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Post PNG Ltd v Manguna [2018] PGNC 562; N7707 (28 May 2018)

N7707

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 651 OF 2017

BETWEEN
POST PNG LIMITED
Plaintiff

AND
LAGUP MANGUNA
First Defendant

AND
HENRY WASA, Acting Registrar of Titles
Department of Lands & Physical Planning
Second Defendant

AND
TIRI WANGA, Acting Secretary
Department of Lands & Physical Planning
Third Defendant

AND
THE INDEPENDENT STATE OF PAPA NEW GUINEA
Fourth Defendant

Waigani: Dingake J
2018: 19 April, 28 May

Cases Cited:

Kappo No. 5 Pty Ltd and Ors. v James Chi King Wong & Another (1997) SC520.
Motor Vehicle Insurance Ltd v Nominee’s Niugini Ltd 2015 P9SC 22.

Counsel:

Mr. G Sheppard & Mr. J Purvey, for the Plaintiff
Mr. M Wangatau, for the Defendants

28^th May, 2018

1. DINGAKE J: By this Notice of Motion filed with this Court on the 26^th of March, 2018, the Applicant moved the Court for the following orders pursuant to Order 12 Rule 38:

1.1 A declaration that the new title of the property located at Section 01 Allotment 31, Kimbe, West New Britain and registered as a new lease under Volume 185 Folio 42 was fraudulently obtained by the First Defendant or given to him.
1.2 A declaration that the new title of the property registered under the First Defendant is null and void, therefore illegal.
1.3 A declaration that the Plaintiff’s title is valid for all intent and purposes.
1.4 An order that the Second Defendant shall cancel the new title registered under the First Defendant and restore the Plaintiff as the registered owner of the property within 14 days from the date of these orders.
1.5 An order that First Defendant shall remove all or any developments/improvements, including the fence erected on the property within 14 days from the date of Order.

2. In the alternative the Applicant sought the following orders pursuant to Order 12, Rule 25:

1.1 A declaration that the new title of the property located at Section 01 Allotment 31, Kimbe, West New Britain and registered as a new lease under Volume 185 Folio 42 was fraudulently obtained by the First Defendant or given to him.
1.2 A declaration that the new title of the property registered under the First Defendant is null and void, therefore illegal.
1.3 A declaration that the Plaintiff’s title is valid for all intent and purposes.
1.4 An order that the Second Defendant shall cancel the new title registered under the First Defendant and restore the Plaintiff as the registered owner of the property within 14 days from the date of these orders.
1.5 An order that First Defendant shall remove all or any developments/improvements, including the fence erected on the property within 14 days from date of Order.
1.6 Costs of proceedings against Second, Third and Fourth Defendants.
1.7 Any further or other orders Court deems fit.

3. On the 14^th of July, 2017, the Plaintiff/Applicant filed and served a Writ of Summons and Statement of Claim in which the Plaintiff/Applicant claimed that it had been defrauded of the title in property located at Allotment 01, Section 31, Kimbe, West New Britain contained in State Lease under Vol. 185 Folio 42 and sought the orders earlier outlined.

4. Although the Second, Third and Fourth Defendants deny the alleged fraud, whose details are particularized in the Statement of Claim, they concede that:

1.6 The Plaintiff is the registered owner of the property located at Allotment 01 Section 31, Kimbe, West New Britain contained in the State Lease Vol. 185 Folio 42.
1.7 That if there was any new title issued to the First Defendant (over Allotment 01 Section 31, Kimbe, West New Britain contained in State Lease Volume 185 Folio 42), then that title was void abinitio at all material times.
1.8 That the title held by the First Defendant is not a proper title.

5. In a nutshell other than contesting allegations of fraud the Second, Third and Fourth Defendants concede the case of the Plaintiff/Applicant. Ordinarily this concession should result in summary judgment being sought and granted. However, the authorities in this jurisdiction say that summary judgment cannot be obtained in a case founded on an allegation of fraud (Kappo No. 5 Pty Ltd and Ors. v James Chi King Wong & Another (1997) SC520).

6. It is for the above reasons that I decline to grant summary judgment sought.

7. Counsel for the Plaintiff/Applicant has in the alternative sought that default judgment be entered against First Defendant.

8. In this case, the Plaintiff/Applicant has met all the pre-conditions for the granting of the default judgment; the application is in the proper form; the defendants notwithstanding service of the Writ of Summons and Statement of Claim has not filed the notice of motion to defend and defence.

9. The First Defendant is clearly in default.

10. In this case, there was no need for the Plaintiff/Applicant to give any warning as the first defendants had failed to file notice of intention to defend (Motor Vehicle Insurance Ltd v Nominee’s Niugini Ltd [2015] P9SC 22).

11. The Plaintiff has also conducted the requisite search that confirms that the First Defendant has defaulted in filing and serving his notice of intention to defend and defence within time allowed.

12. In all the circumstances, Default Judgment is entered against the First Defendant in the following terms:

1.9 A declaration that the new title of the property located at Section 01 Allotment 31, Kimbe, West New Britain and registered as a new lease under Volume 185 Folio 12 in the name of the First Defendant, is null and void of no force and effected.
1.10 A declaration that the Plaintiff’s title is valid for all intent and purposes.
1.11 An order that the Second Defendant shall cancel the new title registered under the First Defendant and restore the Plaintiff as the registered owner of the property within 14 days from the date of these orders.
1.12 Costs are awarded against the First Defendant.

________________________________________________________________
Parker Lawyers: Lawyers for the Plaintiffs
No Appearance: Lawyers for the Defendants