Kaiuan v Kun [2019] PGNC 469; N8350 (29 July 2019)

N8350

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1018 of 2018 (CC3)

BETWEEN:
CLETUS KAIUAN
Plaintiff

AND:
ROLAND KUN
Defendant

Waigani: Hartshorn J
2019: 26^th & 29^th July

PRACTICE AND PROCEDURE - Application for summary judgment – defendant does not have an arguable defence or a real question to be tried - plaintiff has satisfactorily made out to the required standard that he is entitled to the summary judgment that he seeks – application for summary judgment granted

Cases Cited:

Bruce Tsang v. Credit Corporation Ltd [1993] PNGLR 112
Christopher Smith v. Ruma Construction Ltd (2000) N1982
William Duma v. Eric Meier (2007) SC898

Counsel

Mr. C. Kaiuan, in person

29^th July, 2019
1. HARTSHORN J: This is a decision on an application for summary judgment pursuant to Order 12 Rule 38 National Court Rules.

2. I allowed the application to be moved in the absence of representation on behalf of the defendant as I was satisfied that the notice of motion of the plaintiff and affidavit in support had been served upon the lawyers for the defendant and that the lawyers for the defendant had been notified of the hearing date and time of the said notice of motion.

Background

3. The plaintiff claims that he owns the property located at Allotment 71 Section 370, Hohola, Port Moresby, National Capital District, being all that the land contained in State Lease Volume 119 Folio 188 (Property) and has since 15^th April 1991. He further claims that the defendant illegally entered upon the Property in or about 2006, has continued to occupy the Property and has built improvements thereon. The defendant has refused to vacate the Property notwithstanding demands by the plaintiff.

4. The plaintiff commenced this proceeding seeking vacant possession of the Property and that leave be granted for a Writ of Possession to be issued in respect of the Property. Consequential orders are also sought.

5. The defendant has filed a defence in which he pleads amongst others, that the Property is mortgaged to the Bank South Pacific, the plaintiff lacks capacity to sue for the Property and that this court lacks jurisdiction.

Law

6. In the Supreme Court case of Bruce Tsang v. Credit Corporation Ltd [1993] PNGLR 112 the Court in considering Order 12 Rule 38 National Court Rules said that there are two elements involved, being:

a) evidence of the facts proving the essential elements of the claim; and

b) that the plaintiff or some responsible person gives evidence that in his belief there is no defence.

7. The Court stated further:

“If a defence is filed or evidence is given by the defendant ... the plaintiff must show that, upon the facts and/or the law, the defendant has no defence. The plaintiff will not be entitled to summary judgment if there is a serious conflict of fact or law.”

8. There are numerous decisions concerning the requirements for a successful summary judgment application. One of these is William Duma v. Eric Meier (2007) SC898. As to an application for summary judgment the Court said:

“Summary judgment is a discretionary power and may be granted if there is evidence of facts on which the claim is based and evidence is given by some responsible person that in his belief the defendant has no defence to the claim or part of the claim.........

The discretion conferred on the Court should be exercised in a clear case and with considerable care. Summary judgment should be granted only where there is no serious triable issue of fact or law. If there is no dispute as to fact and there is clear admissions of the claim or part of the claim then judgment must be entered for the plaintiff.”

9. I also make reference to a passage in Christopher Smith v. Ruma Construction Ltd (2000) N1982, a decision of Sakora J in which his Honour, in my respectful view, correctly records the test to be applied when regard is had to the wording of Order 12 Rule 38 (1) National Court Rules. For summary judgment to be entered:

“1. The applicant must verify by affidavit evidence the cause of action.

2. The applicant must swear to a belief on his part that the respondent (defendant) has no defence to the cause of action (or the pleadings).

If the Court has been satisfied in respect of (1) and (2), then the onus is on the respondent to:

3. show an arguable defence or that there is a real question to be tried.”

Consideration

10. In this instance, the plaintiff deposes in detail as to his claim against the defendant. Significantly, he annexes amongst others, a copy of State Lease 119 Folio 188 for the Property which has registered upon it the transfer to the plaintiff on 15^th April 1991. The last entry on the State Lease is the registration of a mortgage to Bank of South Pacific Ltd. The plaintiff also deposes that in his belief the defendant does not have a defence to his claim.

11. The plaintiff has satisfied the two factors or elements previously referred to. The plaintiff’s cause of action has been verified by him and he has sworn that it is his belief that the defendant does not have a defence to the plaintiff’s claim.

12. The onus is now upon the defendant to show that he has an arguable defence or that he has a real question to be tried. As referred to, there was no representation on behalf of the defendant at the hearing of the application for summary judgment.

13. The defendant has filed a defence. In that defence the defendant denies that the plaintiff has title to the Property but he then pleads that he does not know and cannot deny that the Property was purchased by, and transferred to the plaintiff. The defendant further pleads that the plaintiff is not entitled to the Property, as it was vacant for a considerable period and that the Property is mortgaged to the Bank South Pacific. Further, it is pleaded that this court does not have jurisdiction to issue orders for eviction on state leases.

14. That the property is mortgaged or that the property is vacant are not defences that have merit. Further, this court does have jurisdiction to grant the orders sought by the plaintiff. The defendant has not pleaded that he has a better title to the Property than the plaintiff and indeed, has not pleaded that he has any entitlement to the Property. There is no evidence before the court of any such entitlement.

15. I am not satisfied that the defence demonstrates that the defendant has an arguable defence or a real question to be tried. I am satisfied that the plaintiff has satisfactorily made out to the required standard that he is entitled to the summary judgment that he seeks.

Orders

16. It is ordered that:

a) Summary judgment pursuant to Order 12 Rule 38 National Court Rules is entered in favour of the plaintiff against the defendant;

b) The defendant is ordered to deliver up to the plaintiff possession of the land described as Allotment 71 Section 370, Hohola, Port Moresby, National Capital District, being all that land contained in State Lease Volume 119 Folio 188 (Property) on or before 12^thAugust 2019;

c) If the defendant does not deliver up vacant possession of the Property on or before 12^th August 2019, the plaintiff is granted leave after 12^th August 2019 to issue forthwith a writ of possession in respect of the Property on terms that the Sheriff with the assistance of the Police are, for the purpose of delivering up vacant possession of the Property, empowered to enter the Property and cause the plaintiff to have vacant possession of the Property;

d) The defendant shall give to the plaintiff an account of the total rental collected from the Property by the defendant since the defendant has been in occupation of the Property, within 21 days of today;

e) The defendant shall pay the plaintiff’s costs of and incidental to this proceeding;

f) Time is abridged.
__________________________________________________________________
The Plaintiff appears in person
Konjib & Associate Lawyers: Lawyers for the Defendant