Ipi v Korareme [2009] PGDC 61; DC876 (20 July 2009)

DC876

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DCCi 150 of 2009

BETWEEN

GEORGE IPI
Complainant

AND

ANDREW KORAREME AND OTHERS
First Defendants

NATIONAL COMPUTER RESOURCES AND TECHNOLOGY
AND VOCATIONAL TRAINING CENTRE LIMITED
Second Defendants

Goroka: G Madu
2009: July 7, 20.

CIVIL - Application under District Courts Act s.21(4) (f) – circumstances showing land is bona fide in dispute - previous proceedings and present proceedings are sufficient to that the title is in dispute – District Court lacks jurisdiction – Complaint dismissed.

Cases Cited:

TonyYandu and Eddie Guken –v-Peter Waiyu and Jita Guken(2005) N2894
Yomy Siwi –v- Lincy Mathew (2006) N3048

References:

District Courts Act 1963 Ss. 21 (4) (f)
Summary Ejectment Act 1952 Ss. 6

Counsel:

Karu, for the Complainant
Kamo Pilisa, for the Defendant

20th July 2009

REASONS FOR DECISION

G Madu, PM.: The complainant filed a summons against the defendant seeking orders for eviction. In his statement of claim he states that the defendant has been occupying the property Allotment 2, Section 81, Goroka Town illegally and without any right. He is taking action under section 6 of the Summary Ejectment Act.

2. The brief facts as disclosed by the complainant states that he recently bought the property form the former owner, Nosi Motors Pty Ltd. He wants to move in to clear up the premises and construct a new building.

3. This matter was to proceed for hearing on 7th July 2009 but this did not take place. The Complainants counsel submitted he will rely on number of document already filed in court. He further submitted that though the Notice of Defence had been filed however the Statement of Defence had not been particularised so there is no defence.

4. Defence counsel in rebuttal submitted that he had a preliminary application on the point of law. The complainants counsel objected as there was no proper application and affidavit filed in court. The court having considered the arguments from both counsels ruled in defence favour.

5. The counsel for the Defendant submitted that under section 21 (4) (f) of the District Court Act there is a bona-fide dispute on the title of the land and as such District Court has no jurisdiction. The counsel submitted that they wish to raise this issue before the court can proceed to hear the substantive matter which is the eviction proceeding under the Summary Ejectment Act.

6. The District Courts Act section 21(4) (f) states:

A Court has no jurisdiction in the following cases: ...

(f) when title to land is bona fide in dispute.

7. The counsel for the Defendant submitted that they have filed proceedings in the National Court challenging the validity of title held by the Complainant and that the National Court is the proper court to hear the dispute.

8. The issue is whether there is a proceeding instituted in the National Court.

9. The Defence when submitting that they have instituted proceeding in the National Court challenging the validity of the title and tendered the writ of summons and statement of claim the complainants counsel object. He argued that it would have been proper to file an affidavit. The defence response that it was not necessary as it was part of the proceeding. The court refused tendering of the documents.

10. The defendant counsel further submitted that the court should acknowledge that the matter is now before the National Court because they have raised this matter in their pleading on their statement of defence. The title for land which is the subject of this proceeding has been challenged in the National Court. There was a restraining orders by the National Court on Vincent Hatefa and Nosi Motors. This case was registered as OS NO.578 OF 1999 presided by Batari J and made ten(10) specific orders for parties to follow. The Defendants counsel refer to orders 7 (a) and (b) which is the present status of National Court and that this orders have not been discharged.

11. Order 7 reads:

(a) The Defendants or by their agents, servants, employees or whoever may be related to or connected with the Defendant one way or another are refrained from entering the premises at Section 82 Allotment 2, West Goroka.

(b) The Defendants or by their agents, servants, employees or whoever may be related to or connected with the Defendants one way or another are refrained from harassing, destroying, damaging and or in any way interfering with the normal and unhindered use of the said property by the plaintiff.

12. Whilst this proceeding was pending the transfer of the title was then made by Nosi Motors to George Ipi. The defence proceeded to file a proceeding in the National Court to seek a declaration that the title was not a bona fide title and that the actions of Nosi Motors was seen as Contempt of Court and they the defence intend to peruse this matter.

13. Complainants counsel argued that the case referred to OS NO.578 OF 1999 did not name the National Lands Department and the Registrar of Titles as parties to this proceeding. George Ipi who has the title is not named in this proceeding and therefore validity of the title could not be raised because there is no bona fide issue on title.

14. The Complainant counsel submitted that the orders given by the National Court did not in any way stop Vincent Hatefa and Nosi Motors to deal or dispose the property in question. The complainants are not restricted to sell or dispose the property as they decide. It is not in breach of any court order and these are injunctive orders returnable after 21 days but there are no new orders. The counsel submitted that the defence has failed to show that there is proceeding on foot in the National Court challenging the bona fide title. If these orders were to be extended and enforced an application should have been filed seeking extension.

15. What is the circumstances the defendant can show to the court that there is a bona fide dispute about the title. In Tony Yandu and Eddie Guken –v- Peter Waiyu and Jita Guken (2005) N2894, Yomi Siwi –v- Lincy Mathew (2006) N3048, Canning J. Held that “however, if the registered proprietor of land commences proceedings in the District Court to enforce his interest in land there is no bona fide dispute about the title unless some other person demonstrates that they have taken some distinct, formal, legal steps to disturb that title.”

16. Section 21 sets out the nature and extent of the jurisdiction of the District Court in civil matters. The onus is on the defence to show to that court that some legal and distinctive steps had been to challenge the validity of the title.

17. This issue had been a subject of National and District Courts proceeding by notice of motion seeking restraining orders on number of times. The previous proprietors Nosi Motors Pty Ltd and Vincent Hatefa have been challenge by Adrew Korarome and National Computer Resourses Technology and Vocational Training Centre Limited on the issue of validity of title.

18. The present dispute between George Ipi and Andrew Korarome and National Computer Resources Technology and Vocational Training Centre Limited is again on the validity of title. Though the defence was denied to tender the copies of proceeding already instituted in the National Court however there are sufficient documents in support that the court actions had been instituted to deal with the title dispute over the property on allotment 2 Section 81 West Goroka. This show that there is a bona fide dispute over the title the Complainant claims was legally transferred.

19. In the circumstances the District Court lacks jurisdiction and accordingly the complaint is dismissed forthwith. Costs is awarded against the complainant

Orders accordingly.

_____________________________

Lawyer for the Complainant: Daniels & Associates Lawyers
Lawyer for the Defendant: Pilisa Lawyers