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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 1619 OF 2015 (NO. 2)
BETWEEN:
JOYCE BENARD, BETTY MAUA, AGNESS JACOB, JENNY EPI, ESTHER KEMAPU, MARY GORDON, KAI BOLA, OXY LEX, AKITA ALBERT AND EVERLYN GIYA
Plaintiff/First Cross Defendant
V
ALEX TIRI AIPA trading as AIPA TRADING
First Defendant
AND
OUR REAL ESTATE LIMITED
Second Defendant
AND
BHUIYA ENTERPRISES LIMITED
Third Defendant/Cross Claimant
AND
NATIONAL CAPITAL DISTRICT COMMISSION
Second Cross Defendant
Waigani: Anis J
2021: 14th & 29th October
NOTICE OF MOTION – application to summarily dismiss the proceeding – Order 10 Rule 9A 15(1)(2)(e) – National Court Rules- standings of the plaintiffs – the nature of their interests in the matter and to the property in question – whether the plaintiffs authorized or illegal occupants of the property – whether the plaintiffs have equitable rights – consideration – exercise of discretion – types of relief to be ordered under the circumstances
Cases Cited:
In the matter pursuant to s. 18(1) of the Constitution, Southern Highlands Provincial Government v. Sir Michael T Somare and Ors (2007) SC854
Vanimo Jaya Ltd v. East New Britain Provincial Government (2018) SC1734
Mudge & Mudge v. Secretary for Lands, State and Delta Developments Pty Ltd [1985] PNGLR 387
Martin Mason v. Romily Kila Pat (2016) N6550
John Kameku v Patilius Gamato (2004) N2512
Counsel:
Mr E Lako, for the Plaintiff/First Cross-Defendant
No appearance by the first defendant
Mr A Waira, for the Second Defendant
Mr M Philip, for the Third Defendant/Cross-Claimant
Ms C Malala, for the Second Cross-Defendant
RULING
29th October, 2021
1. ANIS J: This is my ruling on a contested interlocutory matter. The interlocutory matter was heard based on a notice of motion filed by the second defendant on 7 July 2021 (NoM). The NoM primarily seeks to summarily dismiss the proceeding. I heard arguments from the parties on 14 October 2021and reserved my ruling thereafter to a date to be advised.
2. Parties have been notified of today’s date for ruling, so I will proceed.
BACKGROUND
3. The plaintiffs sell clothing or second-hand items on a piece of land with other vendors here in the Nation’s Capital, Port Moresby. They claim that they began trading there since 1993. The land in question is next to the Waigani Market in Port Moresby. The land area, which had been described as reserved State land, together with the land where the Waigani Market is situated, were said to have been managed by the second cross-defendant (NCDC) at the material time. The plaintiffs claim that NCDC has an arrangement with them where it has permitted them to do their marketing on the portion of the land outside the market. The present status of the land in question is that it has a state lease and title to it. The land is described as allotment 36, section 137, Hohola (Waigani), NCD (the Property). The original State Lease that had been created with the others was described as allotment 34, section 137, Hohola (Waigani), NCD (original lease). It was created as a state lease on 14 July 2009 and issued to the first defendant as its registered proprietor. The first defendant sold its title in and transferred the original lease, over the second defendant, on 7 April 2011. On 23 August 2011, the second defendant, having applied for consolidation of allotment 34 to include the surrounding land area, was issued with a new State Lease which consists of the Property. On 20 May 2014, the second defendant sold the Property to the third defendant/cross-claimant (third defendant). The third defendant is the current registered proprietor/owner of the Property. On 16 November 2015, the plaintiffs filed this proceeding. They complain and allege fraud against the first, second and third defendants. They argue that the Property has or had been fraudulently acquired, and they seek various relief including cancellation and restoration of the land back to its original state or status.
4. The defendants deny the allegations. NCDC was joined to this proceeding by the third defendant/cross-claimant as the second cross-defendant. The crossclaim was recently amended on 23 August 2021. The cross-claimant claims, amongst others, that it suffered damages for trespass as a result of the alleged unlawful actions or conducts of the plaintiffs and NCDC.
NOTICE OF MOTION
5. The main relief sought in the NoM are as follows:
6. The parties filed their affidavits in support. They also refer to and rely on various affidavits that they filed earlier. As for the second defendant, it relies on 2 main affidavits, that is, (i) affidavit of Andy Kenamu filed on 7 July 2021, and (ii), affidavit of Anthony Waira filed on 13 July 2021. The plaintiffs rely on the affidavit of Betty Maua filed on 31 May 2016. NCDC in supporting the plaintiffs, relies on (i), the affidavit of Kenneth Atasoa filed on 4 July 2016, and (ii), the affidavit of Bernard Kipit filed on 7 June 2021.
SOURCE
7. I heard preliminary arguments regarding the pleaded sources to relief 1 of the NoM. The plaintiff contested Order 8 Rule 27(a), (b), and (c) of the National Court Rules (NCR) as a relevant source that the second defendant could rely on in an application for summary dismissal. The second defendant in reply conceded and submitted that it will abandon that and instead rely on Order 10 Rule 9A 15(1)(2)(e) as the source or jurisdictional basis for relief 1. The plaintiffs raised no arguments in regard to Order 10 Rule 9A 15(1)(2)(e). I will therefore proceed to consider relief 1 on that basis, that is, premised on Order 10 Rule 9A 15(1)(2)(e). I also find the source to be in order for the purpose, that is to say that it invokes the Court’s jurisdiction to summarily dispose proceedings.
8. Relief 1 is the main relief of the NoM. As such, I will address that now, and proceed further to address the balance of the relief depending on my findings herein.
9. Order 10 Rule 9A 15(1)(2)(e) reads:
15. SUMMARY DISPOSAL.
(1) The Court may summarily determine a matter:
......
(2) The Court may summarily dispose of a matter in the following situations:
......
PRELIMINARY ISSUE - STANDING
10. As a competency matter under Order 10 Rule 9A 15(2)(e) of the NCR, the parties’ attention was drawn by the Court to the issue of standing, that is, whether the plaintiffs have standing or sufficient interest to commence proceeding against the first, second and third defendants. I note the submissions from the parties on this issue.
11. Sakora J defines standing or sufficient interest at paragraph 142 in In the matter pursuant to s. 18(1) of the Constitution, Southern Highlands Provincial Government v. Sir Michael T Somare and Ors (2007) SC854, as follows:
142. The Osborn’s Concise Law Dictionary defines “locus standi “as the right to be heard in court or proceedings. This Latin maxim which literally means “a place of standing or a place to stand” connotes the right to bring an action or challenge some decision: The Oxford Dictionary of Law. Constitutional Law being a public law, the doctrine of this law that is designed to regulate and to limit the powers of the executive is known as the rule of law (supra). And to seek the various reliefs or remedies recognized as being available under this law, an applicant must demonstrate that he has standing to do so. An applicant will have standing if he has a sufficient interest in the matter to which his application relates. In civil litigation, the National Court Rules (NCR) envisage proper parties (both plaintiffs and defendants) coming to court with demonstrated proper causes of action to seek the reliefs or remedies of the court. The court will only have jurisdiction to grant relief if the applicant does have standing or the plaintiff (in a civil action) has a proper cause of action. (Underlining mine).
12. Batari J explains sufficient interest at paragraphs 12 and 13 of his decision in Vanimo Jaya Ltd v. East New Britain Provincial Government (2018) SC1734 as follows:
12. One must have sufficient interest in the matter before the court before he is heard. The right to be heard is based on the Constitution, by operation of law and the rule of practice for enforcement of some private or public rights subject to sufficient interest being reasonably shown to the satisfaction of the court. For instance, in judicial review matters under O. 16 r. 3(5) of the National Court Rules, the Court will not grant leave for judicial review unless it considers that an applicant has sufficient interest in the matter the subject of the judicial review application.
13. Whether a party has sufficient interest in the matter before the court essentially, depends on the degree of the relationship between the plaintiff and the subject matter of his complaint. The plaintiff has the onus show standing if he can demonstrate a reasonably arguable claim, that some rights whether private or public has been affected or he has suffered some prejudice from an excess administrative or judicial decision making process. A useful guide is found in, Steamships Trading Ltd v. Garamut Enterprises Ltd (2000) N1959, where Sheehan, J stated;
“Generally a Plaintiff will have standing if he can show that he has a reasonably arguable claim that by an invalid exercise of statutory power, some private rights in law has been affected or that he has suffered some prejudice. But the right to invoke the Court’s supervisory jurisdiction is not restricted to protection of personal right only. It can extend to more public issues.”
13. I adopt these definitions of standing and sufficient interest herein. In so doing, I turn my attention to the present matter, and the best place to begin would be the pleadings, and I refer to the writ of summons and statement of claim of the plaintiffs filed on 16 November 2015 (SoC). The relevant paragraphs that plead standings and sufficient interests are paragraphs 1 to 7, and relevant paragraph that pleads the relief sought in the SoC is paragraph 27. I set them out herein:
STATEMENT OF CLAIM
......
PARTICULARS OF CLAIM
(a) A declaratory order that on the 11th of June 1998, the PNG Land Board never warded the land described as Allotment 34, Section 137, Hohola (Waigani) National Capital District to any person.
(b) A declaratory order that no title was issued on the 03rd of April 2013 to any person and thus the property, Allotment 34, Section 137, Hohola (Waigani) National Capital District, had no title and there was no transfer made to any person.
(c) A declaratory order that the property, Allotment 34, Section 137, Hohola (Waigani) National Capital District, remains part and parcel of Waigani Market as a reserved land for Public Purpose.
(d) A declaratory order that consolidated title, Allotment 36, Section 137, Hohola (Waigani) National Capital District issued to Our Real Estate Limited was defective void ab initio as the consolidation was done based on a defective title and/or obtained fraudulently by Our Real Estate Limited.
(e) An order that if there is a title to the property Allotment 36, Section 137, Hohola (Waigani) National Capital District, the same is defective and void ab initio and Bhuiya Enterprises Ltd, its directors and shareholders shall surrender the original title to the Registrar of Titles within 14 days and it shall be cancelled by the Registrar forthwith.
(f) An order that the Registrar of Titles and the Department of Lands and Physical Planning shall restore the Land as reserved land for Public Purpose to be part of the Waigani Market and the Plaintiffs shall peacefully continue with their sale of Second-Hand Clothes as allocated by the NCDC.
(g) The Defendants, their agents, whosoever is restrained in the interim from evicting the Plaintiffs or disturbing them from peaceful sale of their Second-Hand Clothes until further orders from this Court.
(h) Costs of these proceeding shall be paid by the Defendants in equal proportions.
(i) Any other order the Court deems fit be so ordered.
14. The plaintiffs’ interests are private in nature. They are not seeking for example judicial review to question the decision-making process of a public authority over the grant of title to the Property. So, I ask myself this question. “What interest or standing do the plaintiffs have to the title of the Property that the third defendant currently holds?” I say this because in the relief, the plaintiffs are essentially seeking to overturn the title to the Property based on claims of fraud.
15. When I consider the SoC, it is obvious, as expressly pleaded therein, that the plaintiffs do not have any legal interest to the title of the Property. Their interests, as pleaded and from the evidence of Mrs Maua, appear at the least, equitable in nature or as illegal occupants of the Property. The pleadings and evidence show that they had been ‘illegally’ occupying and selling their clothing on state land outside a designated market zone that was managed at the time by NCDC since 1993. Mrs Maua said at paragraph 3 of her affidavit, and I read in part:
3. We have been selling Second-Hand Clothes from the above described land since 1993 to date for about 21 years and we have thus been supporting or respective families in the city from our sale, whereby we have been paying for our children’s school fees and provide for our daily survival.
4. Our use of the land for sale of Second-Hand Clothes was formally authorized by the National Capital District Commission (NCDC) and this is indicative by a letter dated 23rd of October 2014 addressed to the Second Hand Vendors by Leslie Alu, City Manager. The true copy of the letter is annexed herewith and marked with letter “A”. (Underlining mine).
16. The evidence of the Deputy City Manager of NCDC, Mr Atasoa corroborates NCDC’s ‘purported grant of permission’ to the plaintiffs to occupy the Property. At paragraph 3 of his affidavit of 4 July 2016, Mr Atasoa states:
3. A group of mothers were permitted on humanitarian reasons to use a portion of the land to sell second hand clothes to sustain their livelihood.
17. But the said land, which previously was reserved as state land, by then had title to it under the name of the third defendant as its registered proprietor. That is the present status of the Property. A true copy of the State Lease issued over the Property is marked as annexure “N” to Mrs Maua’s affidavit. The title to the Property was transferred to the third defendant on 20 May 2014. So, by the time NCDC was said to have given its ‘purported permission’ to the plaintiffs to continue to occupy the Property on 23 October 2014, the Property was already owned by the third defendant. It then begs the question of what authority NCDC had at that time for it to ‘give its permission’ or ‘allow’ the plaintiffs to occupy the Property. Not only that, the present State Lease and title to the Property, after consolidation was made to the original lease, was issued on 23 August 2011. In 2011, the second defendant was the previous registered proprietor of the Property. So, again, where is NCDC’s interest there to ‘give permission’ to the plaintiffs to occupy the Property or have control over it as of 23 August 2011? I make these observations and ask these questions, in direct consideration to the principle of indefeasibility of title. The Supreme Court in Mudge & Mudge v. Secretary for Lands, State and Delta Developments Pty Ltd [1985] PNGLR 387 has held that Registration of leases under the provisions of the Land Registration Act (Ch No 191) is effective to vest an indefeasible title in the registered proprietor subject only to the exceptions enumerated in s 33. This continues to be the position in law at present.
18. Evidence adduced herein shows that the cross-claimant and the defendants have been trying to remove the plaintiffs from the Property for the past years, and the matter has been subject to or of various other court proceedings including proceedings that had been commenced at the District Court level. It is not an issue that the plaintiffs have not received the consent or authority of the present registered proprietor of the Property or the former, to occupy the Property that is the subject of the dispute.
CONSIDERATION
19. What may be found from the evidence at hand are as follows. Firstly, I find the plaintiffs as illegal settlers who had occupied and continue to occupy the Property which is situated next to the Waigani Market in NCD. The finding, apart from what was revealed in the evidence, is primarily based on their own implied admissions in their pleadings in the SoC. The state land was subsequently sub-divided into various blocks or allotments, and titles or state leases were issued over them over the years. In 2011, the second defendant applied for consolidation of one of the allotments, that is, allotment 34 together with a portion of a surrounding vacant or state reserved land outside but adjacent to the Waigani Market land area. Its application was successful, and it was issued with the current State Lease over the Property. The Property was later purchased and transferred to the third defendant on 20 May 2014.
20. The plaintiffs have been illegally occupying the land since 1993. I refuse their submission that they were formally permitted to occupy the Property from NCDC on 23 October 2014. Firstly, as evidence shows, NCDC did not have any legal interest to the Property at the time when Mr Alu purportedly gave NCDC’s permission to them in his letter dated 23 October 2014. The registered proprietor of the Property then was and still is the third defendant.
21. Without this argument to support the plaintiffs’ claim of interest or standing, it further weakens their position in the matter. Consequently, it means that they had been and continue to illegally occupy the Property to this day. In my view and as a consequence, it eliminates their equitable interest claim over the Property. Gavara-Nanu J in Martin Mason v. Romily Kila Pat (2016) N6550, stated and I quote in part at paragraphs 19 and 20:
19. The plaintiffs have also argued that they have acquired equitable interest in the land by reason of them being the existing tenants since 2004, and that they have done some improvements on the land.
20. I reject this argument outright. The plaintiffs have failed to demonstrate to the Court that they are legal occupants of the land. And in the absence of any evidence to the contrary, the plaintiffs are squatting (sic) illegally on the State land. Their continued occupation of the land and any purported developments on the land are also illegal for that same reason. The plaintiffs therefore have not come to this Court with clean hands.
22. In John Kameku v Patilius Gamato (2004) N2512, Jalina J stated:
“The law relating to whether or not a person who squats on State land for a long period of time without objection from the State can acquire an equitable interest in the land is as set out in John Jivetuo & 2 Ors -v- The State & 2 Ors [1984] PNGLR 174 and Amos Bai -v- Morobe Provincial Government & the State [1992] PNGLR 150 so there is no need for me to repeat it here. The law in essence is that a person who occupies land unlawfully cannot acquire an equitable interest in land. That is consistent with the equitable principle that he who comes to equity must come with clean hands. In my opinion, it is not sufficient to merely say that in view of some of them having lived on the said land for almost 50 years between 1952 and 2001 without objection from the State as owner, conferred upon them equitable interest in the said land. In my view, it is not uncommon to find not only in relation to government or state land but also in relation to customary land particularly land located within the environs of a city or town that the owners do not raise any objections to the use or continued occupation by someone else of their land until the need for use of such land arises or the occupiers conduct themselves in such a way as showing disregard or disrespect towards the owner or owners.
23. The plaintiffs firstly have not come to this Court with clean hands. They have been occupying the portion of the state or reserved land as it was known then, illegally or as squatters for many years. Then disputes over the land arose, and in 2014, NCDC, who did not own the Property at the time, purportedly gave permission to them to continue to use or occupy the Property against the wishes of its registered proprietor the third defendant. Under the said misconceived belief or understanding, the plaintiffs commenced this proceeding and name the 3 defendants herein in pursuit of its claim for fraud. Their actions in occupying the Property were not authorized and illegal from the start to the present.
24. The plaintiffs therefore do not have both legal and equitable interests over the Property that would have given them sufficient interest, right or standing, to pursue the matter in the manner as they have done herein. Consequently, it is also safe to say or find that they lack any legal or equitable rights that is recognized in law which they may seek to enforce, protect, or ascertain by their proceeding against the defendants over the Property.
SUMMARY
25. I am therefore inclined to grant the primary relief sought in the NoM.
26. The proceeding filed by the plaintiffs against the first, second and the third defendant/cross-claimant shall be dismissed in its entirety, that is, on the basis of want of standing and interest. In so doing, it is not necessary to deal with other issues raised in the NoM. Any interim restraining orders or injunctions that have been obtained by the plaintiffs, for clarity, will be set-aside and also dismissed.
27. The cross-claim of the cross claimant shall be the only claim that remains after this.
CONSEQUENTIAL ORDERS
28. Relief 3 and 4 in the NoM are alternative and consequential relief so I dismiss them, that is, since having granted the primary relief.
29. Relief 2 on the other hand is consequential to relief 1 and thus requires attention. It reads, and I restate that herein:
30. The relief may normally be sought by the third defendant and not the second defendant who has no direct interest to the Property in question. However, I note that the second defendant has sold the Property to the third defendant and as such wants the land vacant for the benefit of the third defendant thus is seeking this consequential relief which is also supported by the third defendant. The consequential relief or order is also necessary or appropriate, in my view, given my findings in regard to the NoM. The third defendant being the present registered proprietor to the Property and who has a legal interest or right to it, must take immediate possession over it, that is, after being denied access or possession for almost 10 years. This Court must recognize the legal interest of the third defendant over the unauthorized or illegal interests of the plaintiffs. That has to be, in my view, the only legal, fair or rational way forward given that the plaintiffs’ claim has now come to an end.
31. As such, I will grant but vary relief 2 to a certain extent considering the interest of all the parties’ concern and the practicalities that may be required. In so doing, I will permit the plaintiffs and the occupants over the Land, a period of 30 days upon being served with a sealed copy of the Court Order, to vacate the Property, failing upon which members of the police force may be used to secure vacant possession of the Property.
COST
32. Cost relief is discretionary. I will order the plaintiffs to pay the second and third defendants’ costs for defending this proceeding on a party/party basis which may be taxed if not agreed.
REMARKS
33. I wish to make the following remarks. Firstly, I note that the plaintiffs’ pleaded relief are aimed at persons who are not named in the proceeding. Persons such as the members of the Land Board, the Registrar of Titles, the Department of Lands and Physical Planning and the Independent State of Papua New Guinea. To me, this only makes the relief appear untenable or unattainable and difficult for the plaintiffs’ case as a whole. It also suggests to me that perhaps the correct process or mode of proceeding should be judicial review whereby persons with sufficient interests could challenge the actions or inactions of these persons.
34. I also note from the evidence and pleadings herein that NCDC has referred the matter to the Fraud Squad or police for further investigations, that is, in relation to how the State Lease to the Property had or has been acquired. That of course is a separate matter and, in my view, may be addressed at its own timing or depending on police investigations. But such an allegation or referral does not in any way diminish the rights and interests of a registered proprietor to the full use and enjoyment of its state lease.
35. Finally, I note that NCDC is not a party to the claim by the Plaintiffs. Rather, it is a cross-defendant to the third defendants’ crossclaim, and it is defending itself against separate causes of actions including trespass. Therefore, its involvement in the NoM would be of little or no assistance to the plaintiffs’ case.
ORDERS OF THE COURT
36. I make the following orders:
The Court orders accordingly
________________________________________________________________
Kandawayn: Lawyers for the Plaintiff
Anthony Waira: Lawyers for the Second Defendant
Korerua & Associates: Lawyers for the Third Defendant/Cross-Claimant
In-house Counsel: Lawyer the Second Cross-Claimant
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