|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO.461 OF 2019
BETWEEN:
MARTIN MASO
Plaintiff
AND:
OA UME
First Defendant
AND:
HENRY UME
Second Defendant
AND:
EVAN KIPAKAPU
Third Defendant
Waigani: David, J
2021: 1st & 6th September
PRACTICE & PROCEDURE – application to set aside order – National Court Rules, Order 12 Rule 8.
Cases Cited:
Papua New Guinea Cases
Green & Co. Pty Ltd v Green [1976] PNGLR 73
Barker v The Government of Papua New Guinea [1976] PNGLR 340
The Government of PNG & Davis v Barker [1977] PNGLR 386
George Page Pty Ltd v Balakau [1982] PNGLR 140
Mudge v Secretary for Lands [1985] PNGLR 387
Mapmakers Pty Ltd v Broken Hill Pty Ltd [1987] PNGLR 78
Leo Hannet v ANZ Banking Group (PNG) Ltd (1996) SC505
Leo Duque v Avia Andrew Paru [1997] PNGLR 378
Motor Vehicles Insurance (PNG) Trust v Joseph Bure (1999) SC613
Andrew Baing v The Independent State of Papua New Guinea and Papua New Guinea Stevedores and Bank of Papua New Guinea (2000) SC627
Christopher Smith v Ruma Constructions Ltd (2002) SC695
Salamo Elema v Pacific MMI Insurance Ltd (2007) SC1321
George Kakas v NHC (2015) SC1611
Wawoi Guavi Timber Company Ltd v John Molu (2016) SC1514
State & Ors v Kui Kot, Unreported Judgment of the Supreme Court (Davani, J, Manuhu, J & Sawong, J) delivered on 25 July 2016
Susie Hapoto v Solomon Kiage (2017) N6942
Overseas Cases
Williams v Hensman [1861] EngR 701; (1861) 70 ER 862
Evans v Bartlam [1937] AC 473
Treatise Cited:
HA Amankwah et al, Land Law in Papua New Guinea, LBC Information Services, 2001
Osborn’s Concise Law Dictionary, Tenth Edition, Sweet & Maxwell 2005
Counsel:
Peter Balos, for the Plaintiff
Bernard Koae, for the First and Second Defendants
Jacob Kumbu, for the Third Defendant
RULING
6th September, 2021
2. In support of the application, the Plaintiff relies on the following affidavits:
3. The First Defendant, Oa Ume and Second Defendant, Henry Ume do not rely on any affidavit.
4. The Third Defendant, Evan Kipakapu relies on the following affidavits:
5. Mr. Kumbu for the Third Defendant has objected to the use of the Plaintiff’s first and second affidavits in these proceedings on the basis that the Plaintiff is illiterate, but no certificates appear in or below the jurats of the affidavits in accordance with Order 11 Rule 22(3) of the National Court Rules signed by the person before whom the affidavits were purportedly signed that the affidavits were read in his presence to the deponent and the deponent seemed to understand the affidavit.
6. Mr. Balos for the Plaintiff did not make any specific submission on the objection.
7. Order 11 Rule 22 of the National Court Rules states:
“22. Affidavit. (38/2)
(1) An affidavit shall be made in the first person.
(2) The body of an affidavit shall be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject.
(3) Where it appears to the person before whom an affidavit is sworn that the deponent is illiterate or blind, he must certify in or below the jurat that —
(a) the affidavit was read in his presence to the deponent; and
(b) the deponent seemed to understand the affidavit.
(4) Where an affidavit is made by an illiterate or blind deponent and a certificate in accordance with Sub-rule (3) does not appear on the affidavit, the affidavit may not be used unless the Court is satisfied that the affidavit was read to the deponent and that he seemed to understand it.
(5) Each page of an affidavit shall be signed by the deponent and by the person before whom it is sworn.
(6) An affidavit shall be in Form 50.”
8. Order 11 Rule 25 states:
“25. Irregularity. (38/5)
(1) An affidavit may, unless the Court otherwise orders, be filed notwithstanding any irregularity in form.
(2) An affidavit may, with the leave of the Court, be used notwithstanding any irregularity in form.”
9. It is not disputed that the Plaintiff’s first and second affidavits do not have certificates in accordance with Order 11 Rule 22(3) appearing on them. There is also no evidence before the Court as is allowed by Order 11 Rule 22(4) stating that the affidavits were read to the deponent and that he seemed to understand them. The affidavits may be irregular. The question I ask however is whether the plaintiff was given an opportunity to provide an explanation as to this apparent irregularity? There is no evidence before the Court that suggests that the Third Defendant through his lawyers raised this objection in writing or otherwise with the Plaintiff earlier prior to the hearing as a matter of professional comity. The practice of forewarning since Mapmakers Pty Ltd v Broken Hill Pty Ltd [1987] PNGLR 78 in applications for default judgment has been developed in this jurisdiction to apply in general civil litigation as well. The objection raised at the hearing to my mind is therefore grossly unfair and not in the interests of justice. The Third Defendant is bound by his conduct. Consequently, I will allow the affidavits to be used and read in the proceedings pursuant to Order 11 Rule 25(2) of the National Court Rules and in the exercise of my inherent power to dispense justice.
BRIEF BACKGROUND OF CLAIM
10. These proceedings concern a property described as Allotment 21 Section 274 (Gerehu) Hohola, National Capital District and contained in State Lease Volume 78 Folio 46 (the Property). It is alleged that the First Defendant and his late wife, Taita Oa were previously the registered proprietors of the Property as joint tenants. Upon the death of his wife, the First Defendant became the sole surviving joint tenant of the Property and was entitled to be registered as the sole registered proprietor of the Property. On or about 26 February 2018, the Plaintiff and the First Defendant, Oa Ume entered into a contract for the sale of the Property to him at the purchase price of K80,000.00 and a 10% deposit of K8,000.00 was paid. The documents to facilitate the conveyance namely, a Contract for Sale of Land and Instrument of Transfer (with Ume Oa and Taita Oa both named as Vendor/Transferor) were signed and lodged with the Stamp Duties Office for stamping upon the Plaintiff paying stamp duty of K440.00. The Plaintiff alleges that instead of completing the sale, the First Defendant, at the behest of his son, the Second Defendant, Henry Ume, sold the Property to the Third Defendant, Evan Kipakapu without his knowledge and while there was in existence a legally binding contract. The Third Defendant is now the registered proprietor of the Property.
11. On 10 July 2019, the Plaintiff commenced these proceedings by originating summons. On 9 August 2019, the Plaintiff filed an amended originating summons.
12. On 11 March 2020, the Court dismissed these proceedings for failing to disclose any reasonable cause of action and for being an abuse of the process of the Court because, among other things, the Third Defendant had an indefeasible title over the Property, and it was not certain whether the surviving joint tenant was correctly named as a defendant as the relevant State Lease showed that prior to the sale of the Property, the registered proprietors were “Ume Oa, cashier and Taita Oa, married woman” as joint tenants.
SUBSTANTIVE CLAIM
13. In the amended originating summons, the Plaintiff claims three main orders and these are:
“1. A declaration that the First Defendant’s action of part performance in accepting K8,000.00 (10%) from the Plaintiff for the total selling/purchase price of K80,000.00 is legally binding on the First Defendant to complete the sales transaction and accept the full balance purchase payment for the property described as Section 274 Allotment 21 Hohola (Gerehu) in compliance with the terms of the Contract of Sale held between the Plaintiff and the First Defendant dated 28 February 2019.
WANT OF PROSECUTION OF MOTION
14. The Third Defendant, supported by the First and Second Defendants, contends that the motion is caught by Order 4 Rule 49(17) of the National Court Rules and should be struck out as it has not been prosecuted within one month of its filing.
15. The Plaintiff made no submissions on this point.
16. Order 4 Rule 49(17) states:
“17. Dismissal /Striking out of Motions.
The Court may of its own motion or upon application strike out or dismiss a Motion which is not prosecuted within one (1) month after it is filed or if it is adjourned twice.”
17. The exercise of the Court’s power under the rule is discretionary.
18. In the exercise of my discretion, I reject the Third Defendant’s submission and will refuse to strike out or dismiss the motion either on my own motion or otherwise as:
1. The motion was filed about one month after the order sought to be set aside was made and it has recently been processed and listed for hearing by the Court; and
2. No formal application was filed by any of the defendants to strike out or dismiss the motion before the hearing.
ISSUES
19. The main issues arising from the motion for my decision are:
APPLICATION TO SET ASIDE ORDER
Law
20. The Court has jurisdiction to set aside its own orders to dismiss proceedings made ex parte. George Kakas v NHC (2015) SC1611, Wawoi Guavi Timber Company Ltd v John Molu (2016) SC1514, State & Ors v Kui Kot, Unreported Judgment of the Supreme Court (Davani, J, Manuhu, J & Sawong, J) delivered on 25 July 2016. The Court has jurisdiction to set aside an order previously made ex parte, irrespective of whether the ex parte order was made by the Judge hearing the motion to set aside: Salamo Elema v Pacific MMI Insurance Ltd (2007) SC1321. The defendant has correctly conceded that the Court has jurisdiction.
21. The principles of setting aside an order obtained ex parte are now well settled in this jurisdiction: Green & Co. Pty Ltd v Green [1976] PNGLR 73; Barker v The Government of Papua New Guinea (1976) PNGLR 340; The Government of PNG & Davis v Barker [1977] PNGLR 386; George Page Pty Ltd v Balakau [1982] PNGLR 140; Leo Hannet v ANZ Banking Group (PNG) Ltd (1996) SC505; Leo Duque v Avia Andrew Paru (1997) PNGLR 378; Motor Vehicles Insurance (PNG) Trust v Joseph Bure (1999) SC613; and Christopher Smith v Ruma Constructions Ltd (2002) SC695. The jurisdiction to do so is exercised under either Order 12 Rule 8 or Order 12 Rule 35 of the National Court Rules and the exercise of power is in the discretion of the Court. These rules give the Court limited power to set aside its own judgments. In this instant case, the plaintiff relies on Order 12 Rule 8. The Court has an unfettered discretion: Evans v Bartlam [1937] AC 473. The principles are the same in each case. These principles apply in applications to set aside default judgments or orders made in the absence of one of the parties in proceedings commenced by writ of summons as well as those commenced by originating summons: Motor Vehicles Insurance (PNG) Trust v Joseph Bure (1999) SC613; and Christopher Smith v Ruma Constructions Ltd (2002) SC695.
22. In order to be successful, it is incumbent upon an applicant to satisfy three requirements:
23. All three considerations are equally important however there are Supreme Court judgments which state that of the three considerations, the third one is the paramount consideration: Andrew Baing v The Independent State of Papua New Guinea and Papua New Guinea Stevedores and Bank of Papua New Guinea (2000) SC627, and Christopher Smith v Ruma Construction Ltd (2002) SC695.
24. In exercising its discretion, the Court must consider the material and submissions brought before it in support of the three requirements.
Submissions
25. The Plaintiff contends that his affidavit evidence satisfies all the three requirements and therefore the application should be granted. His additional submissions on whether he has an arguable case are noted below.
26. The defendants contend that the Plaintiff has neither provided any reasonable explanation as to why judgment was allowed to be entered in his absence nor demonstrated by affidavit that he has an arguable case.
Consideration
Explanation for entry of judgment in absentia
27. Has the Plaintiff provided a reasonable or good explanation why the ex parte order was allowed to be entered in his absence? No. The Plaintiff relies on the affidavit of Mr. Anis who states that he could not appear at the hearing on 11 March 2020 because; he did not have a valid practicing certificate at the time and therefore his non-availability; and that he did not communicate that fact to the Plaintiff to enable him to attend the hearing in person. This explanation is unacceptable. In any event, it is trite law that negligence of a lawyer is not a good excuse. This militates against the grant of the application.
Delay
28. Has there been any delay in filing the application to set aside the ex parte order? No. The application was filed on 10 April 2020 about a month after the ex parte order was made. That is not a long delay. This favours the grant of the application.
Arguable case
29. Has the Plaintiff demonstrated by affidavit that he has an arguable case? The Plaintiff contends that he has an arguable case because immediately prior to the First Defendant selling the Property to the Third Defendant, the First Defendant had not complied with Section 122 of the Land Registration Act to be registered as the surviving joint tenant. The sale of the Property by the First Defendant to the Third Defendant was therefore done fraudulently under Section 33(1) of the Land Registration Act which will vitiate the sale.
30. In supporting each other, the defendants argue that the Plaintiff’s arguments based on Sections 33(1) and 122 of the Land Registration Act are misconceived and should be rejected.
31. Section 33 is set out in full below and it states:
“33. Protection of 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
(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.”
32. Section 122 states:
“122. Registration of surviving joint tenant.
(1) Where two or more persons are registered as joint proprietors of the same estate or interest and one of them dies the surviving proprietor or proprietors, as the case may be, may apply to the Registrar to be registered in respect of the estate or interest.
(2) Where the Registrar receives an application under Subsection (1) he may, on proof to his satisfaction, of the death, register the applicant or applicants as proprietor or joint proprietors, as the case may be, of the estate or interest.”
33. A joint tenancy is usually terminated by three ways, first, conversion into sole ownership, second, by severance; and third, by partition: HA Amankwah et al, Land Law in Papua New Guinea, LBC Information Services, 2001 at 110.
34. The most obvious way of converting a joint tenancy into sole ownership is that on the death of all joint tenants, except one of them, the surviving joint tenant becomes the sole owner by application of the principle of jus accrescendi. HA Amankwah et al, Land Law in Papua New Guinea, LBC Information Services, 2001 at 111.
35. Osborn’s Concise Law Dictionary, Tenth Edition, Sweet & Maxwell 2005 defines the maxim “jus accrescendi” as:
“The right of accrual.”
36. Osborn’s Concise Law Dictionary, Tenth Edition, Sweet & Maxwell 2005 defines the phrase “joint tenancy” as:
“A form of co-ownership in which two or more persons are each regarded as being wholly entitled to the whole property. On the death of one of the joint owners (or tenants) the property remains vested in the survivor’s by right of survivorship (jus accrescendi)...”
37. Another way of attaining sole ownership is by a joint tenant buying out the interests of the other joint tenants or other joint tenants releasing their interests to a joint tenant: HA Amankwah et al, Land Law in Papua New Guinea, LBC Information Services, 2001 at 111.
38. Severance is the process by which a joint tenancy may be converted into a tenancy in common: HA Amankwah et al, Land Law in Papua New Guinea, LBC Information Services, 2001 at 111. The significance of severance is that the right of survivorship is lost: HA Amankwah et al, Land Law in Papua New Guinea, LBC Information Services, 2001 at 111. In the seminal decision on this subject in Williams v Hensman [1861] EngR 701; (1861) 70 ER 862 at 867, Sir William Page-Wood VC stated that joint tenancy may be severed in the follow manner:
“ In the first place, an act of any one of the persons interested operated upon his own share may create a severance as to that share. The right of each joint tenant is a right by survivorship only in the event of no severance having taken place of the share which is claimed under the jus accrescendi. Each one is at liberty to dispose of his own interest in such manner as to sever it from the joint fund – losing, of course, at the same time, his own right of survivorship. Secondly, a joint-tenancy may be severed by mutual agreement. And, in the third place, there may be a severance by any any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common.”
39. A joint tenancy may be determined by sale when the proceeds of sale are distributed among the co-owners; or by partition by physical
division of the common land amongst the co-owners who then register as sole owners of their respective portions: HA Amankwah et
al, Land Law in Papua New Guinea, LBC Information Services, 2001 at 118.
40. The relevant State Lease shows that the registered proprietors of the Property prior to the entry of the contract of sale of the
Property to the Plaintiff and the sale to the Third Defendant were “Ume Oa, cashier and Taita Oa, married woman” as joint
tenants. There is no cogent and convincing evidence before the Court to show that “Ume Oa” is the one and the same person
named in these proceedings as “Oa Ume.” However, if “Ume Oa” actually is the one and same person named in
these proceedings as “Oa Ume”, then “Ume Oa” ought to have been the person specifically joined as the First
Defendant in these proceedings.
41. The Property remained vested in “Oa Ume” as the sole surviving joint tenant of the property by application of the principle of jus accrescendi irrespective of whether or not he made an application to be registered in respect of the estate or interest pursuant to Section 122 of the Land Registration Act: Susie Hapoto v Solomon Kiage (2017) N6942.
42. There is evidence from the Plaintiff that on or about 26 March 2018, he demanded Ume Oa in writing giving him fourteen days to return to him the 10% deposit of K8,000.00. On the evidence available before the Court, the Plaintiff’s conduct, in my view, is tantamount to a rescission pursuant to Clause 5.4 of the contract for sale of land that the Plaintiff seeks to enforce. Clause 5.4, among other things, states:
“If this Agreement is rescinded (as distinct from terminated) pursuant to any express right to rescind (as distinct from a right to terminate) conferred by this Agreement: -
(a) the deposit and all other money paid by the Purchaser hereunder shall be refunded to them...”
43. Another matter that I have considered as relevant is that there is no cogent and convincing evidence before the Court to suggest that the Third Defendant was not a bona fide purchaser for value without notice. The Plaintiff claims in his second affidavit that the Third Defendant was fully aware of the existence of the contract between him and the First Defendant, but that, in my view, is speculative without details, uncorroborated and therefore lacks merit. The Plaintiff also claims in his third affidavit that the First Defendant sold the Property to the Third Defendant secretly without his knowledge. The Third Defendant is the registered proprietor of the Property now, his interest having been registered on the title on 26 June 2019. The principle of indefeasibility of title which the Supreme Court recognised in Mudge v Secretary for Lands [1985] PNGLR 387 applies in the Third Defendant’s favour, subject to the exceptions stipulated under Section 33(1) of the Land Registration Act.
44. In addition, the amended originating summons seeks to enforce a contract for sale of land dated 28 February 2019 which is non-existent. The evidence shows that the contract for sale of land entered into between Ume Oa and Taita Oa as vendor and Martin Maso as purchaser for the sale and purchase of the Property at the purchase price of K80,000.00 was actually executed on or about 26 February 2018. The Instrument of Transfer is dated 26 February 2018.
45. For these reasons, I am not satisfied that the Plaintiff has demonstrated by affidavit evidence that he has a valid argument affecting the merits of the case, ie, as to enforcement of the contract for sale of land signed on or about 26 February 2018.
CONCLUSION
46. Only one of the three requirements has been met by the Plaintiff. In the circumstances and in the exercise of my discretion, I will refuse the application to set aside the ex parte order.
47. Having refused the Plaintiff’s application to set aside the ex parte order, it is now not necessary to consider arguments on the remaining issue. Given this, all other orders sought by the Plaintiff in his motion are refused.
OTHER REMARKS
48. Should the Plaintiff have any claim pursuant to the contract for the sale of the Property signed on or about 26 February 2018 for the reimbursement of the deposit of K8,000.00 and all other monies paid by the Plaintiff under the contract, it should be brought against Ume Oa as the surviving joint tenant.
49. In addition, there is no specific relief claimed against the Third Defendant in the amended originating summons in relation to any impropriety in the sale of the Property to him and so the action against the Third Defendant is wanting in that respect.
ORDER
50. The formal orders of the Court are:
Orders and judgment accordingly
_____________________________________________________________
Korerua & Associates: Lawyers for the Plaintiff
Eda Legal Services: Lawyers for the First & Second Defendants
Gibson Bon: Lawyers for the Third Defendant
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2021/255.html