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Wialu v Kaltakumb [2012] PGNC 89; N4709 (29 June 2012)

N4709

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No.518 of 2010

BETWEEN:

AUGUS WIALU
Plaintiff

AND:

DANIEL PATRICK KATAKUMB
First Defendant

AND:
HON. DR. PUKA TEMU, MINISTER FOR LANDS
& PHYSICAL PLANNING
Second Defendant

AND:
PEPI KIMAS, SECRETARY FOR DEPARTMENT OF LANDS
& PHYSICAL PLANNING
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: David, J
2012: 19 April & 29 June

PRACTICE AND PROCEDURE – consent order - application to set aside consent order – applicant not a party to consent order – no estoppel - principles applying to setting aside consent orders not applicable in determining application – consent order ordered and entered ex parte - principles applying to setting aside of an order obtained ex parte apply – all requirements not met - application refused – Constitution, Section 155 (4), National Court Rules, Order 1 Rules 9 and 10, Order 12 Rules 1 and 8.

Facts:

In the substantive proceedings the plaintiff principally sought judicial review of the decision of the Third Defendant, Pepi Kimas as Secretary of the Department of Lands & Physical Planning made on 20 February 2003 to forfeit State Lease Volume 99, Folio 241 issued over Allotment 32 Section 453 Hohola (Waigani Heights) and to have it brought into the National Court and quashed. The First Defendant and his wife were issued with a new State Lease over the property as joint tenants following the forfeiture. The plaintiff and the Second, Third and Fourth Defendants had a consent order endorsed and entered by the Court on 6 June 2011. The consent order was obtained ex parte by the First Defendant. The consent order finally determined the relief sought by the plaintiff in the substantive proceedings. The First Defendant became aware of the consent order in December 2011. On 2 April 2012, the First Defendant applied under Section 155 (4) of the Constitution to have the consent order set aside.

Held:

1. As the First Defendant was not a party to the consent order made and entered in his absence, there was no estoppel. Consequently, the principles applying to setting aside consent orders did not apply.
   
2. As the consent order was ordered and entered ex parte, the principles applying to setting aside judgments or orders entered ex parte applied including rules relating to setting aside of judgments for irregularity.
   
3. All requirements for the setting aside of judgments or orders entered ex parte were not met. As a result, the application to set aside the consent order although entered irregularly was refused.
   

Cases cited:

Papua New Guinea Cases

Green & Co. Pty Ltd v Green [1976] PNGLR 73
Barker v The Government of Papua New Guinea (1976) PNGLR 340
The Government of PNG & Davis v Barker [1977] PNGLR 386
George Page Pty Ltd v Balakau [1982] PNGLR 140
Leo Hannet v ANZ Banking Group (PNG) Ltd (1996) SC505
Leo Duque v Avia Andrew Paru (1997) PNGLR 378
Paul Torato v Sir Tei Abal [1997] PNGLR 403
Motor Vehicles Insurance (PNG) Trust v Joseph Bure (1999) SC613
Bernard Juali v The State (2001) SC 667
Christopher Smith v Ruma Constructions Ltd (2002) SC695
Simon Mali v The State (2002) SC790
Coecon Ltd v The National Fisheries Authority of Papua New Guinea (2002) N2182
Joseph Kupo v Stephen Raphael, Secretary for the Department of Defence Force (2004) SC 751
PNG International Hotels Pty Ltd v The Registrar of Land Titles (2007) N3207

Overseas Cases
Anlaby v Praetorius [1888] UKLawRpKQB 55; (1888) 20 QBD 764
Grimshaw v Dunbar [1953] 1 All ER 350
Marsden v Marsden [1972] 2 All ER 1162

Counsel:

Mathew Maitang, for the Plaintiff
Moses Philip, for the First Defendant

RULING ON MOTION

29 June, 2012

1. DAVID, J: This is a ruling on a motion by the First Defendant seeking to set aside a consent order of the National Court ordered and entered on 6 June 2011 (the consent order) and for other consequential orders.
   
2. In the substantive proceedings commenced by originating summons and supported by Statement filed pursuant to Order 16 Rule 3 (2)(a) both filed on 14 September 2010, the plaintiff principally sought judicial review of the decision of the Third Defendant, Pepi Kimas as Secretary of the Department of Lands & Physical Planning made on 20 February 2003 to forfeit State Lease Volume 99, Folio 241 issued over Allotment 32 Section 453 Hohola (Waigani Heights) (hereinafter called "the property") and to have it brought into the National Court and quashed.
   
3. The First Defendant has moved the Court by notice of motion filed on 2 April 2012 and relies on the Affidavit in Support of Notice of Motion of Daniel Patrick Katakumb sworn on 30 March 2012 and filed on 2 April 2012 and the Affidavit of Service of Berem Napu sworn on 18 April 2012 and handed up at the hearing in support of the application.
   
4. The plaintiff contests the application. He relies on the Affidavit of Service of Mathew Maitang sworn on 19 April 2012 and handed up at the hearing.
   
5. The Second, Third and Fourth Defendants have not filed any notice of intention to defend. However, from the Court's record, it appears that the Solicitor-General has appeared on their behalf since the matter was first brought before the Court after its commencement for the leave application to be heard perhaps initially in accordance with Section 8 of the Claims By And Against the State Act 1996 which provides that where the State is a party, it must be afforded an opportunity to be heard when a court hears an application for leave to apply for judicial review. I proceed on the assumption that leave has been granted for the Solicitor-General in accordance with Order 7 Rule 2 of the National Court Rules to continue to appear for these defendants post the leave application up to and including the entry of the consent order. Notwithstanding that the Second, Third and Fourth Defendants have not filed a notice of intention to defend, the affidavit of Berem Napu shows that on 18 April 2012 at about 1:20 pm, the Office of the Solicitor-General was served with a copy of a letter from the First Defendant's lawyers addressed to the plaintiff's lawyers dated 17 April 2012 which gave notice that this matter was returning before the Court on 19 April 2012 at 9:30 am. The Second, Third and Fourth Defendants were not represented at the hearing.
   

6. The plaintiff was refused leave to rely on the Affidavit in Response of Mathew Maitang sworn on 19 April 2012 which he tried to hand up at the hearing at the objection of the First Defendant for short notice. As will be seen later on in the judgment, the failure to be granted leave to use that affidavit will not make any difference to the outcome of this application as it is not disputed from the evidence adduced by the First Defendant and submissions of the parties and corroborated by the Court's own record that the consent order was only consented to by the Plaintiff and the Second, Third and Fourth Defendants.

7. The consent order is in these terms:

"1. The decision made by the Third Defendant on 8 January 2003 to forfeit the Plaintiff's State lease described as Section 453 Allotment 32 Hohola (Waigani Heights) contained in Volume 99, Folio 241 and published in the National Gazette on 20 February 2003 is quashed.

2. The decision of the Third Defendant in granting the said State Lease to the First Defendant is null and void and is quashed.

3. The defendants shall either jointly or severally comply with all the relevant procedures to have the said forfeited State Lease registered under the plaintiff's name.

4. The defendants shall comply with paragraph 3 of this order within 21 days from the date of this order."

8. The draft consent order that was handed up to the National Court constituted by Thompson, AJ on 6 June 2011 for endorsement contains the signature of Her Honour and was signed by Mr. Joseph N. Poponawa, counsel for the plaintiff then and Mr. Neville Devete, counsel for the Second, Third and Fourth Defendants. A copy of the draft consent order is annexed to the First Defendant's affidavit as annexure "F".

9. The consent order effectively terminated the First Defendant's legal title to the property.

10. There are 2 main issues for my consideration and determination and these are:

1. Whether this Court has the jurisdiction to set aside the consent order?
   
2. If the answer to the first issue is in the affirmative, whether the First Defendant has established a case for this Court to set aside the consent order?
   

11. The First Defendant relies on the principles enunciated in the decision of the Supreme Court in Simon Mali v The State (2002) SC790 and submits that the consent order should be set aside because; firstly, he is a party to the proceedings who is detrimentally affected by the consent order; and secondly, as a party to the proceedings who was adversely affected by the decision the plaintiff sought to review, he was not served with any document concerning these proceedings.

12. The plaintiff on the other hand submits that the Court should exercise caution when considering whether or not to set aside the consent order relying on Marsden v Marsden [1972] 2 All ER 1162 while acknowledging the relevance and application of the principles enunciated in Simon Mali to the determination of the present application.

13. The leading case in this jurisdiction that has addressed the question as to whether a consent order or judgment can be set aside is Simon Mali where the Supreme Court held that the National Court has an inherent power under Section 155 (4) of the Constitution to set aside consent orders or judgments, even when it is a final order and is determinative of the relief sought. This power can be exercised in at least two situations and they are; firstly, where there are errors on the face of the Court's record; and secondly, where it is evident that there were procedural irregularities associated with the obtaining of the consent orders.

14. Moreover, it is settled law that consent orders or judgments should not be set aside easily by the Court which made them because of the manner in which the consent orders or judgments were ordered and entered in the first place and that the Court before which such applications are brought must always exercise caution: see Marsden; Paul Torato v Sir Tei Abal [1997] PNGLR 403; Coecon Ltd v The National Fisheries Authority of Papua New Guinea (2002) N2182; Joseph Kupo v Stephen Raphael, Secretary for the Department of Defence Force (2004) SC 751.

15. In PNG International Hotels Pty Ltd v The Registrar of Land Titles (2007) N3207, Davani, J observed that the rules on setting aside consent orders do not apply in situations where a party has not consented to them and is detrimentally affected by them. Her Honour stated at paragraph 59:

"Whilst there are clearly difficulties for parties who have consented to orders applying to set aside those orders they consented to, I find that those rules on consent orders cannot be applicable to applications to set aside orders where the application is made by an entity or party that did not consent to them but who is detrimentally affected by these orders."

16. In that case, consent orders were entered by the parties to proceedings which were struck out about 10 years earlier effectively cancelling a non-party's title to the land the subject of the proceedings. Upon becoming aware of the consent orders, the non-party successfully applied to be joined as a third party to the proceedings for the purposes of moving its application under Order 5 Rule 8 the National Court Rules. Davani, J ruled that the consent orders were a nullity because the proceedings were no longer on foot and non-existent in which to enter them. Her Honour went on to observe, inter alia, that in the absence of any specific rules of the Court addressing the situation that that case presented, Order 12 Rule 1 of the National Court Rules was applicable.

17. Counsel have not referred me to any case particularly a Supreme Court decision that addresses the scenario which is similar to the present case nor have I been able to find one in my research. In the absence of any Supreme Court decision on point, with respect, I would concur with the line of reasoning or thought suggested in the observations of Her Honour, Davani, J and will adopt and apply them to the present case. I would add that as the First Defendant, did not consent to the consent order, there is no estoppel. Thus, the principles applying to consent orders do not apply in the determination of this application.

18. I think Order 1 Rules 9 and 10 and Order 12 Rule 8 of the National Court Rules are also applicable in determining this application. In other words, the principles of setting aside an order obtained ex parte are applicable. These rules provide the jurisdictional basis for this Court to consider whether or not to set aside the consent order. The First Defendant's reliance on Section 155 (4) of the Constitution is misconceived when specific rules of practice and procedure are available.

19. Justice demands that a party to an action should not be driven from the judgment seat unless his case is clearly unarguable or that his own conduct prevents him being accorded that opportunity. A classic statement about a party's right to have his case heard in his presence was made by Jenkins, LJ in Grimshaw v Dunbar [1953] 1 All ER 350 where at 355 His Lordship said:

"A party to an action is prima facie entitled to have it heard in his presence. He is entitled to dispute his opponent's case and cross-examine his opponent's witnesses, and he is entitled to call his own witnesses and give his own evidence before the court. If by some mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that that litigant who is absent should be allowed to come to the court and present his case, no doubt on suitable terms as to costs.."

20. The principles of setting aside an order obtained ex parte are now well settled in this jurisdiction: Green & Co. Pty Ltd v Green [1976] PNGLR 73; Barker v The Government of Papua New Guinea (1976) PNGLR 340; The Government of PNG & Davis v Barker [1977] PNGLR 386; George Page Pty Ltd v Balakau [1982] PNGLR 140; Leo Duque v Avia Andrew Paru (1997) PNGLR 378; Leo Hannet v ANZ Banking Group (PNG) Ltd (1996) SC505; Motor Vehicles Insurance (PNG) Trust v Joseph Bure (1999) SC613; and Christopher Smith v Ruma Constructions Ltd (2002) SC695. The jurisdiction to do so is exercised under either Order 12 rule 8 or Order 12 rule 35 of the National Court Rules and the exercise of power is in the discretion of the Court. The principles are the same in each case. These principles apply in applications to set aside default judgments or orders made in the absence of one of the parties in proceedings commenced by writ of summons as well as those commenced by originating summons: Ruma Constructions Ltd; Joseph Bure.

21. It is trite law that if a judgment is irregularly entered, the defendant is entitled to set it aside as a matter of right (ex debito justitiae): Anlaby v Praetorius [1888] UKLawRpKQB 55; (1888) 20 QBD 764. Many cases in this jurisdiction since Green & Co. Pty Ltd have approved the principle.

22. A further distinction was made between judgments entered irregularly in acting under a rule and a judgment entered irregularly outside of the rules in George Page Pty Ltd per Greville-Smith, J. His Honour concluded that the practice in relation to the setting aside of judgments regularly entered should also apply to those entered irregularly where the irregularity which was not a nullity fell within Order 1 rule 8. An irregularity which falls outside the rules is a nullity. This was approved in Leo Hannet.

23. In all other cases and to be successful, it is incumbent upon the applicant to demonstrate and satisfy the following:

1. the application is made within a reasonable time of the order becoming known to the applicant;

2. the applicant has an explanation as to why the judgment or order was allowed to be entered in his absence;

3. the applicant has a defence on the merits disclosed by an affidavit.

24. Where judgment is irregularly entered, but not so as to render it a nullity, in order to be successful in an application to set aside the judgment, an applicant must satisfy all the following requirements.

1. the notice of motion must plead the several objections to the irregularity that is intended to be insisted upon to set aside the orders (Order 1 Rule 10 of the National Court Rules).
   
2. the application to set aside the orders must be made within a reasonable time (Order 1 Rule 9 of the National Court Rules).
   
3. he or she is not guilty of taking fresh steps with the knowledge of the irregularity (Order 1 Rule 9 of the National Court Rules): Leo Hannet.
   
4. there must be an affidavit stating facts demonstrating a defence on the merits: Leo Hannet; Barker v The Government of Papua New Guinea; The Government of PNG & Davis v Barker.
   

25. Was the consent order ordered and entered ex parte the First Defendant?

26. According to the First Defendant's affidavit evidence, he became aware of the consent order in or about December 2011 through a public notice dated 7 November 2011 posted on the property. A copy of the notice is in evidence and is annexed to the First Defendant's affidavit as annexure "D".

It reads:

NOTICE

NO ONE IS TO ENTER THIS PROPERTY, SECTION 453, ALLOTMENT 32, HOHOLA, NATIONAL CAPITAL DISTRICT, EXCEPT WITH THE EXPRESS PERMISSION OF AUGUS WIALU.

ON 6 JUNE 2011, THE NATIONAL COURT ORDERED AMONGST OTHER ORDERS THAT THE TITLE TO THIS PROPERTY WOULD BE TRANSFERRED TO AUGUS WIALU. THEREFORE, NO ONE EXCEPT AUGUS WIALU IS TO ENTER AND HAVE ACCESS TO THIS PROPERTY.

By Mirupasi Lawyers

27. The First Defendant immediately sought assistance from M.S. Wagambie Lawyers to take appropriate steps to challenge the consent order on behalf of his wife and himself as they were proprietors of the property as joint tenants. A copy of the State Lease issued on 22 August 2007 and entered by the Registrar of Titles on 9 October 2007 which is annexed to the First Defendant's affidavit as annexure "G" confirms that the First Defendant and a Dusa Katakumb were granted a State Lease for residence purposes for a period of 99 years commencing from 5 April 2007 and ending on 4 April 2106 as joint tenants. A deposit of K2,000.00 was paid to M.S. Wagambie Lawyers on 16 December 2011 as is evidenced by a copy of Cash Receipt No.IK3110165 which is annexed to the First Defendant's affidavit as annexure "B". The delay in having the matter progressed to their satisfaction by M.S. Wagambie Lawyers prompted the First Defendant and his wife to change lawyers and subsequently on 8 March 2012 instructed their current lawyers, Korerua & Associates Lawyers to take up their case.

28. Interestingly, at paragraph 8 of his affidavit, the First Defendant deposes that on 5 March 2012, his lawyers wrote a letter to the plaintiff's lawyers enquiring about the notice posted on the property. A copy of the letter which is actually dated 5 March 2011 is in evidence and is attached to the First Defendant's affidavit as annexure "C". A closer examination of the letter shows that Korerua & Associates, Lawyers actually wrote the letter on behalf of one Pastor John Wasis and not the First Defendant. Nevertheless, that letter prompted a written response from the plaintiff's lawyers on the same day when they gave a brief background of dealings with the property including the forfeiture of the previous State Lease and the issue of title to the First Defendant and the filing of these proceedings and a copy of the consent order was furnished. A copy of that letter is in evidence and is attached to the First Defendant's affidavit as annexure "E".

29. The First Defendant's instructions to his lawyers were that he was neither served any Court document concerning these proceedings nor was he aware of them prior to December 2011 and he did not consent to the consent order either. As a search of the Court file conducted by his lawyers revealed that no affidavit of service confirming personal service upon him of court documents relative to these proceedings was filed by the plaintiff, his lawyers wrote to the plaintiff's lawyers by their letter of 14 March 2012 confirming that they were acting for the First Defendant and requested them to produce a copy of an affidavit of service that they might have in their possession within 7 days of the letter failing which they invited them to consent to set aside the consent order. A copy of that letter is annexed to the First Defendant's affidavit as annexure "H". His lawyers also wrote to the Acting Secretary of the Department of Lands & Physical Planning by their letter dated 14 March 2012 requesting him to revert to them within 7 days of the letter and advise whether or not the Department had given instructions to the Solicitor General to consent to the consent order. A copy of that letter is annexed to the First Defendant's affidavit as annexure "I". The plaintiff's lawyers and the Acting Secretary of the Department of Lands & Physical Planning did not respond to these letters.

30. The First Defendant's lawyers then proceeded to serve a sealed copy of the First Defendant's Notice of Appearance upon the plaintiff's lawyers under cover of their letter to them dated 26 March 2012 and at the same time giving notice of the First Defendant's intention to make application to set aside the consent order on the basis that the First Defendant was not served with any Court document concerning the proceedings therefore amounting to a breach of their client's right to be heard. A copy of that letter is annexed to the First Defendant's affidavit as annexure "J".

31. According to Mr. Maitang's affidavit, Warner Shand Lawyers, Rabaul confirmed with his firm in writing on 14 October 2010 that they acted for the First Defendant and his wife in connection with a dispute concerning the grant of the property to his clients by the State and later on 20 December 2010 confirmed that they had standing instructions to receive court documents on the matter on behalf of their clients. Copies of relevant correspondence exchanged between Warner Shand Lawyers, Rabaul and the plaintiff's lawyers are annexed to Mr. Maitang's affidavit as annexures "A" to "F". On 21 December 2010 at about 04:40 pm, Mr. Victor Lovai, a legal clerk employed by Warner Shand Lawyers, Port Moresby attended at their office and he personally delivered to him the following documents:

1. Originating Summons filed on 14 September 2010.
   
2. Statement filed pursuant to Order 16 Rule 3 (2)(a).
   
3. Affidavit Verifying Facts of Augus Wialu sworn on 6 September 2010 and filed on 14 September 2010.
   
4. Order of 12 October 2010 granting leave to apply for judicial review.
   
5. Mirupasi Lawyers' letter to the Solicitor-General dated 20 October 2010 enclosing a draft of the proposed consent order and indicating that it was copied to the First Defendant, but without disclosing his address.
   

32. A copy of Mirupasi Lawyers' letter to the Solicitor-General dated 20 October 2010 is annexed to Mr. Maitang's affidavit as annexure "G".

33. On accepting service of the documents on behalf of Warner Shand Lawyers, Rabaul, Mr. Lovai completed a Service Detail Form, a copy of which is annexed to Mr. Maitang's affidavit as annexure "H".

34. The First Defendant has not adduced any evidence to rebut evidence adduced by the plaintiff that he had engaged the services of Warner Shand Lawyers, Rabaul in late 2010 to defend the action.

35. The Court's record does not show that Warner Shand Lawyers, Rabaul filed any formal notice of intention to defend the action on behalf of the First Defendant thereafter. Was it because of inadvertence of Warner Shand, Lawyers, Rabaul or because they no longer had instructions to act for the First Defendant after receiving the court documents? Given it is the First Defendant who claims that he was not served with any court document prior to the making and entry of the consent order, it was incumbent upon him to provide an explanation as to whether or not he had engaged Warner Shand Lawyers, Rabaul in late 2010 to defend the action. No explanation has been provided. In the absence of such an explanation, I would accept that service of court documents concerning these proceedings upon Warner Shand, Lawyers Rabaul through Mr. Lovai of Warner Shand, Lawyers, Port Moresby on 21 December 2010 constituted service upon the First Defendant.

36. According to the Court's record including file endorsements, following the granting of leave to apply for judicial review on 12 October 2010, this matter was brought before the Court for directions hearing a number of times and ultimately on 6 June 2011, the consent order was endorsed and entered. It appears from the Court's record that the consent order was ordered and entered without a notice of motion filed for that purpose. The Court file endorsement of 6 June 2011 does not indicate who appeared before the Court that day, but it is not disputed that the First Defendant was not represented either in person or by his counsel.

37. Contrary to the First Defendant's assertion that he was not served any Court document regarding these proceedings prior to December 2011, I am satisfied from the affidavit evidence of Mr. Maitang that the First Defendant was served with the documents indicated above on 21 December 2010 through Warner Shand Lawyers, Rabaul per Mr. Lovai.

38. I find that the consent order was ordered and entered ex parte the First Defendant.

39. I am satisfied therefore that this Court has jurisdiction to entertain this application.

40. Was the consent order regularly or irregularly entered? It was irregularly entered, but not so as to render it a nullity simply because the First Defendant did not consent to it.

41. Has the First Defendant pleaded in his notice of motion the several objections to the irregularity that he insists upon to set aside the consent order? Item 1 of the notice of motion relevantly reads:

"Pursuant to Section 155 (4) of the Constitution, set aside the consent order made on the 6th June 2011."

42. Clearly, what is missing in the notice of motion is the indication of the several objections to the irregularity that the First Defendant insists upon to set aside the consent order. Item 1 of the notice of motion does not comply with Order 1 Rule 10 of the National Court Rules. That is sufficient basis for me to refuse the application to set aside the consent order.

43. Was the application to set aside the consent order made within a reasonable time? The application to set aside the consent order was filed on 2 April 2012. That was about four months after the First Defendant became aware of it in December 2011 and about ten months after the consent order was ordered and entered. There is no evidence before me to suggest that the First Defendant either personally or through his lawyers was served with the consent order between 6 June 2011 and December 2011. Given the consent order finally determined the relief sought by the plaintiff which was detrimental to the First Defendant's legal title to the property, it was incumbent upon the First Defendant to act promptly and without delay. I note from the First Defendant's affidavit evidence that he attributes part of the delay to his previous lawyers, M.S. Wagambie Lawyers who he had engaged on or about 16 December 2011 for not attending to his case which forced him to engage his current lawyers. I note from the Court's record that M.S. Wagambie Lawyers only filed a notice of appearance to act for the First Defendant on 19 March 2012. Unfortunately, the negligence of a lawyer is not regarded as a good excuse to set aside a judgment or the need to comply with any rule or requirement in any proceedings before a court: see Leo Duque; Bernard Juali v The State (2001) SC 667. In the circumstances, I consider that four months is an unreasonable delay. I therefore find that the application to set aside the consent order was not made within a reasonable time as is required by Order 1 Rule 9 of the National Court Rules.

44. Is the First Defendant guilty of taking fresh steps with the knowledge of the irregularity? I answer this question in the negative. I am satisfied that the First Defendant has not taken any fresh step with knowledge of the irregularity so as to be caught by Order 1 Rule 9 of the National Court Rules.

45. Does the First Defendant provide a good explanation as to why the consent order was allowed to be entered in his absence? He has deposed in his affidavit that he was not aware of these proceedings because he was not served with any court documents. I have already rejected that argument. I am satisfied that the First Defendant has failed to provide a good explanation as to why the consent order was allowed to be entered in his absence.

46. Has the First Defendant demonstrated by affidavit evidence that he has a defence on the merits? The First Defendant and his wife Dusa Katakumb were registered proprietors as joint tenants of the State Lease issued on 22 August 2007 and entered by the Registrar of Titles on 9 October 2007. I am satisfied that the First Defendant by his affidavit has demonstrated that he has a defence on the merits.

47. Of all the requirements the First Defendant must satisfy in order to be successful in this application, he has satisfied only two of them. He has not established a case for the Court to set aside the consent order. In the circumstances, I will refuse the application to set aside the consent order.

48. The formal orders of the Court are:

1. The First Defendant's application to set aside the consent order made on 6 June 2011 is refused.
   
2. The First Defendant shall pay the plaintiff's costs of and incidental to this application, to be taxed, if not agreed.
   
3. Time is abridged to the time of settlement by the Registrar which shall take place forthwith.
   

_____________________________________________________
Mirupasi Lawyers: Lawyers for the plaintiff
Korerua & Associates Lawyers: Lawyers for the First Defendant