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Kabilali v Tolopa [2022] PGNC 135; N9589 (28 April 2022)

N9589

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1179 OF 2019 (CC1)

BETWEEN:

BENJAMIN STEVEN KABILALI

Plaintiff

AND:

OSWALD TOLOPA, as Acting Secretary for the Department of Lands & Physical Planning

First Defendant

AND:

MARK MENDEAI, as Executive Officer for Komo Magarima District Development Authority

Second Defendant

AND:

WILLIAM BANDO, as Hela Provincial Administrator

Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Waigani: Tamade AJ

2022: 27^th and 28^th April

PRACTICE AND PROCEDURE – application by state seeking orders to dismiss proceedings for disclosing no reasonable cause of action, for being frivolous, and vexatious, and being an abuse of the process of Court as per Order 12 Rule 40 of the National Court Rules – contested application by plaintiff – whether plaintiff does not have standing – whether plaintiff has instituted proceedings without obtaining letters of administration – plaintiff claims he is registered proprietor of the land subject of the dispute - application by the First and Fourth Defendants is dismissed as this is not the clearest of cases for dismissal under the Rules - As to standing, matter should proceed to trial to include the question of whether there are two titles in existence, one registered under the name of the deceased and one under the name of the Plaintiff – costs in favour of the Plaintiff to be met by the first and fourth defendants

Cases Cited:

The following cases are cited in the judgement:

Conlife v Jura Investment Ltd [2021] PGSC 7; SC2069

Patrick v Kimas [2010] PGNC 166; N3913

Pololi v Wyborn [2013] PGNC 318; N5898

Counsel:

Mr. Adam Token, for the Plaintiff

Ms. Pauline Yom, for the First and Fourth Defendants

28^th April, 2022

1. TAMADE AJ: This is a ruling on a Notice of Motion filed on 1 April 2022 by the Office of the Solicitor General representing the First and Fourth Defendant in these proceedings seeking to dismiss these proceedings for disclosing no reasonable cause of action, for being frivolous, and vexatious, and being an abuse of the process of Court based on Order 12 Rule 40 of the National Court Rules.

2. The application is contested by Plaintiff through the Office of the Public Solicitor.

.3. Essentially, the Applicant claims in their application that Plaintiff does not have the standing to institute these proceedings as the title deed to the property the subject of these proceedings was to be transferred to the Plaintiff’s father who is deceased. The Applicants claim that the Plaintiff has wrongly instituted these proceedings in law as he has not obtained Letters of Administration according to the rules of probate over the administration of his late father’s estate and therefore, he cannot institute these proceedings as he has no standing in law to bring such proceedings.

4. A perusal of the Writ of Summons and Statement of Claim filed on 26 September 2019 shows that the Plaintiff claims in paragraph 1 (iii) of the Statement of Claim that he is the registered proprietor of the property described as Allotments 6 and 9, Section 2, Town of Margarima, Southern Highlands Province (now Hela Province).

5. Plaintiff further claims that his late father Mr. Steven Jomona Kabilali had applied for the subject portions of land in 1991 however the land was not transferred to his father until after when his father died. Plaintiff then applied under section 125 of the Land Registration Act and the subject portions of land were transferred and registered to his name.

6. Plaintiff is claiming compensation from the Defendants for structural improvements built on his land by the Defendants for the building of the Margarima District Office when the land was never compulsorily acquired by the State and that the Defendants have trespassed and are illegally squatting on his land.

7. Ms. Yom of the Applicants relies on the Supreme Court case of Conlife v Jura Investment Ltd [2021] PGSC 7; SC2069 (3 February 2021) which states that pursuant to section 44 of the Wills, Probate, and Administration Act,
“no person including a duly appointed executor has the standing to commence legal proceedings on behalf of a deceased estate unless and until there is a grant of probate. The property of a deceased estate is vested in the Public Curator but even that vesting does not give standing to the Public Curator to initiate legal proceedings.”

8. Ms. Yom argues that the property the subject of these proceedings were transferred to the father of the Plaintiff who is deceased and is still registered under the deceased name. Ms. Yom strongly stressed that Plaintiff has not obtained Letters of Administration or probate over the Estate of his late father and therefore he does not have the standing to institute these proceedings.

9. Ms. Token of the Plaintiff argues in defense of the application that pursuant to section 125 of the Land Registration Act, the subject property was transferred to the Plaintiff after the passing of his father through the Lands Department.

10. Section 125 of the Land Registration Act is as follows:

125. TRANSMISSION TO PERSON ENTITLED BY CUSTOM.

Notwithstanding Section 118 or 119, where–

(a) a registered proprietor of an estate, interest, or security dies intestate; and
(b) the estate, interest, or security is transmitted to a person entitled to it by custom,

1. the Registrar shall, on production of a certificate in the approved form signed by the Custodian, register the person so entitled as proprietor of the estate, interest, or security.
   

11. The Plaintiff, therefore, claims that he is the registered proprietor of the land the subject of these proceedings as he was registered as the titleholder after the Lands Department having duly registered him pursuant to a transfer of the property of his late father to him by custom as according to section 125 of the Land Act.

12. When put to Ms. Yom as to whether a party can have an interest in a State Lease or land be transferred to them after the passing of someone by way of custom relying on section 125 of the Land Registration Act, Ms. Yom never directly answered and or provide any submission on section 125 of the Land Registration Act. Ms. Yom adamantly maintains the position that Plaintiff was never granted probate over his late father’s estate and cannot file these proceedings as he does not have legal standing.

13. It appears that Ms. Yom asserts that the title to the subject property still remains in the name of the Plaintiff’s deceased father and the Plaintiff also asserts in the contradiction that he is the registered proprietor of the land the subject of these proceedings having had the land transferred to him from his Late father by custom pursuant to section 125 of the Land Registration Act.

14. These are issues to my mind that should proceed on to trial proper to be properly ventilated by the parties and evidence assessed for the Court to properly arrive at findings of fact and law.

15. The application by the First and Fourth Defendants is dismissed as this is not the clearest of cases for dismissal under Order 12 Rule 40 of the National Court Rules. As to standing, the Plaintiff relies on the registration of the title deed to his name pursuant to section 125 of the Land Registration Act. The matter should proceed to trial to include the question of whether there are two titles in existence, one registered under the name of the deceased and one under the name of the Plaintiff.

16. Plaintiff has asked that if the First and Fourth Defendant’s application is dismissed, Ms. Yom should bear the cost of the application in the sum of K1 000 to be paid to Plaintiff in seven days rather than her clients meeting the costs.

17. Costs is a discretionary matter before the courts. Where a party seeks costs of a punitive nature against a lawyer personally rather than the client, the Court has to exercise discretion whether it is just and fair in the circumstances.

18. Justice Gavara-Nanu in the case of Patrick v Kimas [2010] PGNC 166; N3913 (12 March 2010) considered the issue of costs against a lawyer pursuant to Order 22 Rule 65 of the National Court Rules and amongst other considerations stated that:

“because the reputation of the lawyer is at stake, the Court should exercise its power to award costs only in the clearest of cases.”

19. Justice Derek Hartshorn considered the issue of costs in the case of Pololi v Wyborn [2013] PGNC 318; N5898 (30 July 2013) and stated that:

Reference is also made to the case of PNG Ports Corporation Ltd v. Canopus No 71 Ltd (2010) N4288 in which at paragraph 26, the case of Island Helicopter Services Limited (supra) is considered. In PNG Ports (supra), Kandakasi J noted that Injia DCJ (as he then was) in Islands (supra) as to the practice of asking for costs on a solicitor and client basis against lawyers, held that there must be proper forewarning as noted in the Supreme Court decision in PNG Waterboard v. Gabriel Kama (2005) SC821, and proper pleading by way of a motion clearly asking for such costs and supported by affidavit evidence which clearly identifies the conduct about which there is complaint.”

20. There is no evidence from Mr. Token that he has forewarned Ms. Yom not to pursue her application given his client’s position on section 125 of the Land Registration Act. Mr. Token’s application seems to be a reactive submission on Ms. Yom pursuing her client’s application however he has not done his due diligence to forewarn Ms. Yom and put her on notice that he will ask for costs personally against her and or on a higher scale as punitive in nature.

21. I will therefore decline the order for costs against Ms. Yom personally and exercise my discretion as to costs to be met by the Applicants being the First and Fourth Defendants on a party-party basis to be taxed if not agreed.

22. I, therefore, make the following orders:

1. The Plaintiff’s Notice of Motion filed on 1 April 2022 is dismissed.
2. The First and Fourth Defendants shall meet the Plaintiff’s costs of the application on a party/party basis to be taxed if not agreed.
   

Orders accordingly.

________________________________________________________________

Office of the Public Solicitor: Lawyers for the Plaintiff

Office of the Solicitor General: Lawyers for the First and Fourth Defendants