Mamu v Penning [2023] PGNC 33; N10121 (13 February 2023)

N10121

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HR (OS) NO. 1 OF 2023

BETWEEN:
LESLIE B. MAMU, Public Solicitor of Papua New Guinea
Plaintiff

AND:
MERELYN PENNING
Defendant

Kokopo: Kassman, J
2023: 8^th, 9^th, 10^th and 13^th February

ORIGINATING SUMMONS – claim alleging breach of a human right – grievance raised by tenant of property following re-entry to property and lock-out by landlord due to non-payment of rent – dispute between landlord and tenant – no evidence of any breach of a human right – proceeding dismissed for abuse of process

The Plaintiff claimed orders of the court to allow him access to his office and particularly to secure his files. The Plaintiff was a tenant of the defendant’s property for many years pursuant to a lease formally executed and the Plaintiff continued to occupy the property despite the initial term expiring. For some lengthy period, rent had accrued and was not paid despite constant assurances. The doors to the property were locked denying lawyers and staff of the Plaintiff access to the office, their files, equipment and personal belongings. Interim orders were issued allowing the Plaintiff access to the office to collect their files and essential equipment so that they were able to perform their duties. Re-entry by the landlord to the property was permitted by the terms of the lease. There was evidence or no arguable action for a breach of a human right. The proceeding was an abuse of process and was dismissed.

Cases Cited:
Leslie Mamu, Public Solicitor of PNG -v- Rod Ford, National Property Manager, Pacific Palms Properties Limited (2021) N9338

Legislations Cited:
Constitution ss. 53, 57 and 155(4)

Counsel:
Noel Loloma, for the Plaintiff
Merilyn Penning, Defendant in person
Elsie Takaboy, for the Solicitor-General (at the request of the court)

DECISION

13^th February, 2023

1. KASSMAN J: The Plaintiff Leslie Mamu is the Public Solicitor of Papua New Guinea (“the Public Solicitor”), an office established by Section 176 of the Constitution. The function of the Public Solicitor is described in section 177 of the Constitution and that is “... to provide legal aid, advice and assistance for persons in need of help by him, and in particular – (a) to provide legal assistance to a person in need of help by him who has been charged with an offence punishable by imprisonment for more than two years; and (b) ... he shall provide legal aid, advice and assistance to any person when directed to do so by the Supreme Court or the National Court; and (c) in his discretion in any matter, whether of a criminal or civil nature provided that such assistance shall be – (i) limited to advice and preparation of documents in any proceedings in respect of which an Act of the Parliament prohibits legal representation of any party to the proceedings; and (ii) granted in accordance with an order of priorities relative to the resources of the Public Solicitor laid down by an act of the Parliament.”
   
2. The Public Solicitor’s employed lawyers based in Kokopo are Cecilia Pulapula, Noel Loloma, Gabriel Tugah and Sharon Pitep. With secretarial and administration staff, they occupy office space in a building at Section 11 Allotment 9, Kokopo (“the office”). There is apparently a tenancy agreement but that was not produced by the Public Solicitor at commencement of this proceeding on 7 February 2023. The landlord of the office is apparently a Merilyn Penning (“Penning”). On 6 February 2023, Penning locked all doors to the office preventing the lawyers and staff of the Kokopo office of the Public Solicitor from entering the office until payment of all rent outstanding.
   
3. In the Originating Summons filed on 7 February 2022, the Public Solicitor sought the following orders:
   
   1. Pursuant to s. 57(1) and s.53 of the Constitution, an Order directing the defendant to give immediate and unimpeded access to the Plaintiff and his employees and agents to the property described as Jack Penning House, Section 11, Lot 9, Kokopo, East New Britain Province for the purpose of attaining all Public Solicitor’s Office properties.
      
   2. An Order directing the defendant to give immediate and unimpeded access to the Plaintiff and his employees and agents to the property described as Jack Penning House, Section 11, Lot 9, Kokopo, East New Britain Province for the purpose of attaining all Public Solicitor files.
      
3. The Public Solicitor himself has not filed an affidavit but he filed on 7 February 2023 affidavits sworn by lawyers in his employ who are resident in Kokopo namely Cecelia Pulapula, Gabriel Tugah and Noel Loloma. They all attest to the fact they have been greatly affected in the performance of their duties as lawyers on being locked out from their office. They all say they never received any notice prior to 6 February 2023 of the landlord’s intention to lock them out from the office. They also say that despite approaching Penning in person and seeking leniency to allow them access to their files, robes and other essentials, the landlord remained firm in her stand to keep the office locked until the outstanding office rent is paid in full.
   
4. The impact of the lockout on the lawyers and staff of the Public Solicitor’s Office in Kokopo has been massive. The Public Solicitor acts for over eighty percent of all persons accused of serious crimes in the East New Britain Province. The Public Solicitor also acts for many persons with civil claims or defending civil proceedings in the National Court and also in the District Courts in Kokopo, Rabaul and Kerevat. On record in the National Court Registry in Kokopo, there are 189 accused persons with pending crimes files. The Public Solicitor acts for a total of 152 accused persons, 49 are on bail and 128 are in custody at CS Kerevat awaiting trial or sentence.
   
5. Ms Pulapula and Mr Tugah are appearing this month before Justice Tusais on a crimes circuit at Kerevat without their files and books. Mr Loloma and his colleagues have also appeared before Justice Pitpit in Kokopo this week. They are all experiencing great inconvenience with taking instructions and advising their clients and appearing in court without the benefit of their files and computers and that has hampered their efficient assistance to the court during the week. Obviously, their support staff are unable to help the lawyers with drafting, formatting and printing of letters and court documents such as affidavits and submissions and communications with police, Corrections Officers and Probations Officers which are some of the things they do daily. Their assistance to the court in this time has been minimal at best.
   
6. On hearing Mr Loloma in court on 8 February 2023, I raised a number of questions. Where is the landlord’s notice that was served on the lawyers on 6 February 2023? Is there a lease agreement between the landlord and the Public Solicitor? Who is the landlord? Who is the tenant? Fundamentally, is this a complaint that the Public Solicitor’s human rights have been breached or denied? Or is this a commercial dispute between a landlord and tenant? Mr Loloma did not directly address any of these issues but handed up in court a copy of a decision of Eliakim AJ dated 22 November 2021 in Leslie Mamu, Public Solicitor of PNG -v- Rod Ford, National Property Manager, Pacific Palms Properties Limited N9338. Mr Loloma suggested that decision dealt with a similar situation faced by the Office of Public Solicitor in Mount Hagen. Mr Loloma was not able to assist any further so I had the matter adjourned and directed Mr Loloma get the landlord to come to court the next day.
   
7. On 9 February 2023, Mr Loloma appeared in court along with the Defendant Penning. By then, Loloma and Pulapula had each sworn and filed further affidavits attaching the first page of the landlord’s notice dated 3 February 2023 which was served on the lawyers on 6 February 2023 and which stated outstanding rental was an amount K122, 727.03l. Mr Loloma also drew my attention to an email from a Michael Mogia of the Department of Finance where he says “... I will advise Wari to release the remaining outstanding balance.” Mr Loloma understood that communication to mean payment was about to be raised. I then posed the same questions raised with Mr Loloma the day before. Penning did not have legal representation but handed up in court the following documents at the request of the court.
   
   1. the first and second pages of the landlord’s notice dated 3 February 2023 which was served on the lawyers on 6 February 2023 on the letterhead of Pennlyn Investments Limited.
   2. Commercial Lease between Pennlyn Investments Ltd and Independent State of Papua New Guinea (Public Solicitor) dated 8 June 2012 commencing 3 November 2011 for five years.
   100. Letter from the Secretary for Finance to the State Solicitor dated 3 October 2022 as to the Government Office Allocation Committee approval of renewal of the lease for a further five years from 1 October 2022.
        

9. From the bar table, Penning confirmed on 6 February 2023, she locked the doors to the office occupied by the lawyers and staff of the Kokopo Office of the Public Solicitor and has demanded payment of rent totaling K122,727.03 before she will reopen the office. She said she did that when she handed them her letter dated 3 February 2023. Penning said she was forced to take that action after receiving no assurance that payment was forthcoming and she had recently been advised that the Department of Finance would not be honoring the lease and would not make any payment for the rent due and payable. That was despite the fact that sometime last year, she had received assurance that the lease agreement had been approved extending the period of the lease for a further five years from 1 October 2022. It was apparent, the Public Solicitor had the benefit of the lease of the office until 1 October 2027.

10. Penning also said in court that title to the property was in the names of herself and her husband as joint tenants and that her husband had passed away. Penning also explained the lease entered into with the Public Solicitor had her company Pennlyn Investments Ltd as the lessor and she was the sole director of that company and the shares in the company were held by her children. Penning also said the original title document was held by Westpac Bank as security for a loan and the bank had threatened foreclosure due to non-payment of the monthly mortgage debt. Penning said she relied on the rental payments for the office to pay the monthly mortgage dues. That was another major reason she had taken the drastic step in locking the office.

11. From the documents produced and the statements of Penning made in court, more questions arose such as (a) Does the landlord have title to the property? A copy of the State Lease can address that. (b) Is Pennlyn Investments Ltd duly incorporated? An IPA extract can confirm that; and (c) If Pennlyn Investments Ltd is the landowner, should that company replace Penning as the Defendant in this proceeding?

12. While hearing from Mr Loloma and Penning, I quickly perused the Commercial Lease and noted the landlord had the right of re-entry and it was arguable the landlord had not acted contrary to the terms of the lease in locking out the Public Solicitor on 6 February 2023. I also noted there was nothing in the lease that gave the landlord the right to withhold from the Public Solicitor their office files and computers which were critical to the performance of their duties. There were many legal issues that needed to be addressed by the parties and it was best Penning be allowed time to consult a lawyer and return with legal representation. It was also critical for Mr Loloma to obtain accurate instructions from the Public Solicitor to assist the court address the numerous issues raised on the documents produced in court by Penning. The proceeding was then adjourned to the following day.

13. On Friday, 10 February 2023, Mr Loloma appeared but Penning failed to attend court. At the request of the court, Ms Takaboy of the Kokopo Office of Solicitor-General, who was in court on another matter earlier, stood in to assist the court as it was apparent the Secretary of the Department of Finance may have an interest as the payee of rent for the office although the Secretary was not named as a party to the proceeding.

14. With the mounting pressure on the lawyers needing immediate access to their files on the numerous crimes matters before Justice Tusais and civil proceedings before me and, in the exercise of my inherent powers under section 155(4) of the Constitution, I granted orders directing Penning allow lawyers and staff of the Public Solicitor access to the office from 1:30pm to 4pm on Friday 10 February 2023 and again from 8am to 3pm on Saturday 11 February 2023 to collect their files. Section 155(4) of the Constitution provides “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.”

15. Mr. Loloma was not able to assist the court in addressing the legal issues raised so the court adjourned again to 9am on Monday 13 February 2023 to allow both Mr Loloma and Penning the final opportunity to consider their respective positions and assist the court. When they returned to court on 13 February 2023, Penning said her copy of title was in her house and the original was with the bank. She was certain title was still in the names of herself and her husband as joint tenants. She also confirmed her company Pennlyn Investments Ltd was not the registered title holder and neither had she signed an instrument of transfer of title to the company.

Constitution of Papua New Guinea - Rights and freedoms

16. By the Originating Summons filed, the Public Solicitor relies on sections 57(1) and s.53 of the Constitution. Section 57(1) imposes a duty on the Supreme Court or the National Court to protect and enforce rights and freedoms and section 58 provides that any person whose rights or freedoms are infringed is entitled to reasonable damages and, if the court thinks it proper, that person may be awarded exemplary damages in respect of the infringement.

17. Firstly, there is the basic right to freedom under section 32 and that is fundamental to a democratic society. That is followed by fundamental rights of all persons, citizens and non-citizens, which are found at section 35 the right to life, section 36 the right to freedom from inhumane treatment and section 37 the right to protection of the law.

18. Then there are qualified rights which include section 42 the right to personal liberty, section 43 the right to freedom from forced labour, section 44 the right to freedom from arbitrary search and entry, section 45 the right to freedom of conscience, thought and religion, section 46 the right to freedom of expression, section 47 the right to freedom of assembly and association, section 48 the right to freedom of employment, section 49 the right to privacy, section 50 the right to vote and stand for public office, section 51 the right to freedom of information, section 52 the right to freedom of movement, section 53 the right to freedom from unjust deprivation of property and section 55 the right to equality of all citizens.

19. Section 53 provides that possession may not be compulsorily taken of any property and no interest in or right over property may be compulsorily acquired, unless authorized by law. The word “property” is defined in the Concise Oxford English Dictionary as “1. a thing or things belonging to someone 2. a building and the land belonging to it, shares or investments in property...” Relevantly, subsection (5) of section 53 provides nothing in the section prevents the taking of possession of property “(iii) in satisfaction of a debt or civil obligation”. In this matter, the Public Prosecutor has complained that Penning unlawfully took possession of the office and the contents of the office which include the office files, equipment and personal effects of the lawyers and staff.

20. The essential facts and circumstances are; Penning is the owner of the office, the Public Solicitor is a tenant of the office pursuant to a lease, the Public Solicitor has failed to pay the rent and is in breach of the lease and Penning has taken possession of the office in the exercise of her right of re-entry which is provided by the terms and conditions lease. The taking of possession of the office by Penning was an exercise of her contractual right and an act permitted by law to enforce the contractual obligation of the Public Solicitor to pay rent when rent was due and payable. I am satisfied, in re-entering the property and locking the doors to the office, Penning has acted in accordance with the lease and has not breached any term of the lease. Neither is it arguable Penning has infringed a constitutional right of the public Solicitor under section 53 of the Constitution.

21. From the documents produced in court by Penning, the affidavits of the lawyers and the various statements of Penning made in court, this is a basic dispute between a landlord and tenant. Penning has taken steps to secure rental and that is allowed by the terms of the commercial lease. There is no arguable cause of action pleaded by the Public Solicitor against Penning.

22. Although I have not had detailed submissions from the parties, the lease document appears to contain a number of flaws. It has the company Pennlyn Investments Ltd as the landlord when title appears to be held by Penning herself as she is the surviving joint tenant. This discrepancy is compounded by the fact the letter formalizing the lock-out of the Public Solicitor was issued by the company and not the registered proprietor herself in person Penning. Further, the commercial lease has run its term and was not renewed or extended so the Public Solicitor at most had a month-to-month tenancy. These are just some of the essential aspects to this dispute which will not be thoroughly addressed in the proceeding as filed. I have formed the view that the proceeding as filed is an abuse of process for the reasons stated above. I there dismiss the proceedings for being an abuse of process of the court. As costs follow the event, the Public Solicitor shall pay Penning’s costs of the proceedings.

23. The formal orders of the court are:

1. The proceeding is dismissed for being an abuse of process.
2. The Plaintiff shall pay the Defendant’s costs of the proceedings to be assessed on a party and party basis and to be taxed if not agreed.
   

Judgment accordingly:
_________________________________________________________________
Public Solicitor: Lawyer for the Plaintiff
In person: Defendant
Solicitor-General: Friend of the Court