Steamships Ltd v Leonard Sabadi

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Sawong, J
• Judgment Date: 27 November 2013
• Citation: (2013) N5501
• Judgment Number: N5501
• Year: 2013

Full : WS (Comm) NO. 34 OF 2004; Steamships Limited v Leonard Sabadi and Henry Wasa as Registrar of Titles and Loa Vani Peter (2013) N5501

National Court: Sawong, J

Judgment Delivered: 27 November 2013

N5501

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS (Comm) NO. 34 OF 2004

BETWEEN

STEAMSHIPS LIMITED

Plaintiff

V

LEONARD SABADI

First Defendant

AND

HENRY WASA as REGISTRAR OF TITLES

Second Defendant

AND

LOA VANI PETER

Third Defendant

Lae: Sawong, J.

2013: 07th & 08th, 27th November

PRACTICE & PROCEDURE – Land Law – Special Agriculture and Business Lease – Cancellation of Title by Registrar of Title – Effect of Cancellation – Title no longer in existence – Land becomes customary land –

PRACTICE & PROCEDURE – Land Law – Cancellation of Title by Registrar of Titles – Claim against Registrar of Titles – Claim against State – Claims By & Against State Act 1996

PRACTICE & PROCEDURE – Claims against State –Notice of claim given outside of time prescribed – S.512) Claim By and Against State Act 1996 – Claim against state dismissed – claims against first defendant shows a reasonable cause of action – First defendant admits the plaintiff claim – Claim for specific performance incapable of being performed by First defendant as Title Cancelled. Judgment internal for plaintiff agent first defendant

Facts

The dispute between the parties was over a piece of land located at Burns Peak in the National Capital District. The land was originally customary land. Subsequently the State entered into a lease arrangement with the first defendant who claimed to be the customary owner of that land. Thereafter the State issued a Title Deed over the land to the first defendant. The first defendant then entered into a Contract for the Sale of the land to the plaintiff. The Contract was stamped and approved. In the meantime there had been complaints lodged by the third defendant with the Registrar of Titles. The Registrar of Titles cancelled the Title. As a result the contract between the plaintiff and the first defendant could not be completed.

As a result the plaintiff instituted proceedings by a Writ of Summons against the first defendant and the Registrar of Title as second defendant. The second defendant did not file its defence.

By a Notice of Motion the plaintiff sought default judgment against the second defendant. The second defendant then applied for leave to file a defence out of time. The third defendant applied to dismiss the proceedings as against the second defendant on the basis, inter alia, that the plaintiff had not given a notice to the State pursuant to section 5 of the Claims By and Against the State Act 1996.

Held

1. The plaintiff did not give Section 5 Notice to the State. As such the proceeding against the second defendant cannot be allowed to continue. The claim against the second defendant was dismissed.

2. As the claim against the second defendant was dismissed, the motions by the plaintiff for default judgment against the second defendant was rendered nugatory and was dismissed.

3. The motion by the second defendant for leave to file a defence out of time was also rendered nugatory and was dismissed.

4. Judgment was entered for the plaintiff against the first defendant for damages to be assessed.

5. As the title to the land had been cancelled, the claim by the plaintiff for specific performance by the first defendant could not be granted as it was incapable of performance.

Cases Cited:

John Kami v Dept of Works & The Independent State of PNG (2010) N4144

NCDC v Jim Reima & Balus Sokele & Robame Pisimi (2009) SC 993

Paul Tohian v Tau Liu [1998] SC566

Counsel

M. Goodwin, for the Plaintiff

B. Ovia, for the First Defendant

R. Avuti, for the Second Defendant

T.Yai, for the Third Defendant

RULING

27th November, 2013

1. SAWONG, J.: This is a dispute over a piece or part of a land generally described as Bubue (Portion 2579C, Volume 38, Folio 115, Granville, Port Moresby). This ruling covers four separate Notices of Motions. The motions are as follows:

1) Amended Notice of Motion by the plaintiff seeking default judgment against the second defendant.

2) Notice of motion by the second defendant seeking leave to file its defence out of time.

3) Notice of motion by the third defendant for substitution of the name of the third defendant.

4) Notice of motion by the third defendant to dismiss the entire proceedings.

2. As to the motion by the third defendant for the substitution of the name of the third defendant, this has been consented to by all the parties. An order settling this was made on 7th November 2013.

Background

3. The background to the proceedings are adequately set out in the written submissions of counsel for the plaintiff, the first defendant and third defendant. I adopt these with necessary modifications for the purposes of this ruling.

4. Prior to 11th November 2009, the land the subject of the current proceedings was customary land.

5. On that date (11 November 2009) a lease agreement was entered into between the State and the first defendant for the State to lease this land pursuant to the provisions of the Land Act.

6. Subsequently on 5th February 2010, a Special Agricultural and Business Lease Title was issued to the first defendant.

7. Following this, complaints and representations were made by the third defendant and his clan members to the Registrar of Titles, alleging fraud and other irregularities and urging him to cancel the Title.

8. On October 2010 the Registrar of Titles cancelled the Title Deed.

9. On or about 15 November 2010, the plaintiff and the first defendant entered a Contract for the sale of the land.

10. On 23rd November 2010, the Registrar of Titles entered the cancellation of the Title Deed on the Register.

11. On 25 November 2010 the Contract for Sale of land and the Transfer Instrument were duly approved by a delegate of the Minister for Lands.

12. After the said approvals were given, the parties to the agreement could not settle because the first defendant could not deliver the Title on settlement.

13. On 23 January 2012, the plaintiff instituted proceedings WS (Comm) No. 34 of 2012 by filing a Writ of Summons and a Statement of Claim.

14. On 24 January 2012, a sealed copy of the Writ of Summons and statement of claim, were served on second defendant at the Office of Solicitor General.

15. On 20 January 2012, the lawyers for the plaintiff served a notice of claim on the Solicitor General.

Course to Take

16. There are three applications to consider. Having heard the submissions and having read the various affidavit evidence relied on by each of the parties, I propose to deal with the application by the third defendant to dismiss the proceedings first. I do so, because if that application is accepted, then it would be unnecessary to consider the applications by the plaintiff and the second defendant.

Application by the third defendant to dismiss

17. By an amended notice of motion dated 28th August 2012 and filed 29th August 2012 the third defendant seeks the following orders:

a) Pursuant to Order 12, Rule 40 (1) (c) of the National Court Rules (NCR), the entire proceedings be dismissed for abuse of Court process.

b) Alternatively, pursuant to Order 8, Rule 27 (1) (a) & (c) of the NCR, the entire proceedings be struck out for disclosing no reasonable cause of action.

c) The entire proceedings be dismissed for not complying with section 5(2) of the Claims By and Against the State Act, 1996 (the Act).

d) Cost of the Applications.

18. In support of this application, the applicant relies on the affidavit of Loa Vani Peter sworn on 9th July 2012 and filed 10 July 2012, and the affidavit of Loa Vani Peter sworn and filed on 19th April 2013.

19. The application is supported by the second defendant.

20. The plaintiff and the first defendant oppose the application. They too rely on a number of affidavits.

21. All parties have filed written submissions and made oral submissions in respect of this particular application. I have read and considered carefully the evidence and the submissions regarding this application.

22. The submissions raise a number of issues to resolve. In my view these are:

a) Whether the entire proceedings should be dismissed for non-compliance with section 5 of the Claims By and Against the State Act. (the Act)

b) Whether the entire proceedings should be dismissed for abuse of Court process under Order 12, Rule 40 (1) (c) of the NCR.

c) Whether the entire proceedings should be dismissed for disclosing no...