N7286

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 460 of 2017

BETWEEN:
JURA INVESTMENT LTD
Plaintiff

AND:
ALBERT CONLIFE
also known as
ALBERT CONLIFFE
Defendant

Waigani: Hartshorn J
2018: 23rd, 25th April

Application for an order for vacant possession and for leave to issue a writ of possession
    
Cases cited: 

Eric Kiso v. Bennie Otoa and Anor (2013) SC1222	
Paga Hill Development Company (PNG) Ltd v. Daure Kisu (2014) N5683
Counsel:

Mr. I. Shepherd, for the Plaintiff

25th January, 2018

1.	HARTSHORN J: This is a decision on an order for vacant possession of a property and for leave to issue a writ of possession.

2.	I allowed the application to be moved in the absence of representation of the defendant as I was satisfied that counsel for the defendant had been served with, and was aware of the time and hearing date of, the plaintiff’s amended notice of motion. In the absence of representation of the defendant, no application for an adjournment of the hearing of the motion was made. There was evidence that counsel for the defendant had been informed that the plaintiff would not agree to a foreshadowed application for an adjournment. I noted further, that at the previous hearing of the motion there was also no representation of the defendant. On that occasion counsel for the plaintiff was granted an adjournment on the basis that the defendant’s counsel in correspondence had belatedly requested an adjournment. 

Background

3.	The plaintiff is the registered proprietor of State Lease Volume 30 Folio 60 which contains all of the land known as Allotment 16 Section 54 Hohola, Port Moresby, National Capital District (Property). The plaintiff was not registered on the title to the Property until 17th January 2017. That entry was confirmed on 4th May 2017. The plaintiff purchased the Property from Stephen Tong and Patsy Tong pursuant to a contract for sale dated 8th June 2004. Various court proceedings resulted in the plaintiff not being registered upon the title until 2017.

4.	The defendant has been in occupation of the Property without authority of the plaintiff or previous owners for some years and has sublet the Property to sub-tenants including Laki Wara Ltd and Trackstar Security Services, both of whom have been served, but have not entered an appearance in this proceeding.

5.	The plaintiff claims that none of the sub-tenants have any authority from the plaintiff to occupy the Property and none of them have responded to the Notice to Occupier served on them in or about June 2017.

6.	The defendant and the sub-tenants have refused to vacate the Property and the defendant has for many years disputed the plaintiff’s title and that of its predecessors without any legal basis.

This application

7.	The plaintiff submits that it has every right to judgment for possession and the right to seek leave to issue a writ of possession as:

a)	The plaintiff is the registered proprietor of the Property and has indefeasible title to the Property pursuant to s. 33(1) Land    Registration Act;

b)	No person, including the defendant has shown that they have a better title to the Property than the plaintiff;

c)	There is no allegation that the plaintiff’s title to the Property is   tainted by fraud;

d)	The defendant and the other occupants have been aware that they must vacate the Property for at least 10 years.

Consideration

8.	In regard to whether the plaintiff has the right to judgment for possession of the Property, the evidence is that the plaintiff is the registered proprietor of the Property. Pursuant to s. 33(1) Land Registration Act, the plaintiff holds an indefeasible title to the Property: I refer to amongst others: Eric Kiso v. Bennie Otoa and Anor (2013) SC1222.

9.	There is no allegation that the plaintiff’s title is tainted by fraud and so s. 33(2) Land Registration Act does not warrant consideration. The plaintiff obtained its title from Mr. and Mrs. Tong. The Tongs had derived their title to the Property by way of a vesting order made by the National Court on 29th   July 2008. There is no evidence that the vesting order has been set aside.

10.	Consequently, as I was in Paga Hill Development Company (PNG) Ltd v. Daure Kisu (2014) N5683, after having had recourse to the decisions cited therein, I am satisfied to the requisite standard that the plaintiff is entitled to the relief that it seeks.

11.	The next consideration is the amount of time the defendant should have to vacate the Property. The plaintiff has suggested 45 days. In the circumstances I am satisfied that length of time is reasonable.

Orders

12.	It is ordered that:

a)	Pursuant to Order 12 Rule 1 National Court Rules,	the defendant shall give vacant possession of the land and improvements known as Allotment 16 Section 54 Hohola, National Capital District, being the whole of the land contained in State Lease Volume 13 Folio 60, after 45 days from today’s date; and

b)	Pursuant to Order 13 Rule 3 National Court Rules a writ of possession shall issue in regard to the above property, at the expiration of 45 days from today’s date;

c)	The relief sought in paragraphs 3 and 4 of the Originating Summons is adjourned generally;

d)	The defendant shall pay the plaintiff’s costs of and incidental to the plaintiff’s amended notice of motion filed 13th March 2018;

e)	The time of entry of these orders is abridged to the date of settlement by the Registrar which shall take place forthwith.

_____________________________________________________________
Ashurst: Lawyers for the Plaintiff                           
Justin Talopa: Lawyers for the Defendant