International Education Agency of Papua New Guinea Limited t/a Mount Hagen International School v Francis Kulunga (2010) N3991

• Jurisdiction: Papua New Guinea
• Date: 09 April 2010
• Citation: (2010) N3991
• Docket Number: OS NO 60 OF 2010
• Court: National Court
• Year: 2010

Full Title: OS NO 60 OF 2010; International Education Agency of Papua New Guinea Limited t/a Mount Hagen International School v Francis Kulunga (2010) N3991

National Court: Makail, J

Judgment Delivered: 9 April 2010

INJUNCTIONS - Interlocutory injunctions - Grant of - Extension of - Principles of.

REAL PROPERTY - State lease - Title - Indefeasibility - Fraud - Actual and constructive - Effect of - Land Registration Act, Ch 191 - s33.

PRACTICE & PROCEDURE - Parties - Wrong party - Joinder of parties - Amendment of originating summons - Additional reliefs - National Court Rules - O5, r8(1)(b) & O9, r50(1).

Cases cited:

Rosemary John -v- James Nomenda & Ors: WS No 1818 of 2005 & OS No 446 of 2005 (Consolidated) (Unnumbered & Unreported Judgment of 18th January 2010); Mudge v Secretary for Lands [1985] PNGLR 387; Emas Estate Development Pty Ltd v John Mea [1993] PNGLR 215; Steamships Trading Co Ltd v Garamut Enterprises Ltd (2000) N1959; The Papua Club Inc v Nusaum Holdings Ltd (No 2) (2004) N2603; Hi Lift Co Pty Ltd v Miri Setae (2000] PNGLR 80; Ramu Nickel Ltd v The Honourable Dr Puka Temu (2007) N3252; Elizabeth Kanari v Augustine Wiakar (2009) N3589; Koitachi Ltd v Walter Schnaubelt (2007) SC870; Paul Tohian v Tau Liu (1998) SC566; Kamapu Minato v Philip Kumo (1998) N1768; John Bokin v The State (2001) N2111

INTERLOCUTORY RULING

09th April, 2010

1. MAKAIL, J: There are two applications before me for decision. They are:

1. The plaintiff’s application by amended notice of motion filed on 4th March 2010 for joinder of parties and leave to amend the originating summons to seek additional reliefs pursuant to O5, r8(1)(b) and O9, r50(1) of the National Court Rules respectively; and

2. The defendant’s application by notice of motion filed on 09th March 2010 to dismiss the proceeding for not disclosing a reasonable cause of action, frivolous and vexatious and an abuse of process pursuant to O12, r40(1)(a)-(c) of the National Court Rules or alternatively to set aside an ex-parte interim injunction of 22nd February 2010 pursuant to O12, r8 of the National Court Rules.

2. This two applications arose from a dispute between the plaintiff and the defendant over a land described as allotment 5, section 29, registered as a State lease in Volume 15, Folio 157. The grant of title was made to the defendant by the State through a delegate of the Minister for Lands and Physical Planning on 30th October 2009. The land is located adjacent to where the plaintiff’s international school is currently located in the town of Mt Hagen. The plaintiff claimed that it applied to the Minister for Lands and Physical Planning for the grant of title to the land. The defendant also claimed that JK Wills Limited, a company in which he is the managing director is the registered proprietor and had every right to enter and deal with the land. As a result of the dispute, the plaintiff obtained an ex-parte interim injunction on 22nd February 2010 to restrain the defendant from entering and dealing with the land until the dispute is determined by the Court.

3. In the originating summons filed on 19th February 2010, the plaintiff sought a single relief in a form of a declaratory order that the defendant is not the legal title holder of the land. In the proposed amended originating summons, marked as annexure “CL” to the affidavit in support of Clement Luis sworn and filed on 01st March 2010, it is noted that the plaintiff had sought five additional reliefs in the following:

1. A declaration that the plaintiff had acquired an equitable interest to the land;

2. A declaration that the conduct of the Registrar of Titles in issuing title for the land in the name of the defendant is unlawful;

3. A declaration that the conduct of the Minister for Lands and Physical Planning in approving the grant of title to the land to the defendant is unlawful;

4. A declaration that the conduct of the Minister for Department of Lands and Physical Planning and the State in preparing and issuing the State lease for the land to the defendant is unlawful; and

5. A declaration that the title issue to the defendant in respect of the land be declared null and void and stands cancelled.

4. I heard both applications on 1st April 2010. In relation to the defendant’s application, the defendant relied on three grounds to dismiss the proceeding. First, the defendant is not the correct or proper party to be sued in this proceeding because he is not the registered proprietor of the State lease. The registered proprietor is a company known as JK Wills Limited and according to section 17 of the Companies Act, 1997, JK Wills Limited has the capacity to sue and be sued in its own name and style. The plaintiff therefore, had wrongly sued the defendant. Secondly, JK Wills Limited as the registered proprietor of the State lease had an indefeasible title pursuant to section 33 of the Land...