Southern Highlands Provincial Government v National Housing Corporation (2001) N2110

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2001) N2110
• Date: 18 June 2001
• Year: 2001

Full Title: Southern Highlands Provincial Government v National Housing Corporation (2001) N2110

National Court: Davani J

Judgment Delivered: 18 June 2001

1 PRACTICE AND PROCEDURE—Plaintiffs application for restraining orders against Defendant will not succeed as Defendant as registered proprietor has indefeasible title to property, exceptions referred to in s33(1)(a) to (i) of the Land Registration Act, not proven—Plaintiff must specifically plead aspects of illegality in the Statement of Claim to show that it has a legal right or interest in or over a matter—National Court Rules O8 r14, Land Registration Act s33(1)(a) to (i).

2 Employers Federation of Papua New Guinea v Papua New Guinea Waterside Workers and Seamen's Union (1982) N393, Craftworks Niugini Pty Ltd v Allan Mott (1998] PNGLR 572, JF Stratford & Son Limited v Lindley (1964] 3 All ER 102, American Cyanamid Co v Ethicon Ltd (1975] AC 396, NHC v Yama Security Services Pty Ltd (2000] PNGLR 69, Robinson v National Airlines Commission (1983] PNGLR 476, Phillips v Phillips (1878] 4 QBD 127, Paul John v Gerd Lindhardt and Servicom Pty Limited (1999) N1938, Bruce v Oldhams Press Ltd (1936] 3 All ER 287, Norah Mairi v Alkan Tololo (No 1) (1976] PNGLR 59, Mt Hagen Airport Hotel Pty Ltd v Gibbes (1976] PNGLR 216, Haro Yamis v Viviso Seravo, Minister for Lands and Others (WS 713 of 1998, Unnumbered and Unreported judgment dated 9 November 1998) and Smith v Inner London Education Authority (1978] 1 All ER 411 referred to

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Davani J: This is an application by the Plaintiff government seeking various interim orders. It's Notice of Motion filed on 20 February, 2001 reads:

"1. An order restraining the Defendant on its servants or agents from having any further dealings or selling or assigning of any interest over State houses described as Ex Army Houses located in the township of Mendi, Southern Highlands Province to former landowners or anybody until the substantive matter in this application is heard.

2. An interim order restraining the former landowner or any body who is not an employee of the State from occupying State Houses described as Ex Army Houses located in the township of Mendi, Southern Highlands Province.

3. An order that the time limited for service of this Notice of Motion pursuant to the Rules of this Honourable Court be abridged and that such provision of such rules as would prevent the orders sought otherwise being made dispensed with.

4. Such further or other orders as this Honourable Court considers fit.

5. Costs be in the cause."

By the Plaintiffs originating summons filed on 20 February 2001, it seeks the same restraining orders as pleaded in paragraph 1 of the Notice of Motion and other Declaratory orders in relation to the Ex Army Houses.

The Plaintiff and the Defendant ('Applicant' and 'Respondent' respectively) have each filed written submissions.

The Respondent filed Notice of Intention to Defend on 8 March 2001. It also filed an affidavit in response to the Applicants affidavits, that of Paul Asukasa sworn on 7 March 2001 and on

The Applicant, in support of its application, filed the affidavit of Mathew Tamutai sworn on 20 February 2001 and the affidavit of Hosea John sworn on 15 February 2001.

Facts

It appears from the affidavit before the court that the undisputed facts are that:

1. The Australian Defence Force ('ADF') whilst based in Mendi in the Southern Highlands Province ('SHP'), had built 15 houses for their personnel to reside in.

2. On the 28 September 1999, the ADF, on completion of its project in the Southern Highlands, by a Deed of Grant of the same date, "returned the land to the Independent State of Papua New Guinea through its statutory agent the National Housing Corporation ('NHC') and " . . . assigned the Property to the National Housing Corporation by way of grant".

3. The Land(s) in question are:

• Section 4 Lot 9 Sappers Road Mendi

• Section 4 Lot 1 Sappers Road Mendi

• Section 4 Lot 10 Sappers Road Mendi

• Section 24 Lot 22 Military Road Mendi

• Section 4 Lot 5 Sappers Road Mendi

• Section 24 Lot 2 Military Road Mendi

• Section 4 Lot 3 Military Road Mendi

• Section 24 Lot 9 Military Road Mendi

• Section 24 Lot 1 Military Road Mendi

• Section 24 Lot 3 Military Road Mendi

• Section 24 Lot 5 Military Road Mendi

• Section 24 Lot 13 Military Road Mendi

• Section 24 Lot 2 Military Road Mendi

• Section 4 Lot 2 Suppers Road Mendi

• Section 24 Lot 15 Military Road Mendi

On 2 December 1999, the Defendant executed Memorandum of Understanding with the Susumba Association where it agreed to sell the association four (4) of the houses located on the Susumba customary land.

On 16 February 2001, the Defendant executed another Memorandum of Understanding with the Murumbu Association where it agreed to sell three (3) of the six (6) houses located on the...