Michael Keka v Pius Yafaet

• Jurisdiction: Papua New Guinea
• Judge: Collier J, Neill & Liosi JJ
• Judgment Date: 30 May 2018
• Citation: (2018) SC1673
• Court: Supreme Court
• Year: 2018
• Judgement Number: SC1673

Full : SCA 93 of 2017; Michael Keka v Pius Yafaet and National Housing Corporation and Yanjol Apin as the Acting Registrar of Titles, Department of Lands & Physical Planning and ANZ Bank Limited (2018) SC1673

Supreme Court: Collier J, Neill & Liosi JJ

Judgment Delivered: 30 May 2018

SC1673

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 93 OF 2017

BETWEEN:

MICHAEL KEKA

Appellant

AND

PIUS YAFAET

First Respondent

NATIONAL HOUSING CORPORATION

Second Respondent

YANJOL APIN as the Acting Registrar of Titles, Department of Lands & Physical Planning

Third Respondent

ANZ BANK LIMITED

Fourth Respondent

Waigani: Collier J, Neill & Liosi JJ

2018: 2nd & 30th May

PRACTICE AND PROCEDURE – National Housing Corporation – whether s 5 notice under Claims by and against the State Act considered but not decided – need for appellant to identify error of primary Court

PRACTICE AND PROCEDURE – inherent jurisdiction of National Court – discretion and power of National Court to control proceedings – ability of National Court to dismiss claims on its own motion

Facts

Appellant claimed fraud when title to property was transferred from Second Respondent and title registered to First Respondent – Fourth Respondent claimed innocent third party and indefeasible title pursuant to section 33(1)(a) Land Registration Act – primary judge considered whether section 5 notice under Claims by and against the State Act required and dismissed proceeding.

Held

1. The appeal is dismissed.

2. Each party bear its own costs of and incidental to appeal

Cases Cited:

Albert Areng v Babia & NHC (2005) N2895

Chefs Secret Limited v National Capital District Commission [2011] N4217

Karl Paul v Aruai Kispe and 2 Ors (2001) N2085

Kilebo Sigo Mamae & Ors v NHC, OS 844/2015

Mineral Resources Development Authority v Matthew Sisimolu [2010] SC 1090

Mt Hagen Urban LLG v NHC, WS 1194/2002

Naomi Vicky Jones v NHC (2005) N2770

National Capital District Commission v Jim Reima (2009) SC993

Paul Pawaiya & Ors v NHC, OS 429/2006

Paul & Mary Bal v Kenny Taiya (2003) N2481

Paul Tohian v Tau Liu (1998) SC 566

Philip Num v NHC, OS 115/2003

PNG University of Technology v Plumtrade (2012) SC1209

PNG Power v Augerea (2013) SC1245

Public Curator of PNG v Kara (2014) SC 1420

Reservation Pursuant to Section 15 of the Supreme Court Act [2001] SC672

Counsel

Mr J Kumura, for the Appellant

Mrs Noki, for the Fourth Respondent

No appearance for other Respondents

REASONS FOR JUDGMENT

30th May, 2018

1. BY THE COURT: INTRODUCTION: On 24 May 2017, the appellant’s entire proceeding was dismissed by the National Court for want of service of notice (s 5 Notice) pursuant to s 5(1) of the Claims by and against the State Act 1996 (Claims Act). At the time that judgment was given, there were two applications before the Court, being:

· the fourth respondent’s notice of motion dated 9 February 2017 seeking a dismissal of the proceeding pursuant to Order 12 Rule 40(1) of the National Court Rules and for judgment on its cross-claim pursuant to Order 12 Rules 1 and 30 of the National Court Rules, and

· the appellant’s notice of motion dated 15 March 2017 seeking leave to file an amended statement of claim pursuant to Order 8 Rule 50(1) of the National Court Rules.

2. Neither motion related to the absence of a s 5 Notice, but the issue was raised by the primary Judge on her own motion during the hearing, and the appellant’s proceeding dismissed on that basis.

3. The primary Judge also entered judgment for the fourth respondent in its cross-claim against the appellant, which her Honour considered continued despite the appellant’s proceeding being dismissed for lack of notice. The primary Judge held that the fourth respondent was entitled to judgment against the appellant, even though the entire claim was dismissed for lack of notice, as the cross claim was separate from the appellant’s proceeding and the appellant admitted default in filing a defence to the cross claim.

4. The appellant is appealing against the whole of the judgment given by the National Court.

BACKGROUND

The appellant’s claim in the National Court

5. The appellant issued a writ of summons against the respondents on 18 November 2016. At that time the appellant was occupying and living in a property described as State Lease Section 359 Allotment 07 Hohola NCD (the Property). He had been doing so for 38 years. The Property was owned by the National Housing Corporation (the NHC), the second respondent, and was identified under the Low Cost Give Away Scheme. The Property was listed in the National Gazette No G23 of 5 February 2002 as item 1503. Mr Giwayim Guom was listed as the “Tenant” and “Approved Transferee”.

6. The National Housing Corporation Act 1990 (the NHC Act) in s 3(a) provides for the second respondent to declare a person to be eligible for assistance under Part IV of the NHC Act by reasons of their “limited means”. Section 38(d) (which is under Part IV of the NHC Act) provides that where a tenancy agreement has been in force for two years, the NHC may offer the property to the tenant or his “next of kin”. Section 65 of the NHC Act makes void a purported sale of a NHC property without the consent of the NHC.

7. The appellant states that he is the son of the Tenant, Mr Guom. Mr Guom died and the appellant, who claimed that he was his father’s next of kin, had assumed that the Property formed part of the deceased estate and passed to him.

8. The first respondent was the appellant’s brother-in-law and was also living in the Property. In 2010, Ms Julie Guom, the appellant’s sister and the first respondent’s wife, died. In approximately November 2011 the first respondent claimed that he had title to the Property and sought to evict the appellant and the appellant’s family from the Property by commencing proceedings under the Summary Ejectment Act in the Port Moresby District Court. That proceeding is still pending.

9. When the appellant made enquiries with the second respondent, the appellant discovered that the first respondent had transferred the Property into the first respondent’s name. The first respondent cannot now be located.

10. The appellant alleged in his statement of claim that the first respondent had obtained the property by fraud and that the second respondent had failed to discharge its statutory duties pursuant to the NHC Act by failing to make necessary enquiries and follow relevant and proper procedures.

11. Between 2012 and 2015, the fourth respondent sent numerous “Notices to Vacate” to the appellant. After making enquiries, the appellant found that the first respondent had transferred the Property to Ms Jacinta Kasse, who in turn mortgaged the Property to the fourth respondent, ANZ Bank. Ms Kasse had defaulted on the loan repayments and the fourth respondent sought to take possession of the Property. The appellant alleged that the first and fourth respondents engaged the police to attend the Property and to harass and threatened to evict the appellant.

12. The fourth respondent exercised its power of sale under the mortgage and sold the property. That sale was the trigger for proceedings to evict the appellant from the property. The fourth respondent pleads that it had no knowledge of the fraud pleaded by the appellant in the way that the first respondent acquired title to the property.

13. At the trial the appellant’s counsel urged the National Court to accept the appellant’s explanation for the Tenant and the appellant not formalising title promptly. In particular, the appellant explained that he was too young to understand the process of the offer made in 2002 but after the Tenant’s death he called repeatedly on the NHC and was “fobbed off” by NHC personnel.

14. It appears that the first respondent was more successful than the appellant in obtaining title to the Property from the NHC.

15. As a result of these events, the appellant claimed that he suffered loss of the Property, loss of enjoyment of the Property, constant fear and uncertainty over the possibility of eviction, and loss of peace and serenity on the Property. The appellant sought, inter alia, orders that he had a legal interest in the Property and for general damages for his claimed loss.

The fourth respondent’s cross-claim

16. The fourth respondent subsequently filed a cross claim against the appellant on 19 January 2017, claiming that as mortgagee it was entitled to vacant possession of the Property pursuant to the mortgage and to ss 68, 69 and 74(1) of the Land Registration Act. The fourth respondent sought orders that the appellant give vacant...