WPCC Investments Ltd v Yagam [2007] PGDC 118; DC650 (9 August 2007)

DC650

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN IT’S CIVIL JURISDICTION]

DCCi 170 Of 2007

BETWEEN

WPCC INVESTMENTS LTD
Complainant

AND

DAVID YAGAM and his Family, Agents, Associates,
Wantoks, Servants, Clan and Person(s)
First Defendants

AND

THOMAS TAL and his Family, Agents, Associates,
Wantoks, Servants, Clan and other Person(s)
Second Defendants

AND

NATIONAL HOUSING CORPORATION
Third Defendant

Madang: M Selefkariu
2007 : August 09

CIVIL - Complaint for ejectment pursuant to Section 6 of Summary Ejectment Act.

Summary Ejectment Act
s6 – where a person without right, title or licence is in possession
of premises, the owner makes a complaint to Court to recover
possession of the premises and where the person summoned appears and does not show reasonable cause why possession of the premises should not be given, the Court may, on proof of the complaint, issue a warrant directed to a member of the Police Force requiring him, on or before a date specified in the warrant to enter, by force with assistants if necessary and give possession of the premises to the complainant.

District Courts Act
s. 21(4)(f) – District Court has no jurisdiction when the title to land is bona fide in dispute.

Cases Cited
Herman Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74.

Legislation
1. Summary Ejectment Act, ch. 202 District Courts Act, ch. 40.
2. Physical Planning Act 1989.
3. Land Act 1996.

9th August 2007

M Selefkariu: This is a complaint made pursuant to s 6 of Summary Ejectment Act. The complainant alleges that the first and second defendants are in possession of the premises situated at Section 8 Allotment 12, Madang, without rights, title or licence.

1. The complainant claims legal title over the premises and gave particulars of its title as follows:-

(i) The property a State Lease Volume 5 Folio 99, Allotment 12, Section 8, Madang, Area 0.963 Ha, Madang.

(ii) No. N.0832 Transfer Alois Kingsley of Madang, businessman.

Produced 21/08/2001, at 11.06am. entered. 21/08/2001.

(iii) No. S.12326 Transfer to WPCC Investments Ltd.

Produced 02/05/2006 at 9.04am. entered 03/05/2006.

(iv) No. N – 12598 Mortgage to Westpac Bank PNG Ltd.

Produced 05/08/2006 at 9.06am. entered 08/09/2006.

2. In view of the above facts the complainant through its lawyers issued a Notice to Vacate the property on 27 March 2007 giving the defendants 14 days to vacate. The notice expired on the 14 April 2007 and defendants refused, neglected or fail to vacate the premises.

The complainant alleged the defendants failed to produce any valid title or licences or claim any rights to remain on the premises. The complainant now claims:-

(i) Possession of Section 8, Allotment 12 and all improvement thereon.

(ii) That a warrant be issued and directed to members of the Police Force requiring them to enter the premises by force, if necessary and give possession of the premises to the complainant.

(iii) The general damages against the third defendant and exemplary damages for illegally doing business on this land.

(iv) The cost of this proceedings.

3. On 29th May 2007, some twelve days after the laying of complaint, the first and second defendants through their lawyers OKUK Lawyers filed their defence. In their defence the following were alleged:-

(a) The property described as State Lease Volume 5 Folio 99, Allotment 12 Section 8 Madang no longer exist in that by Land Board Decision dated 21 February 2002 the third defendant was granted permission to sub-divide the above land into smaller allotments.

(b) The person who sold the property to the complainant failed to appeal the Board’s decision within the three (3) months stipulated under the Physical Planning Act and as such that time has now expired.

(c) The complainant’s only recourse is against the person who sold it the property in that the complainant was sold a property that did not exist as it had already been approved for subdivision plans.

4. For the above reasons the first and second defendants deny the complainant’s claim in its entirely and requested for it to be dismissed with cost to the defendants.

5. On 1 June 2007, the complainant replied to the first and second defendants defence stating that the property a State Lease was transferred from the third defendant to Alois Kingsley at 11.06am on 21/08/2001.

The Land Board decision dated 21 February 2002 in favour of the third defendant who no longer owns the property is invalid and void.

6. Following this the complainant filed an additional document entitled "Facts and Isssues". In this document lawyers for complainant isolated the agreed facts and facts in dispute. The fact in dispute is: The Land Board decision made on 21 February 2002 to grant permission to the third defendant (i.e. National Housing Corporation) to sub-divide Section 8 Allotment 12 into smaller allotments nullifies the existence of State Lease Volume 5 Folio 99 made to Alois Kingsley and then to WPCC Investments Ltd. The same document identifies the following legal issues:

(i) Where the third defendant who is not the lessee of the State Lease Volume 5 Folio 99 of Section 8 Allotment 12 can apply for a sub-division of the property under Section 130 of Land Act?

(ii). Whether the Land Board has the authority pursuant to Section 130 of Land Act to approve sub-division of the State lease?

(iii) Should the Land Board has authority to approve sub-division of Volume 5 Folio 99 whether such approval nullifies the existence of State Lease made to Alois Kingsley and then to the WPCC Investments Ltd, complainant?

(iv) If so, does that create a dispute over the existing title of the State lease, Volume 5 Folio 99 of Section 8 Allotment 12?

(v) Does the District Court have jurisdiction to hear the complaint under Section 6 of Summary Ejectment Act, pursuant to Section 21(4)(f) of District Courts Act?

7. The complainant in support of its complaint relied upon the affidavits evidence of David Chan and Young Wadau both sworn on 4 June and filed on 25 June 2007 respectively. In the evidence of David Chan he deposed to the following facts:-

(i) That annexure "A" contains documents of the State Lease made to the complainant company. Annexure "B" is the certificate of incorporation of the complainant company.

(ii) That the property Volume 5 Folio 99 of Section 8 Allotment 12 was originally owned by National Housing Corporation and was transferred to Alois Kingsley on 21 August 2001.

(iii) That the complainant bought this property from Alois Kingsley and was transferred to it on 2 May 2006. That the complainant entered into Mortgage Agreement with Westpac Bank on 5 August 2006 and borrowed K500,000.00 to develop the property. The Bank charges interest on the mortgage at the rate of K6,000.00 per month.

(iv) That the complainant, company could not develop this property by building houses and renovating the current houses because the first and second defendants and their families are living on the property.

(v) That the delay to develop this property has caused financial burden to the complainant, company and is not earning any money at all to service the mortgage loan repayment.

(vi) That the property no longer belongs to National Housing Corporation; the third defendant.

(vi) That prior to the sale and transfer of the property to the complainant, company Rageau Manua & Kikira Lawyers had conducted search of the title search at the Lands Department and the title was good and the complainant proceeded with the sale then.

8. In relation to the affidavit of Young Wadau of Young Wadau lawyers he deposed to the following:

(i) That on 27 March 2007 he personally served Notice to Vacate to David Yagam, Thomas Tal and Nori Korua at Section 8 Allotment 12 at Kalibobo, giving them fourteen (14) days to vacate the premises. The notice expired on 14 April 2007.

(ii) That at the time of the service of the Notice to Vacate, Mr. D. Yagam took out his files and explained to Mr. Y. Wadau the proposed sub-division of the property and revealed certain documents and letters. Mr. Yagam also said he was aware of the transfer of the property being made to Alois Kingsley.

(iii) That Mr. Wadau informed Mr. Yagam to immediately seek legal assistance from a lawyer to contact Mr. Wadau so that they could negotiate the matters. Mr. Wadau told Mr. Yagam that his client, the complainant has a valid State Lease over the property and that Mr. Yagam’s claim must be investigated between the National Housing Corporation and the Lands Department.

(iv) That Mr. Wadau claimed that Mr. Yagam did not produce to him any lease document or title over the property.

(v) That Mr. Wadau stated that Mr. Yagam, National Housing Corporation or Lands Department has no power or authority to remain on the property.

9. In relation to the first and second defendants case they did not give evidence nor call any evidence to substantiate their proposed defence filed on 29 May 2007. Such that they have not put any evidence of their titles, licences or any rights of interest in whatever shape, size or form before the Court, notwithstanding the allegation of sub-division of the property as alleged in the evidence of Mr. Y. Wadau.

10. As on record the complainant deposed that the third defendant was served with all the processes but to date they made no appearance before Court nor did they file any notice of intention to defend or even any statement of defence. Such that like the first and second defendants they have failed to put any shred of evidence before Court showing their rights, titles or licences over the said property.

11. Based on the proposed defence by the first and second defendants there could have been an alleged dispute over the title to the property. But after the close of evidence no such dispute presence itself as the defendants have not provided direct evidence to support this allegation. Such that this Court has the jurisdiction to hear the complaint pursuant to section 6 of Summary Ejectment Act as there is no dispute on the title produced to Court by the complainant.

LAW

12. Section 6 of Summary Ejectment Act says:-

"Where a person without right, title or licence is in possession of premises, the owner makes a complaint to Court to recover possession of the premises and where the person summoned appears and does not show reasonable cause why possession of the premises should not be given, the Court may, on proof of the complaint, issue a warrant directed to a member of the Police Force requiring him; on or before a date specified in the warrant to enter, by force with assistants if necessary and give possession of the premises to the complainant" (emphasis mine)

13. According to evidence the property is a State Lease and described as Volume 5 Folio 99 of Section 8 Allotment 12. The property was sold to a businessman Alois Kingsley on 21 August 2001. Then on 2 May 2006 Alois Kingsley sold it to the complainant, company who has a valid lease title over the property for 99 years. The complainant, company mortgaged the title to Westpac Bank PNG Ltd on 5 August 2006 as security against a loan of K500, 000.00. The loan was intended to develop the property.

14. Currently the first and second defendants and their families are occupying the two houses on the property. Since the defendants have not put any evidence before Court one cannot safely say as to how the defendants came by their occupation and possession of the property.

15. I think the defendants failed to understand that the law requires them to show reasonable cause as to why possession of the premises they are occupying should not be given to the complainant.

16. I find that the defendants have failed miserably to do just that. In their proposed defence they appear to submit that the State Lease title given to the complainant could be void as in accordance with the provisions of the Physical Planning Act. If this was correct it would be a technical defence.

17. But what is wrong with this argument is that there again is no evidence from the Land Board or the Lands Department or the National Housing Corporation to prove that allegation. Furthermore the allegation that the complainant must appeal the decision of the Land Board within the three (3) months of the statutory requirement had not be followed through and substantiated by proof of evidence. I have had the benefit of reading the legislation but could not find the correct provision.

18. The other thing that is lacking is that the defendants even failed to file any written submissions to argue their case. All these compounded to what is a futile case on their part. In the submissions of the complainant company it submits that such cases are by law intended to provide quick remedy to the party who has a clear title over the land or real property the subject of the proceedings: Herman Gawi v. PNG Ready Mixed Concrete Pty Ltd (supra).

19. This case law is a leading precedent for this type of proceedings. According to the minutes of proceedings and the documents purporting to the services of the processes and the other necessary evidence, there can not be any doubt in the mind of Court that the defendants were given every reasonable opportunity to put their case before this Court. They did not use the opportunity to any of their advantages and cannot reasonably claim any miscarriage of justice in that sense.

20. In the complainant’s claim it asked for -

(a) Possession of Section 8 Allotment 12 and all improvement

thereon

(b) That the warrant be directed to a member of the Police Force requiring him to enter by force with assistants if necessary and give possession of the premises to the complainant.

(c) The general damages against the third defendant and exemplary damages for illegally doing business on the land.

(d) Cost of this proceedings.

21. In relation to the claim under (c) above I find that there is no evidence to award general damages as the complainant, company has failed to prove to court that the third defendant was illegally conducting business on the premises. Such that the further claim for exemplary damages must also fail.

22. I received from the complainant’s submissions that application for sub-division of any State Lease is governed by s 130 of the Land Act 1996. A conditional requirement to such an application is that only the Lessee can apply to the Minister for approval to subdivision. The purported Land Board decision of 21 February 2002 as contained in the first and second defendants proposed defence appears contrary to the statutory requirement and worse still is not supported with evidence.

23. This proposition appears to be misconceived and do not warrant Court’s time and effort to dwell on. Having considered the complaint and the supporting evidence I find the complainant, company has proved its case to the required standard that is on the balance of probabilities. Thus in relation to the complainant’s claims sought I grant all of them except the claim for general damages and exemplary damages against the third defendant which is refused.

COURT ORDER

24. Accordingly this Court orders that the defendants, their families, agents, associates, wantoks, servants, clan and any other persons vacate the premises at the property described as Volume 5 Folio 99 at Section 8 Allotment 12 within 30 days from today.

25. And where necessary a warrant be issued on the thirtieth (30th) day to the Madang Police Station Commander and his delegate to enter and use reasonable force if necessary and give possession of the said premises to the complainant.

Defendants pay complainant’s cost.

For the complainant - Mr. Y. Wadau of Young Wadau Lawyers Mr. B.
For the First and Second Defendants - Meten of Okuk Lawyers Third
For the Third Defendant - Not present and not legally represented.