described as WS. No. 1348 of 2014 is clearly an abuse of the court process. The proceedings described as OS.No.575 of 2011, involving the same parties had substantially determined the issue of ownership and title to the property known as Allotment 69 Section 16, Hohola National Capital District as contained in State Lease Volume 13 Folio 3033.
40. I know and verily believe if the Plaintiff had brought that fact to the attention of his Lawyers the court order dated 24 November, 2011 which has substantially determined issue of title to property Allotment 69 Section 16 Hohola, National Capital District, I do not think the current proceedings WS.No.1348 of 2014 would have been filed.
41. The current proceeding WS.No.1348 of 2014 is more or less duplication of previous preceding OS.No.575 of 2011 and like I have started it is an abuse of court process. The Plaintiff in his right view should have appealed the decision of OS.No.575 of 2011 if he is aggrieved.
42. Because of this, I will dismiss the Plaintiff Notice of Motion filed on 30th of October, 2014 with costs. Cost to be agreed and not to be taxed.
Greg Manda Lawyers: Lawyers for the Plaintiff
Rageau Manua & Kikira Lawyers: Lawyers for the First & Second Defendant
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URL: http://www.paclii.org/pg/cases/PGNC/2016/34.html