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Kawage v Ane [2022] PGNC 502; N10030 (2 November 2022)

N10030


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO. 93 OF 2021


MEK KAWAGE
Plaintiff


V


ALA ANE IN IS CAPACITY AS THE ACTING REGISTRAR OF TITLES OF DEPARTMENT OF LANDS & PHYSICAL PLANNING
First Defendant


AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant


AND
JEB LIMITED
Third Defendant


Waigani: Miviri, J
2022: 1st October & 2nd November


PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion – Order 16 Rule 13 (13)(2)(b)(i) & Order 12 Rule 40 (1)(a)(b) (c) & (d) NCR – Dismissal Proceedings – No Reasonable Cause of Action Disclosed – Frivolous & Vexatious Action – Abuse of Process – Third Defendant By – Competency of Motion – Service of Notice of Motion – Leave to Withdraw Earlier Motion – Materials in Support of Motion – No Materials Against Motion – Balance Discharged – Motion Granted – Proceedings Dismissed in Entirety – cost follow event.


Cases Cited:


Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906
Jaro Investment Ltd v Ane [2022] PGSC 5; SC2192
Wartoto v State [2015] PGSC 1; SC1411
Kandakason v The State [1998] PGSC 20; SC558
Waranaka v Dusava [2009] PGSC 11; SC980
Kwimberi of Paulus M Dowa Lawyers v Independent State of Papua New Guinea [1998] PGSC 9; SC545
Kotape v McConnell Dowell Construction PNG Ltd (Company No 1-123873) [2019] PGNC 473; N8338
Yuku v Lukom Trading Ltd [2020] PGNC 382; N8646
Timothy v Marus [2014] PGSC 50; SC1403
PNG Forest Products Pty Ltd v Independent State of Papua New Guinea [1992] PNGLR 85
Parua v Gamato [2018] PGNC 195; N7274
Wabia v BP Petroleum Development Ltd [2009] PGNC 258; N4337
Takori v Yagari [2008] PGSC 3; SC905
Putupen v Sevua [2020] PGSC 34; SC1947


Counsel:


A.Token, for the Plaintiff
H. Wangi, for the Second Defendant
M. Kispe, for the Third Defendant


RULING


2nd November, 2022


  1. MIVIRI, J: This is the ruling on the third defendant’s notice of motion of the 04th October 2022.
  2. He firstly seeks, pursuant to Order 1 Rule 7 and Order 4 Rule 42 of the National Court Rules for dispensation of the requirement of service. Secondly pursuant to Order 16 Rule 13 (13) (2) (b) (i) and Order 12 Rule 40 (1) (a) (b) (c) and (d) of the National Court Rules for the proceedings to be dismissed as disclosing no reasonable cause of action, being frivolous and vexatious and an abuse of the process of court.
  3. Service has been effected as proved by the affidavits of Buana Pole sworn of the 31st October 2022 filed that same day. And of Colombo Andrias dated the 05th October 2022 filed 06th October 2022. The former deposes to service on the office of the public Solicitor on the 28th October 2022 and service of the motion was executed satisfying the requirement for service. And similarly, upon the office of the Solicitor General on the 05th October 2022 at 10.20am. So, for all intent and purposes it is not as if the application is moved without due service. Here the evidence of the appearance of Council for the State is proof of that fact including the public solicitor who has appeared 30 minutes late into the hearing of the matter. Hence the application is properly before the Court.
  4. Relevantly at the outset the applicant seeks that the proceedings pursuant to Order 16 Rule 13 (13) (2) (b) (i) and Order 12 Rule 40 (1) (a) (b) (c) and (d) of the National Court Rules for the proceedings to be dismissed as disclosing no reasonable cause of action, being frivolous and vexatious and an abuse of the process of court. In this regard the applicant relies on the affidavit of Margaret Brown sworn of the 03rd October 2022 filed on the 04th October 2022.
  5. She is the sole shareholder director of the third defendant JEB Limited. And was married to late Christopher David Brown on the 30th October 2010 annexure “A” is marriage certificate issued by the Deputy Registrar General of Papua New Guinea evidencing that fact dated the 30th October 2010. Annexure “B1” is the certificate of Incorporation of JEB Limited dated the 14th September 2022. And annexure “B2” is the Company extract of JEB Limited maintained under the Companies Act by the Investment Promotion Authority evidencing the deponent as director of the third defendant JEB Limited.
  6. And annexure “C” is the death certificate of Christopher David Brown dated the 09th July 2016 issued by the Registrar General of Queensland deposing to the death of Christopher David Brown on the 28th June 2016 at Atherton Hospital Atherton, Sydney, New South Wales. And that he was buried on the 1st July 2016 at Tablelands Crematorium, Atherton.
  7. And annexure “D” is registration of JEB as the registered proprietor of State Lease volume 26 Folio 6458, portion 1178 Milinch, Granville fourmil, Moresby, National Capital District. It is the title deed of the subject property in the name of the third defendant. Following the death of Christopher David Brown, late husband of the deponent, the plaintiff who was resident next to the subject property, intentionally encroached 20m x 30m onto the land in the property and constructed his rental building annexure “E” photo taken on the 27th August 2019. And following that in August 2019 he forcefully evicted the family of the deponent off the property. And following Mr Henry Vue director of JEB Limited conducted a search at the Department of Lands and Physical Planning but was advised that the file was missing.
  8. On the 09th of March 2020 the deponent came across a vacant land sales advertisement that was on Facebook made on behalf of the plaintiff. Upon closer inspection She realized that the land in the advertisement was the same property that was owned by JEB limited. So, on the 09th July 2020 a complaint was laid at the Boroko Police Station by the deponent, the plaintiff was brought in for questioning on the subject. He produced a replaced owners copy of the title over the subject property and alleged that it had been issued to him by the office of the Registrar of Titles of the Lands and Physical Planning Department in 2018.
  9. So, on the 16th July 2020 annexure “F” She wrote to the registrar of Titles of the Department of Lands and Physical Planning to verify the duplicate title on the said property. And which documents obtained from that office, the Contract of Sale and transfer, annexure “G1” transfer Instrument, annexure “G2” Statutory Declarations, annexure “G3” and Application for a Replacement Title, annexure “G4” that were lodged by the plaintiff, confirmed that the Owners Copy of the Title in the Plaintiff’s possession was fraudulently obtained.
  10. Hence culminated in the police prosecution brief annexure “H1” in the affidavit of the deponent, Margaret Brown. And the information charging him with the criminal offence under section 462 (1) of forgery. Charge Sheet of the Royal Papua New Guinea Constabulary showing his charges laid and pending. His antecedent report evidencing that he was formally charged of the offence. And annexure “H2” Warrant of Arrest issued by the Waigani District Court dated the 12th April 2021 for the arrest of Meck Kawage of Kup village Banz District Jiwaka Province whose case was returnable on the 24th June 2021. And who has been charged with forgery pursuant to section 462 (1) of the Criminal Code Act.
  11. Annexure “I” is summons issued by Ala Ane as the Acting Registrar of Titles dated the 09th of September 2020, for production to Meck Kawage P. O. Box 259, Vision City, National Capital District of replaced owners copy of State Lease title volume 26 folio 6458 for Portion 1178 Milinch Granville Fourmil Moresby, National Capital District. Here specifically the Acting Registrar writes that the title was never lost or destroyed but was at material times in the possession of JEB Limited the registered proprietor at that time. And that transfer instrument and contract of sale and statutory declaration for the conveyancing of the subject were as claimed signed by one Christopher Brown who records reveal was deceased at that time. And the registrar concluded that there is fraud because of the death certificate showing that on the 28th June 2016 the deceased died and could not have endorsed the contract of sale with his signature. Including the transfer instrument between Meck Kawage and JEB limited of the 30th July 2018 and the statutory Declaration by Christopher Brown of JEB limited of the 05th June 2018. Clearly these were not documents that were authored by Christopher Brown because they came into being after he had been dead for two years. And therefore, the title document was with JEB Limited at all times and was never lost as stated in the replacement application. They amounted to fraud and therefore are not protected under section 33 of the Land Registration Act. Plaintiff was accorded 14 days to deliver up the replaced owners copy of the subject state lease for purposes of cancellation.
  12. And annexure “J” is the cancellation of the entries Volume 26 Folio 6458 over Portion 1178 Milinch of Granville Fourmil Moresby, NCD issued of the 10th May 2021 advising the plaintiff, “that the replacement title over portion 1178 Milinch of Granville Fourmil Moresby, NCD in your possession and the subsequent transfer registration have been cancelled and are no longer valid. Attached herewith are copies of the title depicting the cancellations. Furthermore, the office of the Registrar of Titles affirms that JEB Limited is the registered proprietor of State Lease Volume 26 Folio 6458 over Portion 1178 Milinch of Granville Fourmil Moresby, NCD. It is signed by the Acting Registrar of Titles Ala Ane copied to the Secretary of lands, Mel & Henry Lawyers, and JEB Limited.”
  13. Annexure “K” is indeed the Judgement by Justice Dingake of the 03rd of August 2022 and is as to the propriety of the Notice of motion filed by the third defendant of the 25th July 2022. It is not as to the motion itself determining what is prayed upon it and is reflected by the orders that are made, in that the motion is defective dismissed with costs which should be taxed if not agreed. And annexure “L” evidence the orders issued by that court. By this fact it is not placing the same motion again in the same court therefore abuse of process that an appeal should be followed. In other words, multiplicity of proceedings on the same matter determined in substance amounting to res judicata spelled out in Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906 (28 March 2008). That is not the situation here viewing the Judgement by Justice Dingake set out above on the subject matter. It is as to the form not the substance the dispute. Therefore, the present motion is properly before this Court for determination.
  14. This is the evidence in support of the motion filed by the third defendant. Which is supported by the second defendant relying on the same evidence. Arguing also that essentially there is no cause of action. And if at all the action is frivolous and vexatious and is an abuse of the process of Court. Because if the Plaintiff was genuine then the process of cancellation correction of instruments and entries consistent with section 160, 161, 162 would have been followed in his acquisition of the replacement title observed in Jaro Investment Ltd v Ane [2022] PGSC 5; SC2192 (28 January 2022) would have ensued in favour of the plaintiff. That is not the case here given the facts set out by the affidavit relied of Margaret Brown in favour of the plaintiff. Plaintiff is not coming to court with clean hands for equity. He has refused to comply with the summons that have been issued him by the Registrar of Titles. But the Registrar has gone on ahead to issue the replacement title in favour of the applicant third defendant.
  15. What is more than probable is that this is an action that has been instituted within the principle seen out in Wartoto v State [2015] PGSC 1; SC1411 (27 January 2015). This judicial review action has been instituted to avoid the criminal case against the Accused Plaintiff of Forgery in the District Court currently the subject of a warrant of arrest because he has not appeared from bail to answer. It is a civil action that has been instituted to avoid the criminal proceedings directly or inadvertently against him. This is because the subject matter the land, Volume 26 Folio 6458 over Portion 1178 Milinch of Granville Fourmil Moresby, NCD is also the same in the criminal proceedings of forgery against the accused plaintiff here. And the accused plaintiff is a fugitive from the law facing criminal charges over the same piece of land. It maybe an allegation but it is a very strong allegation considering the evidence relied upon by the applicant set out in the evidence of Margaret Brown. On civil standard it is clearly tilting the balance in favour of the assertion of fraud perpetrated by the plaintiff. And in criminal law it would secure beyond reasonable doubt that fraud has been committed here by the plaintiff.
  16. Because would a person, Christopher David Brown, deceased for two years come back from his grave in Australia to Port Moresby Papua New Guinea two years later on the 5th July 2018 to execute and endorse a statutory declaration, then a contract of sale and transfer instrument for the subject land on the 30th July 2018? Clearly this is evidence of fact that defies common sense and logic. It is unbelievable and leaves no plausible explanation that would befall in favour of the plaintiff. Rather it would strengthen the assertions of the third defendant. Because assessment of logic and common sense and consistency in evidence are important tests for credibility of witnesses and their testimony. Any serious unexplained inconsistency in evidence and evidence not in keeping with logic and common sense are basis for rejection of such evidence: Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998); Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009). Accordingly, it is safe to hold that the truth is that there was fraud committed in the hands of the plaintiff. He has not laid any evidence to the contrary in the face of the evidence laid out by the third defendant in this application. And it is strong credible evidence tying strongly in favour of the grant of the motion. Which is coupled with the fact that a warrant of arrest has been issued against him for non-appearance in the Committal Court. By itself it portrays that the plaintiff accused is a fugitive running away from the law. And in this regard should not be assisted by the Judicial review proceedings now instituted.
  17. This argument has merit and viewed with that advanced by the plaintiff would be preferred over and above. It states out the law and would in my view warrant the motion sought out by the third defendant. And is rightly supported by the second defendant. In my view that is the correct position taken in law given the facts and circumstances set out by the evidence here. There is nothing that the plaintiff has placed either by evidence to bring any roll of doubt against the assertions of the third and second defendants together.
  18. Because it starts with the fact that in response Plaintiff’s counsel made no appearance when the matter was called at 9.30am. He made appearance at 10.00am when the applicant had finished his application together with the second defendant. He apologized for his lateness but gave no reason for the lateness. This is evidence of both lawyer and client not bringing the truth before the Court. The action of the lawyer is contemptuous viewed in the light of Kwimberi of Paulus M Dowa Lawyers v Independent State of Papua New Guinea [1998] PGSC 9; SC545 (27 March 1998). Because service of the proceedings time and date have been duly made upon yet drew no appearance until 30 minutes late and later. And the evidence relied and pursued has not seen the light of the court room to bring the arguments advanced to any material level against that of the third defendant. This is evidence of an ill prepared lawyer who has responded in law without the evidence to support his cause for his client. And is now cautioned on placed on the record of the Court that in future will not lead in favour against.
  19. In responding to the matter, he filed submission relying on Kotape v McConnell Dowell Construction PNG Ltd (Company No 1-123873) [2019] PGNC 473; N8338 (27 November 2019) that the correct jurisdiction of the Court had not been invoked for the motion to stand. That order 16 was specific to Judicial review and for the application that was made by the applicant did not qualify on the Jurisdictional basis. He further sought reliance of Yuku v Lukom Trading Ltd [2020] PGNC 382; N8646 (13 November 2020) arguing that Order 12 Rule 40 (1) did not give the jurisdictional basis for the application that he moved. As Judicial review was specifically of its own and would be the subject of its own to so move.
  20. That argument concedes the jurisdictional basis that the applicant has invoked in this motion set out above. Because it is not only on the basis of Order 12 Rule 40 (1) of the Rules that the applicant moves. He is also driven by and relies on Order 16 Rule 13 (13) (2) (b) (i) and Order 12 Rule 40 (1) (a) (b) (c) and (d) of the National Court Rules for the proceedings to be dismissed as disclosing no reasonable cause of action, being frivolous and vexatious and an abuse of the process of court. It would therefore not advance the argument that the plaintiff pushes if considered in that light. Because by the decision in Timothy v Marus [2014] PGSC 50; SC1403 (29 October 2014) the applicant will see light in his motion. It is invoked on the basis of Order 16 Rule 13 (13) (2) (b) (i) of the Rules. And which effect will sustain as in Order 12 Rule 40 (1) (a) (b) (c) and (d) also of the Rules. The plaintiff has filed no affidavit material in support of the argument advanced. He simply tried to advance that leave was granted in the matter on the 09th July 2021. But does not advance that argument any further in respect of rebutting the affidavit that Margaret Brown has filed. Particularly with explanation as to how Christopher David Brown by certificate of death dated the 09th July 2016 issued by the Registrar General of Queensland deposing to his death on the 28th June 2016 at Atherton Hospital Atherton Sydney New South Wales. And that he was buried on the 1st July 2016 at Tablelands Crematorium Atherton. How he could have come back from the dead two years later including endorsing and executing the transfer instrument between Meck Kawage and JEB limited of the 30th July 2018 with the statutory Declaration by Christopher Brown of JEB limited of the 05th June 2018. Clearly these were not documents that were authored by Christopher Brown because they came into being after he had been dead for two years. And no plausible explanation or material has been placed by the plaintiff to refute this serious anomalies into his case. He has chosen not to bring any material to refute even for the simple fact as to why the action has taken a year now since first granted leave on the 09th July 2021. And no explanation has been filed as to why he the plaintiff has made no appearance in the District Court in the forgery case there, bearing in mind the subject land is the very same land now the subject of the Judicial review proceedings.
  21. He is as counsel for the second defendant has argued, a fugitive from the law. And in that respect even though not a conviction by the material in the sworn affidavit of Margaret Brown set out above, coming with unclean hands to seek equity. In that respect he has no standing to push the claim he is pushing. It is not his land nor does he have the documents in his favour to sustain the action he has instituted. His action do not fall within the fact in law that he has standing to pursue, because his proprietary rights do not arise from circumstances evidenced here. There is apparent fraud in the sale and the purchase of the subject property. Because the documents transferring title were by a person who had been deceased for over 2 years. And in this regard Plaintiff has placed no material to deviate that fact. His action cannot sustain in the way he seeks. There is really no reasonable cause of action in this light by these facts. It would be an abuse of the process to allow life to remain of that action. And in this regard, I reject that Order 12 Rule 40 (1) (a) (b) (c) and (d) of the Rules has no application here. Quite the contrary because compounded by Order 16 Rule 13 (13) (2) (b) (i) of the Rules, the same result is attained, the proceedings are summarily determined because extended by the former they are frivolous and vexatious, and no reasonable cause of action is breathed out in favour of the plaintiff. There is no prejudice nor given the facts and circumstances here it would be wrong, and error of law to allow jurisdiction to follow from Order 12 Rule 40 (1) (a) (b) (c) and (d) of the Rules in addition and compounded by Order 16 Rule 13 (13) (2) (b) (i) of the Rules. The same result is attained the latter specifically for Judicial review and the former general application. The argument by the plaintiff does not sustain and I reject it considering all set out above.
  22. It follows that there is merit that this action is frivolous and vexatious within PNG Forest Products Pty Ltd v Independent State of Papua New Guinea [1992] PNGLR 85 because the plaintiff does not have any proprietary rights. And the case is unattainable because the documents evidencing sale and transfer could not have eventuated at the hands of Christopher David Brown who was deceased two years and who could not have come back from his grave in Australia to Port Moresby Papua New Guinea to sign and endorse the sale of the subject property. And no satisfactory response has come from the plaintiff in the summons issued him by the Acting Registrar of Titles Ala Ane. Eight months has lapsed to no avail at the hands of the plaintiff leading to cancellation. He has put the third and second defendants unnecessarily to defend the cause of action in this light. He has by this fact brought into play what was observed by this Court in Parua v Gamato [2018] PGNC 195; N7274 (18 May 2018) that this is proceedings that cannot possibly succeed given all set out above. And in that regard the court has inherent power and duty to protect itself from frivolous claims by litigants as is the case here by its facts and circumstances. And in this regard would be no different from Wabia v BP Petroleum Development Ltd [2009] PGNC 258; N4337 (26 May 2009). It is an abuse of process because no reasonable cause of action is disclosed. Leave may have been granted but does not extinguish that the Court must protect is process and procedure. Here the facts and circumstances bear that out and the motion must be granted as pleaded in favour of the applicant with costs.
  23. Suffice to say that no party should be summarily derailed from the judgement seat without proper consideration due because the courts will be slow to so grant Takori v Yagari [2008] PGSC 3; SC905 (29 February 2008). But is there reasonable cause shown by the appellant and by material in response here to so save? It is clear that is not the case by all set out above. Yes, “our judicial system should never permit a plaintiff or a defendant to be driven from the Judgement seat in a summary way, without a Court having considered his right to be heard. A party has a right to have his case heard as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the court. That right cannot be lightly set aside.” There is nothing apparent or identifiable to deviate the application that has been made. The material relied leave no other than to dismiss Putupen v Sevua [2020] PGSC 34; SC1947 (22 April 2020).
  24. Costs will be on a Solicitor Client basis against the plaintiff given all set out above in view given including the lateness of counsel by 30 minutes into the case. He will be penalized in this regard by the costs that follow.
  25. Accordingly, the formal orders of the court are:

Orders Accordingly.
__________________________________________________________________
Mannrai Lawyers: Lawyer for the Plaintiff/Applicant
Office of the Solicitor General: Lawyer for Defendants

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