Agen v Dege [2020] PGSC 100; SC2020 (30 October 2020)

SC2020

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 135 OF 2019

LUCY AGEN
Appellant

V

JOHN DEGE, MANAGING DIRECTOR,
NATIONAL HOUSING CORPORATION
First Respondent

NATIONAL HOUSING CORPORATION
Second Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

WEN’S HOLDING LIMITED
Fourth Respondent

Waigani: Cannings J, David J, Miviri J
2020: 29^th, 30^th October

LAND – State Leases – sale of National Housing Corporation property to person who was not occupier – irregularity in name of company purchaser – indefeasibility – whether any fraud in transfer of property – Land Registration Act, s 33.

PRACTICE AND PROCEDURE – application for adjournment of National Court trial – whether it is a proper ground of adjournment that an opposing party has not appeared, thereby depriving the party seeking adjournment the opportunity to cross-examine the opposing party’s witnesses.

The appellant had been a tenant of a National Housing Corporation residential property for four years when she offered to purchase the property, relying on an alleged verbal agreement with the Corporation to give her the right of first refusal to purchase it. The Corporation did not respond to the offer. Instead it terminated her tenancy and entered into a contract for sale of the property to the fourth respondent, which resulted in the fourth respondent becoming the registered proprietor of the State Lease over the property. The appellant commenced proceedings against the Corporation by writ of summons in the National Court, seeking enforcement of the alleged verbal agreement to allow her to purchase the property. The fourth respondent later commenced separate proceedings against the appellant by originating summons in the National Court, seeking a declaration that it was the registered proprietor and an order for eviction of the appellant, who responded with a cross-claim seeking a declaration that the fourth respondent’s title was affected by fraud. At the joint trial of the two proceedings the trial judge refused an application by the appellant for adjournment so that the Corporation, which did not appear at the trial, could be ordered to make its witnesses available for cross-examination. The trial judge refused all relief sought by the appellant in the proceedings commenced by writ, and granted the relief sought by the fourth respondent in the originating summons and refused the appellant’s cross-claim and ordered the appellant to give vacant possession within ten days. The appellant appealed to the Supreme Court, arguing that the trial judge had erred in law by: (a) unfairly refusing the appellant’s application for adjournment, (b) refusing the appellant’s claims in the writ without having regard to all evidence, (c) refusing the appellant’s cross-claim in the originating summons, (d) upholding the fourth respondent’s claims in the originating summons despite evidence of fraud in the manner in which it had acquired title in the property and (e) giving the appellant insufficient time to vacate the property.

Held:

(1) The loss of opportunity to cross-examine witnesses of an opposing party’s witnesses due to the opposing party not attending the trial, is not a good reason to adjourn a trial. Ground (a) dismissed.

(2) The trial judge properly refused all claims for enforcement of an alleged verbal agreement for sale of the property to the appellant as there was only vague and uncorroborated evidence of such an agreement, which was for the transfer of interests in land, which must perforce of s 2 of the Frauds and Limitations Act be in writing. Ground (b) dismissed.

(3) The trial judge properly refused the appellant’s cross-claim as there was no credible evidence of actual or constructive fraud in the transfer of title from the National Housing Corporation to the fourth respondent. The best potential argument of constructive fraud – that transfer of the property to the fourth respondent was contrary to s 37 of the National Housing Corporation Act – was not raised in the National Court and could not be relied on by the appellant in the Supreme Court. Ground (c) dismissed.

(4) There was no good reason for the trial judge to refuse the application for a declaration that the fourth respondent was the registered proprietor. Ground (d) dismissed.

(5) The trial judge did not err in allowing the appellant ten days to vacate the property. Ground (e) dismissed.

(6) The appeal was dismissed, with costs, and the appellant was ordered to give vacant possession within one month.

Cases Cited

The following cases are cited in the judgment:

Agen v Dege, National Housing Corporation, the State and Wen’s Holding Ltd (2019) N7927
Fly River Provincial Government v Pioneer Health Services Ltd (2003) SC705
Papua Club Inc v Nusaum Holdings Ltd (2005) SC812

APPEAL

This was an appeal against a decision of the National Court which ordered dismissal of proceedings concerning a State Lease over a residential property.

Counsel

J D Lyipita, for the Appellant
R Uware, for the Third Respondent
M Mukwesipu, for the Fourth Respondent

30^th October, 2020

1. BY THE COURT: This is an appeal against a decision of the National Court that amongst other things declared that the fourth respondent, Win’s Holding Ltd, was the registered proprietor of a property, Section 95, Allotment 6, in Gordon, National Capital District and ordered the appellant, Lucy Agen, to give vacant possession within ten days.

2. The property in question had been the subject of a State Lease, of which the National Housing Corporation was registered proprietor. The appellant was a tenant occupier of the property for four years when she offered, in 2014, in several letters sent to the Corporation, to purchase the property. She relied on an alleged verbal agreement with the Corporation to give her the right of first refusal to purchase it. The Corporation did not respond to the offer. Instead it terminated her tenancy in October 2015 and in December 2015 entered into a contract for sale of the property to the fourth respondent, Win’s Holding Ltd, which resulted in the fourth respondent becoming the registered proprietor of the State Lease over the property.

3. The appellant commenced proceedings against the Corporation by writ of summons, WS No 1828 of 2015, seeking enforcement of the alleged verbal agreement to allow her to purchase the property. The fourth respondent later commenced separate proceedings against the appellant by originating summons, OS No 499 of 2018, seeking a declaration that it was the registered proprietor and an order for eviction of the appellant, who responded with a cross-claim seeking a declaration that the fourth respondent’s title was affected by fraud.

4. At the joint trial of the two proceedings, Justice Thompson refused an application by the appellant for adjournment so that the Corporation, which did not appear at the trial, could be ordered to make its witnesses available for cross-examination. Her Honour refused all relief sought by the appellant in the proceedings commenced by writ and granted the relief sought by the fourth respondent in the originating summons and refused the appellant’s cross-claim and ordered the appellant to give vacant possession within ten days (Agen v Dege, National Housing Corporation, the State and Wen’s Holding Ltd (2019) N7927).

5. The appellant appealed to the Supreme Court, arguing that the trial judge erred in law by:

(a) unfairly refusing the appellant’s application for adjournment,

(b) refusing the appellant’s claims in the writ without having regard to all evidence,

(c) refusing the appellant’s cross-claim in the originating summons,

(d) upholding the fourth respondent’s claims in the originating summons despite evidence of fraud in the manner in which it had acquired title in the property and

(e) giving the appellant insufficient time to vacate the property.

GROUND (a): REFUSAL OF APPLICATION FOR ADJOURNMENT

6. The appellant sought an adjournment of the trial when it became apparent that the first and second respondents, Mr Dege (then the Managing Director of the National Housing Corporation) and the National Housing Corporation were not in attendance. The appellant had given notice to cross-examine those persons who had deposed to affidavits in support of those parties but those persons were not in attendance. This simply meant that there was no evidence for those parties. It did not provide good reason for an adjournment. The appellant’s loss of opportunity to cross-examine witnesses of an opposing party’s witnesses due to the opposing party not attending the trial, is not a good reason to adjourn a trial. We find no error on the part of the trial judge in refusing the application for adjournment. We dismiss ground (a).

GROUND (b): REFUSAL OF APPELLANT’S CLAIMS IN WRIT OF SUMMONS

7. We find that the trial judge properly refused all claims for enforcement of an alleged verbal agreement for sale of the property to the appellant as there was only vague and uncorroborated evidence of such an agreement, which was for the transfer of interests in land, which must perforce of s 2 of the Frauds and Limitations Act be in writing. There was no credible evidence of the existence of any of the elements of an enforceable contract. We dismiss ground (b).

GROUND (c): REFUSAL OF APPELLANT’S CROSS-CLAIM

8. The trial judge properly refused the appellant’s cross-claim as there was no credible evidence of actual or constructive fraud in the transfer of title from the National Housing Corporation to the fourth respondent. The best potential argument of constructive fraud – that transfer of the property to the fourth respondent was contrary to s 37 of the National Housing Corporation Act, as the fourth respondent was a company owned and controlled by a non-citizen – was not raised in the National Court. That argument could not therefore be relied on in the Supreme Court unless leave was sought and granted to do so (Fly River Provincial Government v Pioneer Health Services Ltd (2003) SC705, Papua Club Inc v Nusaum Holdings Ltd (2005) SC812). Leave to rely on s 37 was not sought, and if it had been sought would have had little chance of being granted as no notice was given to the opposing parties of an intention to seek leave or attempt to rely on the argument.

9. The principal argument of the appellant regarding fraud was that the contract for sale of the property was between National Housing Corporation and a non-existent entity called Wen Holdings Ltd, which did not have a company seal and that the contract was signed on behalf of that non-existent entity by a person using Chinese language characters. Further, when the transfer was registered on 21 December 2015 the transferee was shown as Wen Holdings Ltd. The appellant adduced evidence that no such company existed at that time.

10. The fourth respondent essentially agreed at the trial that that was the case and adduced evidence that there was a genuine mistake in the name it used to describe itself in the contract of sale, which mistake was repeated in registration of the transfer. However, there was evidence that the mistake had been corrected and an amendment to the State Lease and the registration of the transfer was made in accordance with standard procedures. That evidence was, in our view, properly accepted by the trial judge. Her Honour summed up the allegation of fraud in the transfer of title in these terms:

28. LA [Lucy Agen, the appellant] produced no evidence from the Lands Department or anyone else that incorrect procedures had been followed in the correction of the name of the transferee. Even if the procedure had not been correctly followed, it did not have any consequence for LA. Any error would have only affected Wen Holdings Ltd. There was no suggestion by LA or anyone else that there was another company called Wen Holdings Ltd, or of any adverse effect on anyone caused by the error in the name.

29. None of these matters were in any event sufficient to establish fraud against WH [Wen’s Holding Ltd, the fourth respondent]. Fraud cannot be mere suspicion or innuendo. There must be evidence of gross breaches of the procedures and processes for registration of the title tantamount to fraud, or actual fraud.

30. Having failed to properly plead or produce sufficient evidence to prove on the balance of probabilities that there was fraud by either WH or the NRC, LA has not rebutted the presumption of the indefeasibility of title conferred on WH by s 33 of the Land Registration Act.

11. We endorse her Honour’s reasons as being correct in law. No error was made. We dismiss ground (c).

GROUND (d): UPHOLDING FOURTH RESPONDENT’S CLAIMS
12. We find that there was no good reason for the trial judge to refuse the application for a declaration that the fourth respondent was the registered proprietor. The appellant’s cross-claim was groundless. We dismiss ground (d).

GROUND (e): TERMS OF ORDER FOR VACANT POSSESSION

13. The trial judge did not err in allowing the appellant ten days to vacate the property. Any argument about whether that was sufficient time is academic. Time has moved on. The appellant remains in the property by virtue of a stay order of the Supreme Court. Her continued occupation of the property will be addressed when we consider the final order of the Court. Ground (e) is dismissed.

CONCLUSION

14. We have dismissed all grounds of appeal, therefore the appeal must be dismissed. Costs will follow the event. We will dissolve all stay orders subject to allowing the appellant one month to vacate the property.

ORDER

(1) The appeal is dismissed.

(2) The order of the National Court of 31 July 2019 in WS No 1828 of 2015 and OS No 499 of 2018 is affirmed.

(3) All stay orders of the Supreme Court are, subject to this order, dissolved.

(4) The appellant shall give vacant possession of the property the subject of this appeal, Section 95, Allotment 6, Gordon, by midday on 30 November 2020, failing which the fourth respondent is, as registered proprietor, with the support of the Royal Papua New Guinea Constabulary, entitled to use reasonable force to evict the appellant and all other unauthorised persons from the property.

(5) The appellant shall pay the fourth respondent’s costs of the appeal, on a party-party basis, which shall, if not agreed, be taxed.

Judgment accordingly.

________________________________________________________________
Asia Pacific & Co Lawyers: Lawyers for the Appellant
Solicitor-General: Lawyers for the Third Respondent
Mukwesipu Lawyers: Lawyers for the Fourth Respondent