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Sentwan v Samson [2021] PGNC 51; N8794 (16 April 2021)

N8794

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 953 OF 2017


BETWEEN:
MAXIE SENTWAN
Plaintiff


AND:
BENJAMIN SAMSON REGISTRAR OF TITLES
First Defendant


AND:
TIRI WANGA AS DELEGATE OF THE MINISTER FOR LANDS & PHYSICAL PLANNING
Second Defendant


AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant


AND:
JOHN ISAISA

Fourth Defendant


Waigani: Miviri J
2020: 17th November


PRACTICE & PROCEDURE – Judicial Review & appeals – notice of motion –Order 16 Rule 13(2) (a) (b) of the NCR – Summary Determination – Dismissal abuse of Process – Continuous Litigation Torment frustrate Justice – Clear evidence of title to property – Court Process to deliver Justice not delay & deny without basis in law – material sufficient – motion granted – dismissal of proceedings – cost follow event on indemnity Basis.


Cases Cited:

ANZ Bank (PNG) Ltd v Yawi [2014] PGNC 243; N5663

Church of Jesus Christ of Latter-Day Saints Inc v Kimas [2020] PGNC 268; N8519

Coconut Products Ltd v Markham Farming Co Ltd [2018] PGSC 60; SC1717

Concord Pacific Ltd -v- Thomas Nen [2000] PNGLR 47.

Opi v Telikom PNG Limited [2020] PGNC 168; N8290

Paki v Motor Vehicle Insurance Ltd [2010] PGSC 2; SC1015

Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906

Wartoto v State [2015] PGSC 1; SC1411
Counsel:


A. Kuria, for Plaintiff
D. Wayne, for Fourth Defendant


RULING

16th April, 2021

  1. MIVIRI, J: This is the Ruling of the Court on the Notice of Motion of the fourth defendant pursuant to Order 16 Rule 13 (2) (a) & (b) of the National Court Rules for dismissal of the entire proceedings for being an abuse of court process.
  2. The second basis of the motion is an allegation of non-compliance of term 3 of the Orders of the 22nd February 2018. This order reads, “The plaintiff is to serve the notice of Motion on all Parties within 14 days. Order 4 was The matter returns on the 12th March 2018.”
  3. Order 16 Rule 13 (2) (a) & (b) are in the following terms: “Summary disposal. (a) Any application for judicial review may be determined summarily for failing to comply with directions or orders issued under the Order 16 of the National Court Rules or under these rules or on any other competency grounds. (b) The court may summarily determine a matter:
  4. The application relies on the affidavit of John Isaisa of P. O. Box 476 Vision City Port Moresby National Capital District. He is the fourth defendant in this proceeding. He is originally from Mekeo, Kairuku Central Province and is the original and still the current proprietor of the property described as section 317, Allotment 47 (Hohola) Gerehu Stage 5 Port Moresby since 1985. He still has possession of the original (hard Copy) title deed to the said property with him. That it has never being transferred, mortgaged to anyone including financial institution. It was initially registered as of the 16th October 1985. Annexure “A” is a true copy of that title deed.
  5. Around the year 2000 he invited one Jethro Ninde to come and live on the property. And around 2007 he informed the said Jethro Ninde that he wanted to move in but found that the plaintiff had moved in and settling with his relatives from the Highlands. He informed them to move out but he was continuously threatened and verbally abused. This also happened to his in-laws and relatives. He filed for eviction on the 18th February 2009 in DC No 70 of 2009: John Isaisa v Maxie Sentwan. He was successful and secured eviction orders and warrant of execution for Police to execute and give vacant possession to him of the property. Annexure “B,” “B1,” “B2”, “B3” are copies of the Complaint. Summons to person upon complaint, Eviction Order and Warrant of Execution.
  6. The plaintiff filed separate proceedings DC No 1638/2009 around late 2009 Maxie Sentwan v John Isaisa and secured restraining orders ex parte against the enforcement of the eviction orders. Annexure “C” is that ex parte stay order restraining. It was dismissed as abuse of process on the 18th December 2009 and the Eviction orders were reinstated. That is annexure “D”.
  7. During a search conducted around 2010 at the Lands Department there were three (3) entries that had been made to the title deed on the 20th January 2010, transfer to Jethro Ninde S53714 dated the 16th April 2010, transfer from Jethro Ninde to Maxie Sentwan S 54055 and mortgage to PNG Micro Finance Ltd S54795. Annexure “E” is that fake title deed because the original is still with me. I continued to see and represent to the office of the Registrar of Titles with the original hard copy of the title deed. And after several representations I was accepted as genuine and the original was initially registered in my name in 1985. And the first defendant helped by writing to PNG Micro Finance Ltd that all entries subsequent will be cancelled. And on the 09th October 2012 that was done. Annexure “F” is the letter to Micro Finance Ltd and “G” is the title deed indicating the cancellation entries S 61834. Then the first defendant wrote to the District Court confirming my ownership of the property. That is annexure “H” to the affidavit. And on the 28th October 2014 the dismissed proceeding DC No. 1638/2009 was again struck out for want of prosecution by the Port Moresby District Court. And that court order is annexure “I” to the affidavit. It is not clear but the dismissed proceedings DC 1638/2009 was still prosecuted by the plaintiff and on the 24th July 2015, it was again dismissed and annexure “J” is a copy of the orders dated 24th July 2015.

.

  1. Thereafter I proceeded to enforce the eviction orders and warrant of execution in DC 70/2009 and assistance was sought from the Divisional Commander NCD/Central Sylvester Kalaut and then metropolitan Superintendent Ben Turi. On the 1st February 2016 Mr Kalaut instructed Police Station Commander Gerehu to assist me evict the plaintiff and his relatives. That was further approved on 09th February 2016 by Mr Turi. And annexure “K” & “K1”a are copies of internal minutes to that effect from the Commander NCD/Central & NCD metropolitan Superintendent. The execution did not take place because the plaintiff took out a Court order on the 22nd September 2015 showing to the police that the matter was dismissed. I was shocked and sought advice from my Lawyer Douglas Wayne. Annexure L is the letter of the dismissal of the orders by Magistrate Jimmy Tapat. This was an ex parte order obtained by the plaintiff. Through my lawyer I filed an amended Notice of motion on the 02nd September 2016 to set it aside. That is annexure “M” to my affidavit. It went before Jimmy Tapat and was strongly argued that the court orders of the 22nd September 2015 were res judicata. The court considered the arguments and directed for the filing of a fresh eviction proceedings because the file was in a mess.
  2. DC No 304 of 2017; John Isaisa v Maxie Sentwan was filed and eviction orders were granted on the 18th July 2017 from which the plaintiff was given two (2) months to voluntarily vacate the property. The original (hard copy) of the title was produced to the court to confirm ownership and also that the plaintiff’s title had been cancelled. Annexure “N” is a copy of that court order.
  3. Annexure “O” and “O1” are the copies of the originating summons and the court orders in OS No 707/2017 that was pursued by the Plaintiff ex parte to get an order to stay the execution in the National Court of DC No 304 of 2017; John Isaisa v Maxie Sentwan. It was discontinued on the 05th December 2017 after plaintiff obtained leave and annexure “P” is that court order.
  4. The present proceeding was filed on the 08th December 2017. And the plaintiff had abused the court proceedings by filing multiple Court proceedings and obtained ex parte orders. The court should protect the judicial system by refusing orders and dismissed such proceedings. I say that the contract of sale has never happened because I always have the original of the title deed (Hard Copy) with me at all times. The facts do not support the action and I seek the dismissal of the entire proceedings with costs.
  5. This is the evidence of the fourth defendant in support of the application for dismissal of the proceedings which is supported by the affidavit of his lawyer Douglas Wayne sworn 13th August 2018. Annexure “C” of that affidavit is letter from the office of the National Fraud and Anti-Corruption Directorate dated the 16th April 2012. It is subjected Investigation into a complaint of Fraud involving transfer of land Title allotment 47 Section 317 Hohola (Gerehu Stage 5). The letter is written by Police to Henao Lawyers asking for the fourth defendant to come forward with evidence because police view that the matter is fraudulent in nature and involves people in the title’s office within the Lands department. It is signed by Timothy Gitua Detective Chief Inspector Director of the National Fraud and Anti-Corruption Directorate. Annexure “D” is letter by Benjamin Samson Deputy Registrar of Titles writing to the Managing Director of PNG Micro Finance Ltd subject deregistration of transfer and mortgage registration over allotment 47 section 317 Hohola NCD being State Lease Volume 83 folio 70. He asks for the surrender to his office of the original title so that cancellation and deregistration takes place of the registration of the transfer in favour of Jethro Ninde, Maxie Sentwan and subsequently the mortgage to PNG micro–Finance Ltd over allotment 47 section 317 Boroko NCD State lease volume 83 Folio 70. This is necessary to have the owners copy endorsed of these details.
  6. And annexure “E” is the details of the title search which shows only John Isaisa as sole registered Proprietor of State lease volume 83 folio 70. Which are official records from the Department of Lands. And the title deed now with the cancellation S 61834 dated 09th October 2012 cancelling the within entries S 53714, S 54055 and S 54795 showing only entry S 45303 transfer from the National Housing Corporation to John Isaisa of Tabubil Steel Fabricator produced 18th September 1985 entered 16th October 1985.
  7. This evidence is not rebutted by the plaintiff in any way at all. He has an affidavit annexure “B” of the affidavit of the lawyer Douglas Wayne. He is self serving there asserting that he is the owner of the subject land. He is not corroborated in any material details except the assertions that he makes.
  8. Comparably the fourth defendant has corroboration independently verifying the assertions that he is indeed the owner of the subject land because the title deed has his name only and any other entry has been cancelled leaving him as sole owner of the subject land. When weighed with that of the plaintiff, the evidence produced by the fourth defendant outweighs. It is clear by this evidence that the plaintiff is not the owner in law, nor the title holder in law of the subject land State Lease Volume 83 folio 70 Section 317 allotment 47 Hohola Port Moresby NCD. Likened to ANZ Bank (PNG) Ltd v Yawi [2014] PGNC 243; N5663 (10 April 2014) the retention of the original hard copy title deed means that the fourth defendant is in law owner of the subject land State Lease Volume 83 folio 70 Section 317 allotment 47 Hohola Port Moresby NCD.
  9. This evidence underpins this judicial review proceeding. And neither in the way it is set out above it clearly demonstrates and discharges the balance that the plaintiff is not the owner in law nor is he the registered title deed holder. This is the fourth defendant who has held that original title deed since 18th September 1985 entered 16th October 1985. It means the claim by the Plaintiff set out in the statement does not stand given this evidence. The judicial review proceeding is without merit given that the title deed bears the unchallenged registered name of John Isaisa of Tabubil Steel Fabricator. As the plaintiff has no evidence to maintain his pleading the application by the fourth defendant sustains. These proceedings will be accorded what is due in law given these facts.
  10. What can be deduced of the plaintiff is that he is not a witness of the truth. The evidence set out above show that he is deceitful. He does not have independent evidence to verify what he asserts. It is not the same for John Isaisa he is independently corroborated details set out above which verify his ownership to the subject property. It is also unbecoming to not settle the issue of ownership to the property and to settle the matter once and for all. But it has been a tussle or a tug of war between the fourth defendant and the plaintiff, the former clearing title confirming all to have an order preventing eviction. Time and time again this has been the scenario on each occasion without end in sight. Justice has been denied and abused at the hands of the plaintiff. Even when title to the property has been illuminated clear confirming by independent and corroborative evidence that it is of the fourth defendant, the plaintiff has barricaded. It must not be allowed to continue as it does, equity must be done where equity is offered as here.
  11. And the views expressed in Church Of Jesus Christ Of Latter-day Saints Inc v Kimas [2020] PGNC 268; N8519 (25 September 2020) is relevant and applicable here. The core government department concerned with the upkeep of government records, the Lands department and its officers could not be expected to keep records of land and its upkeep and registration, in tatters so that there is no belief in its duties to all. Here it has done that by independently corroborating the assertions of the fourth defendant confirming his title to the subject property. In the face of this confirmation the plaintiff has seen fit to pursue this action in the light of that evidence. Even when police have been alerted to pursue investigations even when all other registrations to the subject property have been removed, leaving the fourth defendant as the registered proprietor of the subject property, the plaintiff has persisted unnecessarily putting all to court time incurring time and logistics into court. It has been torment and anguish rather than dissolution to Justice for the fourth defendant and all else at the whim of the plaintiff.
  12. It is clear that when actions or litigations are instituted with nothing in mind except to torment or frustrate what is due in law to a party, the court must protect and deliver justice. In so doing the court must protect and maintain the integrity of the processes under its discretion to enhance delivery dispensation of justice: Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906 (28 March 2008). That is exactly what has happened here in respect of the fourth defendant, he is clearly corroborated by independent evidence that he is the sole registered proprietor of the subject property since 09th September 1985, but has been made to suffer and to bear injustice at the hands of the plaintiff, who has done nothing to bring an end to the dispute, but igniting it with actions that are not based in law, expect to deny the fourth defendant, what he is rightfully, lawfully entitled in law, the subject property.
  13. The evidence set out above speaks nothing except this fact at the discretion and hands of the plaintiff time and again. It is a very blatant abuse of the court processes and procedure since18th February 2009 in DC No 70 of 2009: John Isaisa v Maxie Sentwan up to this present action. It is a period of almost 12 to 13 years that the fourth defendant has had to endure, and on each occasion, it has been nothing but torment and frustration against him by the plaintiff to what he lawfully, rightfully is due in law the subject property. This is a case where malice and ill will were at the heart of the proceedings that were instituted or countered by the plaintiff. If he was genuine, the litigation on the settlement in law as to who was the owner would have been done at the earliest, not wait out over and over again in the 12 to 13 years up to the present: Coconut Products Ltd v Markham Farming Co Ltd [2018] PGSC 60; SC1717 (10 October 2018). And when such is evident and rampant it is the duty of the Court to protect and dispense justice, not procrastinate, and prolong at the misery of the litigant. Here that is long overdue and the court will protect its process mindful that no citizen must be denied the seat of justice without just cause: Wartoto v State [2015] PGSC 1; SC1411 (27 January 2015). The converse is no court must allow its processes to be used to protect injustice and unlawfulness. That is the case here overwhelmed by the facts and the evidence which I set out above.
  14. The aggregate totality is that this action sustains as pleaded by the fourth defendant by his notice of motion filed drawing jurisdiction from Order 16 Rule 13 (2) (a) & (b) of the National Court Rules. That indeed this case by the plaintiff does not hold water to sustain further and justice is due and long overdue by the facts set out above to the fourth defendant. He has done equity and equity must be done to him who comes with clean hands. Indeed, that is his case by the evidence set out above, the same is not so of the plaintiff by evidence set out above. What is due in law and equity must be accorded the fourth defendant lawfully.
  15. The action instituted here by the plaintiff is for the reasons set out above dismissed and summarily determined here pursuant to Order 16 Rule 13 (2) (a) & (b) of the National Court Rules. Further it is ordered by the inherent powers under section 155 (4) of the Constitution and Order 12 Rule 1, that the plaintiff immediately deliver up vacant possession of the subject property State Lease Volume 83 folio 70 Section 317 allotment 47 Hohola Port Moresby NCD to the registered proprietor John Isaisa P. O. Box 476, Vision City Port Moresby National Capital District forthwith.
  16. Cost is discretionary what is set out above clearly portray that the defendants were unnecessarily drawn into court because the plaintiff insisted and instituted to frustrate and torment rather than to dispense justice. It was resorted and draw out unnecessarily on the parties and on court time given that fact set out above. Plaintiff is principal and heart to it. It must come to a stage where it cannot be condoned by simple order of costs follow the event. Here the facts warrant that stern action be taken against blameworthy conduct: Paki v Motor Vehicle Insurance Ltd [2010] PGSC 2; SC1015 (9 February 2010) the Supreme Court stated that:

“The award of costs on an indemnity basis is discretionary. An order for costs on an indemnity basis may be made where the conduct of a lawyer or a party to the proceedings is so improper, unreasonable, or blameworthy that he should be so punished by such an order. The question is whether the conduct of the appellant in this matter is such that it caused the respondent to incur unnecessary costs.”

  1. Because the plaintiff has demonstrated by clear evidence set out above of blameworthiness for that fact without just cause he ought and must pay for it. He and his lawyer’s conduct warrant as unreasonable, or blameworthy that cost is warranted: Opi v Telikom PNG Limited [2020] PGNC 168; N8290 (29 April 2020) Is this a case where unnecessary costs were incurred as in Concord Pacific Ltd -v- Thomas Nen [2000] PNGLR 47? Or is this a case where there is blameworthiness and therefore indemnity follows in costs? Given all set out above this is a case for indemnity of cost to follow the event. Costs will therefore be on indemnity basis to follow the event.
  2. The formal orders of the Court are:

Orders Accordingly.

__________________________________________________________________

Kuria Lawyers: Lawyer for the Plaintiff

Express Legal: Lawyer for the Fourth Defendant


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