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Eastern Highlands Savings & Loan Society Ltd v Secretary, Department of Lands [1999] PGNC 32; N1901 (7 May 1999)

Unreported National Court Decisions

N1901

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO. 639 OF 1998
BETWEEN: EASTERN HIGHLANDS SAVINGS & LOAN SOCIETY LIMITED
PLAINTIFF
AND: SECRETARY, DEPARTMENT OF LANDS
DEFENDANT

Goroka

Kirriwom J
23 April 1999
7 May 1999

Counsel

Mr D. Umba for the Plaintiff

No appearance from the Defendant

7 May 1999

KIRRIWOM J: This is an application by the Plaintiff/Applicant for the Defendant/Respondent to be committed to prison for contempt of Court. The applicant claims that the respondent is in contempt of this honourable court because it disobeyed an order of this court made on 9th December 1998. That order commanded the Secretary for Lands Department and or his staff to produce to the plaintiff and or its lawyers within 14 days the office file on section 83 allotment 4 Goroka together with all the documents pertaining to the forfeiture of the State Lease on the said property. The plaintiff/applicant is the lessee of a property in the township of Goroka described as allotment 4 section 83, Elizabeth Street more particularly described as a State Business Lease Volume 66 Folio 108 which is leased to the Eastern Highlands District Savings & Loans Society for a term of 99 years commencing from 18 August 1977 at an annual rent of K740.00. When the property was last valued in August 14, 1984, land and improvements comprising office building with reinforced concrete floor, masonry walls and tile roof having a floor area about 290.12 sq metres in the sum of K125,000. In July 27 1998, the Title to the subject property was awarded to a company known as Wain No. 80 Pty Limited who immediately took steps to demand rent from the current tenant of the building on the property. This was the time the plaintiff/applicant became aware that it was no longer the lessee of the property. The plaintiff then filed originating summons in this court seeking an order that the defendant produce to the plaintiff’s lawyers to peruse the file on allotment 4 section 83 Goroka together with all the documents pertaining to the forfeiture of the State Lease in respect of allotment 4 Section 83, Goroka. This relief was granted and what this court is dealing with now is the disobedience of this order by the defendant/respondent.

I am satisfied on the evidence before me that the defendant is in breach of the Court Order dated 9th December 1998. What however concerns me is the validity of the Order in question because the order stands without any substantive proceedings on foot. Such an order can easily be set aside on application because it is not connected to any pending issue before the Court and which is the case here. It is not correct for the plaintiff/applicant to say that we need to study or peruse the appropriate file to determine whether we file a suit or not. Naturally the applicant already has a cause of action against the defendant by the mere fact of the forfeiture alone. Is the applicant already conceding to the claims that the forfeiture was justified for the reasons given and accepted by the plaintiff? But even then, it is better to institute proceedings to correct the wrong before seeking interlocutory rulings or declaratory reliefs to preserve the status quo. In this case there is no way that the status quo can be preserved. In other words, no actions is on foot to protect the plaintiff’s interest other than the action to obtain facts for possible suit. I am also concerned about what if any, real efforts have been made by the plaintiff or its lawyers to inspect or produce the relevant file in question. All property files are kept by the Registrar of Titles. There is no evidence before me to show that the file in question was requested for inspection but was not released for perusal. This evidence is necessary to justify summonsing the defendant to produce the file. Otherwise these are confidential State properties that are meant and intended to be read wherever they are kept at fees and for such duration. I am personally not aware of and I would never encourage removal of files from the custody of the Registrar of Titles at the pleasure of litigants fighting over ownership of a property. Is there any evidence of the plaintiff or its agents or solicitors conducting a Title Search at the Registry of Titles? I have not cited any and I am concerned as to how the applicant can see fit to summons the production of jailed for contempt of court in that he failed to obey a Court Order. I have already found that he had disobeyed and it is on him to satisfy the Court that it was not wilful.

Now as far as the plaintiff/applicant is concerned, it can do far more than what it has so far done if it is minded to protect its interest (if any) and it that is its intention to do so. So far the plaintiff/applicant has not established any legal basis for the production of the file on the property in question and the defendant is not obliged to produce the file other than by virtue of the Court Order of 9th December 1998 - Hadkinson v Hadkinson [1952] AII ER 567.

Consequently the Order sought by the applicant is not granted but the hearing is extended by two weeks. Instead the Court however orders the defendant either in person or by its duly authorised officers, to appear before this Court on Friday 21st May 1999 at 9:30 am and explain to the Court as to why he should not be committed to prison for disobeying a Court Order duly served on him. I direct that the Assistant Registrar to forthwith cause a copy of this ruling, a copy each of the notice of motion dated 29th March 1999. Statement of Charge dated 29 March 1999 and Affidavit in Support of Application for Contempt of Court on the defendant personally and also on the Provincial Lands Officer of Eastern Highlands Province.

I award costs on this motion to the applicant.

Lawyer for the Plaintiff/Applicant: Acanufa & Associates

No appearance by the defendants.