Kinawa v Angope [2005] PGDC 107; DC342 (26 September 2005)

DC342

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE ON 2222 OF 2005

BETWEEN

Joseph Kinawa
Complainant

V

Malingi Angope & Ors
Defendant

Port Moresby: Gauli, Sm
2005: September 14th, 26th

Counsel
For The Complainant: Mr. Paul Itau By The Leave Of Court
For the Defendant: Mr. Tau Riuna

REASONS FOR DECISION

GAULI, SM: In this action the Complainant seeks orders for the Defendants to vacate the land to give way for the Complainant to utilize the land described as Portion 2276 at Bomana, National Capital District. The Defendants have refused to vacate the said land the Complainant now seeks orders under Section 6 of the Summary Ejectment Act for eviction.

Brief Facts:

The land described as Portion 2276, Bomana in National Capital District was previously owned by one BENNY TAGILARI. He advertised the said land in the National Newspaper in around June or July 2001 for sale at a price of K60,000.00. The Complainant entered into a Contract of Sale of Land Agreement for the said property with Mr. Benny Tagilari. By that agreement K40,000.00 was paid and a balance of K20,000.00 be paid when the money becomes available, so for a balance of only K14,000.00 still remains to be paid.

The Defendants are the relatives of on Benny Tagilari. Since the Complainant did not have immediate use of the land, he allowed the defendants to remain on the land until the time when he will have the need to utilize the said land. Now that the complainant has a need to utilize the land, he intends to move in but, the defendants are not willing to vacate it, thus this proceedings.

The State Lease Volume 14 Folio 104 showed that the said property Portion 2276 Bomana transferred to BENNY TAGILARI on 27th June 2001 following the death of HAWARI TAGILARI. Then on 27th July 2001 the title was transferred to MR.JOSEPH KINAWA (complainant).

When the parties appeared in court on the 26th September 2005, the defendant filed his defence. However the defence council submitted to the court that:

"We don not dispute the title. Defendant’s only argument is that he was not informed when the title was transferred to the complainant".

The complainants then submitted that if the defendants were not disputing the title, the complainant then seek orders for eviction of the defendants. And the court granted the orders the complainant sought and ordered the defendants to vacate the said property immediately.

The defendants contradicted themselves. In their defence filed they deny every claims made by the complainant. While their council orally submitted that the defendants do not dispute the title at all. In the case of MILLER –V – MINISTER OF PENSIONS [1947] 2ALL E.R. 372, it was held that:

"If the probabilities are equal that is if a tribunal is wholly undecided the party bearing the burden of proof will fail. If the probabilities are equal, it is not probable".

The defendants have two contradictory views. Firstly they dispute the title and secondly they decided not to dispute the title. In applying the MILLER –V- MINISTER OF PENSIONS’ case above, it becomes obvious that the defendants’ probabilities of denial and none denial of the title are equal and so this court finds that there is no probability of denial. The court was satisfied that they have no right or title to be on the property after the complainant had issued them with the notices to vacate the property.

The section 21 (4) (f) of the District Courts Act states that the "Court has no jurisdiction when the title to land is bona fide in dispute" However when the defendants intended that they will not dispute the title, the court is given the jurisdiction to deal with the matter.

Since the defendants were not disputing over the title and that the complainant has the title registered under his own name and that the defendants were still residing on the property, there was no need for the court to hear evidence on whether or not the complainants was in possession of a genuine title; and whether or not the contract of sale was a fraudent contract.

There was also no evidence to show that the defendants have told the court that a CAVEAT had been filed before the CURRATO’S Office that the transfer of title from Benny Tigalari to Joseph Kanawi was fraudulent.

There is no evidence presented to this court that the defendants have resided on the said property for 14 years and established a trade store and raised poultry and pigs.

There is no evidence before this court that the defendants have paid all land fees on behalf of the owner.

The court having so satisfied that the defendants having no rights or title to the property were then ordered to vacate the land forthwith. The defendants were further restrained from getting near to that property.

Dated: 25/10/05