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G & C Investments Ltd v Pundia [2011] PGNC 156; N4430 (21 October 2011)

N4430

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 191 OF 2011

BETWEEN

G & C INVESTMENTS LIMITED
Plaintiff

AND

MICHAEL PUNDIA
First Defendant

AND

DENNIS PUNDIA
Second Defendant

AND

DARRYL PUNDIA
Third Defendant

AND

DANHAM PUNDIA
Fourth Defendant

Mount Hagen: Makail, J
2011: 21st October

INJUNCTIONS - Ex-parte interim injunction - Extension of - Interference of right of quiet enjoyment of property - Prevention of.

EVIDENCE - Evidence supporting extension of ex-parte interim injunction - Hearsay evidence - Effect of - Inadmissible - No evidence establishing interference of right of quiet enjoyment of property - Extension ex-parte interim injunction refused.

Facts

The plaintiff is the registered proprietor of a property described as portion 1513, Milinch of Mt Hagen, Fourmil of Ramu. It obtained an ex-parte interim injunction restraining the defendants from interfering with its right of quiet enjoyment of the property. The ex-parte interim injunction had come back to Court for hearing inter-parties on whether or not the ex-parte interim injunction should be extended until the determination of the substantive dispute. It relied on two affidavits of its managing director and shareholder a Mr Gabriel Pepson in support of the application for extension of the ex-parte interim injunction.

The defendants opposed the extension of the ex-parte interim injunction on the ground that the affidavit evidence of Mr Pepson was hearsay and inadmissible and as there was no further evidence from the plaintiff to support a finding that the defendants interfered with the plaintiff's right of quite enjoyment of the property, the application for the extension of the ex-parte interim injunction should be refused.

Held:

1. The affidavit evidence of Mr Pepson was hearsay and inadmissible.

2. As there was no further evidence from the plaintiff to support a finding that the defendants interfered with the plaintiff's right of quite enjoyment of the property, the application for the extension of the ex-parte interim injunction was accordingly refused.

No cases cited:

Counsel:

Mr T Cooper, for Plaintiff
Mr K Sino, for Defendants

RULING

21st October, 2011

1. MAKAIL, J: The plaintiff company is the registered proprietor of a property described as portion 1513, Milinch of Mt Hagen, Fourmil of Ramu and has commenced proceeding by originating summons seeking the following orders:

"1. An order in the nature of a declaration that the Defendants continued actions of entering, interfering and disturbing of the Plaintiff's possession and occupation of the property described as Portion 1513, Milinch of Mt Hagen, Fourmil of Ramu amounts to trespass of the Plaintiff's property.

2. An order in the nature of a declaration that the Defendants have no lawful and or equitable right to the property described as Portion 1513, Milinch of Mt Hagen, Fourmil of Ramu and therefore the Defendants be evicted forthwith.

3. An order in the nature of a permanent injunction restraining the Defendants, their agents, servant relatives and or associates from interfering with the Plaintiff (sic) possession and occupation of the property described as Portion 1513, Milinch of Hagen, Fourmil of Ramu.

4. An order that the Defendants pay damages for losses occasioned to and or suffered by the Plaintiff.

5. An order that the Defendants pay the costs incidental to the application and the entire proceeding."

2. Pending trial, on 15th April 2011, it obtained an ex-parte interim injunction restraining the defendants from interfering with its right of quiet enjoyment of the property. The ex-parte interim injunction had come back to Court for hearing inter-parties and I have heard parties on whether or not the ex-parte interim injunction should be extended until the determination of the substantive dispute. This is my ruling.

3. It was submitted for the plaintiff that there is a serious issue to be tried and that is that, the plaintiff is the registered proprietor of the property and holds an indefeasible title. As such, it has the right to occupy the property without interference from the defendants. It was further submitted that the defendants had interfered with the plaintiff's right of quiet enjoyment by entering and causing disturbances at the property. Such actions by the defendants amounted to trespass and interference with the plaintiff's right of quiet enjoyment of the property.

4. It was further submitted such interferences by the defendants could result in the plaintiff losing business as it has let out the property to tenants and ultimately could default on its loan obligation with ANZ Bank. In support of these submissions, Mr Cooper of counsel for the plaintiff relied on the affidavit of a Gabriel Pepson sworn on 14th April and filed on 15th April 2011 and a supplementary affidavit of Mr Pepson also sworn on 14th April and filed on 15th April 2011 where Mr Pepson deposed inter-alia, that he is the managing director and shareholder of the plaintiff and that on 01st April 2011, at about 8:00 pm, the second defendant drove into the property and verbally abused security guards and agents on the property. He further deposed that the actions of the second defendant may have been caused by the fact that the plaintiff had obtained a loan of K1.1 million from ANZ Bank in June 2010 and purchased the property through a mortgage sale by ANZ Bank.

5. The defendants denied interfering with the plaintiff's right of quiet enjoyment of the property, however, they conceded the plaintiff is the registered proprietor of the property following the first defendant's default in the loan repayment for the purchase of the property and the property was sold through a mortgage sale by the ANZ Bank.

6. However, it was strongly submitted by Mr Sino of counsel for the defendants that the evidence of Mr Pepson supporting the extension of the interim injunction is hearsay and inadmissible. Therefore, the Court cannot rely on them to extend the interim injunction. He further submitted as there are no further affidavits filed by other witnesses of the plaintiff such as the security guards and tenants who witnessed the alleged incident on 01st April 2011, there is absolutely no evidence supporting the finding of the Court on any act of trespass or interference by the defendants, such that the interim injunction should be extended.

7. I accept Mr Sino's submissions. I have read the affidavits of Mr Pepson and I find that the statements in the affidavits are hearsay. They are hearsay because Mr Pepson does not say that he witnessed the alleged interferences by the defendants. He does not state when he witnessed the alleged interferences by the defendants, especially the alleged incident by the second defendant on 01st April 2011. It is apparent he was informed about the alleged incident and was merely relaying it. This is a Court of law and rules of evidence must be strictly observed and such evidence by Mr Pepson, with respect, is hearsay and inadmissible.

8. I cannot rely on them and find that the defendants had interfered with the plaintiff's right of quiet enjoyment. As there are no further evidence from other witnesses establishing that the defendants had interfered with the plaintiff's property, I am not satisfied that the plaintiff has established that its right of quiet enjoyment has been interfered with by the defendants. I refuse the extension of the interim injunction and discharge it.

Ruling accordingly.
____________________________________

Rageau Manua & Kikira Lawyers: Lawyers for the Plaintiff
Sino & Co Lawyers: Lawyers for the Defendants