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Tanda v Monagi [2022] PGNC 196; N9645 (31 May 2022)

N9645

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 55 OF 2021 (IECMS)(CC3)

BETWEEN:

GRANGER FELIX TANDA

Plaintiff

AND:

LOLI MONAGI AND LEMROCK MONAGI and occupants of Allotment 99, Section 368, Hohola, National Capital District

Defendants

Waigani: Tamade AJ

2022: 6 April, 31^st May

REAL PROPERTY – Torrens System – Indefeasibility of Title.

LAND REGISTRATION ACT 1981 – Section 33 - Protection of Registered Proprietor - Plaintiff is entitled to the subject property as a bona fide purchaser and as the registered proprietor – the plaintiff holds the title free of any encumbrances except for fraud and other limited exceptions under section 33 of the Land Registration Act 1981.

NATIONAL COURT RULES – Order 12, Rule 1 – Judgments and orders – general relief – on application by the plaintiff the court can make a direct order as the nature of the cases require it.

NATIONAL COURT RULES – Order 13, Rule 3 - Possession of land – judgment for possession of land may be enforced through or by a writ of possession – if the plaintiff fails to give vacant possession a Writ of Possession shall be issued to the Plaintiff with the assistance of the police to give up possession of the subject property to the Plaintiff.

Cases cited:

The following cases are cited in the judgement:

Mudge v Secretary for Lands [1985] PNGLR 387

Keindip v Independent State of Papua New Guinea [1992] PGNC 125

New Ireland Enterprises Limited v Salo [2020] N8830

NiuTech Buikding & Civil Contractors Ltd v Wood Star Builders Ltd [2020] PGNC 361; N8682

Paga Hill Development Company (PNG) Ltd v Kisu [2014] N5683

Ready Mixed Concrete Pty Ltd v The State and Ors [1981] PNGLR 396

Amiau v Yalbees [2020] PGSC 133

Niugini Mining Ltd v Bumbandy for himself and the Customary Landowners of Mt Victoria Gold Mine Area [2005] PGSC 28; SC804 (3 November 2005

Legislation

Land Registration Act 1981

Counsel:

Mr Charles W. Kaki, for the Plaintiff

Mr Zebedee Kamaso, for the Defendants

31^st May, 2022

1. TAMADE AJ: The trial of this matter was heard on 6 April 2022 and a decision was reserved by the Court. This is my decision in this regard.

2. Plaintiff pleads the following orders he seeks from the Originating Summons filed on 9 April 2021:

1. Pursuant to Order 12 Rule 1 and Order 13 Rule 3 of the National Court Rules, the Defendant shall give vacant possession of the land and improvements known as Allotment 99, Section 368, Hohola, National Capital District, being the whole of the land contained in State Lease Volume 100 Folio 113, after 14 days.
2. And order that leave pursuant to Order 13 Rule 3 of the National Court Rules to issue a Writ of Possession over Allotment 99, Section 368, Hohola, National Capital District, being the whole of the land contained in State Lease Volume 100 Folio 113 at the expiration of 14 days from the date of the order.
   

3. From the evidence tendered in Court by the Plaintiff, the Plaintiff is the registered proprietor of the property described as Allotment 99 Section 368, Hohola, (Morata 2), National Capital District. The endorsement on the copy of the title deed shows a transfer from a Papua Finance Limited as mortgagee exercising its power of sale to the Plaintiff, Granger Felix Tanda, produced on 7 October 2020 and entered on 9 October 2020 by the Acting Registrar of Titles.

4. The Plaintiff claims that the subject property was initially owned by the National Housing Corporation who then transferred it to a Mr James Israel, then sold to a Mr Marius Kin who took out a mortgage from Papua Finance Limited who subsequently sold it under a mortgagee sale to the Plaintiff.

5. On or about 23 July 2020, Papua Finance Limited advertised in the National Newspaper this subject property as a mortgagee sale. The Plaintiff then offered to purchase the property for the price of K100 000 and Papua Finance Limited accepted this offer.

6. Necessary documents including a Contract for Sale of Land were executed between Plaintiff and Papua Finance Limited and the property was transferred and registered in the Plaintiff’s name.

7. Subsequently, the Plaintiff took steps to verbally inform the occupants of the subject property to vacate the property however this fell on deaf ears and a formal notice dated 3 November 2020 was issued to the occupants of the property.

8. The Plaintiff took the matter to the District Court for eviction orders however on 15^th March 2021, the District Court refused the Plaintiff’s claim and directed parties to seek appropriate relief from the National Court.

9. The Plaintiff has not yet occupied the property since purchasing it from Papua Finance Limited in October of 2020 due to the Defendants occupying the subject property.

10. Mr Loli Monagi, a seventy-year-old who is one of the current occupants of the subject property states in evidence that the property was previously owned by one Mr James Israel. He states that in 1994, Mr James Israel and his family were attacked by criminals, and he left the property to live at Ensisi Valley in NCD with his family.

11. Mr Monagi alleges that he was asked by Mr James Israel to live on the property as caretaker and pay a rent of K50 per fortnight and that he has since lived on the property since 1996. Mr Monagi further alleges that Mr James Israel had given him the Owner’s copy of the Title Deed as Mr Monagi was old, he entrusted this Owner’s copy to a Mr Marius Kin who is his nephew. Mr Monagi, therefore, claims that Mr Marius Kin may have fraudulently transferred the property to himself having held the Owners Copy of the Title Deed and that he was only aware of the transfer on 16 June 2020 when a newspaper publication showed that the subject property was up for a tender sale by Papua Finance Limited.

12. Mr Monagi alleges that after being made aware that Papua Finance Limited had advertised the property for a mortgagee sale, he informed Mr James Israel who said that he had no knowledge of any transfer of property to Mr Marius Kin. Mr Monagi and Mr Israel attempted to lodge a caveat at the Lands Department over the subject property however to date no caveat has been registered.

13. Mr Monagi then entered into a transfer of property to pass from Mr James Israel to Mr Monagi and a Mr Lem Rocky by way of a Deed of Gift in which

K7 500 was to be paid to Mr Israel James however an amount of K4 500 was still yet to be paid.

14. Of interest to note from the evidence from Mr Monagi is that a Statutory Declaration from a Mr James Israel signed on 3 August 2020 states that he is the owner of the subject property and that as he has reached old age, he wishes to transfer the property to Mr Monagi and Mr Lem Rocky who are his nephews. It seems that Mr Israel and Mr Monagi are therefore both in their old age.

15. The transfer of the subject property from Mr James Israel to Mr Monagi and Mr Lem Rocky is yet to be registered as claimed by Mr Monagi however I find this fact irreconcilable with the fact that the Plaintiff is already a registered proprietor having purchased the property from Papua Finance Limited through a mortgagee sale.

16. Mr Lemrock Monagi states in evidence that he only became aware of the Plaintiff as the registered titleholder to the property when Papua Finance Limited published the mortgagee sale over the subject property on 16 June 2021.

17. He claims to not know how the subject property was transferred to the Plaintiff and states that when the Plaintiff took out eviction proceedings in the District Court on 16 November 2020, that was when they sought the service of Chesterfield Lawyers to assist them in this case.

18. Mr Lemrock Monagi perhaps is the same person as Mr Lem Rocky referred to in Mr Loli Monagi’s Affidavit and in the Statutory Declarations therein regarding the transfer of the subject property as a gift from Mr James Israel to Mr Loli Monagi and Mr Lem Rocky.

19. The Plaintiff however states in evidence in his Affidavit filed on 30 June 2021 as Exhibit P2 that he has come to know that Mr Israel James is from the Central Province and is not related to Mr Loli Monagi or Mr Lemrock Monagi. This raises issues about the credibility of Mr Loli Monagi, Mr Lemrock Monagi and Mr Israel James.

20. There is also the Affidavit of Mr James Israel filed on 6 September 2021 as Exhibit D3. Mr Israel states that he was the legal tenant of the property to National Housing Corporation since 1990 and was granted the property on 10 June 2009 from NHC.

21. He states at paragraph 5 of his Affidavit that he gave the original owner’s copy of the property to Mr Loli Monagi who was his long time colleague to keep and be a caretaker of the property after moving out of the property in 1994 due to an armed hold up by criminals on him and his family.

22. Mr James Israel also states in a Statement annexed to his Affidavit that Mr Loli Monagi was working under him as a gardener of the National Parliament at that time.

23. Mr Israel claims that he had no knowledge of transferring the property to one, Marius Kin and to the subsequent transfer to the Plaintiff until he was alerted by Mr Loli Monagi of the publication of the mortgagee sale by Papua Finance Limited in the newspaper. Mr Israel claims that he had not received any payment or consideration for the purchase of the property allegedly from Mr Marius Kin.

24. The Plaintiff states in his Affidavit filed on 2 September 2021 as Exhibit P3 that on Wednesday 11 August 2021, at around five o’clock in the afternoon, he met with Mr Marius Kin inside his silver Toyota Camry at Gerehu. Mr Marius Kin is the previous owner of the property who had defaulted on his loan to Papua Finance Limited and in which Papua Finance Limited sold the property to the Plaintiff. Mr Marius Kin told the Plaintiff that Papua Finance had sold the property to the Plaintiff at an undervalued price.

25. Mr Marius Kin also told the Plaintiff that he is behind the Defendants in these proceedings and in the new proceedings instituted by James Israel which challenges the title held by the Plaintiff on the grounds of fraud.

26. The Plaintiff states in evidence that Mr Marius Kin requested the Plaintiff to pay him and Mr Lemrock Monagi a sum of K100 000 for them to vacate the property and give vacant possession to Plaintiff however the Plaintiff refused the request.

27. A Mr John Yapane was a witness to the said meeting between the Plaintiff and Mr Marius Kin and corroborated the statement of the Plaintiff as to the meeting and the conversation held between the Plaintiff and Mr Kin.

28. In all the affidavit evidence tendered by the Plaintiff, there was no challenge to the evidence by way of cross-examination of the deponents of the Affidavits by defence counsel.

29. I am inclined to believe the corroborated evidence of the Plaintiff. The evidence by the Defendants is contradictory as to the relationship between Mr Loli Monagi and Mr Lem Rocky or Mr Lemrock Monagi and Mr James Israel and whether Mr Lem Rocky is one and the same person as Mr Lemrock Monagi, one can only draw a conclusion. There is a question of whether the Defendants’ evidence is credible.

Is the Plaintiff entitled to the claim for vacant possession of the land as the registered titleholder?

30. There is no dispute that the Plaintiff is the registered title holder to the subject property described as Allotment 99, Section 368, Hohola, National Capital District, being the whole of the land contained in State Lease Volume 100 Folio 113.

31. The Defendants only allege that Plaintiff obtained the property through fraudulent means and or that the property was fraudulently transferred from Mr Israel James to Mr Marius Kin which then passed on to Papua Finance Limited and on to the Plaintiff.

32. The Plaintiff relies on the case of Mudge v Secretary for Lands [1985] PNGLR 387 to support the principle of law on indefeasibility of title in the Torrence Land Registration system in reliance on section 33 of the Land Registration Act that a registered proprietor holds the title free of any encumbrances except as to fraud and other limited exceptions under section 33 of the Land Registration Act.

33. Section 33 of the Land Registration Act is in the following terms:

3. PROTECTION OF REGISTERED PROPRIETOR.

(1) The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except–

(a) in the case of fraud; and
(b) the encumbrances notified by entry or memorial on the relevant folio of the Register; and
(c) the estate or interest of a proprietor claiming the same land under a prior instrument of title; and
(d) in case of the omission or misdescription of any right-of-way or other easement created in or existing on the same land; and
(e) in case of the wrong description of the land or of its boundaries; and
(f) as to a tenancy from year to year or for a term not exceeding three years created either before or after the issue of the instrument of title of the registered proprietor; and
(g) as provided in Section 28; and
(h) a lease, licence or other authority granted by the Head of State or a Minister and in respect of which no provision for registration is made; and
(i) any unpaid rates, taxes, or other money which, without reference to registration under this Act, are expressly declared by a law to be a charge on land in favour of the State or of a Department or officer of the State or of a public corporate body.

(2) The operation of Subsection (1) is not affected by the existence in any other person of an estate or interest, whether derived by grant from the State or otherwise, which, but for this Act, might be held to be paramount or to have priority.

34. Plaintiff also relies on the case of Keindip v Independent State of Papua New Guinea [1992] PGNC 125 which adopts and follows the Mudge v Secretary for Lands as to the principle of indefeasibility of title.

35. The Defendants object to the relief sought by Plaintiff and state that Plaintiff has not correctly invoked the jurisdiction of the Court in the pleadings in the Originating Summons. The Defendants argue that the Plaintiff is in error in relying on Order 12 Rule 1 of the National Court Rules concurrently with Order 13 Rule 3 of the National Court Rules when he should have only sought Order 12 Rule 1 and Order 13 Rule 3 should only be sought after judgement is granted.

36. The Defendants state that Order 13 Rule 3 is only applicable where a judgment has been entered in favour of the applicant, then the applicant can seek Order 13 Rule 3 for a Writ of Possession of property as an enforcement. The Defendants rely on the case of New Ireland Enterprises Limited v Salo [2020] N8830 and the case of NiuTech Building & Civil Contractors Ltd v Wood Star Builders Ltd [2020] PGNC 361: N8682, to support this objection.

37. In the case of New Ireland Enterprise v Salo, the Court considered a matter where the registered title holder’s right to the subject land was not in question and the Court agreed that Order 13 Rule 3 is an enforcement provision.

38. In the case of NiuTech Buikding & Civil Contractors Ltd v Wood Star Builders Ltd on the other hand, the Court considered a Notice of Motion where the Applicant pleaded irrelevant rules to invoke the Court’s jurisdiction. The Court remarked that if the Applicant was not represented by counsel, perhaps the discretion of the Court would have been exercised sparingly in favour of the Applicant however as the Applicant was represented by counsel, the Court should exercise its discretion in the strict sense.

38. I agree that Order 13 Rule 3 is an enforcement provision seeking leave for a Writ of Possession over land after a judgment for land has been granted. The Plaintiff is seeking the discretionary powers of the Court to declare that he is the registered proprietor pursuant to Order 12 Rule 1 and to also seek a Writ of Possession over the subject land simultaneously pursuant to Order 12 Rule 3.

39. Rules are a means to an end and not an end in itself. This can be seen in the decision in the Supreme Court in the case of Niugini Mining Ltd v Bumbandy for himself and the Customary Landowners of Mt Victoria Gold Mine Area [2005] PGSC 28; SC804 (3 November 2005) where the Court stated that:

“The principles canvassed in Morres’ case were also adopted by Sawong J in Graham B Price and Sawanita Ltd v Pacific Legal Group Lawyers N2509 (2004) and Sakora AJ (as he then was) in Messie Noran v Nimrod Mark SC677. The Court said:

“It is now settled law that the Rules of the Court are not an end in them but a means to an end in all matters going before the Courts. They are only a code of practice and there is no doubt where justice so requires, strict adherence to the rules can be dispensed within the circumstances of a particular case. ...”

40. The Plaintiff has not cited a wrong rule of Court or invoked the wrong jurisdiction of the Court pursuant to the Rules, the Plaintiff has referred the Court to its discretionary powers under Order 12 Rule 1 and Order 13 Rule 3 of the National Court Rules as to the discretionary powers of the Court and leave to grant a Writ of Possession as to matters in regard to land. In the strict sense, the Plaintiff could have just pleaded Order 12 Rule 1 in the first term of the Originating Summons however he has pleaded both Order 12 Rule 1 and Order 13 Rule 3. There is no confusion in my mind as to what the Plaintiff is seeking. There is also no prejudice to the Defendant. The Defendant is not worse off in it’s defence in the claim. I refuse the Defendant’s objections in this regard. I find the objection by the Defendants as lacking merit.

41. I therefore find that the Plaintiff is the registered proprietor of the subject land. The Plaintiff is a bona fide purchaser having purchased the property from Papua Finance Limited and has been refused access to the property as a result of the stubbornness of the Defendants in not vacating the subject property when asked to do so.

42. Mr Kamaso of the Defendants submits the case of Alma v Morasi [2013] N5224, that the Court should not enter judgment for the Plaintiff as the Defendants have taken distinct and formal legal steps to challenge the Plaintiff’s title.

43. The Defendants have produced to Court a description of a case as WS 195 of 2020 (IECMS) and an unsealed copy of a Writ of Summons challenging the title held by the Plaintiff in proceedings pleading fraud.

44. The Affidavit of Mr Lemrock Monagi sworn on 3 September 2021 and filed on 3 September 2021 as Exhibit D2 states at paragraph 7 that the Defendants have filed proceedings WS 195 of 2021 alleging fraud as to the transfer of the subject property to the Plaintiff however they have decided to withdraw those proceedings and seek to issue a new Section 5 Notice pursuant to the Claims By and Against The State Act as the initial notice given may have been outside the time required.

45. The Defendants state that they have filed another new proceeding described as WS 436 of 2021 (IECMS) and again what is produced in evidence is an unsealed Writ of Summons.

46. I reiterate that the credibility of the Defendants is in question as to contradictory statements and also untrue statements that borders on perjury. The conduct of counsel for the Defendants Mr Kamaso is abrasive and fails to assist the Court as to the veracity of his client’s statements and evidence. The Court had to admonish a counsel to take seriously his duty to the Court to assist the Court.

47. Section 33 of the Land Registration Act is very clear and also set case law is very clear, the Plaintiff is entitled to the subject property as a bona fide purchaser and as the registered proprietor.

48. The Defendants have made submissions that in the event the Court grants an order for vacant possession, the Defendants rely on the case of Paga Hill Development Company (PNG) Ltd v Kisu [2014] N5683, that the Court, in that case, had given the occupants of the subject land 45 days to vacate the land as they have been aware for two years that they must vacate the land. The Defendants, therefore, seek a reasonable period to vacate the subject land as they say they have been residents on the property for twenty-five years.

49. An occupant of a property who has lived there for a long time only has an equitable right as to notice period in the absence of a lawful title to the land (see Ready Mixed Concrete Pty Ltd v The State and Ors [1981] PNGLR 396 and Amiau v Yalbees [2020] PGSC 133).

50. I consider that 30 days is a reasonable time for the Defendants, their servants and agents to give complete vacant possession of the subject land to the Plaintiff failing which a Writ of Possession shall be issued to the Plaintiff with the assistance of police to give up possession of the subject property to the Plaintiff.

51. I, therefore, make the following orders:

1. The Defendants including their servants and agents shall give vacant possession of the land and improvements known as Allotment 99, Section 368, Hohola, National Capital District, being the whole of the land contained in State Lease Volume 100 Folio 113 to the Plaintiff within 30 days from the date of these Orders.
2. A Writ of Possession shall be issued to the Plaintiff over Allotment 99, Section 368, Hohola, National Capital District, being the whole of the land contained in State Lease Volume 100 Folio 113 with the assistance from police after 30 days from the date of these orders in the event the Defendants and their servants and agents fail to give up vacant possession of the subject land to the Plaintiff.
3. The Defendants shall meet the costs of these proceedings to the Plaintiff on a solicitor-client basis as their evidence was not credible and also due to their counsel’s conduct in the trial of this matter in not adequately assisting the Court.
4. Time is abridged to the date of these orders to take effect forthwith.
   

Orders accordingly.
________________________________________________________________
Raynet & Kaki Lawyers: Lawyers for the Plaintiff
Chesterfield Lawyers: Lawyers for the Defendants