Rosemary John v James Nomenda

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 18 January 2010
• Citation: (2010) N3851
• Court: National Court
• Year: 2010
• Judgement Number: N3851

Full : WS NO 1818 of 2005 & OS NO 446 of 2005; Rosemary John v James Nomenda & Maggie Yagga and Philip Kama, as National Housing Corporation, Mt Hagen Office Manager and Walter Kapty, as Managing Director of National Housing Corporation and National Housing Corporation (2010) N3851

National Court: Makail, J

Judgment Delivered: 18 January 2010

N3851

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1818 OF 2005 & OS NO 446 OF 2005

BETWEEN

ROSEMARY JOHN

Consolidated Plaintiff

AND

JAMES NOMENDA & MAGGIE YAGGA

Consolidated First Defendants

AND

PHILIP KAMA, as NATIONAL HOUSING CORPORATION, MT HAGEN OFFICE MANAGER

Consolidated Second Defendant

AND

WALTER KAPTY, as MANAGING DIRECTOR OF NATIONAL HOUSING CORPORATION

Consolidated Third Defendant

AND

NATIONAL HOUSING CORPORATION

Consolidated Fourth Defendant

Mount Hagen: Makail, J

2009: 09th & 10th June & 2010: 18th January

REAL PROPERTY - Dispute over residential property - State lease - Registration of title to another person - Indefeasibility of title - Property earmarked for sale under government’s home ownership scheme - Breach of statutory procedures and requirements - Irregularities - Constructive fraud - Proof of - Effect of - Land Registration Act, Ch 191 - Section 33 - National Housing Corporation Act, 1990 - Sections 1,2,27,28,37& 38.

Cases cited:

Mudge -v- Secretary for Lands [1985] PNGLR 387

Emas Estate Development Pty Ltd -v- John Mea & Ors [1993] [PNGLR 215

Steamships Trading Company Limited -v- Garamut Enterprises Limited & Ors (2000) N1959

The Papua Club Inc -v- Nusaum Holdings Limited (No. 2) (2004) N2603

Hi Lift Co Pty Ltd -v- Miri Setae & Ors [2000] PNGLR 80; (2000) N2004

Ramu Nickel Limited & Ors -v- Honourable Dr Puka Temu & Ors (2007) N3252

Elizabeth Kanari -v- Augustine Wiakar & Registrar of Titles (2009) N3589

Koitachi Farms Limited -v- Walter Schnaubelt (2007) SC870

Patrick Tomausi -v- Telikom PNG Limited (2003) N2394

Texts:

The Australian Pocket Oxford Dictionary (5th ed, 2001)

John James Stroud’s Judicial Dictionary of Words and Phrases - Volume 2

Counsel:

Mr P. Kunai, for Consolidated Plaintiff

Mr J. Tonge, for Consolidated First Defendants

No appearance, for Consolidated Second, Third & Fourth Defendants

JUDGMENT

18th January, 2010

1. MAKAIL, J: These two cases raise from WS No 1818 of 2005 proceeding and OS No 446 of 2005 proceeding and were consolidated on parties’ application on 9th June 2009 as the common issue is one of ownership of a residential property described as allotment 86, section 55, Mt Hagen, Western Highlands Province. It is on a State lease and formally registered as Volume 13, Folio 150 and one of those low cost single detached houses that the consolidated fourth defendant, namely, the National Housing Corporation (“NHC”) sold under the National Government’s Home Give Away Scheme. The consolidated plaintiff is Rosemary John, an employee of Telikom PNG Limited and works as a Finance & Administration Manager at its Mt Hagen office while the consolidated first defendants are husband and wife, whom I shall refer to as “the Nomendas” from now on. In either proceeding, each claims that they own the property.

2. The Nomendas claim that they purchased it from the NHC while Rosemary also claims that she purchased it from the NHC. As a result of these two competing claims, both parties decided to sue each other to assert their right of ownership of the property. The Nomendas commenced OS No 446 of 2005 proceeding on 20th June 2005 and sought the following reliefs:

“1. A declaration that the Plaintiffs are legal proprietors on Allotment 86 on Section 55 in Mount Hagen.

2. A declaration that the Defendant is currently illegally residing on the said Allotment 86 on Section 55 in Mt Hagen.

3. A declaration that there was a legally binding land sale contract with respect to Allotment 86 on Section 55 in Mt Hagen between the National Housing Corporation and the Plaintiffs.

4. An order evicting the Defendant, her servants, agents, associates or relatives from occupying the said property.

5. An order for damages.

6. Legal costs.

7. Such other order as the court deems fit.”

3. Rosemary commenced WS No 1818 of 2005 proceeding on 22nd November 2005 and sought the following reliefs:

“1. A declaration that the transfer of the property described as Section 55, Allotment 86, Mount Hagen to the First Defendants was done by fraud.

2. An order declaring the transfer of the property described as Section 55 Allotment 86, Mt Hagen as void and of no effect.

3. An order directing the Defendants to deliver up possession of the said property described as Section 55 Allotment 86, Mt Hagen to the Plaintiff forthwith.

4. Alternatively, Damages to be assessed.

5. Costs of the action.

6. Such further or other Orders as the Court may think fit.”

4. Mr and Mrs Nomenda gave oral evidence. Both were cross examined by counsel for Rosemary in relation to their oral evidence. In addition to that, Mr Nomenda’s affidavit sworn and filed on 26th November 2006 was admitted into evidence and marked as exhibit “D1”. Rosemary also gave oral evidence and was cross examined by counsel for the Nomendas. Her evidence also consisted of a number of documents which were tendered by consent and marked as exhibits. They were:

1. Her affidavit sworn on 10th February 2006 and filed on 17th February 2006 (exhibit “P1”);

2. Application form for Homeownership Scheme (exhibit “P2”);

3. NHC Approval Advice on Low Cost Ownership Scheme (exhibit “P3”);

4. Letter from Managing Director of NHC to Financial Institutions dated 11th May 1998 (exhibit “P4”);

5. Irrevocable Authority for Salary Deduction from NHC to Telikom PNG Limited (exhibit “P5”); and

6. Bundle of documents identified as Break Up of Rental Arrears and Receipts of Payment (exhibit “P6”).

5. I should also mention here for the record that although the consolidated second and fourth defendants were served a copy of the writ of summons for WS No 1818 of 2005 proceeding on 24th March 2006 and 8th May 2006 respectively, and the consolidated third and fourth defendants were served the originating summons for OS No 446 of 2005 proceeding on 24th June 2005, they have not shown any interest in defending these proceedings. This is apparent from the lack of defence, affidavits and attendance at the trial. Hence, the trial was conducted without them: see affidavit of service of Pang Pawa sworn 30th March 2006 and filed on 5th April 2006, affidavit of service of Marere Ivaharia sworn on 16th May 2006 and filed on 30th June 2006 and affidavit of service of James Nomenda sworn and filed on 11th July 2005.

6. The parties, through their counsel have filed written submissions in accordance with the Court’s direction of 10th June 2009, which I have read to assist me in my deliberations and thank them for their assistance. From the evidence and the submissions, I consider these as the issues:

1. Whether there was fraud in the sale of the property to the Nomendas by the NHC; and

2. If so, what is the effect of the fraud on the title of the property?

3. If there was no fraud, what are the other remedies available to Rosemary?

Whether there was fraud

7. I turn to the first issue of whether there was fraud in the sale of the property between the Nomendas and the NHC. Counsel for the Nomendas contends that throughout the trial, Rosemary never established a “clear case of fraud” against them and the NHC. What she was able to establish was that she participated in the Government’s Home Give Away Scheme to purchase the property. She paid all compulsory fees and is currently paying rent of K40.00 through salary deduction on a fortnightly basis, but had never executed a contract of sale to formalize the sale so that the transfer of title of the property would be registered in her name. As such, she is not the registered proprietor of the property and not entitled to the reliefs she seeks.

8. He further contends that in their evidence, the Nomendas said that they intended to purchase a property in Mt Hagen after Mr Nomenda retired from the Correctional Services in 2000, and that, they approached the officers of NHC at the NHC’s head office at Tokarara where they spoke to one Mr Paul Asakusa, the then Director for the Highlands Region, and that, they told him that as they were locals from Mt Hagen and they were looking for a property to buy in Mt Hagen and that, Mr Asakus advised them that, there...