Alu Signs Ltd v Ben [2021] PGNC 238; N9089 (24 August 2021)

N9089

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 17 OF 2021

BETWEEN:

ALU SIGNS LTD

Plaintiff

AND

JOHN BEN

Defendant

Waigani: Tamade AJ

2021: 24^th August

PRACTICE AND PROCEDURE – notice of motion - application for orders seeking vacant possession of land occupied illegally by defendant – defendant and his family living on the subject property with license granted to them by owner of the plaintiff company who is the title holder – defendant has not done anything to disturb the title especially on grounds of fraud – plaintiff is registered proprietor of the subject land and is entitled to vacant possession of the land – orders sought in the notice of motion granted

Cases Cited:

Kiso v Otoa [2013] PGSC 3

Andma v Morassi [2013] PGNC 124

Godowan Investments Ltd v Wambea [2018] PGNC 171

Ready Mixed Concrete Pty Ltd v The State, Samana and Kiamaba [1981] PGNC 91

Amiau v Yalbees [2020] PGSC 133

Counsel:

B Frizell, for the Plaintiffs

J. Ben, Defendant in Person

24^th August, 2021

1. TAMADE, AJ: This is a claim by the Plaintiff by way of Originating Summons seeking vacant possession of land described as Allotment 5, Section 387, Hohola, National Capital District in State Lease Volume 36 Folio 92.

2. The Plaintiff is represented by Mr. Frizell and the Defendant appeared in person. I note that when the matter was first mentioned before His Honour the Deputy Chief Justice on the morning of 24^th August 2021, the Defendant sought an adjournment of this matter to seek legal representation from the Office of the Public Solicitor as his previous lawyers had ceased to act for him. Whilst sitting as an Acting Judge observing proceedings with Justice Kandakasi the DCJ, I note His Honour had declined the application for adjournment by the Defendant and set the matter down for hearing at 1:30pm that afternoon before me.

3. On hearing this matter at 1:30pm, Mr. Frizell moved his Notice of Motion filed on 23 August 2021 basically seeking a variation of the Orders of the Court made on 28 July 2021 for the time for filing and serving Affidavits and notices under the Evidence Act to be extended for reasons that these documents were uplifted late by the Registry and were therefore served late on the Defendant. Mr. Frizell also sought in his client’s Notice of Motion to vary the Orders of 28 July in terms of filing and serving of submissions and to rely on these submissions without service on the Defendant as there would be no prejudice to the Defendant.

4. Mr. Ben the Defendant in reply to Mr. Frizell’s application again sought an adjournment of this matter and I informed him again of the decision by His Honour the DCJ to refuse his application for adjournment this morning and affirmed the Court’s position in relation to the request for adjournment. I granted Mr. Frizell’s application accepting extension of the Orders of the Court on 28^th July 2021 as the Defendant was duly served before the hearing.

5. Mr. Frizell then proceeded to take the Court through the substantive hearing of this matter and after hearing Mr. Frizell and the Defendant, this is my decision in relation to this matter.

6. I note from the Affidavit of Pauline Ahmon sworn on 6^th May 2020 and filed on 14^th May 2020 that she is a director of the Plaintiff company.

7. I also note from Ms. Ahmon’s affidavit that the Plaintiff company is the registered proprietor of the land the subject of this proceedings described as Allotment 5 Section 387, Hohola, NCD contained in State Lease volume 36 folio 92. The State lease is a Business (Commercial) lease granted to the Plaintiff company, Alu Signs Limited from 6^th August 2009 until 5^th August 2108 for a period of 99 years.

8. I note that on or about September of 2014, the Defendant and his family moved on to the property the subject of these proceedings due to ethnic clashes as stated by Pauline Ahmon in her Affidavit as they had nowhere else to stay.

9. I note that Ms. Pauline Ahmon’s mother, Margaret Ahmon left Papua New Guinea in 2014 and her husband later died in 2016. There maybe some kind of relationship between the late Mr Ahmon and the Defendant in which the Defendant relies on as his approval to stay on the property and to continue to do so.

10. I note from Ms. Ahmon’s Affidavit that there was an eviction letter given to the Defendant in 2016 for him to comply but he refused to do so.

11. I note the Affidavit of Glenda Ahmon sworn on 5^th August 2021 and filed on 6 August 2020 that she is a director of the Plaintiff company as well as her mother Margaret Ahmon nee Inono and both are resident in Austria whilst Pauline Ahmon is the director of the Plaintiff company that is resident in PNG.

12. I note from the Affidavit of Pauline Ahmon sworn on 2 August 2021 and filed on 6 August 2021 that improvements on the subject property were destroyed by fire in June 2018 and since then the Plaintiff has not been able to comply with the improvement covenants of the State lease due to the Defendant’s continuous occupation of the property.

13. The Plaintiff states that it has served several notices to vacate the property to the Defendant however in all instances over the years, the Defendant has refused to comply.

14. In hearing the Defendant in response to Mr Frizell, the Defendant states that he does not have his file with him and therefore he still required the services of a lawyer. I reiterated to the Defendant the decision of the Court in relation to his application for adjournment which was declined and referred him to affidavits of himself and his wife filed in these proceedings.

15. I note the Affidavit of John Ben Oreng which is the Defendant in these proceedings sworn on 3 August 2020 and filed on 4 August 2020. I note that the Defendant concedes in paragraph 3 of his Affidavit that the Plaintiff company is the registered title holder to the subject property.

16. From the Affidavit of John Ben Oreng, the Defendant is a relative and or the nephew of Margaret Ahmon and Margaret has allowed him and his wife to reside on the property and take care of the property. The Defendant seems to say that he will not vacate the property until Margaret Ahmon expressly tells him and his family to vacate the property as she has invited them on to the property. The Defendant appears to not believe Pauline Ahmon as representing the Plaintiff company as he would only believe Margaret Ahmon.

17. In hearing the Defendant from the bar table, he made serious allegations that it was Pauline Ahmon who was responsible for the fire that destroyed the property in June 2018. I note from the Defendant’s affidavit at paragraph 15 that the building on the subject property caught on fire due to “some welding at the front end of the shop which the fire was reported to have started.”

18. I also note the Affidavit of Helen Auo Ben sworn on 3^rd August 2020 and filed on 4^th August 2020 that she is the wife of the Defendant. Mrs. Ben acknowledges that they moved on to the property in September 2014 from Vadavada settlement and have been residing there ever since.

19. Mrs. Ben states that her husband helped to take care of Mr. Ahmon when he was very ill. This may have contributed to the Defendant refusing to leave the property due to his bond with the late Mr. Ahmon and any promises that the late Mr. Ahmon and or his wife, his aunt may have made to the Defendant to remain on the property.

20. Mrs. Ben acknowledges receiving several notices to vacate the property from the Plaintiff company. I note at paragraph 8 of her Affidavit that she agrees that the cause of the fire on the building on the property in 2018 was believed to have been caused by “welding done by Ms. Pauline Ahmon and her ex-husband”.

21. Mr. Ben from the bar table made submissions that he was granted some form of power of attorney by the late Mr Ahmon to occupy the property and then sell the property and remit the proceeds to his aunt Margaret Ahmon in Austria.

22. Mr. Frizell however referred me to an Affidavit of Service of Thompson Kama sworn on 27 July 2021 and filed on 27 July 2021 particularly annexure A of that affidavit which enclosed a copy of a Notice of Revocation which revoked any power of attorney granted by the late Mr. Ahmon to the Defendant. The Notice also stated that the Plaintiff company had no record whatsoever of any power of attorney granted by the late Mr. Ahmon as a representative of the company.

23. The law is settled in this jurisdiction in terms of a title holder’s right to exclusive possession of land under a clear and valid title with the exception where the title is obtained by fraud.

24. I note section 33 (1) of the Land Registration Act in regard to indefeasibility of title.

Section 33 (1) of the Land Registration Act states that:

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

(a) in the case of fraud; and

(b) the encumbrances notified by entry or memorial on the relevant folio of the Register; and

(c) the estate or interest of a proprietor claiming the same land under a prior instrument of title; and

(d) in case of the omission or misdescription of any right-of-way or other easement created in or existing on the same land; and

(e) in case of the wrong description of the land or of its boundaries; and

(f) as to a tenancy from year to year or for a term not exceeding three years created either before or after the issue of the instrument of title of the registered proprietor; and

(g) as provided in Section 28; and

(h) a lease, licence or other authority granted by the Head of State or a Minister and in respect of which no provision for registration is made; and

(i) any unpaid rates, taxes, or other money which, without reference to registration under this Act, are expressly declared by a law to be a charge on land in favour of the State or of a Department or officer of the State or of a public corporate body.

(2) The operation of Subsection (1) is not affected by the existence in any other person of an estate or interest, whether derived by grant from the State or otherwise, which, but for this Act, might be held to be paramount or to have priority.

25. I restate that the Defendant agrees that the title to the property is held by the Plaintiff company.

26. There are no allegations of fraud on the title by the Plaintiff however the Defendant seem to assert that he was invited on the property by his aunt and the late Mr. Ahmon and there may have been conversations and or agreements between these two people, the late Mr. Ahmon and Margaret Ahmon that may have created certain expectations in the Defendant that he was to remain until such time he was to be expressly told by Margaret Ahmon to vacate the property and or carry out her wishes be it to sell the property and vacate it.

27. Allegations of fraud on the subject land should also be made out by the Defendant if he was to raise such allegations. I note the case of Kiso v Otoa [2013] PGSC 3 where the Court stated that the onus of proving fraud on a registered title to land rests with the Appellant or the person alleging fraud.

28. I note the case of Andma v Morassi [2013] PGNC 124 where the Court stated that an interested person alleging fraud must take “distinct, formal and legal steps to challenge the registered proprietor’s title.”

29. Similar statements were made in the case of Godowan Investments Ltd v Wambea [2018] PGNC 171 that in regard to allegations of constructive fraud (and or fraud in general), a party alleging fraud must take legal steps to challenge it and substantiate those mere allegations and such actions must be taken in a timely manner. The Godowan case is similar to this matter where the Plaintiff sought declaratory relief that it was the registered proprietor of the subject State Leases for vacant possession of land though in this matter, there are no allegations of fraud against the Plaintiff company.

30. I note the case of Ready Mixed Concrete Pty Ltd v The State, Samana and Kiamaba [1981] PGNC 91 in regard to equitable interests of squatters on land where they have no legal right. In the Ready Mixed case, these squatters were never given any notice to vacate by the title holders and remained on the land for quite a long period of time unauthorized and without objection.

31. I note the case of Amaiu v Yalbees [2020] PGSC 133 which followed the case of Ready Mixed that “squatters or those who occupy land over a long period of time, without authority, but also without objection, acquire an equitable interest in the land, analogous to a licence, entitling them to remain on the land for a reasonable period.” In the Amaiu case, the registered proprietor was aware of the presence of the squatters on the subject land.

32. I find that the Plaintiff company not only knew about the presence of the Defendant and his family but invited them in however there was a breakdown of any such well-meaning intention to keep the Defendant and his family. Over the years, notices were given for the Defendant and his family to vacate the premises however the Defendant has chosen not to comply.

33. From the cases stated herein, an equitable right to stay on the property/land as opposed to a legal right of ownership gives considerable time for the squatters and or current occupants to vacate and or pull down and remove any structures erected on the land and ultimately give up possession over reasonable time. The equitable right cushions the harsh exit on the land and gives extended period to remain on land however, it cannot equate to the legal interest in the land. The Defendant and his family were invited on to the property and have overstayed their welcome.

34. I find that as the Plaintiff has a valid and clear title to the subject property, the Plaintiff is entitled to possession of the subject land and the Defendant and his family, and any other persons residing on the property without the consent of the Plaintiff company must vacate the property and give vacant possession to the Plaintiff company forthwith.

35. I note that the Defendant and his family have been fully aware of the Plaintiff company’s intention for them to give up possession of the property for several years and therefore ordering them to leave the property should not come as a surprise.

36. I note that the Plaintiff in its’ pleading in the Originating Summons has sought for the Defendant to give up possession of the property in 14 days however in its submissions, the Plaintiff company has sought to be reasonable and give 30 days for the Defendant to vacate the property. In the Godowan Investment case stated herein, the Court gave 2 months for the occupants to take down any structures erected on the land and vacate the land. I view 30 days as a reasonable time frame to allow the Defendant to vacate the property failing which a Writ of possession of property pursuant to the National Court Rules shall be issued to the Plaintiff forthwith.

37. I therefore make the following orders:

1. The Plaintiff is entitled to vacant possession of land described as Allotment 5, Section 387, Hohola, National Capital District and contained in State Lease volume 36, folio 92 (‘the land’).
   
2. The Defendant and his servants and agents are to give up vacant possession of the subject land and the Plaintiff is to enter and possess the land.
   
3. The Defendant, his family, and their servants and or agents are to give vacant possession to the Plaintiff company within 30 days from the date of these orders.
   
4. Should the Defendant, his family and or his servants and agents refuse to give up possession of the land to the Plaintiff company within 30 days from the date of this Orders, a Writ of Possession shall be issued to the Plaintiff forthwith.
   
5. Each party shall meet their own costs of these proceedings.
   
6. The time for entry of these orders shall be abridged to the date of these orders which shall take place forthwith.
   

Orders Accordingly.

________________________________________________________________

B. Frizell: Lawyer for the Plaintiffs

J. Ben: Lawyer for Defendant