Toumong v Roland [2010] PGDC 16; DC956 (25 May 2010)

DC956

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

CASE No DCC 45 OF 2010

BETWEEN:

KAPINIAS TOUMONG
Complainant

AND:

JOHN ROLAND & FAMILY
Defendant

Madang: J Kaumi

2010: 11^th, 25th MAY

SUMMARY CIVIL PRACTICE & PROCEDURE – Summary Ejectment proceedings-Summary Ejectment Act Ch.No. 202-Section 3-Recovery of Premises-Proceedings under this Act- Holder of clear legal title can avail themselves to the provisions of the Act-Holders of rights or other interests short of a clear legal title cannot seek relief available by this Act.

PRACTISE AND PROCEDURE-Proceedings under the Summary Ejectment Act Ch.No. 202- Cannot be used to claim title or be used for declaration of title- District Court has no jurisdiction where title not clear.

PRACTISE AND PROCEDURE- Proceedings are misconceived.

The complainant filed eviction proceedings against the defendant for not complying with his requests to vacate the property. He seeks the eviction of the defendant from Section 105 Allotment 33, Malabor Street, Newtown, Madang within 21 days from the date of the order pursuant to Section 3 & 4 of the Summary Ejectment Act forthwith and costs.

Held:

(1). The effect of the absence of any clear title by the complainant is to oust any jurisdiction given to this Court by sections 3 of the Summary Ejectment Act Ch.No 202.

(2). Proceedings under the Summary Ejectment Act were not intended to cover this issue. They were intended to provide a quick remedy to people who have clear title to premises. Gawi v PNG Readymix Concrete Pty Ltd.

(3). Indeed the Summary Ejectment Act cannot be used to establish clear legal title to property nor can proceedings under the said Act be used to declare legal title to property; rather the party seeking relief under the provisions of the said Act must come to it with the pre requisite clear legal title and I find that in these proceedings that the complainant has not come with a clear legal title. See Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74 (27 April 1984).

(4). The complainant has at the most an equitable interest and it is open for him to seek a declaration from the National Court of the nature of his interest or alternatively, he can pursue the administrative mechanism at the Lands Department and NHC of processing the transfer of lease to his name and consequently obtain a certificate of title pursuant to s.55 of the Land Registration Act 1981.

(5). For the reasons above these proceedings are struck out for being misconceived.

Cases Cited:

Adelstein Investments Pty Ltd v. Morgan [1968] 2 N.S.W.R. 170.
Freeman v. Hambrook [1946] VicLawRp 58; [1947] V.L.R. 70.
Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74 (27 April 1984)

Legislation

Summary Ejectment Act
Land Registration Act 1981

Abbreviations

Ch Chapter
DCJ Deputy Chief Justice
K Kina
Ltd Limited
No Number
NHC National Housing Commission
N.W.S.R New South Wales Report
PNGLR Papua New Guinea Law Reports
Pty Proprietary
s Section
ss Sections
V versus
V.L.R Victorian Law Report

Counsel:

Complainant in Person
Defendant no Appearance

25th May2010

INTRODUCTION

1. Kaumi, M The matter before me this morning is a summons upon complaint by the complainant for the defendant and his family who are occupying the property Section 105 Allotment 33, Malabor Street, Madang to vacate the said property. He seeks the following orders;-

(i) The defendant and his family who are occupying the said property to vacate it within 21 days from the date of the order pursuant to Section 3 & $ of the Summary Ejectment Act forthwith.

(ii) A warrant of Eviction be issued to the Police Force to enter, by force and with assistance if necessary, into the property and eject the Defendant and his family in the property and give vacant possession of the property to the complainant if the defendant and his family living on the property fail to give vacant possession of the property to the Complainant within the 21 days from the date of the order.

(iii) The defendant is to pay the Complainant’s costs of and incidental to this proceedings.

(iv). Such further orders as the Court deems fit.

RELEVANT BACKGROUND

2. The following is the background of the matter:-

(i).On or about April 1999, the complainant purchased the property described as Section 105 Allotment 33, Malabor Street, Madang from the National Housing Commission for a sum of K3, 250.00;

(ii).On or about June 2008 the defendant was asked to occupy the property as a caretaker because he was related to the complainant and on that basis the complainant allowed the defendant to occupy the property as a caretaker when and until a client can rent the said property;

(iii).Now that clients are available the complainant has requested the defendant to vacate the said premises but the defendant is refusing to move out and giving excuses.

(iv).The matter was first mentioned on 11/05/10, the complainant appeared but not the defendant. The complainant directed to file proof of service and matter adjourned to 25/05/10.

PRELIMINARY ISSUE

3. After a closer scrutiny of these proceedings, a preliminary issue arises at this juncture of proceedings and that is, whether the complainant has clear legal title to institute such proceedings under the Summary Ejectment Act. If the answer is Yes, then the matter should proceed to be dealt with in the normal way. If the answer is No, then the matter should be struck out for being misconceived.

RELEVANT LAW

4. The relevant legislation is as follows:-

SUMMARY EJECTMENT ACT

3. PROCEEDINGS FOR POSSESSION ON DETERMINATION OF LEASE. .

(1) Where–

(a) the term or interest of a lessee of premises held by him has ended or has been duly determined; and

(b) the lessee, or (if the lessee does not actually occupy the premises or occupies only a part of the premises) a person by whom the whole or part of the premises is then actually occupied, neglects or refuses to quit and deliver up possession of the premises or of the part of the premises, as the case may be,

the lessor of the premises may make a complaint to a magistrate of a District Court against the person for the recovery of the premises, or of the part of the premises, and the magistrate may issue a summons in the prescribed form to that person.

RELEVANT CASE LAW

5. The following is the relevant principles enunciated in the landmark Supreme Court decision of Gawi v PNG Readymix Concrete Pty Ltd in 1984 and it is good law since it has stood the test of time:-

6. Proceedings for recovery of property under the Summary Ejectment Act Ch.No.202 are intended to provide a quick remedy to people who have clear title to land or premises; they are not intended to be available where title to land is in dispute or unclear. (Gawi v PNG Readymix Concrete Pty Ltd (1)

PRELIMINARY ISSUE

Does the complainant have clear legal title to institute such proceedings under the Summary Ejectment Act?

7. The issue can be highlighted in the following question, what is the nature of the interest if any, vested in the complainant at the time of commencement of proceedings?

8. The house which is the subject of these proceedings is described as Section 105 Allotment 33, Malabor Street, Newtown, Madang. In April 1999, the National Housing Commission invited the complainant to buy the said house which was their property. On 5/08/99 the complainant paid the total purchase price as requested by the NHC for the house. Soon after the NHC received the payment, it caused a Contract of Sale to be drawn up which the complainant signed and was witnessed by the NHC officer in Madang, Mrs Roberta Sapak. Apart from this, I note from the documents filed by the Complainant that no Certificate of Title prepared and issued under Part VI of the Land Registration Act has been provided to this court by the complainant as evidence of his clear legal title (s.11 Land Registration Act 1981).

9. At the time of commencement of these proceedings the complainant was not registered as having any interest under s.55 of the Land Registration Act 1981. The consequence of this, is that he had no legal interest in Section 105 Allotment 33 and cannot rely on the provisions of ss. 3 & 4 of the Summary Ejectment Act for any relief.

10. Corrollary to this, the effect of the complainant’s lack of clear legal title is to oust any jurisdiction this Court has in these proceedings under the Summary Ejectment Act Ch. No. 202. Proceedings under the Summary Ejectment Act were not intended to cover this issue. They were intended to provide a quick remedy to people who have clear title to premises. Gawi v PNG Readymix Concrete Pty Ltd.

11. In the immediate matter before me, only the NHC at this juncture can take such proceedings. The complainant has at the most an equitable interest and it is open for him to seek a declaration from the National Court of the nature of his interest or alternatively, he can pursue the processing of the transfer of lease to his name with the Lands Department and the NHC and consequently obtain a certificate of title pursuant to s.55 of the Land Registration Act 1981.

12. It should be noted that an equitable interest does not entitle the owner to give notice to quit until a lease is registered. See Kapi DCJ in Supreme Court in Gawi v PNG Readymix Concrete Pty Ltd reference to Freeman v Hambrook (2) and Adelstein v Morgan (3).

13. Indeed the Summary Ejectment Act cannot be used to establish clear legal title to property nor can proceedings under the said Act be used to declare clear legal title to property, rather the party seeking relief under the provisions of the said Act must come to it with the pre requisite clear legal title and I find that in these proceedings the complainant has not come with a clear legal title. See Gawi v PNG Ready Mixed Concrete Pty Ltd (4).

14. I would answer the issue in the negative (No), the complainant does not have clear legal title.

DETERMINATION

15. Until there is a clear legal title obtained by the complainant, I have no option but to strike it out the matter for the reason of being misconceived. As the matter is only struck out the complainant has the option of reinstituting the proceedings once he obtains the pre requisite clear legal title.

16. No orders are made in relation to costs.

Complainant in Person
No appearance of Defendant

____________________________
(1). [1984] PNGLR 74)
(2). [1946] VicLawRp 26; [1947] V.L.R 7
(3). [1968] 2 N.S.W.R 170 at 172
(4).Supra Note (1)