|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Papua New Guinea District Court |
DC2077
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
DC NO.780 OF 2014
BETWEEN:
NATIONAL HOUSING ESTATE LTD
Complainant
AND:
NORIT LUIO
Defendant
Port Moresby - NCD: A. Kalandi
2016: 22th July 2016
Civil proceeding – Summary Ejectment Act – without right title or license – procession of land.
Representation by private lawyers without jurisdiction– Section 143 of the District Court Act.
Representation by lawyer without instructions from complainant- –Section 22 District Court Act – dismiss proceedings
Counsels:Mr.T. Dalid – for the Complainant
Mr.NoritLuio–In Person
Laws:
Cases cited
JUDGEMENT
KALANDI. A. DCM: The Complainant filed proceedings seeking orders against the Defendantfor eviction on the property described as Section 529, Allotment 59, Gerehu Stage 3B/2, National Capital District for being in possession of the property or land without right, title or license.
BRIEF BACKGROUNDS
The Complainant claims in his complainant that he is the legal proprietor of the property described and that the defendants are occupying and are in possession of the land without right, title or license to the property. However, pending the hearing of the substantive proceeding, the Defendant filed an application by way of Notice of Motion on the 02ndJune 2016 to dismiss the proceedings for Gagma Lawyers representing a State entity without instructions pursuant to Section 15 of the Attorney Generals Act and for Gagma Lawyers representation without instructions per Section 22 of District Court Act.
THE BASIS OF THE NOTICE OF MOTION
The Defendant in his Notice of Motion seeks the following Orders;
ISSUES
As per the basis of the Orders sought per the Notice of Motion by the Defendant and arguments in submissions by both parties, there are basically two issues to be determined which will be discussed in my reasoning of this judgement.
(i) Whether or not the proceeding can be dismissed for a private law firm representing a State entity without grant of approval from the Attorney General
(ii) Whether or not the proceeding is an abuse of process for representation without instructions.
EVIDENCE
The Applicant/Defendant submitted that he was relying on his Affidavit filed on the 02nd June 2016. This is the Affidavit filed in support of the application also filed on the 02nd June 2016.The Counsel of Respondent/Complainant in respond relied on a number of Affidavits previously filed, but there was no Affidavit
filed to contest against the Applicant’s Affidavit filed in support of his application.
SUBMISSIONS
The Applicant submitted he was seeking the terms of the Orders as per the application that was filed and in support, the Applicant made his submission by reading through the affidavit that was filed in support of the application. Mr.Luio submitted that he had numerous correspondences with the National Housing Corporation, referred to as (NHC) and the National Housing Estate Limited referred to as (NHEL) for purchasing the property as being a senior public servant currently residing on the property. He submitted there was consensus between the NHC and NHEL for him to purchase the property and that Gagma Lawyers was given instructions to that effect by the Executive Chairman via a letter dated the 15th March 2016 (annexure A).
He submitted, the letter by the Executive Chairman specifically directed Gagma Lawyers to facilitate instruments for the property to be sold to him and purchased by him within twenty one (21) days which was not done. One Bonny Korugl giving instructions to Gagma Lawyers is not the right person giving instructions without authority.
It was further submitted that the letter also stated that the case has taken too long increased in financial legal expenses and that the property be sold to him and any other previous payments on the property by any other person be refunded. This instruction was not complied with thus Gagma Lawyers has no instructions to pursue the proceeding.
It was further submitted that the decision by the Managing Director NHC supersedes all other previous claims and decisions on the property.
He further submitted, as NHC was a State entity, the Attorney General did not instruct Gagma Lawyers, being a private firm to represent the complainant.
The Applicant’s submission was to dismiss the proceeding based on those submissions.
Counsel of Respondent/Complainant, Mr.Dalid submitted that the Applicant’s application was in reference to the substantive matter. Section 15 of the Attorney General’s Act covers for overseas counsels. Counsel submitted the Affidavit of KamilusGagma filed 29th January 2015 refers to two National Executive Counsel referred to as (NEC) Decisions, NEC Decision 304/2006 and NEC Decision 70/2007 and a Ministerial Instrument dated 21/12/2012 in the Affidavit of Bonny Korugl filed 19th November 2014. It was submitted that the NEC approved the establishment of the National Housing Estate Limited (NHEL) and funding was sourced by NEC Decision 304/2006 and the second NEC Decision 70/2007 directed the Minister for National Housing to transfer prime commercial land, buildings to the Special Purpose Company.
Paragraph 3 of the Affidavit of Bonny Korugl filed 19th November 2014, (Annexure A is the Ministerial Directive) the Ministerial Directive transfers all prime properties including the property now in issue among other properties of Section 529, Allotments 52-63.
Counsel submitted, by operation of Sections 16 & 17 of the Company Act, NHEL is a Company and per Section 142 of the Company Act, a company in any civil suit can be assisted by lawyers. The Brief Out from the Attorney General’s Office is only given when State Entities are involved. This does not apply here, the Complainant is a company and the Notice of Motion is misconceived.
The Affidavit of Kevin Aipum filed on the 2nd December 2015, says he is the Executive Chairman of NHEL andparagraph 2 makes reference to the Affidavit of Bonny Korugl and paragraphs 3,4,5,6,8 & 9 refers to the property not being sold to the Defendant. Bonny Korugl is the General Manager Operations and there is no issue of his attachment to NHEL.
The Affidavit of Bonny Korugl filed 19th November 2014, shows the property now in issue is one among the list of properties. Paragraph 3, Annexure A refers to the subject matter now in issue, Section 529, Allotment 59. Thus, Defendant has no evidence to counter the evidence presented by the complainant.
There should be a proper hearing to cross examine the deponents of the Affidavits of the Defendant and that of the Complainant. In Siwi v Mathew [2006] N3048, sets out why the Summary Ejectment Act is used. It decides who is the exact owner of a property per Section 31 Land Registration Act and Section 21 (4)(f) of District Court Act. For this Court to determine who the actual owner of the property is, the Defendant has not yet purchased the property. Unless there is a bona fide issue before this Court, the Defendant does not claim the property.
The Applicant/Defendant in responds submitted that Counsel’s submission was a waste of time. He submitted the essence of the establishment of NHEL was to see the housing issues of public servants and being a senior public servant and a Departmental Head he has an interest on the property.
The Executive Chairmen of the NHEL has written to Gagma Lawyers to facilitate the transfer of the property to him. All earlier correspondences, decisions were superseded by the letter to Gagma Lawyers.
APPLICATION OF LAW AND FACTS.
The substantive issues in this proceeding are for the eviction of the Applicant/Defendant from the property described as Section 529, Allotment 59, Gerehu, Stage 3B/2, National Capital District. This ruling of the Court has nothing to do with the substantive proceeding. The case in submission by Counsel has no relevance in this applicant. The application by way of Notice of Motion filed by the applicant is basically to dismiss the proceeding on the basis that, the complainant being a State Entity is represented by a private law firm without the approval from the Attorney General per the Attorney Generals Act and that Gagma Lawyers representing the complainant without instructions when instructions were given to facilitate the transfer of the property to him, applicant.
As a result, there are only two issues that this Court will try to determine. In the event, the Applicant’s application to dismiss the proceeding is not successful, the proceeding proceeds to hearing of the substantive issue for eviction. The purpose of this applicant is not on the ownership of the property and on that basis I will not discuss this point in my judgement.
ISSUE 01 IS NHEL A STATE ENTITY AND THAT APPROVAL BY THE ATTORNEY GENERAL CAN BE GIVEN FOR NON STATE LAWYES TO REPRESENT.
For any representation of any cases involving the State by private lawyers requires the approval of the Attorney General per the Attorney
General’s Act. The Applicant utilised Section 15 of the Attorney General’s Act to dismiss the proceeding as there was
no approval by the Attorney General to Gagma Lawyers to represent the NHEL. Counsel of Complainant correctly submitted that Section
15 of Attorney General Act was not to seek approval to represent State entities but was applicable to approval to overseas counsels.
Thought Section 15 of the Act does not apply here as counsel appearing in this proceeding for the Complainant is not an overseas
counsel, the nature of the application by applicant who is not a lawyer arguing the content of the Order being sought that Gagma
Lawyers, a private Law Firm assisting a State Entity without approval from the Attorney General is a significance argument. For purposes
of assistance, Section 15 Attorney General’s Act is set out hereunder.
Section 15Employment of Barristers etc...practicing outside the country.
The correct provision per the Attorney General Act, for purposes of this issue is, Section 7(i) of the Attorney General Act. This section is set out below.
Section 7 Duties, functions and responsibilities of the Attorney General.
Among the duties, functions and responsibilities of the Attorney-General prescribed by Section 7 of the Act.
Section 7(i) which is in the following terms;
s.7(i) to instruct lawyers within or outside the country to appear for the State in any matter;
This provision gives the power to the Attorney General to instruct lawyers within the country to assist the State in any proceeding against the State.
Its trite law that for representation of proceedings by private lawyers of any proceedings involving the State,approval from the Attorney General is given prior representation orapproval must be sought from the Attorney General. Here evidence does not establish that the approval by Attorney General was given as confirmed by Counsel’s submission.
In Marape v O’Neill [2016] SC1487, was a review of a single Supreme Court Judge as to whether approval of the Attorney General was required by the 6th and 7th Respondents who were police officers concerning their legal representation.
The review basically was on part of the decision on the question of the engagement of lawyers per Section 7(i) of Attorney General Act by the Respondents. The respondents are police officers, but engaged lawyers without the approval of the Attorney General on the basis that they were citizens and had the right to engage lawyers of their choice and that s.7(i) does not apply to them.
The Court upon consideration of the evidence and submission before it, was of the view that the respondents were joined to the proceeding as police officers who are servants of the State and on that basis were required to obtain approval from the Attorney General to engage lawyers and orders were made to that effect.
In State v Zachary Gelu and Manorburn Ltd [2003] SC716, the Court said, I quote, "The AG is given the exclusive power to tender legal advice and opinion on "any matter affecting the conduct of the business of the State" unless the AG in his absolute discretion authorizes any other person to give legal advice "
In reliance of the above cases, we can appreciate that any representation of any matters concerning the State, one must seek approval from the Attorney General or approval by the Attorney General given per S.7(i) of the Act.
However, Counsel made a twist and submitted that there was no need for a clearance by the Attorney General to represent NHEL as it
was not a State entity but a Company registered under the Company Act. Counsel submitted, by operation of Sections 16 & 17 Company
Act, NHEL is a company and therefore there was no need for approval as it was not any State Entity. Sections 16 & 17 of Company
Act are set out hereunder;
Section 16 –Separate Legal Personalitymust seek approval from the Attorney General or
A company is a legal entity in its own right separate from its shareholders and continues in existence until it is removed from the
register.
Section 17 – Capacity and Powers.
(1) Subject to this Act and to any other law, a company has, both within and outside the country–
(a) full capacity to carry on or undertake any business or activity, do any act, or enter into any transaction; and
(b) for the purposes of Paragraph (a), full rights, powers, and privileges.
(2) The constitution of a company may contain a provision relating to the capacity, rights, powers, or privileges of the company only where the provision restricts the capacity of the company or those rights, powers, and privileges.
This then brings to the consideration of this Court to determine whether NHEL is a company or a State Entity.
Counsel of Complainant submitted that by NEC Decision 304/2006, the NEC approved the establishment of NHEL and that NEC Decision 70/2007, the NEC directed the Minister for National Housing to transfer prime commercial land to NHEL, and further to that the Ministerial Instrument dated 21st December 2012 transfers all prime properties to NHEL including the property now in issue.
Annexure A of the Affidavit of Camillus Gagma filed 27th January 2015 is the NEC Decision 304/2006 was the decision for the approval for establishment of the NHEL to implement the National Housing Development Project. The primary purpose of the establishment of NHEL was to oversee the implementation of the National Housing Development Project.
Annexure C of the same affidavit (above) is NEC Decision 70/2007 titled “National Housing Development Projects By National Housing Corporation through National Housing Estate Limited. Paragraph 2 of this NEC Decision endorsed the establishment of the NHEL as a Special Purpose Company for National Housing Corporation.
There was no evidence as to whether NHEL was registered as a company per the Company’s Act. However, from the contents of the
NEC Decisions 340/2006 and 70/2007, this Court is of the view that NHEL was established as a Special Purpose Company of the National
Housing Corporation to oversee the National Housing Development Projects of the National Housing Corporation.
For a company to be a company, it must be registered per the Company Act. The essential requirements per Section 11 of the Company
Act must be set out.
Section 11-The Essential Requirements.
A company shall have–
(a) a name; and
(b) one or more shares; and
(c) one or more shareholders, having limited or unlimited liability for the obligations of the company; and of the Act is
(d) one or more directors.
The Company shall then apply to the Registrar of companies to be registered as a company and a Certificate of Registration per Section
15 is issued to the then Company. Section 15 is in the following terms;
Section 15 – Certificate of Incorporation.
A certificate of incorporation of a company issued under Section 14 is conclusive evidence that–
(a) all the requirements of this Act as to registration have been complied with; and
(b) on and from the date of incorporation stated in the certificate, the company is incorporated under this Act.
The Respondent/Complainant has not put forward to the satisfaction to this Court that the Complainant is a registered Company by production of a Registration of Incorporation. This is a unique scenario whereby a State Entity has been instructed by NEC to establish a Special Purpose Company for scrutiny of the National Housing Development Project under the National Housing Corporation.
On the foregoing, I am of the view that NHEL is not a company own its own thus not registered per the Company Act, but a Special Purpose Company under the National Housing Corporation.As the NEC Decisions approved for the establishment of a Special Purpose Company, does not in that sense is a Company as the prerequisites of being registered by the Company Act must be met. I am not satisfied that there has been registration of a Company per the Company Act and a Certificate of Incorporation is adduced as conclusive evidence to that effect. I am of the view that the establishment of the Special Purpose Company of NHEL was established not to be registered as a Company of its own but a name given to oversee the National Housing Development Projects of the National Housing Corporation, which is a State entity. Thus, the approval of the Attorney General must be obtained prior to representation by the lawyers on record.
ISSUE 02 – WHETHER GAGMA LAWYERS HAS INSTRUCTIONS TO PERSUE THE PROCEEDING
The proceeding was filed on the 19th November 2014 and thereafter numerous affidavits have been filed by both parties to progress the matter to hearing. However, the Applicant/Defendant filed this proceeding on the 02nd June 2016 supported by its affidavit also filed on even date. The Applicant relied on Section 22 of the District Court Act to dismiss the proceeding for representation without instructions. This is set out in the following;
Section 22 –General Ancillary Jurisdiction.
Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall, in proceedings before it–
(a) grant such relief, redress or remedy, or combination of remedies, whether absolute or conditional; and
(b) give the same effect to every ground of defence or counterclaim, whether equitable or legal,
as ought to be granted or given in a similar case by the National Court and in as full and ample a manner.
The District Court is empowered by this provision of having additional civil jurisdiction to those that are provided for by Section 21 of the Act. Section 21(4) of the Act stipulates that the Court does not have jurisdiction in particular matters.
In Mondia v Kapo [2015] SC1442, the Supreme Court when deliberating on an appeal from the National Court, which was an appeal from the District Court of the District Court giving Declaratory Orders under s.22 of the Act, said, I quote, “We are satisfied that the wording of s. 22 is sufficiently wide to permit a declaratory order to be made. Section 21 (4)District Courts Act provides that the District Court does not have jurisdiction to deal with certain matters. The District Court proceeding was not concerned with any of those matters.
In reliance of the above case, this Court has jurisdiction per s.22 of the Act to determine this issue. The issue as to whether the lawyers in carriage of this matter do have instructions to continue this proceeding.
As to the term of the order being sought, the Applicant submitted that the lawyer on record being the lawyers were given instructions by the Executive Manager of NHEL in consultation with the Managing Director National Housing Corporation to forgo all previous arrangements and make possible arrangement for the Applicant who is residing on property to purchase the property within twenty one (21) days by a letter dated the 15th March 2016, but the lawyers failed to adhere to that instruction. The letter is annexed to his affidavit in support of the application and it stated that this letter superseded the earlier letters. I consider this as all instructions and correspondences pertaining to this property.
However, Counsel of complaint submitted that they have instructions as per the affidavit of the Executive Chairman filed on the 2nd December 2015 and the affidavit filed by BonnyKorugl dated the 19th November 2014. The Executive Chairman’s affidavit filed confirmedthat the Applicant was to be evicted from the property that was in 2015. However, as a matter of time, the letter of the 15th March 2016 drastically utters that position as the letter in very clear terms states that the letter supersedes all earlier letters. Counsel did not produce evidence to counter and refute this submission by the Applicant and significantly the validity of the letter of the 15th March 2016.
This application by the Defendant/Applicant was filed on the 02nd June 2016 and that the application was heard on the 08th July 2016, Counsel had more than sufficient time to confirm instruction with the author of the letter of the 15th March 2016, the Executive Chairman of NHEL to refute this applicant, which was not done and reliance placed on affidavit evidence filed prior to that letter.
In the case, Magiten v Tabai [2008] N3470, the plaintiff a client sued his former lawyers for negligence claiming that the lawyers ignored his instruction for amendment of his statement of claim and instead discontinuing the proceeding and filing a new one. His Honor, Cannings J, entered judgment that the lawyers were negligence.
In Kapi v Sheppard and Maladina [2003] N2323, the petitioner sued the defendants for negligence for not following his instructions in an election petition and as a result lost the case. The Defendants filed an application to dismiss the petition for being frivolous and vexatious, but His Honor, Kandakasi J, refused the application on the basis that petitioner has a case on negligence of the defendants not adhering to instructions.
These cases show that lawyers don’t have authority to conduct cases in defiance of client instructions.
Here the letter by the Executive Chairman of NHEL was instructing the lawyers on record to facilitate the transfer to the Applicant/Defendant to purchase the property within twenty one (21) days. In the event, the Applicant failed to purchase the property within time stipulation, the matter returns to Court for eviction. I am of the view that this is very specific instructions, which the lawyers on record failed to comply with. The Applicant’s submission that one Bonny Korugl was instructing the lawyers to continue the proceeding could not be right as he is subjected to the letter of the Executive chairman. The Court is of the view that the Executive Chairman of NHEL is the rightful person to give instructions and not Bonny Korugl. Counsel failed to refute and satisfy this Court that Gagma Lawyers still had instructions.
COURT’S FINDINGS
COURT ORDER
Respondent/Complainant: GagmaLawyers
Defendant: In Person
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGDC/2016/2.html