George Panao v Anna Nawara Panao (2020) N8280

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 14 April 2020
• Court: National Court
• Citation: (2020) N8280
• Docket Number: OS No 279 of 2016
• Year: 2020
• Judgement Number: N8280

Full Title: OS No 279 of 2016; George Panao v Anna Nawara Panao (2020) N8280

National Court: David, J

Judgment Delivered: 14 April 2020

N8280

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS No.279 of 2016

BETWEEN:

GEORGE PANAO

Plaintiff

AND:

ANNA NAWARA PANAO

Defendant

Waigani: David, J

2020 : 14 April

CIVIL PRACTICE AND PROCEDURE – application for orders for eviction, injunction, interim custody of contemnor and amendment of statement of charge by plaintiff – contempt proceedings commenced by originating summons – substantive relief be confined to punishment for alleged contempt – no consequential or other relief should be claimed in originating summons.

CIVIL PRACTICE AND PROCEDURE - applications to adjourn contempt proceedings sine die pending hearing of related substantive proceedings and dismissal of proceedings by contemnor.

PNG cases cited:

Andrew Kwimberi v The State (1998) SC545

Eremas Wartoto v The State (2015) SC1411

Geoffrey R.E Vaki, v Gari L Baki (2014) N5612

Jamie Maxton-Graham v Honourable William Tongamp (2013) N5384

Kalip Salo v Peter Terry Gerari (2005) N2923

Lerro v Stagg (2006) N3050

Madang Cocoa Growers Export Co Ltd v Noilai Gunar (2013) N4956

Mathew Damaru v Geoffrey Vaki (2015) N6858

Michael Kewa v Elias Mai Kombo (2004) N2688

Philip Takori v Simon Yagari (2008) SC905

Rage Augerea v The Bank South Pacific Ltd (2007) SC869

Robinson v The State (1986) PNGLR 307

The Papua Club Inc v Nusaum Holdings Ltd (2002) N2273

Treatise cited:

Injia et al, Papua New Guinea, Civil Procedure in the National Court, Colorcraft Ltd, Hongkong, 2016

Counsel:

Lionel Manua, for the Plaintiff

Anthony Donigi, for the Defendant

JUDGMENT

14 April 2020

1. DAVID, J: INTRODUCTION; This is my ruling on two contested motions. One is moved by the plaintiff pursuant to an amended notice of motion filed on 7 June 2019. The other is moved by the defendant pursuant to a notice of motion filed on 11 June 2019.

2. The plaintiff seeks, among others, the following relief:

1. Pursuant to Order 14 Rule 10 and or Order 12 Rule 1 of the National Court Rules or Section 155(4) of the Constitution and inherent discretion of the Court, the defendant and/or the defendant’s servant(s) and/or agent(s) and/or associate(s) be evicted from the properties described as Section 42, Allotment 27 Boroko, Coronation of Angau Drive and Meara Place, National Capital District and Section 79 Allotment 33 Boroko (Korobosea), Moonbi Street, National Capital District and she be further restrained from entering or occupying or dealing with these properties pending the determination of this proceeding or further other order of the Court discharging the injunction.

2. Pursuant to Order 14 Rule 10(1) and/or (2) and/or Order 12 Rule 1 of the National Court Rules or Section 155(4) of the Constitution and/or inherent discretion of the Court, the Police Station Commander of Boroko Police Station and/or a member or members of Royal Papua New Guinea Constabulary at Boroko Police Station shall with or without assistance of the plaintiff and/or Century 21 Siule Real Estate enter and evict the defendant or her servant(s), agent(s) or associate(s) from the properties described as Section 42 Allotment 27 Boroko, Coronation of Angau Drive and Meara Place and Section 79 Allotment 33 Boroko (Korobosea) Moonbi Street, National Capital District and hand over these properties to Century 21 Siule Real Estate in accordance with the Court order of 4 December 2015 and Court order of 17 February 2016.

3. Further and/or in the alternative, pursuant to Order 14 Rule 40 of the National Court Rules, the defendant be kept in custody pending the determination of this proceeding.

4. Pursuant to Order 8 Rule 50(1) of the National Court Rules, the plaintiff be given leave to amend the Statement of Charge filed on the 16 day of May 2016 by adding these additional paragraphs commencing from paragraph number 26 to 28 as follows:

“26. Since the filing of this proceeding on the 16 March 2016, the defendant failed to comply with all the terms of the Court orders of 14 December 2015 and 17 February 2016 except handing over the property described as Section 42 Allotment 27 Boroko, Coronation of Angau Drive/Meara Place, National Capital District to Century 21 Siule Real Estate in April 2016.

27. On the 21 January 2019 or thereabout, the defendant forcefully and deliberately entered the property, Section 42 Allotment 27 Boroko, Coronation of Angau Drive/Meara Place, National Capital District and changed locks to the property and took possession control and/or management of the property from Century 21 Siule Real Estate and had breached the Court order of 4 December 2015 and 17 February 2016.

28. At all material times to date, the defendant had breached the Court orders of 4 December 2015 and 17 February 2016 and continue to do so and remains defiant of the Court orders of 4 December 2015 and/or 17 February 2016.” (sic)

3. The evidence relied on and read by the plaintiff to support his application and to respond to the defendant’s application is contained in his affidavits sworn on 11 May 2016 and filed on 16 May 2016 (plaintiff’s First Affidavit) and the other sworn on 14 February 2019 and filed on 6 March 2019 (plaintiff’s Supplementary Affidavit).

4. The defendant seeks, among others, the following relief:

1. Leave be granted to the defendant applicant to move her motion pursuant to Section 155(4) of the Constitution and Order 8 Rule 2(1)(a) and (b) to adjourn the notice of motion regarding contempt until the substantive matter is completed in WS 1013 of 2015 because it was filed first in time and it must be heard first in time as against the first and second defendants proceeding in OS No.279 of 2016 which is filed second in time and if determined therein it will do injustice to the defendant in this multiple proceedings concerning the same subject matter (BSP Loan).

2. An order confirming the defendant is a joint owner of all the four (4) properties in the mortgage loan against the second defendant and therein she cannot be in contempt of Court regarding the same and joint ownership rights in the same properties which is a matter yet to be deliberated on by this Honourable Court in WS 1013 of 2015.

3. The whole proceedings be dismissed for abuse of Court’s process pursuant to Order 12 Rule 40(1)(c) of the National Court Rules because:

(1) All the issues raised in these proceeding, OS No.279 of 2016, George Panao v Anna Nawara Panao have been settled in Court orders dated the 11th December 2018 in WS 1013 of 2015 between Anna Nawara Panao being the first defendant/first cross-claimant.

(2) The current proceeding OS No.279 of 2016, George Panao v Anna Nawara Panao is all to do with the same properties and therefore is barred by the doctrine of res judicata and is a multiplicity of same proceedings by the same plaintiff and same first defendant.

4. Alternatively, the contempt proceedings against the defendant be dismissed because it has no utility even if the pleadings are proven it cannot succeed based on the married women’s property rights in the same property by law making this proceeding, frivolous and vexatious pursuant to Order 8 Rule 27(1) and Order 12 Rule 40(1) of the National Court Rules. (sic)

5. The evidence relied on and read by the defendant to support her application and to respond to the plaintiff’s application is contained in her affidavit sworn and filed on 11 June 2019.

BRIEF FACTS AND BACKGROUND

6. The brief background of these proceedings is this.

1. Between 2001 and August 2011, prior to a multiplicity of proceedings filed by the plaintiff and the defendant against each of them and Bank of South Pacific Limited in relation to properties they jointly owned, the parties were married and cohabited.

2. The parties are joint owners of two properties described as Section 42 Allotment 27 Boroko, Coronation of Angau Drive and Meara Place, National Capital District (Boroko Property) and Section 79 Allotment 33 Boroko (Korobosea) Moonbi Street, National Capital District (Korobosea Property).

3. A dispute arose between the parties as to the management, control and possession of the properties and repayment of loans exceeding K2 million obtained from the Bank of South Pacific Limited secured by registered mortgages over the properties.

4. Several proceedings have been filed by the parties arising from the dispute against each other and Bank of South Pacific Limited and they include:

(a) OS No.726 of 2012, George Panao v Anna Nawara Panao filed on 6 December 2012;

(b) OS No.437 of 2014 (CC3), Anna Panao v Bank of South Pacific Limited & George Panao filed on 26 June 2014;

(c) WS No.1013 of 2015, Anna Panao & Mileplus Investments Limited v George Panao & Bank South Pacific Limited;

(d) OS No.565 of 2015 (CC2), George Panao v Anna Nawara Panao filed on 3 September 2015;

(e) SCA No.5 of 2016, Anna Nawara Panao v George Panao filed on 13 January 2016;

(f) OS No.279 of 2016 (CC4), George Panao v Anna Nawara Panao filed on 16 May 2016.

5. On 13 December 2013, the parties in OS No.726 of 2012 executed a Mediated Agreement after undergoing mediation sanctioned by the Court: copy of Mediated...