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Worinu v Amaiu [2022] PGNC 453; N10000 (28 October 2022)

N10000

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 27 OF 2022

BETWEEN
MARK WORINU
Plaintiff

AND
CATHY AMAIU & RELATIVES ILLEGALLY RESIDING ON PROPERTY LOCATED AT SECTION 72 ALLOTMENTS 15, BOROKO, NATIONAL CAPITAL DISTRICT
Defendant

Waigani: Linge AJ
2022: 22^nd & 28^th October

LAND- claim by registered proprietor for possession of land – seeking declaration of ownership against a recalcitrant and unauthorized occupant -permanent injunctive orders against the defendant.

Cases Cited:

Mudge v Secretary for Lands [1985] PNGLR 387
NCDC v Bogibada Holdings Pty Ltd [1987] PNGLR 135
Douglas Charles Dent –v- Thomas Kavali [1981] PNGLR 488

Counsel:

Mr. D. Dupre, for the Plaintiff
No Appearance, for the Defendants

JUDGMENT

28^th October, 2022

1. LINGE AJ: This is my judgment on a claim instituted by originating summons wherein the plaintiff seeks inter alia a declaration that he is the registered proprietor to a property he purchased following a mortgage sale.

2. The property is located at Section 72 Allotment 21, Boroko, National Capital District, contained in State Lease Volume 40 Folio 144 (the property) was previously owned by the defendant Cathy Amaiu and mortgaged to the National Development Bank (NDB).

3. Defendant defaulted in loan repayments and on the 21 December 2020 the NDB invoked its powers as mortgagee and placed the property on Tender (No. H/O.53/2020) in the National newspaper resulting in the plaintiff’s bid of K854, 500.00 being accepted by NDB. Plaintiff paid the requisite 10% deposit on the 21 January 2021 by BSP Cheque#1328973.

4. On 17^th February 2021 the plaintiff executed a Contract of Sale and the Instrument of transfer with the Bank South Pacific Limited (BSP) and title of the property registered on the 6 August 2021, entered in the Journal# No. S.93777. The BSP provided finance to the plaintiff and simultaneously on the 6 August 2021 became the registered mortgagee.

5. Relevant Notices to Vacate were given by the NDB to the defendant on 16 February 2021 and 24 March, 2021 but despite the notices the defendant failed and refused to vacate. This was followed by a further notice to vacate given by the plaintiff’s lawyers upon instructions on the 16 March 2022, but the defendant still did not vacate the property.

6. Meanwhile, the plaintiff is repaying its mortgage to the Bank South Pacific Limited whilst the defendant continues to reside on the property. She has not filed her notice of intention to defend nor any affidavit in compliance with the Court’s Direction of the 23 September 2022. She did not appear nor contested the proceeding.

7. Mr. Dupre, for the plaintiff submits that the defendant is illegally residing in the property and has refused to vacate the property even though she has no registered interest in the property anymore and having obtained no permission to stay on. Thus, submits for the plaintiff that the reliefs sought in the Originating Summons should be granted with costs of the proceedings to the plaintiff.

8. The plaintiff’s evidence is contained in the affidavit of Mark Worinu filed on the 19 May 2022 in which he deposed to the above process he fully undertook including tender, purchase, issuing of notices, transfer and registration of the property.

9. It is clear on evidence before me that the title to the subject property having previously registered in the name of the defendant was properly disposed of by the NDB in the exercise of its right as a mortgagee pursuant to Section 68 of the Land Registration Act No.46 1996, (the Act).

10. It is a matter of record that the State Lease shows the plaintiff, Mark Worinu as the registered proprietor of the property since 6 August 2021. The registration of the plaintiff as proprietor in the State Lease, by virtue of Section 11 of the Act is conclusive evidence of the plaintiff’s ownership of the property.

11. The effect of registration is that the estate or interest specified in the instrument of title passes to the new registered owner subject to covenants or conditions specified in the instrument of title or as specified in the Act, Section 26 of the Act.

12. It is also on record in the memorial to the State Lease that the Bank of South Pacific Limited is the new registered mortgagee over the subject property.

13. It is trite learning under the common law Torrens System, which is adopted in our jurisdiction, that a registered proprietor is protected under the principle of indefeasibility. Section 33 (1) (a) of the Act affirms the legal principle of indefeasibility and provides statutory exceptions in special circumstances where a title can be annulled.

14. One of the most scrutinized exceptions is the claim of fraud to invalidate and seek cancellation of a registered title. The Supreme Court has settled the law where fraud is alleged under s 33 (1) (a), when it held: “The Registered proprietor of an estate or interest holds it absolutely free from all encumbrances except ... in the case of fraud”, See Mudge v Secretary for Lands [1985] PNGLR 387.

15. In this case there is no evidence challenging the legality of the plaintiff’s title based on fraud, nor on any of the other exceptions enumerated in s 33 (1) of the Act.

16. The plaintiff primarily seeks declaratory orders contained in the originating summons. A declaration is a remedy based on the principles of equity adopted under Schedule 2.2 of the Constitution, such powers deriving from Section 155 (4) of the Constitution. Kapi DCJ affirmed the application of this equitable remedy in this jurisdiction in NCDC v Bogibada Holdings Pty Ltd [1987] PNGLR 135. His Honour also held that the power of the Court to make such declaratory orders involves a wide discretion which is not confined by the terms of O16 r 9(5) of the National Court Rules that concerns application for judicial review.

17. I also consider and adopt the further ruling in the aforementioned case that declaratory relief should be refused where granting of the declarations sought would not settle the dispute between the parties where for example the plaintiff is also claiming damages and other remedies.

18. The evidence before me is uncontested. The plaintiff has complied with the conveyancing requirements and processes leading up to the registration of his proprietary interest over Section 72 Allotment 21, Boroko, National Capital District, contained in State Lease, Volume 40 Folio 144. The defendant has clearly created the dispute by being the recalcitrant party and causing the plaintiff to expend time and resource in issuing this proceeding.

19. In my consideration, based on the evidentiary material deposed to in the plaintiff’s affidavit my conclusion is:

(i) The defendant’s occupation of the property thus denying the plaintiff’s right of occupancy is in essence the dispute;

(ii) The defendant has no proprietary interest in the property and no legal right of occupancy on the property.

(iii) The plaintiff is the registered proprietor and has an indefeasible title protected by Section 33 (1) of the Land Registration Act; and

(iv) The controversy is real and is properly before the Court which has jurisdiction to arbitrate.

20. The plaintiff also seeks in this proceeding permanent injunctive orders against the defendant. Like other equitable remedies, it is available where a wrong cannot be adequately or effectively remedied by an award of damages. Put another way, an injunction can be given only where monetary damages will not suffice to compensate the plaintiff.

21 Permanent injunctions are usually granted after trial. It is settled law that a party seeking an injunction must demonstrate to the satisfaction of the Court that:

(i) plaintiff has suffered irreparable injury;

(ii) there is a serious case to be tried;

(iii) the balance of convenience favours a grant of the injunction; and

(iv) damages are not an appropriate remedy.

22. Finally, the plaintiff also invokes Section 155 (4) of the Constitution when seeking the above declaratory orders. I adopt the view expressed by Bredmeyer J when considering the matter in Dent v Thomas Kavali [1981] PNGLR 488 at.p.491 wherein he stated, “ It follows from my analysis that in seeking a declaratory order the plaintiff is seeking to invoke s.155 (4) of the Constitution which is the supreme law of Papua New Guinea and far superior to any statute...I consider the National Court thus has constitutional power to grant a declaratory order...”

23. In the premises, I am satisfied that the plaintiff has proven his case on the balance of probability and will grant the declaratory orders including a permanent injunction and other ancillary orders.
24. The formal Orders of the Court will be:

1. A declaration that the title to property located at Section 72 Allotment 21, Boroko, NCD, contained in State Lease, Volume 40 Folio 144 sold to the Plaintiff pursuant to mortgage sale on the 17 February 2021 is valid and effectual.
2. A declaration that the plaintiff is the registered proprietor to the said property transferred as of the date of entry on the 6 August 2021.
3. The defendant and her family members, relatives, servants or agents be restrained from causing violence, disturbance or threats to the plaintiff and his relatives, agents or servants.
4. A permanent injunction restraining the defendant from conducting any further dealings on the property or attempting to have the plaintiff’s title of the property cancelled or transferred through the office of Registrar of Titles without an order of a court of competent jurisdiction.

5 Cost is awarded to the plaintiff.

6 Time is abridged to the date of settlement which takes place forthwith.

Ordered Accordingly
_______________________________________________________
Parker Legal: Lawyers for the plaintiff