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Malu v Geno [2022] PGNC 296; N9797 (21 July 2022)

N9797

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1168 OF 2018

BETWEEN:

LEKA MALU, LAU AKARA, BY THEMSELVES AND THEIR FAMILIES AND RELATIVES ON SECTION 294 ALLOTMENT 36, STAGE 3, GEREHU, NCD

-Plaintiffs-

AND:

AMONA GENO

-First Defendant-

AND:

JAMES WAPYER

-Second Defendant-

AND:

KENNETH B COOKE

IN HIS CAPACITY AS MANAGING DIRECTOR,

NATIONAL HOUSINNG CORPORATION

-Third Defendant-

AND:

HON. BENNY ALLAN

MINISTER FOR LANDS & PHYSICAL PLANNING

-Fourth Defendant-

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

-Fourth Defendant-

Waigani: Tamade AJ

2022: 20^th July and 21^st July

PRACTICE AND PROCEDURE –matter involving allegations of fraud - Plaintiff appeared in person and sought an adjournment of the matter to seek legal representation after being granted pervious adjournment-Order 12 Rule 37 (b) of National Court Rules– Order 4 Rule 36 - Order 12 Rule 1 of National Court Rules – estate claim- principles on want of prosecution.

Cases Cited:

Lord & Company v Inape [2014] SC1624

Ahmadiyya Muslim Mission v BSP Ltd (2005) N2845

Counsels:

Ms. Leka Malu, Plaintiff In Person

Mr. Russell Doa, for the Second Defendants

21^st July, 2022

1. TAMADE, AJ: On 14 June 2022, this matter came before the Court for the hearing of the Second Defendant’s Notice of Motion filed 23 September 2019. The Plaintiff Ms. Leka Malu appeared in person and sought an adjournment of the matter to seek legal representation. The Court, therefore, granted an adjournment and adjourned the matter to 19 July 2022 at 9:30 am for hearing of the Second Defendant’s Notice of Motion.
   

2. On 19 July 2022, Mr. Doa of the Second Defendant moved his client’s Notice of Motion basically seeking a dismissal of the proceedings under Order 4 Rule 36, Order 12 Rule 1 and Order 12 Rule 40 of the National Court Rules. After hearing Mr. Doa who was quite unprepared for his own client’s application and on hearing Ms. Malu the Plaintiff, Ms. Malu requested for an adjournment of the matter stating reasons that she had engaged a lawyer however her lawyer had other meetings that day and could not make it to Court. I enquired with Ms. Malu whether her lawyer would make it to Court at 1:30 pm in which Ms. Malu replied that she thinks it is not possible as her lawyer would be occupied all day for meetings. I then had the matter part heard adjourned to the next day 20 July 2022 at 9:30 am for Ms. Malu’s lawyer to appear and argue the matter on her behalf.

3. On 20 July 2022 in my morning session, the matter was called, and Mr. Doa made an appearance for the Second Defendant. Ms. Malu again appeared in person and informed the Court that she really needed an adjournment and that the Court should give her more time to have her lawyer appear on her behalf. I enquired with Ms. Malu as to who her lawyer is, and she informed the Court that it is Mr. Buri Ovia who could not make it to Court as he had other meetings. The Court told Ms. Malu that on review of the Court file, there is no Notice of Change of Lawyers or any documentation filed by Mr. Ovia that confirms that he acts for the Plaintiffs. As it is, there is no lawyer on record for the Plaintiffs. Ms. Malu insisted on an adjournment stating that she needs the assistance of a lawyer to prove the fraud involved in the purchase of the house the subject of the proceedings. Mr. Doa however objected to the adjournment as the Plaintiffs were given sufficient time. The Court then made a ruling that given that the Plaintiffs were given an opportunity on 14 June 2022 to engage the service of a lawyer and given that the matter was adjourned from the previous day to allow her lawyer to attend Court, it can not be said that the Court’s time should wait for a lawyer. A lawyer is duty bound to attend Court as and when a matter is set for hearing and the Court should not be subjected to a lawyer’s time who is attending other meetings. Given that there is no record of a lawyer acting for the Plaintiff on file and that the Plaintiff has been given an opportunity to seek the services of a lawyer and have him or her appear for her in Court, the Court refused the application for adjournment and proceeded to hear Ms Malu on her response to the application for dismissal before the Court.

4. The Second Defendant’s application before the Court seeks a dismissal of these proceedings on the basis that the Plaintiff fails to disclose any authority to commence the proceedings on behalf of her other relatives and family members and that the Plaintiff’s claim if any is for loss or damages against their relative the First Defendant. The Second Defendant also seeks a dismissal for want of prosecution of the matter since filing of the proceedings in 2018, the Second Defendants submits that the Plaintiffs have not taken any active step to diligently prosecute the matter.

Facts of the case

5. The Court is not assisted by any written submissions by Mr. Doa as to case law and the precise facts of the matter. A review of the Statement of Claim filed on 28 September 2018 reveals that the Plaintiff is claiming that in 1981, late Mr. Malu Vagi Raula was a resident of the subject property described as Portion 294, Allotment 36, Gerehu Stage 3B, NCD together with his family. The Plaintiffs as the family members of the Late Mr. Raula claim that the late Mr. Malu Vagi Raula was employed by Steamships Limited at the relevant time.

6. The First Defendant, Mr. Amona Geno is pleaded in the Statement of Claim to be the first cousin of the Late Mr. Malu Vagi Raula and they were all living together at the subject property. Mr. Amona Geno was however given a Government Give Away Housing Scheme in Tokarara in the NCD, and he and his family moved away from the subject property to Tokarara. The Plaintiffs claim that their Late father paid all due rentals and other bills for the subject property through the First Defendant’s name and that their family has lived on this property since 1981 and after the passing of their father Mr. Raula.

7. It has however come to the attention of the Plaintiffs that the subject property was transferred to the First Defendant sometime in 2015. The Plaintiffs state that they have attempted to enquire at the Third Defendant’s Office only to be informed of the transfer of property to the First Defendant. The First Defendant then sold the property to the Second Defendant. The Plaintiffs are therefore alleging fraud against the First Defendant that he misled their Late Father into paying rentals and bills for the subject property and that as they were residents of the property since 1981, they were entitled to be given an opportunity to purchase the property and or their Late Father should have been given an opportunity to purchase the property from the Third Defendant.

8. The Second Defendant on the other hand who is Mr. James Wapyer has stated in his Affidavit filed on 23 September 2019 in support of the application to dismiss that he is a bona fide purchaser of the subject property having purchased the property from the First Defendant Mr. Amona Geno on or around 2016. Mr. Wapyer states that he has obtained a loan from ANZ Banking Group (PNG) Ltd for the purchase of the property and ANZ is registered on the title Deed as the registered mortgagor. Since purchasing the property, Mr. Wapyer has been kept out of the property as the Plaintiffs have been in occupation of the property and have refused to vacate the property. Mr. Wapyer has been paying his loan to ANZ Bank without any possession of the property and had filed proceedings in the District Court to evict the Plaintiffs which has led to the Plaintiffs filing these proceedings.

Do the Plaintiffs have any authority on behalf of their family members to commence these proceedings?

9. This is the ground relied on by Mr. Doa seeking to dismiss these proceedings. On a careful perusal of the Writ of Summons and Statement of Claim, Schedule “A” attached to the Writ of Summons lists the Plaintiffs as the family members of the Late Mr. Malu Vagi Raula. Ms. Leka Malu is named as the First Plaintiff on behalf of her family members as the eldest daughter of the late Mr. Malu Vagi Raula.

10. The reliefs sought in the Statement of Claim therefore seek that the purported sale of the subject property between the First and the Third Defendant should be declared null and void, that the subject property should be held in a constructive trust by the Registrar of Titles and that the Third and Fourth Defendants are to make an offer to the Plaintiffs at a reasonable market price to purchase the property.

11. I am of the view that any right of the Plaintiffs as it is in regard to the subject property as pleaded in the Statement of Claim is connected to the deceased, Late Mr. Malu Vagi Raula. To maintain such a claim therefore in the interest of a deceased person, it is therefore properly a deceased estate claim as against the Defendants as the Plaintiffs allege that the subject property should have been offered to their late father to purchase however it is alleged that the First Defendant had instead purchased the property. The claim then should be a deceased estate claim either through the Office of the Public Curator under the functions and powers of the Office of the Public Curator under the Public Curator Act 1951 and or through the grant of probate for Letters of Administration of the Estate of a deceased person.

12. As to the Second Defendant’s contention that the Plaintiff Ms. Malu has no authority to commence proceedings on behalf of her family members, I find that this is an estate claim in which the family is suing for a right that accrued to their late father and therefore it should properly be by the Administrator of a deceased estate.

Can the proceedings be dismissed taking into account Order 12 Rule 37 (b) of the National Court Rules?

13. I had pointed out to Mr. Doa whether he had considered Order 12 Rule 37(b) of the National Court Rules which precludes a dismissal of claims based on allegations of fraud under Division 4 of Order 12.

14. Order 12 Rule 37 (b) is the following terms as underlined;

Division 4- Summary Disposal

37. Application of Division 4 (13/1)

This Division applies to all proceedings except proceedings that include

1. a claim by the Plaintiff for libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage or
2. a claim by the plaintiff based on an allegation of fraud; or

100. a claim for damages arising in respect of the death of any person or in respect of personal injuries to any person.
     

15. Mr. Doa made submissions that he had relied also on Order 12 Rule 1 of the National Court Rules and Order 4 Rule 36 of the National Court Rules seeking a dismissal of these proceedings on the ground of want of prosecution.

16. I am of the view that though the proceedings plead fraud in the Statement of Claim, the Plaintiffs in my mind do not have standing to file these proceedings as the right they seek to enforce is that of their deceased father which should be pursued by way of an estate claim.

17. I am of the view that taking into account the case of Lord & Company v Inape [2014] SC 1624, it is open to this Court to dismiss these proceedings notwithstanding Order 12 Rule 37(b) on the basis that the Second Defendant has also relied on Order 12 Rule 1 of the National Court Rules and has also sought a dismissal of these proceedings for want of prosecution based on Order 4 Rule 36 of the National Court Rules. Matters pleading fraud are also taken into consideration by the Court in the exercise of its discretion in a dismissal application.

18. The Second Defendant has therefore relied on Order 12 Rule 36 of the National Court Rules that the Plaintiffs have not prosecuted the proceedings with due dispatch since the filing of the proceedings in 2018. The Second Defendant states in his evidence that he had purchased the property in 2016 through a loan from the then ANZ Bank and has since been paying the loan whilst the Plaintiffs have continued to stay on the property leaning on these proceedings without taking any steps to progress this matter since filing the Writ of Summons.

19. Upon review of the Court file and the endorsements on the Court file, the Plaintiffs have not taken any active step to progress the matter to trial. There are endorsements on the Court file of the Court adjourning the matter to allow the Plaintiffs to seek legal representation however the Plaintiffs have yet to seek legal representation.

20. The Court in the case of Ahmadiyya Muslim Mission v BSP Ltd (2005) N2845 considered the following considerations in dismissing a claim for want of prosecution that a party must show that:

1. The Plaintiff's default is intentional or is allowing for an inordinate and inexcusable delay in a prosecution of his claim;
2. There is no reasonable explanation given by the plaintiff for the delay; and

100. That the delay has caused injustice or prejudice to the defendant.

4. The Court should specifically look at the conduct of the parties and their lawyers.
5. The duty of the Court to give paramount consideration to the dispensation of justice.
   

21. I find that there is inordinate and inexcusable delay by the Plaintiffs in prosecuting this matter. I also find that even though the Plaintiffs state that they are financially handicapped to engage a private lawyer, they have options to seek legal aide at the Office of the Public Solicitor and they have had this opportunity since 2018 when the Writ of Summons was filed and or at the time their initial lawyer ceased to act for them.

22. I find that the delay in prosecuting this matter has caused great prejudice to the Second Defendant as he had purchased the property and is continuously paying a bank loan without having possession of the subject property and the Plaintiffs conduct is lagging behind in prosecuting the matter.

23. These proceedings shall therefore be dismissed on the basis that this is an estate claim and that the Plaintiffs have no standing to issue the proceedings to enforce the right of a deceased. Even if there is some standing to mount proceedings, the Plaintiffs have not diligently prosecuted this matter with due dispatch in which the Second Defendant is greatly prejudiced by.

24. I, therefore, make the following orders:

1. These proceedings are dismissed with costs to the Second Defendant to be taxed if not agreed.
2. The Plaintiffs shall give vacant possession of the subject property described as Section 294, Allotment 36, Hohola, Granville, Port Moresby, NCD to the Second Defendant within two weeks from the date of these Orders.
3. Time is abridged to the date of these Orders to take effect forthwith.
   

Orders accordingly.

Ms. Leka Malu: Plaintiff In Person

Kup & Co Lawyers: Lawyer for the Second Defendant