Paiko v Mondoro [2022] PGNC 382; N9934 (28 September 2022)

N9934

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 54 OF 2019 (CC2)

BETWEEN:
ERIC HAROLI PAIKO
First Plaintiff

AND:
NATIONAL HOUSING CORPORATION
Second Plaintiff

AND:
ANDIKI MONDORO
Defendant

Waigani: Shepherd J
2022: 14^th, 23^rd and 28^th September

JUDGMENTS - summary determination – summary jurisdiction of National Court - difference in National Court Rules between summary judgment and matter disposed of summarily – consideration of different modes of summary disposal of proceedings – summary judgment under Order 12 Rule 38 – different from summary disposal under Order 10 Rule 9A(15) – other modes of summary disposal under Order 9 Rules 15(1)(b) and 45.

PRACTICE & PROCEDURE – application by first plaintiff for summary determination – matter involving allegations of fraud in issuance of State Lease and subsequent transfers - defendant’s state lease forfeited by Minister for Lands after commencement of suit – s.122(1) Land Act 1996 - defendant obtained stay to pursue separate judicial review to challenge Ministerial forfeiture of State Lease – defendant’s application for judicial review misconceived – defendant should have applied for leave to appeal Ministerial forfeiture under s.142(1)(b) of Land Act 1996 - judicial review proceeding withdrawn - defendant and lawyer failed to comply with order to keep plaintiff fully informed of progress of judicial review proceeding – defendant failed to pursue appeal against Ministerial forfeiture – defendant failed to appear when ordered to do so - prejudice to plaintiff - plaintiff applied for summary determination – judgment by way of summary determination entered against defendant under Order 10 Rule 9A(15) of National Court Rules.

PRACTICE & PROCEDURE – withdrawal of lawyer – lawyer ceasing to act – Order 2 Rule 39 of National Court Rules – lawyer must not without leave of the Court file notice of ceasing to act unless an affidavit is also filed showing notice of intention to cease acting has been served on client not less than 7 days before filing of notice of ceasing to act – if client is out of communication an affidavit to that effect should be filed to obtain leave before notice of ceasing to act is filed.

ORDERS – interim orders cease to have effect upon final determination of a proceeding unless the Court otherwise orders.

Cases Cited:

Chris v Kaeo (2019) N8163
Coecon Ltd v Westpac Bank PNG Ltd (2012) N5097.
Curtain Bros (PNG) Ltd v University of Papua New Guinea (2005) SC788.
Kapi v Pacific Helicopters (2022) N2275
Kalang Advertising v Kuppusamy (2008) SC924
Kappo No. 5 Pty Ltd v Wong (1997) SC520
Lord & Company Ltd v Inapero (2014) SC1624
Makeng v Timbers (PNG) Ltd (2008) N3317
Mambei v Yarari (2017) N6950
Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1156
Seeto v Palaso (2008) N3653
Tasman Building Company v Genia (2011) N4412
Waghi Mek Plantations Ltd v Registrar of Companies (2020) N8346

Legislation Cited:

Constitution, s.155(4)
Land Act 1996, ss. 122(1), 122(2)(a), 142(1)(b), 142(2).
National Court Rules, Order 8 Rule 27; Order 9 Rules 15(1)(b), 45; Order 10 Rule 9A(15); Order 12 Rules 1, 38(1), (37(b);

Counsel:

Mr Pukama Yapa, for First Plaintiff

28^th September, 2022

1. SHEPHERD J: This is a decision on an application by the first plaintiff for the discharge of interim restraining and stay orders obtained by the parties in this proceeding and for the Court to determine this proceeding by way of entry of summary judgment for the first and second plaintiffs.
   
2. This case involves disputed title to a parcel of land at Horse Camp, Sabama, National Capital District known as Allotment 23 Section 123, Matirogo, Port Moresby, being all that land more particularly described in State Lease Volume 118 Folio 195 (the property). When this suit was commenced by the plaintiff, the State Lease named the defendant as the proprietor of the registered title to the property.
   
3. The defendant has asserted that at all material times prior to suit he had indefeasible title to the property, evidenced by transfer instrument no. S.64516 naming him as transferee which was registered against State Lease Volume 118 Folio 195 on 6 August 2013.
4. The first and second plaintiffs have challenged the circumstances of the issuance and registration of State Lease Volume 118 Folio 195. They claim that the defendant’s predecessors in title colluded with Lands Department officials to obtain title by irregular and fraudulent means and that the State Lease is accordingly void at law, and that the consequential transfer to the defendant of purported title to the property is also void.
5. The National Housing Corporation as second plaintiff (NHC) contends that the subject property forms part of a subdivision of a much larger block of land at Sabama within the Matirogo land district of Port Moresby. The NHC asserts that it has lawful title to the whole of that subdivision by virtue of an Urban Development Lease granted to it by the State, from which individual titles for the allotments comprising the subdivision are to be issued by the Registrar of Titles to the NHC, including a long awaited new State Lease for the property which is to be transferred by the NHC to the first plaintiff (Mr Paiko).
   
6. The NHC says that in response to an enquiry by Mr Paiko, the NHC by letter dated 23 April 2018 offered to sell the property to Mr Paiko for the sum of K8,489.25, which offer was accepted by Mr Paiko by letter dated 25 April 2018. Mr Paiko paid the whole of the purchase monies to the NHC in late April 2018, together with legal fees of K200 and a valuation fee of K400.
   
7. A contract for sale of the property was then executed by the NHC under common seal as vendor and by Mr Paiko as purchaser. The contract for sale is dated 24 May 2018. At the same time the NHC also executed under common seal an instrument of transfer of the property in favour of Mr Paiko. The contract for sale and the transfer instrument have both been stamped at the Stamp Duties Office and are held by the NHC in escrow. It is intended by the NHC that the transfer instrument be registered as soon as the new State Lease for the property has been issued by the Registrar of Titles, which will occur after statutory formalities for the subdivision of the land of which the property forms part have been completed.
8. Mr Paiko took possession of the property in late April 2018. This was done by Mr Paiko with the consent of the NHC pending issuance of the new State Lease for the property and pending registration against that State Lease of the stamped transfer instrument conveying legal title to the property to Mr Paiko from the NHC. Mr Paiko asserts that he therefore as an enforceable equitable interest in the property which will in due course be converted to a legal estate upon registration of the transfer instrument currently held by the NHC when the Registrar of Titles has issued the new State Lease for the property.
9. Mr Paiko avers that after taking possession of the property, which was vacant and unimproved as at April 2018, he has subsequently expended more than K400,000 in erecting perimeter fencing and the construction of four partially completed 2-bedroom residential units on the property.
10. Mr Paiko’s residential development of the property came to a halt in late 2018 when the defendant (Mr Mondoro) confronted him, claiming that he, Mr Mondoro, had registered title to the subject land by virtue of State Lease Volume 118 Folio 195, which had been registered by the Deputy Registrar of Land Titles on 16 February 1989. State Lease Volume 118 Folio 195 purports to evidence a grant of title to the subject land from the then Minister for Lands to a person named Ere Mai under Section 54 of the former Land Act Chapter 185.
    
11. On 5 March 2019 the District Court at Port Moresby in eviction proceeding DC No. 22 of 2019 on application by Mr Mondoro issued an interim restraining order against Mr Paiko preventing him from entering onto the property, conducting any activities there or in any other manner dealing with the property.
    
12. However, this current proceeding OS No. 54 of 2019 in the National Court was instituted by Mr Paiko on 14 February 2019, several weeks before the District Court order in DC No. 221 of 2019 was made. At that juncture, Mr Paiko was cited as the sole plaintiff in OS No. 54 of 2019.
    
13. When this proceeding OS No. 54 of 2019 was commenced in Civil Track 2 of the National Court, Mr Paiko was seeking, among other relief, a judicial declaration that he has an equitable interest in the subject property and that with the permission of the NHC he is entitled to the quiet enjoyment of the property to the exclusion of all others, including the defendant Mr Mondoro.
    
14. On 20 March 2019 an ex parte interim order was granted in this proceeding OS No. 54 of 2019 on application by Mr Paiko which stayed the District Court eviction proceedings commenced by Mr Mondoro. The ex parte interim order also permitted Mr Paiko to continue to be in occupation of the property but it restrained him from constructing any further improvements on the property pending the return of the matter before the Court on 12 April 2019.
    
15. At an inter partes hearing in this proceeding OS No. 54 of 2019 on 12 April 2019, the NHC was joined as second plaintiff and the interim restraining order granted on 20 March 2019 was ordered to continue pending the final determination of this proceeding or until further order of the Court.
    
16. On 24 April 2019 an order was made by the Court pursuant to Order 4 Rule 35 of the National Court Rules for this suit to continue on pleadings.
17. While this case was progressing, on 23 October 2019 the Hon. J. Rosso, Minister for Lands and Physical Planning forfeited State Lease Volume 118 Folio 195 under s.122(1) of the Land Act 1996 for failure by the lessee to have complied with a notice to show cause against forfeiture issued under s.122(2)(a) of the Act. Notice of this forfeiture was published in National Gazette No. G863 on 29 October 2019. The reference to the lessee in the Minister’s forfeiture notice was of course a reference to Mr Mondoro.
18. On 20 May 2020 Nandi Lawyers, acting for Mr Paiko, filed a motion seeking summary judgment against Mr Mondoro on the ground that State Lease Volume 118 Folio 195 had been Ministerially forfeited and that there was therefore no utility in this case going forward to substantive trial. After initial adjournment due to the non-appearance of Mr Hebrew Babe, counsel for Mr Mondoro, on 21 May 2020, Mr Paiko’s motion was set down for hearing on 11 June 2020.
19. On 9 June 2020, two days before the hearing of Mr Paiko’s motion for summary judgment, Hebrew Babe Lawyers filed separate proceeding OS (JR) No. 12 of 2020 for Mr Mondoro in the National Court’s Judicial Review Track, seeking leave for judicial review of the Minister’s decision to forfeit State Lease Volume 118 Folio 195.
20. On 11 June 2020 the Court on application by Mr Mondoro ordered that this proceeding OS No. 54 of 2019 be temporarily stayed in fairness to Mr Mondoro so as to allow him to pursue his judicial review proceeding in OS (JR) No. 12 of 2020. Given that Mr Mondoro had taken separate court action to challenge the forfeiture of his State Lease, the Court declined to grant Mr Paiko’s motion for summary judgment. The interim injunction granted to Mr Paiko on 20 March 2019 was ordered to continue until further order of the Court.
21. This proceeding then went into limbo for the next 21 months while Mr Paiko and the NHC waited for the outcome of Mr Mondoro’s judicial review application in OS (JR) No. 12 of 2020.
22. Concerned with the delay in Mr Mondo’s prosecution of his judicial review application in OS (JR) No. 12 of 2020, on 18 March 2022 Nandi Lawyers filed a motion for Mr Paiko in OS No. 54 of 2019, this time seeking a discharge of the stay order of 11 June 2020 and an order for the discontinuance of this proceeding. Mr Paiko’s motion was set down for hearing on 5 May 2022.
23. On 5 May 2022 Mr Hebrew Babe, counsel for Mr Mondoro, verbally informed the Court to the effect that Mr Mondoro had discontinued his judicial review application in OS (JR) No. 12 of 2020 pursuant to leave granted by her Honour Wurr AJ on 25 March 2022 because of administrative complications which had occurred within the National Court Registry. There had apparently been a duplication of OS (JR) No. 12 of 2020 with OS (JR) No. 26 of 2020 in the Court’s Integrated Electronic Case Management System (IECMS) and this was causing confusion. Mr Babe said that Mr Mondoro had then commenced a fresh application for leave to apply for judicial review in OS (JR) No. 35 of 2022 filed on 13 April 2022. It is not in dispute that Mr Babe had failed to inform Nandi Lawyers of this important development.
24. In view of Mr Babe’s verbal notification to the Court that a fresh judicial review proceeding had been commenced by Mr Mondoro challenging the Ministerial forfeiture of State Lease Volume 118 Folio 195, on 5 May 2022 the Court declined to hear Mr Paiko’s motion filed on 18 March 2022 and instead ordered that the stay order of 11 June 2020 was to continue, but this time on strict conditions. The case was adjourned for 4 months to 2 September 2022 and Mr Mondoro was ordered to report to the Court on that date as to the status of his latest judicial review proceeding in OS (JR) No. 35 of 2022. Mr Mondoro was ordered in the meantime to keep Mr Paiko and the NHC fully informed all steps taken by Mr Mondoro to progress his latest judicial review proceeding in OS (JR) No. 35 of 2022.
25. On the return of this proceeding OS No. 54 of 2019 before the Court on 2 September 2022, Mr Mondoro and his counsel Mr Babe both failed to appear. The Court noted that Mr Babe had filed a notice of ceasing to act for Mr Mondoro the day before, on 1 September 2022. On 2 September 2022 the Court was informed by Mr Pukama Yapa, Mr Paiko’s counsel of Nandi Lawyers, that Mr Babe had requested him on 1 September 2022 to advise the Court on 2 September 2022 that Mr Babe would not be appearing on that occasion before the Court as he had another case to attend to at Port Moresby District Court.
26. On 2 September 2022 the Court issued an order for Mr Babe to appear in person before the Court on 9 September 2022 at 1.30 pm for Mr Babe to show cause on oath why he should not be cited for contempt of Court.
27. Mr Babe duly appeared before this Court on 9 September 2022, after having been personally served on 6 September 2022 with a copy of the Court’s order of 2 September 2022 to show cause. In answer, Mr Babe relied on an affidavit he filed on 7 September 2022 which explained that on 11 May 2022 Kandakasi DCJ had granted leave to Mr Mondoro to withdraw judicial review proceeding OS (JR) No. 35 of 2022 because his Honour had pointed out that the proper mode of challenging the Ministerial forfeiture of State Lease Volume 118 Folio 195 was not by way of application for leave for judicial review but by way of appeal under s.142(1)(b) of the Land Act 1996. However, Mr Babe said that after leave had been granted to Mr Mondoro on 11 May 2022 to withdraw OS (JR) No. 35 of 2022, Mr Mondoro had failed to keep in communication with him. The consequence of this was that Mr Babe had received no instructions from Mr Mondoro during the ensuing three months to file any application to the National Court under s.142(2) of the Land Act 1996 seeking leave of the Court to proceed with an appeal against the Ministerial forfeiture. Mr Babe said that this is why he filed his notice of ceasing to act for Mr Mondoro in OS No. 54 of 2019 on 1 September 2022. Mr Babe gave no explanation at all for his non-compliance with term 3 of the order of the Court of 5 May 2022 by failing during the preceding 3 months to have informed Nandi Lawyers acting for Mr Paiko of Mr Mondoro’s withdrawal of judicial review proceeding OS (JR) No. 35 of 2022 on 11 May 2022.
28. Several days prior to the return of OS No. 54 of 2019 before the Court on 9 September 2022, Nandi Lawyers filed Mr Paiko’s present motion on 6 September 2022, which was amended with leave, seeking the discharge of the initial restraining order against Mr Paiko made in this suit on 20 March 2019, the discharge of the stay order made on 11 June 2022 and also seeking summary determination of this proceeding by way of judgment to be entered for Mr Paiko and the NHC. Mr Paiko’s motion was moved by counsel Mr Yapa of Nandi Lawyers on 14 September 2022. There was no appearance by Mr Babe at Court on 14 September 2022 despite his being on notice of Mr Paiko’s motion.
    

ISSUES

I consider that the issues raised by Mr Paiko’s motion are these:

(1) Does the Court have jurisdiction to summarily determine this proceeding in favour of the plaintiffs?

(2) If the Court does have jurisdiction, do the circumstances as presented by Mr Paiko warrant the exercise of the Court’s discretion to grant summary determination?

(3) If the Court does exercise its discretion, on what terms should summary determination be granted?

ISSUE 1: Does the Court have jurisdiction to summarily determine this proceeding in favour of the plaintiffs?

29. As already observed, Mr Paiko’s motion filed on 6 September 2022 seeks the discharge of the earlier restraining orders and stay order made in this proceeding. However, Mr Paiko’s motion is primarily directed towards obtaining from the Court the summary determination of this proceeding by way of a final judgment.
    
30. At the hearing of this application, counsel for Mr Paiko went to great lengths to expound on the law relating to the Court’s power to discharge the earlier restraining orders and stay order granted in this suit. He need not have done so. Upon final disposal of any proceeding, all interim orders including interim injunctions made by the Court pending final determination of the case automatically cease to have any effect, unless the Court orders otherwise. I cite in this regard what Hartshorn J had to say in Waghi Mek Plantations Ltd v Registrar of Companies (2020) N8346 at para. 8, when referring to a prior related case:

“ Upon dismissal of that proceeding, any interim injunctive or restraining orders made in that proceeding would cease to have effect. ”

31. This decision will therefore concentrate on the core issue, which is whether the Court, in the exercise of its judicial powers, can summarily dispose of this suit by granting the orders now sought by Mr Paiko. If summary disposal is granted, all interim orders made in this proceeding will necessarily cease to have effect unless this Court makes orders to the contrary.
    
32. The principal relief which Mr Paiko presently seeks is set out in term 3 of his amended notice of motion:

“ 3. Pursuant to Order 12 Rule 1, Order 12 Rule 38(1) and Order 10 Rule 9A(15) of the National Court Rules and Section 155(4) of the Constitution, summary determination of this proceeding is granted in favour of the First Plaintiff and the Second Plaintiff. ”

33. I will consider each of the four sources of jurisdiction of this Court which counsel for Mr Paiko has submitted can be availed of by the Court for the purposes of the application for summary determination.
34. Mr Paiko’s cause of action in this suit is centred on extensive allegations of fraud on the part of the predecessors in title of Mr Mondoro in the issuance of State Lease Volume 118 Folio 195 and registration of transfer instruments against that State Lease. This is relevant to the issue of jurisdiction.
    

Order 12 Rule 38(1) of the National Court Rules

35. I deal first with the jurisdiction of the Court accorded under Order 12 Rule 38(1) of the National Court Rules, which comes within Division 4 of Order 12 dealing with the summary disposal of proceedings. Order 12 Rule 38(1) provides:

38. Summary judgment

(1) Where, on application by the plaintiff in relation to any claim for relief or any part of any claim for relief of the plaintiff—

(a) there is evidence of the facts on which the claim or part is based; and

(b) there is evidence given by the plaintiff or by some responsible person that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part, or no defence except as to the amount of any damages claimed,

the Court may, by order, direct the entry of such judgment for the plaintiff on that claim or part, as the nature of the case requires.

36. However, I observe that there is a prohibition in Order 12 Rule 37(b) which prevents the Court from disposing of cases by summary judgment under Division 4 of Order 12 where fraud has been alleged. That sub-rule provides:
    

Division 4 – Summary Disposal

37. Application of Division 4

This Division applies to all proceedings except proceedings which include:

...
(b) a claim by the plaintiff based on an allegation of fraud;

37. This prohibition was expressly referred to in Kappo No. 5 Pty Ltd v Wong (1997) SC520 (Kapi DCJ, Los J, Salika J) which held that summary judgment under Order 12 Rule 38 of the National Court Rules cannot be obtained in a case founded on an allegation of fraud.
    
38. Order 12 Rule 38 is therefore of no assistance to Mr Paiko’s application seeking summary disposal of his case, as Mr Paiko’s main cause of action is based on allegations of fraud. Mr Paiko must look to other sources of jurisdiction of the Court if summary determination of this proceeding is to be pursued.
    

Section 155(4) of the Constitution

39. Mr Paiko refers in his motion to Section 155(4) of the Constitution as a source of jurisdiction in this instance. Section 155(4) provides:

155(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

40. It is often said that s.155(4) of the Constitution is a rule of last resort. The Supreme Court observed in Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1156 (Davani, Hartshorn, Kariko JJ) that s.155(4) has no application where remedies are already provided for under other law. It is equally settled law that s.155(4) should only be invoked to ensure that the primary rights of a party are protected in the absence of other law: Makeng v Timbers (PNG) Ltd (2008) N3317 (Injia CJ); Coecon Ltd v Westpac Bank PNG Ltd (2012) N5097 (Hartshorn J).
41. Is there a remedy under some other law which is applicable to the summary disposal of this case which Mr Paiko seeks?
    

Order 12 Rule 1 of the National Court Rules

42. Mr Paiko relies on Order 12 Rule 1 of the National Court Rules as a further or alternative source of the Court’s jurisdiction for the principal relief he seeks. There can be no doubt that Order 12 Rule 1 is a rule of wide application. It states:

1. General relief

The Court may, at any stage of the proceedings, on the application of any party, direct the entry of such judgment or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgment or order in any originating process.

43. Order 12 Rule 1 gives jurisdiction to the Court to do many things. For instance, this Rule was invoked by Davani J in Kapi v Pacific Helicopters (2022) N2275 to enable the Court to enter judgment for monies that the defendant had paid into Court under Order 8 Rule 69. In Seeto v Palaso (2008) N3653 Hartshorn J held that Order 12 Rule 1 gives jurisdiction to the Court to dismiss a proceeding when all issues between the parties have been resolved. The Rule was applied by Murray J in Tasman Building Company v Genia (2011) N4412 to strike out a defence after the defendant had failed to pay court-ordered costs.
44. In Mambei v Yarari (2017) N6950 Hartshorn J said that Order 12 Rule 1 provided the jurisdictional basis for the Court to strike out a bill of costs. And in Chris v Kaeo (2019) N8163 I applied Order 1 Rule 12 to found jurisdiction for the Court to order production of records held by a statutory corporation for inspection by the parties’ counsel to expedite disclosure of records relevant to matters in dispute between the parties.
45. However, it is equally clear from case authority that Order 12 Rule 1 of the National Court Rules is not a provision of universal application. Order 12 Rule 1 should not be availed of if there is specific provision elsewhere in the National Court Rules which is more appropriate to the circumstances of the case. As was said by Hartshorn J in Coecon Ltd v Westpac Bank PNG Ltd (supra) at para. 14:

“ ... Order 12 Rule 1 National Court Rules, [is] a general provision, to my mind it cannot be relied upon to produce a result that is inconsistent with a more specific provision of the National Court Rules. ”

46. Use of Order 12 Rule 1 to found jurisdiction of the National Court in any given circumstance should be approached with caution. If there is a more appropriate provision in the National Court Rules which aligns with the specific relief sought by an applicant, that provision should be invoked instead.
    

Order 10 Rule 9A(15) of the National Court Rules

47. Order 10 Rule 9A(15) of the National Court Rules is the remaining provision relied on by Mr Paiko in aid of his submission that this Court has jurisdiction to summarily dispose of this proceeding in the manner sought by him.
48. Order 10 Rule 9A(15) of the National Court Rules is relevantly in the following terms:

15. SUMMARY DISPOSAL

(1) The Court may summarily determine a matter:

(a) on application by a party; or

(b) on its own initiative;

(c) ...

(2) The Court may summarily dispose of a matter in the following situations:

(a) for want of prosecution since filing the proceedings or since the last activity on the file;

(b) for a failure to appear at any of the listing or directions hearing by a party or his lawyer;

(c) for non-compliance of any order or directions previously made or issued by the Court at any of the listing processes;

(d) under any of the grounds set out in Order 12 Rule 40 and Order 8 Rule 27 of the National Court Rules.

(e) on any competency ground relating to non-compliance with the National Court Rules or any other relevant rules of Court.

49. The Court’s jurisdiction to grant summary disposal of a proceeding pursuant to Order 10 Rule 9A(15) is markedly different to that which the Court exercises when granting summary judgment pursuant to Order 12 Rule 38 to those cases within Order 12 Division 4 which are not subject to the prohibition contained in Order 12 Rule 37 of the National Court Rules.
    
50. The jurisdictional differences in various provisions in the National Court Rules by which the Court can summarily dispose of a proceeding was extensively analysed by the Supreme Court in Lord & Company Ltd v Inapero (2014) SC1624 (Injia CJ, Collier & Poole JJ). In that case the appellant/defendant had appealed against an order of the National Court whereby the defendant’s defence had been struck out and judgment entered for the plaintiff in a suit which involved, among other things, allegations of fraud. The defendant had failed to file an amended defence by a deadline set in previous orders of the Court. Further, the defendant had failed to appear by its counsel on the return of the matter before the primary judge. This failure by the defendant prompted an order by the primary judge that the defendant appear at the next hearing date and provide a reasonable explanation for its want of appearance or the defence would be struck out and summary judgment entered for the plaintiff. On the next return date the defendant gave evidence that its failure to appear on the prior occasion was caused by administrative problems experienced by the law firm representing the defendant. The primary judge did not accept that explanation as reasonable as it involved an element of negligence on the part of the defendant’s lawyers. The primary judge ordered the defence to be struck out and judgment was summarily entered for the plaintiff. The appellant/defendant appealed against this on the ground, among others, that the entry of judgment in a summary manner where fraud had been alleged against the defendant was an improper exercise of the primary judge’s discretion.
51. The Supreme Court in Lord & Company Ltd v Inapero observed at para. 44 of its decision that there are a number of ways in which the National Court can dispose summarily of proceedings under the National Court Rules without the judgment being a “summary judgment” within the meaning of Order 12 Rule 38. So if an applicant seeks summary disposal of a proceeding which involves allegations of fraud and is thereby prevented by Order 12 Rule 37(b) from invoking the jurisdiction of the Court under Order 12 Rule 38, the Court can nevertheless grant summary disposal if an applicant’s case can be shown to come within the compass of some other provision in the National Court Rules which allows for summary disposal. One such provision is Order 10 Rule 9A(15).
52. Another provision in the National Court Rules which allows for summary disposal is Order 9 Rule 15(1)(b), which permits the Court to summarily dismiss a case where a party defaults in complying with those rules in Order 9 Division 1 which govern discovery and inspection of documents: see Curtain Bros (PNG) Ltd v University of Papua New Guinea (2005) SC788 (Injia DCJ, Jalina J, Sevua J).
53. Similar powers of the Court to summarily dismiss a proceeding for default are to be found in Order 9 Rule 25 (Division 2 of Order 9 – Interrogatories) and Order 9 Rule 45 (Division 4 of Order 9 – Medical Examinations and Inspection of Property).
54. Reverting to Order 10 Rule 9A(15) of the National Court Rules, in Lord & Company Ltd v Inapero the Supreme Court made reference to the Supreme Court’s earlier decision in Kalang Advertising v Kuppusamy (2008) SC924 (Kapi CJ, Gavara-Nanu J, Cannings J). The facts of the latter case were that the respondent/plaintiff had commenced proceedings in the National Court against the appellant/defendant claiming damages for breach of contract. At a directions hearing the plaintiff’s lawyer attended but the defendant’s lawyer failed to appear before the listings judge. The judge adjourned the matter and made a conditional order that on the return of the matter the defence would be struck out and judgment summarily entered for the plaintiff with damages to be assessed unless the defendant appeared and provided a reasonable explanation for his failure to appear and assist the Court at the directions hearing. On the return of the case, the defendant’s lawyer appeared and gave an explanation to the listings judge but which explanation was not supported by an affidavit. The listings judge was not satisfied with the explanation of the defendant’s lawyer so the defence was struck out and summary judgment entered for the plaintiff with damages to be assessed.
55. In Lord & Company Ltd v Inapero the Supreme Court said this at para. 47 of its decision:

“ The Supreme Court in Kalang Advertising at [11]-[14] accepted that the determination of his Honour constituted a valid summary disposal of the case within the meaning of what is now Order 10 rule 9A(15)(1) and (2) of the National Court Rules. The decision explains that the primary judge dealt “summarily” with the matter before him, but in a manner outside the purview of Order 12 Division 4.”

56. The Supreme Court in Lord and Company Ltd v Inapero concluded at paras. 52 and 53:

“ As a general proposition, “summary disposal” of a matter pursuant to Order 10 Rule 9A(15) is not a “summary judgment” within the meaning of Order 12 Division 4 National Court Rules, and Order 12 Rule 37(b) is not relevant to summary disposal of a matter in those circumstances.

In our view, his Honour below in these proceedings dealt “summarily” with the cases before him. His judgments, however, did not constitute “summary disposal” within the meaning of Order 12 Division 4 of the National Court Rules. Accordingly, while we consider that the judgments of his Honour of 6 May 2009 were summary disposals, they were not summary disposals whereby the National Court is limited by the terms of Order 12 Rule 37(b). For the purposes of the application of the National Court Rules, it was open to his Honour to summarily dispose of the proceedings before him, notwithstanding that they were founded on allegations of fraud. ”

57. The Supreme Court has made it abundantly clear in Lord & Company Ltd v Inapero that a “summary judgment” entered under Order 12 Rule 38, which only applies where a defendant has no defence to a claim, is distinct from summary disposal of proceedings under other provisions in the National Court Rules, including summary disposal of proceedings under Order 10 Rule 9A(15) which will apply when there is compelling evidence of:

(1) want of prosecution by a party; or

(2) failure by a party or a party’s lawyer to appear at a directions hearing; or

(3) non-compliance by a party with interlocutory orders or directions of the Court; or

(4) applicability of any of the grounds set out in Order 12 Rule 40 (proceedings which disclose no reasonable cause of action, are frivolous or vexatious or which are otherwise an abuse of process) or Order 8 Rule 27 (pleadings which disclose no reasonable cause of action or defence or which have a tendency to cause prejudice, embarrassment or delay or which are otherwise an abuse of process); or

(5) any ground which is incompetent due to non-compliance with the National Court Rules or any other relevant rules of Court.

58. I am accordingly satisfied that Order 10 Rule 9A(15) of the National Court Rules, does confer jurisdiction on this Court, if in the exercise of its discretion, it can be satisfied that the circumstances now presented by Mr Paiko justify summary disposal of this case in the manner sought by him. Issue 1 is resolved in favour of Mr Paiko.
    

ISSUE 2: If the Court does have jurisdiction, do the circumstances as presented warrant the exercise of the Court’s discretion to grant summary determination?

59. Mr Paiko’s amended statement of claim filed in this proceeding on 30 August 2019 pleads to the effect that State Lease Volume 118 Folio 195 was fraudulently and irregularly obtained, that the Registrar of Titles has no record of any contract documentation in support of registration of the transfer of title into the name of Mr Mondoro and that the defects are such that Mr Mondoro’s title to the subject land is void.
60. Mr Paiko’s amended statement of claim expressly pleads in connection with the property:

“25. Based on the foregoing, the First Plaintiff alleges that the purported transfer and registration of the State lease (title) under the name of the late Ere Mai and transmitted to the deceased[‘s] sons Peter Ere Mai and Haro Mai and the subsequent transfer and registration under the name of the Defendant facilitated by the DoLPP [Department of Lands and Physical Planning] through the Registrar of Titles is by fraud and under dubious circumstances.”

61. Mr Mondoro in his amended defence, filed on 21 November 2019 in response to Mr Paiko’s amended statement of claim, denies almost all of Mr Paiko’s allegations. In para. 10 of Mr Mondoro’s defence, he pleads, among others, that the statements preceding and including para. 25 of the amended statement of claim “are baseless and without any merit as it [sic] does not state in any way what fraudulent act the Defendant committed to obtain the title”.
62. The NHC’s statement of claim, filed on 30 August 2019, pleads that the NHC has lawful title to the property, which forms part of a greater portion of land at Horse Camp (Sabama), Matirogo, Port Moresby, NCD comprised in an Urban Development Lease (UDL) which the NHC asserts it has surrendered back to the Department of Lands and Physical Planning conditional on State Leases being issued for individual allotments within the UDL, including the subject allotment of land, Allotment 23 Section 123, Matirogo, Port Moresby, NCD, title to which subject allotment is pending formal registration of transfer by the NHC to Mr Paiko once the State Lease for it is issued by the Registrar of Titles.
63. Mr Mondoro’s defence to the NHC’s statement of claim contains extensive denials to the NHC’s assertion that has title to the subject Allotment 23 and its surrounding allotments.
64. To recapitulate and amplify what was said in the introductory section of this decision, on 20 March 2019 the Court ordered by way of interim injunction in this proceeding that Mr Paiko could continue to occupy the subject land but on strict conditions. The interim injunction was granted because Mr Paiko had already commenced construction of four 2-bedroom units on the subject land with the permission of the NHC. But Mr Paiko’s continued occupation of the property was restricted by the interim injunction of 20 March 2019, as extended on 12 April 2019, to the preservation and provision of security for the improvements which Mr Paiko had already built on the property with no further construction allowed pending resolution of the dispute as to title and final determination of this proceeding.
65. On 6 December 2019 an order was issued in this proceeding which required Mr Mondoro to attend at Court on 12 February 2020 and produce to the Court the original of the Official Owner’s Copy of State Lease Volume 118 Folio 195 and true copies of all conveyancing documents in connection with registration of the purported transfer of title to the property from Peter Ere Mai and Haro Mai to Mr Mondoro. By that same order, the Registrar was required to issue production summonses to the Deputy Registrar of Titles and to the Secretary of the Department of Lands and Physical Planning for production to the Court on 12 February 2020 of all documents in their respective possession, custody or control relating to the purported grant of title to the property to the late Ere Mai and the subsequent registration of transfer of title to the property to Peter Ere Mai and Haro Mai and thence to Mr Mondoro.
66. On the return of this case on 12 February 2020, Deputy Registrar of Titles Jemimah Salop produced to the Court a temporary title file held by the Office of the Registrar of Titles for State Lease Volume 118 Folio 195, the original of the title file having gone missing. However that temporary title file contained, among other important documents, a copy of the gazettal notice published in National Gazette No. G863 on 29 October 2019 which publicly notified the Minister for Lands and Physical Planning’s forfeiture of State Lease Volume 118 Folio 195 under s.122(1) of the Land Act 1996 for failure by Mr Mondoro to have complied with a notice to show cause against forfeiture issued under s.122(2)(a) of the Act.
67. On 12 February 2020 the Secretary of the Department of Lands and Physical Planning Benjamin Samson produced to the Court his Department’s remaining records in connection with the grant of State Lease Volume 118 Folio 195 to the late Ere Mai, the original Land File for the property having gone missing. Among the records produced by Mr Samson were items of correspondence from the NHC to the Department regarding the property, including inspection and valuation reports, a copy of a cautionary letter dated 14 January 2019 from the National Fraud & Anti-Corruption Directorate of the Police addressed to Mr Mondoro warning him not to threaten Mr Paiko, and numerous documents in connection with the Ministerial forfeiture of State Lease Volume 118 Folio 195.
68. On 12 February 2020 Mr Mondoro failed to produce to the Court the original of his Owner’s Official Copy of forfeited State Lease Volume 118 Folio 195. The case was therefore adjourned to 9 March 2020 to enable Mr Mondoro to comply with the Court’s order in that regard made on 6 December 2019.
69. On 9 March 2020 Mr Mondoro attended at Court and duly surrendered the original of his Owner’s Official Copy of forfeited State Lease Volume 118 Folio 195 to this Court. That title document, along with the files produced to the Court on 12 February 2020 by the Deputy Registrar of Titles and the Secretary of the Department of Lands and Physical Planning, continue to be held by the Court in protective custody.
70. This case then progressed through several directions hearings on 25 March 2020 and 14 May 2020, on which latter date the case was set down for pre-trial conference on 21 May 2020 for a date for substantive trial to be allocated.
71. As already observed, on 20 May 2020 Nandi Lawyers filed a motion seeking summary judgment against Mr Mondoro on the ground that there was no utility in the case going forward to substantive trial now that Mr Mondoro’s State Lease for the property had been Ministerially forfeited under s.122(1) of the Land Act 1996.
72. On the return of the case on 21 May 2020, Mr Yapa of Nandi Lawyers appeared for Mr Paiko. Mr Anthony Luke appeared as in-house counsel for the NHC. Mr Mondoro attended Court in person and explained that his counsel, Mr Hebrew Babe, was not available to appear on his behalf. The Court noted that Mr Babe had failed to give prior notice to the Court that he would not be attending Court to represent his client on 21 May 2020. Mr Babe was ordered to pay the costs of Mr Yapa and Mr Luke’s attendance that day on a solicitor/client basis. The case was adjourned to 11 June 2020 for the hearing of Mr Paiko’s motion for summary judgment filed on 20 May 2020.
73. When Mr Paiko’s motion for summary judgment came on for hearing on 11 June 2020, Mr Babe announced to the Court that two days previous, on 9 June 2020, Mr Mondoro had filed separate proceeding OS (JR) No. 12 of 2020 in the Judicial Review Track of the National Court seeking leave for judicial review of the Minister’s decision to forfeit State Lease Volume 118 Folio 195. The Court was concerned that Mr Mondoro should be given opportunity to challenge the Minister’s decision to forfeit the State Lease because if that challenge were to be successful, this would impact on the substantive matters in issue in this proceeding OS No. 54 of 2019. The Court accordingly declined to grant Mr Paiko’s motion for summary judgment and instead, on Mr Mondoro’s application, ordered a stay of this proceeding to allow Mr Mondoro to pursue his judicial review proceeding in OS (JR) No. 12 of 2020. Term 3 of the order of the Court made on 11 June 2020 stated:

“ 3. This proceeding shall return before the Court on application by a party to the Registrar of the National Court on not less than 3 days’ prior notice to the other parties for this case to be re-listed for directions following the final determination of the Defendant’s said judicial review application. ”

74. After the stay of this proceeding on 11 June 2020, Mr Paiko could take no further steps to either progress this case or to apply for it to be summarily determined until the result of Mr Mondoro’s judicial review proceeding in OS(JR) No. 12 of 2020 was known. This proceeding OS No. 54 of 2019 went into a state of suspension.
75. Sixteen months later, after there had been no resumption of OS No. 54 of 2019, on 12 October 2021 I requested staff in the Civil Registry to locate the Court’s file in the Judicial Review Track for Mr Mondoro’s application in OS (JR) No. 12 of 2020 for leave for judicial review. I inspected the contents of that file on 13 October 2021. As a result of that inspection, on 14 October 2021 my Associate on my instructions sent an email to all counsel who had appeared in OS No. 54 of 2019, namely Mr Babe, Mr Yapa and Mr Luke , which stated:

“ Dear Counsel

I refer to my email to you below dated 15 June 2020. I advise that Justice Shepherd has recently checked the Court’s file for OS (JR) 12 of 2020 (IECMS) and has ascertained that Mr Mondoro’s application for leave for judicial review in that proceeding has yet to be heard by one of the Judges in the Judicial Review Track. The case with which Justice Shepherd is seized in the CC2 Track, Mr Paiko’s OS 54 of 2019, continues to be stayed in accordance with the Order which his Honour made on 11 June 2020 in OS 54 of 2019 until such time as Mr Mondoro’s judicial review proceeding in OS (JR) 12 of 2020 has been determined.

His Honour has suggested that steps should be taken to have OS (JR) 12 of 2020 either progressed to final determination, dismissed or withdrawn. Only when one of those options occurs will His Honour be able to list OS 54 of 2019 for further directions to progress that case to substantive hearing.

Please keep me informed of developments with OS (JR) 12 of 2020 as they occur so that I can report further to His Honour.

Thank you.

Numana Kilavanwa Jnr
Associate to Justice J.L. Shepherd ”

76. My Associate’s email drew no response at all from Mr Babe for Mr Mondoro. Because of the stay granted on Mr Mondoro’s application on 11 June 2020, Mr Paiko’s suit in OS No 54 of 2019 continued to remain in abeyance pending the outcome of Mr Mondoro’s judicial review proceeding in OS (JR) 12 of 2020.
77. However, on 18 March 2022 Nandi Lawyers, no doubt prompted into action by their client, filed a further motion for Mr Paiko, this time seeking, among others, a discharge of the stay order of 11 June 2020 and the discontinuance of this proceeding OS No. 54 of 2019 on the basis that there would be no utility to be obtained if this case were to go forward to trial because of the Ministerial forfeiture of Mr Mondoro’s purported title to the property and because of the ongoing delay with Mr Mondoro’s judicial review proceeding. Mr Paiko’s motion was given a return date of 7 April 2022.
78. The affidavit sworn by Mr Paiko and filed on 18 March 2022 in support of his motion for discontinuance deposed that as a result of searches that had been conducted of the Court’s file for Mr Mondoro’s application in OS (JR) No.12 of 2020, it had been found that the last activity on that proceeding was the filing of an affidavit by Mr Mondoro and an affidavit of service on 20 October 2020. Mr Paiko contended in his affidavit of 18 March 2022 that Mr Mondoro and his lawyer Mr Babe had not prosecuted Mr Mondoro’s application for leave for judicial review with due despatch and that the continuing delay in that regard was causing Mr Paiko serious prejudice in that there was substantial deterioration to the four 2-bedroom units which Mr Paiko had commenced building on the property but which construction had ceased when the interim restraining order was made in this proceeding OS No. 54 of 2019 on 20 March 2019.
79. Mr Paiko stated in paras. 22, 23 and 30 of his affidavit filed on 18 March 2022:

“ 22. Pending determination of the two proceedings namely: OS No. 12 of 2020 and OS No. 54 of 2019 most of the material to build my apartment[s] have been exposed to weather causing wear and tear to the materials.

23. I believe that the Defendant is not a genuine person, all along he has been acting on bad faith only to cause unnecessary inconvenience to the plaintiffs. That is reflected in his conduct in OS JR No. 12 of 2020, he has not taken any steps to move the application for leave to apply for judicial review.
...

30. Upon forfeiture of the defective title, the defendant had done nothing within one year and nine (9) months to demonstrate absolute good faith in obtaining the injunction [for a stay in OS No. 54 of 2019]. The issue of good title over the subject property is already determined by the forfeiture of the defective title. ”

80. On 21 April 2022 Nandi Lawyers filed an affidavit sworn that day by Mr Yapa, counsel for Mr Paiko. Mr Yapa deposed in his affidavit that on 8 April 2022 he had conducted a search of the Court’s file for OS (JR) No. 12 of 2020 and had found that on 16 February 2022 Hebrew Babe Lawyers acting for Mr Mondoro had filed a motion in the Judicial Review Track of the National Court in OS (JR) No. 12 of 2020 seeking an order that leave be granted in that proceeding for Mr Mondoro to discontinue his application for leave for judicial review. A copy of Mr Mondoro’s motion filed in OS (JR) No. 12 of 2020 is annexure “A” to Mr Yapa’s affidavit.
81. A copy of Mr Mondoro’s affidavit sworn on 9 December 2021 and filed by Hebrew Babe Lawyers on 16 February 2022 in OS (JR) No. 12 of 2020 in support of Mr Mondoro’s motion for leave to discontinue that proceeding is annexure “B” to Mr Yapa’s affidavit filed and sworn in this proceeding OS No. 54 of 2019 on 21 April 2022. Perusal of the copy of Mr Mondoro’s affidavit of 9 December 2021 indicates that the reason for the filing of Mr Mondoro’s motion was because two separate proceedings had been registered in the National Court’s IECMS filing platform relating to the same matter, that is to say OS (JR) No. 12 of 2020 and OS (JR) No. 26 of 2020. Mr Mondoro deposed at para. 6 of his affidavit that:

“ 6. I have as such instructed my lawyers to have both OS (JR) No. 12 of 2020 and OS (JR) No. 26 of 2020 discontinued to avoid any further confusion and ambiguity and to file fresh proceedings immediately thereafter.”

82. When Mr Paiko’s motion filed in OS No. 54 of 2019 on 18 March 2022 returned before the Court on 5 May 2022, all three of the parties’ respective counsel were in attendance. Mr Babe informed the Court to the effect that Mr Mondoro’s judicial review proceedings in OS (JR) No. 12 of 2020 and its replicated proceeding OS (JR) No. 26 of 2020, inadvertently registered in IECMS, had both been discontinued with leave granted by Wurr AJ on 25 March 2022 and that Mr Mondoro had commenced fresh judicial review proceedings in OS (JR) No. 35 of 2022 filed on 13 April 2022, again seeking leave for judicial review of the Minister’s decision for forfeiture of State Lease Volume 118 Folio 195.
83. Mr Babe’s notification to the Court on 5 May 2022 that Mr Mondoro had commenced yet another judicial review proceeding came as a surprise to the Court. Furthermore, Mr Babe had failed to inform Mr Yapa at Nandi Lawyers and Mr Luke at the NHC of this belated development. The Court nevertheless had little choice but to decline to hear Mr Paiko’s motion filed on 18 March 2022 and to order that the stay which the Court had granted to Mr Mondoro 21 months before on 11 June 2020 was to continue but this time only until 2 September 2022 at 1.30 pm, at which time Mr Mondoro was ordered to attend Court to report on the status of his judicial review application in OS (JR) No. 35 of 2022. Term 3 of the Court’s order 5 May 2022 contained this additional direction:

“ 3. The Defendant shall keep the abovenamed First Plaintiff and Second Plaintiff fully informed of all steps taken by the Defendant to progress his said judicial review application, and in particular the Defendant shall, if leave to apply for judicial review is granted by the Court in OS (JR) No. 35 of 2022 (IECMS), promptly upon grant of such leave serve sealed copies of his Notice of Motion to Apply for Judicial Review pursuant to Order 16 Rule 5 of the National Court Rules on the abovenamed First Plaintiff and Second Plaintiff, including service on them of sealed copies of all supporting affidavit material filed by the Defendant in OS (JR) No. 35 of 2022 (IECMS) in connection with his Notice of Motion to Apply for Judicial Review. ”

84. On 1 September 2022 my Associate Mr Kilavanwa Jnr sent a courtesy reminder by email to Mr Babe, Mr Yapa and Mr Luke that this case was due to return before the Court the next day, 2 September 2022 at 1.30 pm.
85. On the morning of 2 September 2022 I conducted a search in the IECMS and found that Mr Mondoro’s application for leave for judicial review in OS (JR) No. 35 of 2022 had come before Kandakasi DCJ on 11 May 2022, at which time his Honour had granted leave to Mr Mondoro to withdraw the proceeding. The full text of his Honour’s order of 11 May 2022, a matter of public record, is set out below:

“ Leave is granted to the Plaintiff [Applicant] to withdraw this proceeding and exhaust the remedy provided for under Section 142(1)(b) of the Land Act 1996, by reason of which this proceeding stands withdrawn as of today. Costs of the proceeding ordered in favour of the State, to be taxed if not agreed. Court file to be closed and archived forthwith upon the Court signing the Orders. ”

86. Section 142(1)(b) and 142(2) of the Land Act 1996 provide:

142. Appeal to National Court

(1) An interested person may appeal to the National Court on—
...
(b) the forfeiture of a lease.

(2) An appeal under Subsection (1) shall be made within 28 days after the matter complained of, or within such further time as the National Court for any special reason allows.

87. When I perused the Court’s file for OS No. 54 of 2019 in the morning of 2 September 2022 I observed that Hebrew Babe Lawyers had filed a notice of ceasing to act for Mr Mondoro the day before, on 1 September 2022.
88. At 11.02 am on 2 September 2022 Mr Babe sent an email to my Associate Mr Kilavanwa Jnr attaching a copy of his law firm’s notice of ceasing to act for Mr Mondoro filed on 1 September 2022 and also attaching copies of two letters dated 1 September 2022 from Hebrew Babe Lawyers to Nandi Lawyers for the attention of Mr Yapa and to the National Housing Corporation for the attention of Mr Luke. Both letters were in the same terms. Each letter was headed “Re: OS No. 54 of 2019 (CCS): ERIC HAROLI PAIKO -v- ANDIKI MONDORO. Each letter stated:

“ We enclose herein by way of service our Notice of Ceasing to Act filed 01^st September 2022.

We have not been able to confirm instructions with our client to progressing matters related to this proceeding and as such we have filed our above Notice.

We also advise that we will as such not be appearing tomorrow 02^nd September, 2022 as we have a trial matter at the Port Moresby District Court.

Do kindly advise the Court in our absence.

Kindly acknowledge receipt by signing on the duplicate copy of the letter.

Yours faithfully,
HEBREW BABE LAWYERS
[signature]
Per: HEBREW BABE ”

89. Associate Mr Kilavanwa Jnr was not aware of Mr Babe’s email to him sent late in the morning of 2 September 2022 until several days later.
90. When this proceeding was called in Courtroom No. 8 soon after 1.30 pm on 2 September 2022, Mr Yapa appeared for Mr Paiko. There was no appearance by Mr Babe for Mr Mondoro or by Mr Luke for the NHC. Copies of Mr Babe’s letters dated 1 September 2022 to Mr Yapa and Mr Luke were not at that stage before the Court. Mr Yapa explained to the Court that the previous afternoon he had received Mr Babe’s letter of 1 September 2022 enclosing a copy of the notice of ceasing to act for Mr Mondoro which had been filed that day by Hebrew Babe Lawyers. Mr Yapa also informed the Court that Mr Babe had requested him, Mr Yapa, in Mr Babe’s letter of 1 September 2022 to advise the Court that Mr Babe would not be attending Court for this matter on 2 September 2022 as Mr Babe had another engagement in Port Moresby District Court. Mr Yapa further informed the Court that his receipt of Hebrew Babe Lawyers’ notice of ceasing to act for Mr Mondoro in this present proceeding OS No. 54 of 2019 was the only notification he had received from Mr Babe subsequent to this Court’s order made on 5 May 2022. Mr Yapa said that Mr Babe had not kept him informed at all as to the status of Mr Mondoro’s application for leave for judicial review in OS (JR) No. 35 of 2022.
91. The Court noted the following matters on the return of this proceeding on 2 September 2022:

(1) Mr Mondoro and his counsel Mr Babe had failed to comply with those terms of the order made on 5 May 2022 which required Mr Mondoro to keep Mr Paiko and the NHC, through their counsel, fully informed of the progress of Mr Mondoro’s fresh judicial review proceeding in OS (JR) No. 35 of 2022 (IECMS), and in particular Mr Babe had not notified Mr Yapa acting for Mr Paiko that leave to withdraw Mr Mondoro’s latest judicial review proceeding had been granted by Kandakasi DCJ on 11 May 2022 because Mr Mondoro had not exhausted his remedy of appeal against the Minister’s forfeiture decision provided for in s.142(1)(b) of the Land Act 1996.

(2) Mr Babe had failed to file any affidavit in compliance with Order 2 Rule 39(2) of the National Court Rules establishing that he had, not less than 7 days before doing so, served on Mr Mondoro notice of his intention to file the notice of ceasing to act which Hebrew Babe Lawyers had proceeded to file without leave of the Court on 1 September 2022.

(3) Mr Babe had failed, in defiance of the Court’s order of 5 May 2022, to appear before the Court on 2 September 2022 and had instead, the day before, on 1 September 2022 filed, without any forewarning to the other parties’ counsel, a notice of ceasing to act for Mr Mondoro.

92. On 2 September 2022 the Court accordingly issued an order for Mr Babe to appear in person before the Court on 9 September at 1.30 pm to show cause on oath why he should not be cited for contempt of Court for:

(1) his failure to keep the other parties to this proceeding fully informed of the status of Mr Mondoro’s latest judicial review proceeding in OS (JR) No. 35 of 2022.

(2) his failure to have complied with Order 2 Rule 39(2) of the National Court Rules by giving at least 7 days advance notice to Mr Mondoro of his intention to file a notice of ceasing to act; and

(3) his failure to appear before the Court on 2 September 2022 to report on the current status of Mr Mondoro’s judicial review proceeding in OS (JR) No. 35 of 2022.

93. Nandi Lawyers were directed to serve a copy of the sealed order of 2 September 2022 on Mr Babe personally and to file an affidavit in respect of that service by 7 September 2022. Nandi Lawyers complied with that direction and an affidavit sworn by Mr Yapa deposing as to service of a sealed copy of the Court’s order of 2 September 2022 on Mr Babe personally was filed by Nandi Lawyers on 6 September 2022.
94. On 6 September 2022 Nandi Lawyers filed Mr Paiko’s present motion seeking the discharge of the earlier restraining order against Mr Paiko of 20 March 2019 as well as the discharge of the stay order of 11 June 2020 and, significantly, seeking summary determination of this proceeding OS No. 54 of 2019. Mr Paiko’s motion was supported by the filing by Nandi Lawyers on 6 September 2022 of an affidavit sworn by Mr Paiko on 5 September 2022, a matter I refer to later in this decision. Copies of Mr Paiko’s motion and affidavit filed on 6 September 2022 were served on Mr Babe personally by Mr Yapa at the office of Hebrew Babe Lawyers on 12 September 2022, as deposed to by Mr Yapa in his affidavit of service filed on 13 September 2022.
95. On 7 September 2022 Mr Babe filed an affidavit sworn by him the same day which addressed the reasons he contended why he should not be cited for contempt of Court. Mr Babe deposed in his affidavit as follows:

“ 4. OS (JR) No. 35 of 2022 (IECMS) ANDIKI MONDORO -v- JOHN ROSS, MINISTER FOR LANDS & ORS. This proceedings came before His Honour Kandakasi DCJ on 11 May, 2022 for Leave Hearing where issue arose as to the proper mode of proceeding as His Honour was of the view that Appeal proceedings pursuant to Land Act, 1996 was the proper avenue to challenge the forfeiture.

5. We as such sought leave to discontinue that proceeding to avoid it being dismissed and so we could file fresh Appeal proceedings.

6. We proceeded to prepare the Appeal but came to stalemate as we could not confirm instructions to proceed from our client.

7. We were hoping to confirm instructions from our client and file the fresh Appeal proceedings and then inform the Plaintiffs but until the 01st September, 2022 we were still not able to confirm instructions and as such had no option but to file our Notice of Ceasing to Act and in our service letter the Defendants we did advise our reason for filing the same and also that we would not be able to attend Court as we would be attending a Trial matter at the Port Moresby District Court at even time. ...

8. I also on my way to the District Court on the 02^nd September, 2022 did send by email a sealed copy of my Notice of Ceasing to Act and our service letters bearing acknowledgement of service from the Plaintiffs to Mr Numana Kilava[nwa] the Judge[‘s] Associate and also advising that would not be able to attend. ...

9. We were not able to serve a notice of our intention to file our Notice Ceasing to Act on our client as required by Order 2 Rule 39(2) NCR as we could not contact him on his mobile number 7028449 which is our usual mode of communication with our client.

10 Our client is resident at East Boroko settlement but as to his exact residence we are not aware of.

...

15. We as such will not object to the Plaintiff’s application to discontinue this proceeding as the forfeiture of the Plaintiff’s title, owner’s copy of which is currently in possession of the Court, has been forfeited and thus this proceeding loses its utility. ”

96. On the return of this proceeding before the Court in the afternoon of 9 September 2022, Mr Babe attended and made a conditional appearance in view of his law firm’s notice of ceasing to act for Mr Mondoro on 1 September 2022. Mr Yapa appeared for Mr Paiko. There was again no appearance by Mr Luke for the NHC. The Court acknowledged the content of Mr Babe’s affidavit filed on 6 September 2022 but was critical of Mr Babe’s failure to have notified Mr Yapa that Mr Mondoro’s judicial review proceeding in OS (JR) No. 35 of 2022 had been withdrawn pursuant to leave granted by Kandakasi DCJ on 11 May 2022. That notification by Mr Babe to Mr Yapa should have occurred shortly after 11 May 2022. It never happened at any time prior to the filing of Hebrew Babe Lawyers’ notice of ceasing to act for Mr Mondoro on 1 September 2022.
97. The Court was further critical of Mr Babe on 9 September 2022 for his having failed to file any affidavit in conjunction with the filing of his law firm’s notice of ceasing to act to explain whatever difficulties Mr Babe may have been experiencing in communicating with Mr Mondoro after 11 May 2022. Mr Babe conceded in open Court on 9 September 2022 that there was want of prosecution on the part of Mr Mondoro in his not pursuing any appeal to the National Court pursuant to s.142(1)(b) of the Land Act 1996 after Kandakasi DCJ had expressly granted Mr Mondoro leave to withdraw his judicial review proceeding in OS (JR) No. 35 of 2022 on 11 May 2022 so as to enable Mr Mondoro to proceed with that appeal.
98. The Court was further critical of Mr Babe on 9 September 2022 for his discourtesy to the Court in filing a notice of ceasing to act for Mondoro only one day before Mr Mondoro was required, by the Court’s order of 5 May 2022, to appear (by counsel) before the Court on 2 September 2022 to report on the present status of Mr Mondoro’s judicial review proceeding in OS (JR) No. 35 of 2022. This discourtesy was compounded by Mr Babe’s cavalier attitude when requesting Mr Yapa by letter dated 1 September 2022 to inform this Court on the return of this proceeding on 2 September 2022 that Mr Babe would not be appearing before the Court because he had a District Court trial to attend to in Port Moresby. Mr Babe had no right to ask Mr Yapa to inform the Court that Mr Babe would not be attending on the return of OS No. 54 of 2019. Mr Babe’s request in that regard was a clear breach of his duty as an officer of the Court to attend and appear at Court on 2 September 2022 notwithstanding that he had filed a notice of ceasing to act for Mr Mondoro the day before.
99. In the result, on 9 September 2022 the Court refrained from citing Mr Babe for contempt and administered an admonishment instead. Mr Babe had at least endeavoured to notify Associate Mr Kilavanwa Jnr by email late in the morning of 2 September 2022 that he would not be attending Court that afternoon, even though the Associate did not receive and read that email in time. Also, Mr Babe had at least given his explanation on oath by his affidavit sworn and filed on 7 September 2022 for his failures, even though aspects of his explanation were less than satisfactory.
100. Applying the foregoing facts to the circumstances in which Order 10A Rule 9A(15) of the National Court Rules can be invoked for the Court to summarily dispose of a proceeding, it is obvious that the following three situations prescribed by Sub-rules 2(b), (c) and (d) of Order 10A Rule 9A(15) have direct relevance to what has transpired in this case:

2(b) failure by a party or his lawyer to appear at any listing or directions hearing;

2(c) non-compliance with any order or directions previously made or issued by the Court at any of the listing processes;

2(d) applicability of any of the grounds set out in Order 8 Rule 27 of the National Court Rules i.e. where a pleading discloses no reasonable defence or has a tendency to cause prejudice, embarrassment or delay or is otherwise an abuse of Court process.

Sub-rule 2(b) of Order 10 Rule 9A(15) – Summary Disposal for failure to appear at a listing or directions hearing

101. As to Sub-rule 2(b), term 2 of the Court order of 5 May 2022 required Mr Mondoro, either in person or by his counsel, to appear before the Court on 2 September 2022 at 1.30 pm to report to Court on the status of Mr Mondoro’s judicial review proceeding in OS (JR No. 35 of 2020. Mr Mondoro did not appear before the Court on 2 September 2002 at 1.30 pm. Neither did his counsel Mr Babe. Mr Babe had an obligation to ensure that term 2 of the order of 5 May 2022 was complied with by either Mr Mondoro or himself reporting to the Court. Mr Babe could not avoid that obligation by the misconceived expedient of filing a notice of ceasing to act on 1 September 2022, which notice was in itself was defective for failure by Mr Babe to have contemporaneously filed on 1 September 2022 any affidavit of explanation as to why he could not comply with the requirement of Order 2 Rule 39(2) of the National Court Rules regarding the giving of not less than 7 days’ notice to Mr Mondoro of Mr Babe’s intention to file a notice of ceasing to act.
102. Order 2 Rule 39 of the National Court Rules provides:

39. Withdrawal of solicitor

(1) Where a solicitor acts for a party to any proceedings and afterwards ceases to act, the solicitor may, subject to Sub-rule (2), file notice of the change and serve the notice on the parties.

(2) A solicitor shall not file or serve notice of a change under Sub-rule (1) without leave of the Court unless he has, not less than seven days before doing so, served on his former client notice of his intention to file and serve the notice of change.

(3) A solicitor filing a notice of change under Sub-rule (1) shall, except where the notice is filed with the leave of the Court, file and serve with the notice an affidavit showing service in compliance with Sub-rule (2)

(4) A solicitor may serve a notice under this Rule on his former client by posting it to the former client at the residential or business address of the former client last known to the solicitor.

103. Mr Babe deposed in his affidavit filed on 7 September 2022 that he did not have any residential address for Mr Mondoro other than that he knew that Mr Mondoro lived at a settlement at East Boroko, NCD. Mr Babe said that Mr Mondoro was not responding to phone calls made by him to Mr Mondoro’s last known mobile phone number. Mr Babe said that this was the reason he could not give notice to Mr Mondoro that he was about to file a notice of ceasing to act for him in this proceeding.
104. I consider that in the circumstances as outlined by Mr Babe in his affidavit of 7 September 2022, he should have applied pursuant to Order 2 Rule 39(2) of the National Court Rules for leave to file a notice of ceasing to act, supported by an affidavit setting out his reasons why he could not give notice to Mr Mondoro of his intention to file a notice of ceasing to act. Mr Babe should not have simply gone ahead and filed a notice of ceasing to act without having first applied for and obtained leave of the Court to do so. I find that as leave had not been granted, Mr Babe’s filing of his notice of ceasing to act on 1 September 2022 was in clear breach of Order 2 Rule 39(2) of the National Court Rules.
105. Furthermore, I find that Mr Mondoro knew or ought to have known that he was due to appear before this Court on 2 September 2022 at 1.30 pm to report on the status of his latest judicial review proceeding as ordered by this Court on 5 May 2022. Mr Mondoro failed to keep in contact with Mr Babe after May 2022 and Mr Mondoro also failed to appear before the Court on 2 September 2022. By that double failure on the part of Mr Mondoro, he failed to comply with term 2 of the Court’s order of 5 May 2022. I find that Mr Mondoro thereby activated cause for Mr Paiko to have this case summarily determined under Sub-rule 2(b) of Order 10 Rule 9A(15) of the National Court Rules for failure by Mr Mondoro to have appeared at the directions hearing on 2 September 2022.

Sub-rule (c) of Order 10 Rule 9A(15) – Summary Disposal for non-compliance with Court order or directions

106. As to Sub-rule (c), Mr Mondoro’s failure to appear before the Court on 2 September 2022, either by himself or by his counsel Mr Babe, constituted non-compliance with term 2 of the Court’s order of 5 May 2022 in that no report on the status of Mr Mondoro’s judicial review proceeding in OS (JR) No. 35 of 2022 was given by to the Court on 2 September 2022. Moreover, term 3 of the Court’s order of 5 May 2022 required Mr Mondoro, either by himself or by his counsel Mr Babe, to keep Mr Paiko by his counsel Mr Yapa fully informed of all steps taken by Mr Mondoro to progress his judicial review application in OS (JR) No. 35 of 2022. Mr Mondoro and Mr Babe both failed to comply with that term 3. No notification was given to Mr Yapa or to Mr Paiko by Mr Mondoro or Mr Babe that leave had been granted to Mr Mondoro by Kandakasi DCJ on 11 May 2022 to withdraw his judicial review application in OS (JR) No. 35 of 2022. It was equally incumbent on both Mr Mondoro and Mr Babe to ensure that notification of the termination of Mr Mondoro’s latest judicial review application was given to Mr Yapa and/or Mr Paiko shortly after 11 May 2022. I find that this combined failure by Mr Mondoro and Mr Babe to give that notification and to later appear before the Court on 2 September 2022 constitutes serious non-compliance with an order or direction of the Court within the meaning of Sub-rule (c) of Order 10 Rule 9A(15) of the National Court Rules. This is further cause for the Court to invoke its jurisdiction to summarily determine this case.

Sub-rule (d) of Order 10 Rule 9A(15) – Summary Disposal on grounds set out in Order 8 Rule 27 of National Court Rules – a pleading discloses no reasonable defence or a pleading has tendency to cause prejudice, embarrassment or delay or defence is otherwise an abuse of process

107. As to Sub-rule (d), the Court must look to Mr Mondoro’s pleadings, that is to say his amended defences to the statements of claim that were filed for Mr Paiko and for the NHC, to ascertain if any of the grounds set out in Order 8 Rule 27 of the National Court apply to the circumstances of this case.
108. Mr Mondoro’s amended defence to Mr Paiko’s amended statement of claim was filed by Hebrew Babe Lawyers on 21 November 2019. As a pleading, this amended defence contains a total of 22 paragraphs, virtually all of which contain denials of fraud and denials of particulars and significant other matters pleaded by Mr Paiko. This amended defence of Mr Mondoro culminates in sub-paras. 22(h) to (l) as follows:

“ 22(h) The Defendant has a valid indefeasible title to the property protected by the Land Registration Act and the Constitution.

(i) The Plaintiff has totally failed to plead particularly what act of omissions constituting either actual or constructive fraud were committed by the Late Ere Mai, his sons or the Defendant or anyone for that matter for the Defendant to obtain the title to the property; and

(j) It is the Plaintiff’s burden to properly plead and prove the fraudulent conduct they claim was undertaken by the Late Ere Mai, his sons or the Defendant to obtain the title to the property buy they have miserably failed to do so in their pleadings.

(k) The Plaintiffs have contradicted themselves and have provided in their pleadings indisputable evidence that:

(i) The property was formerly owned by the Late Ere Mai, who was issued a Residential Lease by the Department of Lands; and

(ii) As such the NHC did not own the property and could not have lawfully sold it to the First Plaintiff and as such the Contract of Sale relied upon is null and void.

(l) The Plaintiff’s claim contained herein completely fails to establish any fact of fraud on the title and as such:

1. The matter should be entirely dismissed; and

2. costs on an indemnity basis awarded to the Defendant; and

3. The First Plaintiff and his servants and agents be ordered to immediately vacate the subject property and the Defendant be given vacant and peaceful possession of the property. ”

109. Mr Mondoro’s defence to the NHC’s statement of claim was filed by Hebrew Babe Lawyers on 4 December 2019. This defence is in similar vein to Mr Mondoro’s amended defence filed on 21 November 2019 in answer to Mr Paiko’s amended statement of claim.
110. Mr Mondoro’s defence to the NHC’s statement of claim concludes in para. 13 as follows:

“ 13. The Defendant denies the whole of paragraphs 14, 14.1, 14.2, 14.3 and 14.4 of the Statemen of Claim and says that:

(a) the subject property was at the material time and is not owned by the Second Plaintiff; and

(b) the Occupancy Agreement between the Late Ere Mai and the Second Plaintiff was only for a term of two (2) years commencing o7th March, 1977 and ending 07^th March, 1979;

(c) Upon expiry of the Occupancy Agreement the Late Ere Mai applied for the land on the 6^th November, 1980 and was granted a State Lease over the subject property by the PNG Lands Board on the 23^rd April 1981; and

(d) All adjacent and surrounding allotments in the area to a total of 218 were all granted State Leases to the occupants at that time and the Second Plaintiff never objected to the grant;

(e) An Occupancy Agreement is not a definite proof of ownership and as such the Plaintiffs cannot rely on it to prove their ownership when compared with the Defendant who has a valid indefeasible title which in itself is definite proof of ownership; and

(f) The Second Plaintiff to rove and confirm its ownership must produce an Owner’s Copy of its title over the subject property same as the Defendant has done so to properly prove its ownership; and

(g) The initial grant and registration to the Late Ere Mai and subsequent transmission to his sons and transfer to the Defendant are all proper and lawful; and

(h) The contract of sale entered into between the First and Second Defendant [sic] is null and void ab initial as the Second Defendant [sic] at the material time of executing the said contract did not have a valid and indefeasible title to the property; and

(i) As such the Second Plaintiff is not entitled to seek the reliefs it seeks and the matter should be dismissed with costs on an indemnity basis to the Defendant. ”

111. These two defences of Mr Mondoro indicate a fundamental ignorance of the nature of the Urban Development Lease which the NHC contends it has for the 218 allotments at Section 123, Matirogo, Port Moresby, NCD, of which the subject property at Allotment 23 Section 123, Matirogo is but one allotment. Be that as it may, events which immediately preceded Mr Mondoro’s two defences have negated their viability as pleadings. Forfeiture of State Lease Volume 118 Folio 195 by the Minister for Lands and Physical Planning pursuant to s.122(1) of the Land Act 1996 became effective when notice of that forfeiture was published in National Gazette No. G863 of 29 October 2019. That event occurred without the knowledge of Mr Mondoro and Mr Babe when Mr Mondoro’s two defences were filed on 21 November 2019 and 4 December 2019 respectively. Had Mr Mondoro and Mr Babe known of the forfeiture of Mr Mondoro’s purported title to the property, the two defences filed for Mr Mondoro on 21 November 2019 and 4 December 2019 would have had to have pleaded reference to the forfeiture and could not possibly have alleged that Mr Mondoro had indefeasible title by virtue of State Lease Volume 118 Folio 195 as that title had already been forfeited.
112. As it has transpired, Mr Mondoro’s only prospect of regaining his purported title to the property was by way of appeal against forfeiture to the National Court under s.142(1)(b) of the Land Act 1996, not by any of the judicial review proceedings instituted by Mr Mondoro, namely OS (JR) No. 12 of 2020, inadvertently reproduced by the Registry in the IECMS platform as OS (JR) No. 26 of 2020, and OS (JR) No. 35 of 2022. The matters deposed to by Mr Babe in his affidavit filed on 7 September 2022 show that it was not until Kandakasi DCJ gave leave to Mr Mondoro to withdraw OS (JR) No. 35 of 2022 on 11 May 2022 that Mr Babe and Mr Mondoro first became aware of Mr Mondoro’s right of appeal against Ministerial forfeiture under s.122(1)(b) of the Land Act 1996. By this stage more than 23 months had elapsed since Mr Paiko’s suit in OS No. 54 of 2019 had been stayed by order of the Court on 11 June 2020, granted on Mr Mondoro’s application, to enable Mr Mondoro in the interest of fairness to pursue his judicial review proceedings, now belatedly known by them to have been misconceived right from the start. The Court finds as a fact, proven by Mr Babe’s evidence, that subsequent to 11 May 2022 Mr Mondoro failed to keep in communication with Hebrew Babe Lawyers and he failed to file any application to the National Court pursuant to s.142(2) of the Land Act 1996 for leave to file an appeal under s.142(1)(b) of that Act challenging the Ministerial forfeiture of State Lease Volume 118 Folio 195.
113. For the foregoing reasons I am satisfied that Mr Mondoro’s two defences constitute pleadings which are capable of being struck out under all three of the grounds set out in Order 8 Rule 27 (1) of the National Court Rules, which is to say that the two defences collectively disclose no reasonable defence [Rule 27(1)(a)], that they not only have a tendency but have in fact seriously operated to cause prejudice, embarrassment and unnecessary delay in Mr Paiko’s proceeding OS No. 54 of 2019 [Rule 27(1)(b)] and that they are and have from the outset been an abuse of the Court’s process in OS No. 54 of 2019 by reason of the Ministerial forfeiture of State Lease Volume 118 Folio 195 [Rule 27(1)(c)].
114. It therefore follows that as all three grounds in Order 8 Rule 27 have been made out, the Court may, in addition to recourse being had to Sub-rules 2(b) and 2(c) of Order 10 Rule 9A(15), also summarily determine this proceeding under Sub-rule 2(d) of Order 10 rule 9A(15) of the National Court Rules. The Court will accordingly exercise its discretion to grant summary determination of this proceeding, as sought by Mr Paiko.

ISSUE 3: On what terms should summary determination be granted?

115. Mr Paiko has submitted by his counsel Mr Yapa that the interim injunction ordered by the Court on 20 March 2019, extended on several occasions, which prevented Mr Paiko from any further construction of the four apartments on the property pending determination of this proceeding OS No. 54 of 2019 and the stay order of 11 June 2020 should both be discharged forthwith. I agree. For the avoidance of doubt, the terms of today’s order will reflect the discharge of those two interlocutory orders.
116. As the whole of this proceeding is to be summarily disposed of under Order 10 Rule 9A(15) of the National Court Rules, the Court must take into account not only what Mr Paiko was seeking in his amended statement of claim by way of substantive relief, but also the final relief that the NHC was seeking in its statement of claim, notwithstanding that the NHC’s in-house counsel made no submissions on Mr Paiko’s application for summary determination.
117. Mr Paiko’s amended statement of claim filed on 20 August 2019 seeks five heads of relief. I refer in abbreviated form to each of those five heads below and respond with the nature of the relief which the Court is prepared to grant:

(1) A declaration that the State Lease Volume 118 Folio 195 is void and has been void ab initio.

This declaration cannot be made by the Court in view of the Ministerial forfeiture of the State Lease on 23 October 2019. This proceeding will not progress to substantive trial because of summary determination. The issue of whether the State Lease was void ab initio can therefore not be tested by evidence and submissions made in this proceeding. In any event, the State Lease has already been cancelled by the Registrar of Titles in consequence of its Ministerial forfeiture.

(2) An order that State Lease Volume 118 Folio 195 be cancelled forthwith and title restored to the NHC.

I consider that no utility would be served if an order of this nature were to be made. The State Lease has already been forfeited by the Minister for Lands and Physical Planning. By that forfeiture State Lease Volume 118 Folio 195 no longer exists in law. The NHC’s title to the property remains intact, as has Mr Paiko’s equitable interest in having legal title transferred to him by the NHC through registration in due course of the stamped transfer instrument which has already been executed by the NHC in favour of Mr Paiko as transferee, that registration to occur when the Registrar of Titles has issued at the direction of the NHC a fresh State Lease for the property.

(3) A declaration that the NHC’s right and interest in State Lease Volume 118 Folio 195 is to be transferred to Mr Paiko and registered under his name.

Except for the fact that State Lease Volume 118 Folio 195 has been Ministerially forfeited, such a declaration in respect of registration of the NHC’s transfer instrument in favour of Mr Paiko against the new State Lease to issue for the property by the Registrar of Title would be consistent with the NHC’s position. However a judicial declaration is, by its very nature, only declaratory and not enforceable. I therefore consider that it would be more appropriate for a coercive order to be made by the Court in this regard, as sought by the NHC, so as to ensure that the future registration of the NHC’s transfer of title to Mr Paiko is properly secured by Court order, rather than by judicial declaration.

(4) An order that Mr Paiko is to continue to occupy and may resume construction of the four residential units on the property.

This order is consistent with the NHC’s position and will be made by the Court.

(5) A permanent injunction to restrain Mr Mondoro and his agents from future harassment or intimidation of Mr Paiko or from interfering with Mr Paiko’s right to peaceful possession, enjoyment and improvement of the property.

The Court will decline to grant a permanent injunction of this nature as this head of relief was not pursued at the hearing of the motion and no submissions were made in that regard. Mr Paiko can apply in separate proceedings in the future should further interim or permanent protective injunctive relief be required.

118. The NHC’s statement of claim filed on 30 August 2019 seeks three heads of substantive relief. I refer in abbreviated form to each of those heads below and respond with the nature of the relief which the Court is prepared to grant:

(1) That the registration and transfer of the property to the late Ere Mai and subsequent transfers, including that of the transfer to Mr Mondoro, be cancelled forthwith.

There is no utility in the Court making this order as sought. State Lease Volume 118 Folio 195 has already been Ministerially forfeited and cancelled by the Registrar of Titles.

(2) That entries for State Lease Volume 118 Folio 195 registered to Mr Mondoro be cancelled and title to the property revert to the NHC forthwith.

Again, there is no utility in the Court making this order as the State Lease has already been Ministerially forfeited and cancelled by the Registrar of Titles. By that forfeiture the status quo ante has been restored and the NHC’s right, title and interest in the property remains intact, as has Mr Paiko’s equitable interest in having legal title transferred to him by the NHC after the new State Lease for the property has been issued by the Registrar of Titles.

(3) In the alternative, an order that the NHC’s title to the property be transferred to Mr Paiko, and that the Registrar of Titles effect registration of the transfer instrument forthwith.

This is essentially the same as relief no. (3) sought by Mr Paiko and which will be granted by order of the Court rather than by declaration, except that the Registrar of Titles will not be able effect registration of the transfer instrument conveying legal title to the property from the NHC to Mr Paiko until such time as the new State Lease for the property has been issued by the Registrar of Titles.

119. Apart from the final orders which the Court has identified above it will make by way of summary determination of this proceeding, there is an ancillary order which the Court needs to make and which was referred to in Mr Yapa’s submissions. The Court will make an order for the return of the files which were produced to the Court by Deputy Registrar of Titles Jemimah Salop and Secretary for the Department of Lands and Physical Planning Benjamin Samson on 12 February 2020. The Court will order the release of those files to Nandi Lawyers for Mr Yapa to forthwith cause those files and their contents to be delivered back to Ms Salop and Mr Samson respectively and for an affidavit or affidavits in respect of that delivery to be filed by Nandi Lawyers within seven days from today.
120. As to costs, Mr Paiko by his counsel has submitted that the Court should make a joint costs order against both Mr Mondoro and his lawyer Mr Hebrew Babe. While I accept that Mr Babe was professionally remiss in not having promptly informed Mr Yapa of Nandi Lawyers acting for Mr Paiko that leave to withdraw Mr Mondoro’s judicial review proceeding OS (JR) No. 35 had been granted by Kandakasi DCJ on 11 May 2022, ultimately it was Mr Mondoro’s non-compliance with orders and directions of the Court, his want of prosecution to pursue his right to apply to the National Court for leave to appeal the Ministerial forfeiture of State Lease Volume 118 Folio 195 and his failure to keep in communication with his lawyer Mr Babe that has justified this proceeding OS No. 54 of 2019 being summarily determined on application by Mr Paiko. If this case were not to be summarily disposed of at this late stage, this proceeding would be indefinitely prolonged while waiting for Mr Mondoro to take whatever next steps he thought were open to him regarding the Ministerial forfeiture of State Lease Volume 118 Folio 195. However, it is clear that Mr Mondoro’s prospects of obtaining leave from the National Court to appeal that Ministerial forfeiture after all this lapse of time since gazettal on 29 October 2019 would appear to be remote. There must be finality to this litigation. Overall I consider that Mr Paiko has had to incur considerable unnecessary expense through unmeritorious conduct on the part of Mr Mondoro when defending this litigation. Mr Mondoro will therefore be ordered to pay Mr Paiko’s costs of and incidental to this action on a solicitor/client basis, such costs to be taxed if not agreed.

JUDGMENT

121. The formal terms of the judgment of this Court for summary determination of this proceeding are as follows:

1. The interim injunction ordered by the Court on 20 March 2019, as extended from time to time, and the order for the stay of this proceeding made on 11 June 2020 are both discharged with immediate effect.
   
2. Subject only to any Ministerial approval that may be statutorily required under s.128 of the Land Act 1996, it is ordered that the Registrar of Titles shall cause the stamped and executed transfer instrument in respect of the conveyance to the First Plaintiff of the Second Plaintiff’s right, title and interest in all that parcel of land described as Allotment 23 Section 123, Matirogo, City of Port Moresby, National Capital District to be registered forthwith after the new State Lease for the said allotment of land has been issued by the Registrar of Titles.
   
3. It is ordered that the First Plaintiff may continue to occupy and may forthwith resume the construction of the four residential units on the said allotment of land.
   
4. The following files and documents shall be forthwith released by the Civil Registry of the National Court to Nandi Lawyers who shall cause the same to be promptly delivered to the offices named hereunder:

(a) the temporary file and its contents referred to in paragraph 5 of the affidavit of Jemimah Salop, Deputy Registrar of Titles sworn and filed herein on 11 February 2020 which were produced to the Court on 12 February 2020 – to be delivered to the Office of the Deputy Registrar of Titles; and

(b) the Land File and its contents referred to in paragraph 4 of the affidavit of Benjamin Samson, Secretary for the Department of Lands and Physical Planning sworn and filed herein on 11 February which were produced to the Court on 12 February 2020 – to be delivered to the Office of the Secretary for the Department of Lands and Physical Planning; and

(c) the original of the Owner’s Official Copy of State Lease Volume 118 Folio 195 which was produced to the Court by the Defendant on 9 March 2020 – to be delivered to the Office of the Deputy Registrar of Titles for cancellation by reason of its Ministerial forfeiture by notice published in National Gazette No. G863 on 29 October 2019.

5. Nandi Lawyers shall no later than Wednesday 5 October 2022 file an affidavit or affidavits as to proof of delivery of the files and documents referred to in term 4 of this Order, which affidavit or affidavits shall have annexed to them appropriate acknowledgements of receipt by persons authorised to receive such files and documents at the Office of the Registrar of Titles and at the Office of the Secretary of the Department of Lands and Physical Planning.
6. The Defendant shall pay the costs of the First Plaintiff and the Second Plaintiff on a solicitor/client basis, such costs to be taxed if not agreed.
7. The time for entry of this Judgment is abridged to the time of signing by the Court which shall take place forthwith.

Judgment accordingly

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Nandi Lawyers: Lawyers for the First Plaintiff