Lus v Kambu [2007] PGDC 175; DC764 (18 December 2007)

DC764

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE]

DCCi NO 1126 OF 2007

BETWEEN

SIR PITA LUS
COMPLAINANT

AND

MATHINUS KAMBU
FIRST DEFENDANT

AND

JOSEPH OVE
SECOND DEFENDANT

AND

SAMUEL INGGAUER FOR AND ON BEHALF
OF THEMSELVES AND NINE HUNDRED FOURTY FOUR (944) OTHERS
THIRD DEFENDANT

Port Moresby: S GORA

2007: 18 DECEMBER

Cases Cited

Herman Gawi and Others –vs PNG Readymix Concrete Pty Ltd [1984] PNGLR 174

Statutes Cited

Section 6 Summary Ejectment Act Ch 202
Section 145 Lands Act, 1996

Counsel

Kevau (Warner Shand Lawyers) for the Complainant
Kalandi (Parkop Lawyers) for the Defendant

DECISION

GORA. S This is an application by the Complainant against the Defendants seeking orders for eviction of the said Defendants from portions of land described as
Portion 2153, Granville – State Lease vol 2 Folio 83 and
Portion 2152, Granville – State Lease Vol 122 Folio 38

2. The orders sought against the Defendants is made pursuant to s6 of the Summary Ejectment Act.

THE FACTS

3. Defendants numbering up to some 944 people are of West Papua Origin. The two (2) portions of land occupied by them belong to Sir Pita Lus, the Complainant in this proceeding and are situated at 8 mile in the National Capital District.

4. Defendants have been residing on these portions of land for more than fifteen (15) years. Many of their children were born there and is a home to them. Like any other settlers, they have constructed/built houses and other fixtures and planted fruit trees and other crops nearby.

5. The history of how the defendants begant to occupy these portions of land dates back to 1989 when an elderly man from Koiari in the Central Province who claimed to be the customary land owner of the area, where the two portions of land are located, was paid certain fees by the Defendants to occupy the land where they are now residing.

6. In 1991, the Complainant commenced eviction proceedings against the Defendants claiming that these portions of land were State land and that he had already been granted lease/title over the said portions of land.

7. In 1995 the District Court made orders to evict the Defendants from the two (2) portions of land. However a discussion ensued between the Complainant and the Defendants whereby it was agreed that the Defendants will continue to occupy the portions of land until such time the Complainant had the capacity to develop the said portions of land and further that he was able to secure for the Defendants another portion of land for them to settle. The terms of the Agreement were that:

1). Defendants keep possession of the land.

2). No other persons are to come on to the land except people of West Papua Origin.

3). Complainant himself to advise defendants as to when he would want them to give him vacant possession of the land.

4). Complainant to assist Defendants secure another portion of land to re-settle.

8. As a result of this Agreement the Defendants have continued to retain or possess these two portions of land.

9. However in October 2006 the Secretary for Department of Lands issued to the Defendants a "NOTICE TO QUIT" under s145 of the Land Act, 1996.

10. On or about the 7 December 2006, the Defendants filed a National Court proceedings under O.S No. 737 of 2006 against the Secretary for Lands as First Defendant, the Independent State of Papua New Guinea as Second Defendant. The Complainant Sir Pita Lus later sought leave of the court to be joined as a Defendant. Leave was granted and he was joined as Third Defendant to the proceedings.

11. On the 8 December 2006, the National Court granted ex-parte orders restraining the Defendants, their agents, servants or whosoever acting on their behalf from evicting the Plaintiffs (now Defendants in this case) from occupation of properties, portions 2153 and 2152, Milinch of Granville – Four Mill, National Capital District, until further orders of the court.

12. The consequential effect of this ex-parte order was the staying on enforcment of the "Notice to Quit" issued by the Secretary for Lands in October 2006.

13. Subsequently these Restraining Orders of the 8 December 2006, were set aside by the National Court itself, hence "Notice to Quit" once again enforceable for purposes of evicting the Plaintiffs, now Defendants. But the Third Defendant now the Complainant has once again filed this District Court proceedings to evict the Plaintiffs, now Defendants under s6 of the Summary Ejectment Act.

THE ISSUES

14. The issues are two fold.

1. Whether the Complainant Sir Pita Lus has title over the portions of Land in subject thereby being entitled to evict the Defendants under the provisions of s6 of the Summary Ejectment Act, and
   
2. Whether "Notice to Quit" issued by the Secretary for Lands, under s145 of the Lands Act, 1996 is sufficient for purposes of evicting the Defendants. And that the Complainant coming to this court for the same purpose under s6 of the Summary Ejectment Act is harsh, oppressive and unjust under the circumstances and is an abuse of processes allowed by two separate statutes, the Land Act, 1996 and the Summary Ejectment act respectively.
   

15. On the first issue regarding title, it is apparent that Defendants are not disputing the Complainants title over the two portions of land in subject. Evidence contained in the court file infact shows that defendants admit that the Complainant Sir Pita Lus is the legitimate title holder of these portions of land but that they continued to stay there after some understanding or Agreement was reached between themselves and the Complainant in 1995 after the District Court made orders for their eviction.

16. Under the circumstances, the Complainant is of course entitled to evict the Defendants under the provisions of s6 of the Summary Ejectment Act. This is his right as against the whole world and he has come to this court to exercise that right and to seek relief or remedy made available to him under s6 of the Summary Ejectment Act.

17. I am reminded by the case of Herman Gawi and Others –vs- PNG Readymix Concrete Pty Ltd [1984] PNGLR, 174, where the court held that proceedings for recovery of possession of land under the Summary Ejectment Act ch 202 are intended to provide a quick remedy to people who have clear title to land or premises but not where title to lands is in dispute. In other words the provisions are meant to protect registered proprietors of land/premises where quick relief is sought to evict illegal occupants/tenants particularly where title is not in dispute.

18. I have perused the affidavit of the Complainant in Support of the application dated 4 May 2007, and note that he has annexed the relevant registered title documents pertaining to the portions of land in subject. I am satisfied that these title documents are clear and not in dispute as alluded to earlier. Should this court then proceed to granting the orders as sought?

19. Counsel for the Defendants argued that this court should not grant the orders sought in this application for two reasons, firstly that the secretary for Lands had already issued a "Notice to Quit" on the Defendants in October 2006 under s145 of the Lands Act, 1996. the counsel submitted that "Notice to Quit" is intended to evict illegal occupants of State Lands and has the same effect as an eviction order made by the court under s6 of the Summary Ejectment Act and that if the court were to go ahead and grant the eviction orders, then such orders would be harsh and unjust to the Defendants under the circumstances.

20. Secondly, the defence counsel submitted that Defendants have filed a Nation Court proceedings un O.S No. 737 of 2006 against the Secretary for Lands, the State and the Complainant Sir Pita Lus pertaining "Notice to Quit". And that the issues for contention in the National Court will have a bearing in the District Court proceedings. Therefore this court should not go ahead and make orders because the National Court case is still pending.

21. Submissions by defence counsel infact leads to the second issue alluded to earlier. That is, whether the "Notice to Quit" issued by the Secretary for Lands is sufficient for purposes for evicting the Defendants and that the District Court proceedings if orders granted may be unjust, oppressive and would amount to abuse of processes allowed by different legislations.

22. Counsel for the Complainant submitted that this court has the jurisdiction to hear this application and is mandated to make appropriate orders under s6 of the Summary Ejectment Act and that his client has clear title over the portions of land in subject and therefore by operation of the law, defendants must be evicted by order of this court.

23. From facts presented, the complainant did in 1995 obtain orders from this court under s6 of the Summary Ejectment Act for the eviction of the Defendants from the portions of land in subject. Counsel for complainant did not explain to this court why the 1995 orders of court were not enforced by the complainant immediately after the orders were granted and further as to why there has been total silence by the complainant for more than fifteen (15) years since the orders were made. He only filed this new proceeding in May of 2007 apparently seeking the same eviction orders again under s6 of the Summary Ejectment Act.

24. I guess the long period of silence by the complainant was by reason of what the First Defendant Matthew Kambu has stated in paragraph 9 of his affidavit which is annexure "A" in the affidavit of Bill Frizzell dated 26 October 2007, that there was an Agreement made between the Complainant and Defendants, for the Defendants to continue to remain and keep possession for the portions of land in subject.

25. In any case the Secretary for Lands issued to the Defendants and others a "NOTICE TO QUIT’ under s145 of the Lands Act, 1996 on the 2 October 2006.

26. This ‘NOTICE TO QUIT’ is Annexed to the affidavit of Matthew Kambu and annexed "A" to the affidavit of Mr. Bill Frizzell dated 26 October, 2007.

27. The ‘NOTICE TO QUIT’ reads

"I PEPI KEMAS, A delegate for the Minister for Lands and Physical Planning, by virtue of the powers vested in me by s145 of the Lands Act, 1996 and all other powers enabling me hereby order your eviction from the land described in the schedule here under"

Second paragraph reads:

"Your occupation of the subject land is deemed unlawful hence you are ordered to vacate this land within the next fifty four (54) days from the date of service of this Notice is effected.

Failure on your part to comply to this Notice shall result in you being forcefully ejected from the subject land and arrested by a commissioned officer of the Papua New Guinea Royal Constabulary Police Force authorized for the purpose."

28. The Notice further stated that the subject land was registered to one Sir Pita Lus, the Complainant in this proceeding and that he is the current state lease holder of this land and has the right to exclusive possession, to the use and occupation of the land until and unless his legal right/interest is forfeited.

29. As stated earlier, this "Notice to Quit" is the subject of a pending National Court proceeding O.S. 737 of 2006. This proceeding was commenced by the Defendants.

30. On the 8 December, 2006, the National Court, granted ex-parte orders restraining the Secretary for Lands from evicting the Defendants, pursuant to the "Notice to Quit", hence the said "Notice to Quit" being stayed.

31. However, on the 15 June 2007, the ex-parte orders of 8 December 2006 were set aside hence consequently re-instating the "Notice to Quit" issued by the Secretary for Lands. Therefore the "Notice to Quit" was once again made enforceable by the National Court. But the Complainant, Sir Pita Lus, who is also a Defendant in the Nation Court matter has decided to come back to the District Court by way of this proceeding to seek further eviction orders against the Defendants.

32. I think this is a bit too harsh, oppressive and unfair against the Defendants. The National Court by its orders of 15 June 2007, had endorsed the "Notice to Quit" issued by the Secretary for Lands. This is to the advantage of the Complainant, Sir Pita Lus. The "Notice to Quit" issued under s145 of the Lands Act, 1996 has the same effect as an order issed by the District Court under s6 of the Summary Ejectment Act.

33. The only difference is that "Notice to Quit" is issued administratively by the Secretary for Land whereas the orders made under s6 of the Summary Ejectment Act are made judicially by the court. In both cases powers to make eviction orders are derived from two different statutes/Legislations, s145 of the Lands Act, 1996 and s6 of the Summary Ejectment Act ch 202 respectively.

34. Under the circumstances, I do not think it would be fair to the Defendants for this court to issued further eviction orders against them. The eviction orders issued by the Secretary for Lands by way of "Notice to Quit" under s145 of the Lands Act, 1996 and subsequently endorsed by the National Court on the 15 June 2007 are in my view sufficient for purposes of evicting the Defendants.

35. I think the Complainant Sir Pita Lus, would be seen to be abusing due processes by coming to this court seeking further eviction orders against Defendants when in fact the National Court has already endorsed the "Notice to Quit". In any case this court had already granted him the eviction orders against the defendants in 1995, which he did not enforce.

36. Furthermore, the National Court proceeding under O.S. No. 737 of 2006 between the parties is still pending and therefore its final determination would have lots of bearing on the issues relating to the eviction of the defendants.

37. I must therefore refuse this application and allow for the ‘ NOTICE TO QUIT’ issued by the Secretary for Lands and which was subsequently endorsed by the National Court to take its course and where appropriate to be enforced against the Defendants. This process must be allowed to be exhausted.

35. Application dismissed, parties to meet their owns costs.

__________________________

Kevau (Warner Shand Lawyers) for the Complainant
Kalandi (Parkop Lawyers) for the Defendant