Koitaki Plantations Ltd v Semere [2008] PGDC 156; DC5007 (17 September 2008)

DC5007
PAPUPA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

Civil Jurisdiction

DC N0 501 OF 2008

KOITAKI PLANTATIONS LIMITED

- Complainant-

-V –

IMISI SEMERE a.k.a CLAYTON MATABI

- Defendant -

PORT MORESBY: Pupaka, PM

2008: 11^th September

Eviction proceedings – Summary Ejectment Act – Complainant has apparent title – Eviction order otherwise permissible and maybe issued.

Defence filed – Case was to be defended on the grounds that the defendant occupies customary lands only – Defendant failed to defend and so complainant was heard ex parte – Evidence shows that the defendant is occupying portion of lands in the midst of Portion 110 – Complainant has unencumbered title to Portion 110 – Evidence shows the defendant is tapping rubber latex from the complainant’s plantation on Portion 110 and nearby estates – Evidence also shows defendant was warned and told not to erect houses on the site in question – Evidence shows defendant ignored all requests – Eviction orders needed to protect and arrest continuing losses to the complainant

Mr. Ketan for the Complainant
No appearance by or for the Defendant

17^th September 2008

PUPAKA: The substantive cause in this proceeding is for eviction orders on the strength of exclusive title. The complainant sought to have the defendant evicted from the land described as “Portion 110, Milinch Granville, Central Province”. It is alleged that the defendant was and is continuing to be in unlawful occupation of parts of Portion 110.

By a defence that he filed and served, the defendant raised issue with the substantive relief sought on the bases that he does not trespass upon lands belonging to the complainant, but rather he occupies customary land, unconnected to the complainant’s leasehold lands.

After a series of mentions this matter was fixed for hearing on 10^th September 2009. Since the hearing date was fixed in the absence of the defendant the complainant, who was present through counsel, was directed to advise the defendant. That seems to have been complied with.

On 10^th September 2008 the complainant’s people were in court for the hearing but the defendant was absent again. However considering the seriousness of the case, particularly given that the defendant may need to dismantle and remove buildings and structures in any eviction exercise, it was considered fair and just to adjourn again so that the defendant could be asked to come to court and defend the case. The matter was then stood down to the next day – 11^th September – for hearing. Yet again Mr. Ketan of counsel for the complainant was advised to inform the defendant’s lawyers in writing. That seems to have been done. The defendant’s lawyers appear to have been formally advised of the hearing on 11^th September. A letter of advice was sent by fax and receipt of the same was confirmed by phone.

Almost predictably the defendant and his lawyer were absent again on 11^th September 2008. As I alluded to above, an affidavit filed by the complainant that day showed that the defendant was fully and adequately informed and advised of the hearing the day before, so the defendant and his lawyers had no excuse not to be present for the hearing on 11^th September 2008.

In the circumstances the matter had to proceed ex parte in accordance with the request of the complainant. Therefore the complainant was granted leave to present evidence ex parte. I note for the record that another adjournment is neither proper nor would it be fair to the complainant.

For purposes of the hearing the complainant tendered into evidence two affidavits of one Murray Swan, dated 15^th April 2008 and 4^th June 2008 respectively. It also tendered into evidence an affidavit by a Sergeant Max Wakian, dated 15^th April 20068 together with an affidavit of one Michael Gideon dated 4^th June 2008. Thereafter the complainant invited the Court to consider the evidence and decide accordingly. Consequently I have carefully perused the evidence contained in the four affidavits.

Consideration of the evidence

The complainant’s evidence, gleaned from the four affidavits (including all the annexure), is clear. It is obviously uncontested in the circumstances but the level of clarity provided by the evidence in relation to the key issues of Title and land boundary entitles the complainant to the substantive orders it seeks herein. Ergo eviction orders must be granted as sought.

The defendant asserted that he occupied customary lands. It does seem Portion 110 borders customary lands on one side. So the defendant’s assertion did squarely raise an issue of certainty of the boundaries of Portion 110. However the defendant has failed to appear in court after due notice was given through his lawyers. He has therefore failed to challenge the evidence in relation to the location and or position of the lands he occupies.

This though is not to say that the complainant’s evidence lacks strength. In fact the complainant’s evidence of the current location of the defendant and the boundaries of Portion 110 are provided by the complainant’s witness Michael Gideon. Michael Gideon is the Director of the National Mapping Bureau of the Department of Lands and Physical Planning.

Michael Gideon’s evidence is sourced from government records and so it is official and therefore otherwise credible. Michael Gideon’s evidence shows the defendant’s current position to be in the center of Portion 110.

In the circumstances I find that the defendant has, unlawfully and without permission and or good cause, located himself and settled upon Portion 110, which is land owned by the complainant.

Conclusion

The defendant has had had sufficient warnings and notices of what was, on the face of it, always an inevitable outcome. By now he would no doubt be ready to render vacant possession to the complainant.

Consequently I order that the defendant, Imisi Semere a.k.a Clayton Matabi, vacate Portion 110 within 14 days from the service of this order. If there is no voluntary rendering of vacant possession within the stipulated 14 days, the complainant may obtain a warrant directing members of the Royal Papua New Guinea Constabulary to enter by force, with assistance if necessary and secure for it vacant possession of Portion 110 from the defendant.

The complainant shall have its costs of the proceeding, the same to be taxed if not agreed to between the parties.

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Ketan Lawyers for the Complainant
Patterson Lawyers for the Defendant