SC2600

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 98 OF 2021 [IECMS]

BETWEEN:

MARY PANDEA PURINGI
Appellant

V
MARK MICHAEL SIMANGO
First Respondent

AND
JOSEPH KUKU
Second Respondent

AND
NATIONAL HOUSING CORPORATION
Third Respondent

Waigani: Toliken, J, Anis, J & Eliakim, J
2024: 27th June, 4th July

SUBSTANTIVE APPEAL – appeal against decision of primary judge dismissing the proceeding for being time-barred – s.16(1) – Frauds and Limitations Act 1988– substantive appeal ground abandoned - appeal also against consequential order – whether there was utility in the grounds of appeal against the consequential order – whether consequential relief or order ought to have been pleaded – whether arguments raised in the grounds of appeal against consequential order had been raised before the primary court – consideration and ruling

Cases Cited:
Mudge v. Secretary for Lands [1985] PNGLR 387
Emas Estate Pty Ltd v. Mea, Swokin and the State [1993] PNGLR 215
Lillian Angai and Ors v. Gemini Holdings Limited (2024) SC2543
Fly River Provincial Government v Pioneer Health Services Ltd (2003) SC705
Motor Vehicles Insurance (PNG) Trust v. Pupune [1993] PNGLR 370

Counsel:
G Akia, for the Appellant
J Bokomi, for the First Respondent
L Tangua, for the Third Respondent
Nil appearance by the second respondents

4th July 2024

1.	BY THE COURT:  We heard the substantive appeal of this matter on 28 June 2024.  We reserved our decision thereafter to a date to be advised.

BACKGROUND

2.	The primary dispute concerned a residential property which is described as Section 310, Allotment 147, Hohola (Gerehu), National Capital District (the Property).  The Property was initially owned by the third respondent.  It later exchanged hands, and the current registered proprietor of the Property is the first respondent.

3.	The appellant’s interest in the Property was equitable in nature.  She was aggrieved that the Property had been sold by the third respondent to a third party or parties which she claimed was in breach of an arrangement that was had between herself and the third respondent, where it was agreed that the Property would be sold to her.  The appellant occupied the Property when the Property was under the name of the third respondent.  She continues to occupy the Property to this present day.  In 2022, the appellant filed proceeding WS 155 of 2022, Mary Pandea Puringi v. Mark Michael Simango and Ors (WS 155 of 2022).  She alleged, amongst others, actual fraud against the respondents.  She sought various orders which included transferring of the Title to the Property over to her.  However, on 24 June 2022, the primary Judge, after hearing the first respondent’s notice of motion to dismiss, dismissed WS 155 of 2022 for being time-barred.  

4.	The final orders read:

1.	These proceedings are dismissed for being statutory time barred pursuant to Section 16(1) of the Frauds and Limitations Act 1988.

2.	The plaintiff shall give vacant possession of the property described as Allotment 147 Section 310, Hohola, (Gerehu), Port Moresby, National Capital District contained in State Lease Volume 83 Folio 164 to the First Defendant within one month of the date of these orders failing which Police shall enter the premises and give vacant possession to the First Defendant.

3.	The Plaintiff shall meet the First Defendant’s costs of these proceedings.

4.	Time for entry of these Orders is abridged to the date of settlement by the Registrar which shall take place forthwith.

MAIN APPEAL GROUND ABANDONED

5.	There are 3 grounds of appeal.  In ground 3.1, the appellant challenges the primary Judge’s decision that WS 155 of 2022, which was a cause of action for fraud, was time-barred pursuant to s.16(1) of the Frauds and Limitations Act 1988 (F&LA).  In grounds 3.2 and 3.3, the appellant argues that the primary Judge erred in the exercise of her discretion when Her Honour made a consequential order to the effect that the appellant shall within 1 month vacate the Property because, (i), there was no pleadings or pleaded relief in WS 155 of 2022 where such an order could have been made by the Court, and (ii), the appellant’s continued occupation of the Property was premised on a binding agreement that had been signed between the appellant and the first respondent on 19 March 2014.

6.	At the start of the hearing, the appellant informed the Court that she had abandoned ground 3.1, and that she would only be pursuing grounds 3.2 and 3.3.  Ground 3.1 was the substantive ground of appeal.  This then raised a fundamental issue which the Court, on its own volition, raised with the parties, that is, whether term 2 of the Court Order of 22 June 2022, where grounds 3.2 and 3.3 cover, was a consequential order, and if so, whether the appeal should therefore be determined or be dismissed in favour of the respondents.  We also suggested an alternative option which was, given that the appellant had abandoned the substantive ground of appeal, whether the parties should confine their submissions towards reaching an amicable consensus or agreement on the amount of time the Court should permit the appellant to vacate the Property, in addition to dismissing the appeal.

7.	Despite insistence by the appellant in maintaining her 2 grounds of appeal and making submissions on them, the appellant eventually ‘appear’ to concede that the only issue is the amount of time the Court may grant to her to vacate the Property, and in so doing, she requested that she be permitted a period of 12 months to vacate the Property.  The first respondent, in response, submitted that 2 months or less should be sufficient for the appellant to vacate the Property.  The third respondent appeared in Court as a nominal respondent and made no submission in that regard, that is, on the question of timing.

CONSIDERATION

8.	We find grounds 3.2 and 3.3 baseless and without merits.  The 2 grounds of appeal are premised on this consequential order:

2.	The plaintiff shall give vacant possession of the property described as Allotment 147 Section 310, Hohola, (Gerehu), Port Moresby, National Capital District contained in State Lease Volume 83 Folio 164 to the First Defendant within one month of the date of these orders failing which Police shall enter the premises and give vacant possession to the First Defendant.

9.	Order 2 was granted in consequence to Order 1 that dismissed WS 155 of 2022.  We observe that it is not unusual for a primary Court to issue orders requiring vacant possession of a property in such claims and manner.  A consequential order need not be specially pleaded before it can be granted, however it must relate to the matter adjudicated upon. It therefore flows naturally or directly from the decision of the court.  In the present case, the appellant, who had no legal title to the Property, was occupying it, so when her claim for fraud was dismissed, there was no longer any legal basis for the appellant to continue to remain on the Property, thus, the Court issued the consequential order to the appellant to vacate the Property and permit the legal proprietor which was the first respondent who held an indefeasible title over the Property, to take up possession.  

10.	And because the appellant has abandoned her main ground of appeal, there is no valid substantive appeal ground that is pending before us to consider, which means that the appeal must be dismissed and the Property bestowed to its legal owner who holds infeasible title over it:  Mudge v Secretary for Lands [1985] PNGLR 387, Emas Estate Pty Ltd v. Mea, Swokin and the State [1993] PNGLR 215, and Lillian Angai and Ors v. Gemini Holdings Limited (2024) SC2543.

11.	In conclusion, we also make these remarks.  First, if we were to fully consider ground 3.2, we would have nevertheless dismissed it.  We say this because we note that the appellant did not make the claim before the primary Judge that there was no basis or foundation in the pleadings for the Her Honour to grant or make the consequential order.  We note in the transcript of proceedings, that the appellant had that opportunity before the primary Judge but did not raise the argument.  As such, she cannot raise that later as an appeal ground:  Fly River Provincial Government v Pioneer Health Services Ltd (2003) SC705, Motor Vehicles Insurance (PNG) Trust v Pupune [1993] PNGLR 370.

12.	We would say the same in regard to ground 3.3.  We note that counsel for the appellant conceded at the hearing that there was no basis for raising ground 3.3 because the cause of action in WS 155 of 2022 was premised on fraud and not breach or enforcement of a contract.

TIME TO VACATE PREMISES

13.	We have observed the conduct and attitude of the appellant.  Most of what we witnessed constituted arrogance and a clear lack of common sense.  As a result, we note that the respondents had to appear in Court but only to find out at the very last minute that the appellant would be withdrawing her main ground of appeal.

14.	But the appellant did not stop there.  At the hearing, she, through counsel, took most of the time arguing against what is otherwise the clear position in law which is that the appellant had exhausted her rights to challenge the first respondent’s Title to the Property premised on fraud; that without successfully pursuing ground 3.1 to obtain an order that may overturn the Title to the Property premised on fraud, the first respondent has or holds indefeasible title over the Property:  Mudge v Secretary for Lands [supra].

15.	We note that it was only after the appellant had realized that all her arguments were without any merit that she, at the very last minute, submitted that she should be permitted to remain on the Property for a further 12 months.

16.	The appellant has no legal right to the Property.  She has denied the first defendant, who is the legal proprietor, the right to peaceful use, enjoyment and occupation of the Property since 28 June 2007 for about 15 years.  And from the date of the decision of the National Court made on 24 June 2022, where the Court had ordered her to vacate the Property within a month which had ended on 24 July 2022, is a further 2 years of waiting, bringing the total to 17 years.

17.	Therefore, and when we take all that into account, it appears to be a futile exercise for us to comprehend or give any reasonable regard to the claim made by the appellant that she should be given extra amount of time to vacate the premises.

18.	As such, we are not minded to allow any extra extension except to make additional orders that would permit the appellant to vacate the premises within one month from today.

CONCLUSION

19.	In conclusion, we are minded to and will dismiss the appeal.

20.	In regard to timing, we are minded to make a consequential order to the effect that the Court Orders of 24 June 2024 are reinstated, and that the appellant shall give vacant possession of the Property within a month from the date of the Court Order.

COST

21.	We will order cost to follow the event.

ORDERS OF THE COURT

22.	We make the following orders:

(i)	The appeal is dismissed in its entirety.

(ii)	The Court Order of 24 June 2022 in WS 155 of 2022, Mary Pandea Puringi v. Mark Michael Simango and Ors is reinstated and shall take effect immediately from the date of this Court Order.

(iii)	For clarity, the appellant shall have one month from today to give vacant possession of Section 310, Allotment 147, Hohola (Gerehu), National Capital District to the first respondent.

(iv)	The appellant shall pay the first and third respondents’ costs of the appeal proceeding to be taxed if not agreed.

________________________________________________________________
Akia & Associates Lawyers:	Lawyers for the Appellant
Bokomi Lawyers:	Lawyers for the First Respondent
Tangua Lawyers:	Lawyers for the Third Respondent