Kuk v Nessat [2013] PGDC 11; DC2068 (25 July 2013)

DC2068

PAPUA NEW GUINEA

[In the Civil Jurisdictions of the District Court held at Lae]

DC No 671 of 2012

Between:

ROGER KUK
(Informant)

And:

PETER NESSAT
(Defendant)

Lae: C Inkisopo

2013: 25th July

Civil claim for Summary Ejectment – s 6 of the Summary Ejectment Act, 1952 - District Courts Act Chapter No 40

Civil practice & procedures of District Courts – District Court is creature of statute & its practice and procedures set out & defined by Act and other statutes conferring it powers to exercise judicial powers over -

Jurisdiction of District Court - District Court is a court of limited jurisdiction & its powers are set out by Act and the parameters of application of these powers demarcated by Act

Claim for ejectment under s 6 of Summary Ejectment Act, 1952 – practice, procedure & form of originating process for ejectment proceedings spelled out in provision of Act –

Jurisdictional limitations of District Courts under s 21 (4) (f) of the District Courts Act – District Court lacks jurisdiction in matters where title to land is bona fide in dispute –

Practice & procedure – where District Court is rendered devoid of jurisdiction by operation of s 21(4)(f) – appropriateness of option for District Court presiding - referral to the National Court under s 24 of District Courts Act–

Legislations Referred

District Courts Act, Chapter 40
Evidence Act, Chapter 48
Land Registration Act, 1981
Summary Ejectment Act, 1952

PNG Cases Cited/referred

1: Keindip -vs- State & 6 Ors [1993] PNGLR 28
2: Lae Rental Homes Limited -vs- Viviso Seravo & State [2003] N2483
3: Mudge -vs- Secretary for Lands [1985] PNGLR 387
4: Yandu -vs- Waiyu [2005] N2894

Appearances:

1: Mr Peter Hai-Paito of Counsel of Nicholas Tame Lawyers of Port Moresby
2: Mr David Poka of Counsel of Niugini Lawyers of Lae

25th July, 2013

JUDGMENT

C Inkisopo: This is a claim by Roger Kuk upon Information seeking the Order of this Court against the Defendant for eviction from a certain property described more as Section 2, Allotment 30. City of Lae, Morobe Province under s 6 of the Summary Ejectment Act. 1952.

2: The Informant filed an affidavit in support of his Information filed and dated 10th September, 2012 and annexing thereto a copy of a State lease title deed endorsed as having been registered on 30th July, 2012 at exactly 9:02 am in the name of Roger Kuk, as the registered proprietor.

3: On the matter's first mention in Court on 13th September, 2012 the parties personally appeared during which session the Defendant sought a further adjournment of this matter to enable him procure and secure the services of a lawyer to defend him and protect and promote his interests. The matter was next adjourned for mention to 11th October, 2012 but by some turn of events, the matter came before this Court on 16th October, 2012 at 9:00 am during which session, Miss Natasha David, counsel of Niugini Lawyers appeared for the Defendant. I did also note that Niugini Lawyers filed a notice of their appearance for the Defendant in this matter

4: The matter was therefore next adjourned for mention to 30th October, 2012 during which session the Court impressed upon both parties, if at all possible, to engage the services of lawyers as the Court foresaw serious legal issues to be addressed that only lawyers could appreciate and address the Court on.

Chronology of events/happenings & preliminaries.

5: Consequent to that; Messrs Nicholas Tame Lawyers of Port Moresby filed their appearance for the Informant with Mr Peter Hai-Paito of Counsel of that firm appearing for the Informant before this Court. On the Court's next return date of 30th October, 2012 both Mr Hai-Paito for the Informant and Mr David Poka for the Defendant appeared for their respective clients.

6: During this appearance Mr Poka raised an impromptu legal issue that directly impacted on the jurisdiction of this Court to competently preside over. The Court immediately directed the Defendant through his lawyer to reduce the matter of his oral application into a formal application by way of a Notice of Motion with supporting affidavits.

7: To that end, the Court issued directions requiring both parties through their lawyers to file, serve and cross serve further processes in support of their respective cases by fixing deadlines for compliance by each of the parties. The fixing of timelines for compliance by the parties however, did not work out as envisaged as the Defendant, to begin with, defaulted due primarily, as his lawyer Mr Poka explained, to his lawyers moving Offices during the material period from their then Vee Street Office to their current location; hence adversely affecting his compliance with the Court's directions. The Defendant's such default had a consequential domino effect on the Informant's side of the deadline.

8: After some serious remarks by the Court on the seriousness of sticking to specific deadlines, the Court however accepted the Defendant's explanations as laid out by Mr Poka and the matter was given a fixture for the hearing of the Defendant's Notice of Motion to 21st February, 2013 at 9:00 am.

Hearing of Notice of Motion – Arguments for/and against.

9: When the Court returned on 21/02/2013, Defendant's Counsel commenced to move his client's Motion, Informant's Counsel, Mr Hai-paito took immediate objection to the Defendant's use of a particular affidavit of the Defendant as his client had not been duly served with a copy of same prior to its use as required under s 35 of the Evidence Act, Chapter 48. Though the Defendant's Counsel protested that the Informant was served personally with the particular affidavit together with the other related documents, there was nil proof of such a service on the Informant and thus Mr Poka, could not proceed in the face of the objection. So he took the only option open to him under the circumstance by asking for an adjournment to another date to continue with his client's application. Mr Hai-Paito whilst agreeing to the adjournment, applied for his client's costs.

10: The matter was adjourned next for resumption of the Defendant's application to 21st March, 2013 at 9:00 am with costs of Informant's lawyer's POM/LAE/POM airfares for that day ordered to be borne by the Defendant. On 21/03/2013, when the Court resumed, Informant's Counsel Mr Hai-Paito rose to his feet and intimated to the Court that the Parties desire to reach settlement out of Court. When Mr Poka was asked to respond, he said his client wished to proceed with the matter in Court. The Defendant's application was next rescheduled for hearing on 11th April, 2013 at 9:00 am. On 11th April, 2013 the Court heard both Counsels argue the Motion and the ruling was scheduled to be handed down on Thursday July, 25th with the Court undertaking to deliver a written ruling - and this is that ruling!

11: The Defendant's Notice of Motion is in the following terms:-

1: "Pursuant to Section 21(4) (f) of the District Courts Act (Chapter No 40), the matter herein be dismissed in that this Court has no jurisdiction to hear same as the title to the land namely Section 2, Allotment 30, Lae, Morobe Province, the subject of these proceedings is bona fide in dispute.

2: Roger Kuk, the Informant herein pays the costs of the Defendant on a solicitor/client basis.

3: Such other or further orders as the Court deems fit."

12: The Informant's Counsel filed written submissions as well as making oral presentations to the Court; whilst Counsel for the Defendant made only oral submissions covering the reliefs sought by the Defendant in his Notice of Motion.

Background facts

13: The subject is a property located along the 4th Street in the City of Lae, Morobe Province; more described as Section 2, Allotment 30. This property has a markedly run-down State reserved house that was offered for sale to the Defendant by the State through the National Housing Corporation (NHC) via the National Government House Sell of Scheme or initialed GSOS by which this scheme is commonly known.

14: There are abundance of records on file of purported sales/purchase agreements and transactions between the parties over the same one property dating back to as early as 2003. It seems clear from records available that the Informant showed interest in this property so took the initiative of approaching the Defendant and offered to purchase the property from the Defendant. The parties then seemingly entered into some form of an arrangement where the Informant was to settle the Defendant's claimed outstanding rentals to the NHC for the property, then apparently standing to the sum of K35, 478.00. They arranged for the payment to the NHC to be made and subsequent transfer of the property by NHC to the Defendant who then would in turn transfer the property to the Complainant in accord with their arrangement.

15: This arrangement, it seemed, did not work out so the Informant instituted proceedings at the National Court in the form of OS No 192 0f 2004; in which he sought reliefs, inter alia, specific performance by the Defendant on his earlier agreement to sell the property to the Informant that Defendant seemingly reneged on. That case was fully heard before his honour, the then Mr Acting Justice Yalo at the Lae National Court.

16: The Court per his honour, Mr Acting Justice Yalo, dismissed Roger Kuk's claim in its entirety on the 30th of October, 2008 and made several other ancillary orders for refunds by Peter Nessatt to Roger Kuk of monies that seemingly changed hands between them for various purposes. The evidence on file reveals that Roger Kuk did not stop there; but filed a Supreme Court appeal challenging the National Court order of Mr Acting Justice Yalo.

17: From records available on file to this Court, it appears clear that Roger Kuk, with his Supreme Court Appeal SCA No 128 of 2008 having been dismissed for want of prosecution and his other matter of SCREV No 80 of 2011 yet pending; he took steps in approaching the NHC directly and procured, and subsequently, obtained the title to the subject property under his name registered on 30th July, 2012 at exactly 9:02 am at the Registrar of Title's Office. Roger Kuk then next on 20th September, 2012 filed and served a Notice of Discontinuance of his then pending Supreme Court Review matter of SCREV No 80 of 2011.

18: Then on the 7th September, 2012, Roger Kuk filed this present ejectment proceeding before this Court against the Defendant, Peter Nessatt; and this is the subject of this instant application that has a direct effect on the question of the jurisdiction of this Court.

19: Before I proceed to dealing with the question of the jurisdiction of this Court, I'd wish to deal with a matter of procedure that I consider to be erroneous in my view in so far as it concerns the choice of the originating process adopted by Roger Kuk to initiate this proceeding. Roger Kuk instigates this action by way of an Information and Summons upon Information; filed and dated 7th September, 2012.

20: I notice that Roger Kuk cited the basis of the Information he laid as being under s 6 of the Summary Ejectment Act, 1952. This provision in my humble view prescribes clearly as to the form and method of the originating process for eviction (ejectment) proceedings under s 6 of the Act as being by way of a Complaint.

Section 6 (1) of Act provides;-

"Where a person without right, title or license is in possession of premises, the owner may make a Complaint to a Magistrate of a District Court to recover possession of the premises and the Magistrate may issue a summons in the prescribed form to the person in illegal occupation." (Bold in italics; my emphasis)

21: The choice of the commencement of this proceeding by Roger Kuk by way of Information in my view is erroneous and as a consequence thereof, this proceeding is bad which in turn renders the whole proceeding incompetent from passing before this Court. However; primarily because this apparent flaw has not been picked up and put to issue by Peter Nessatt and his Counsel (although I still have the residual powers and discretion to raise it and make determinations thereon), I do not intend to halt this case solely on this point, but to proceed to dealing with the more fundamental issue of this Court's jurisdictional question raised by Peter Nessatt that Mr Poka raised and emphatically argued on.

22: The crucial issue before this Court is the question of whether or not this Court does have the jurisdiction to assume powers to preside over in a proceeding such as the present in the particular view of this Court's jurisdictional injunctions under s 21(4) (f) of the District Courts Act Chapter No 40.

Section 21 (4) (f) provides;-

"(4) A Court (District) has no jurisdiction in the following cases;-

(a) ....
(b) ...
(c) ...
(d) ...
(e) ...

• (f) when the title to land is bona fide in dispute;"
  

23: The Defendant Peter Nessatt through his lawyer Mr Poka took serious issue that this Court lacks the necessary jurisdiction to deal with this matter, because, as they say, the title produced in this case by Roger Kuk is bona fide in dispute and invoked in support of their contention s 21 (4) (f) of the District Courts Act, Chapter No 40. As I gauge from the Defendant's argument; his Counsel seemed to argue as to how Roger Kuk happened to get a title to the very same property that the very same parties are embroiled in in Court battles for over a decade now; unless obtained through fraud as Peter Nessatt through his Counsel insinuates as per paragraph "r" of Mr Poka's affidavit filed and dated 28th January, 2013 in support of his client's application.

24: This Court is fully cognizant of its own jurisdictional limitations in not blindly proceeding to dwelling into matters where actual or perceived fraud is alleged in matters of formal legal title to land. Apart from the actual dictates of s 21 (4) (f) of the District Courts Act, where allegation of fraud is apparent in any matter before it; whether supported by evidence or not; in my humble view, has already become evident that the issue has now, by this fact, gone out of this Court's jurisdictional boundary. I come to this view because the issue of whether or not there is or no fraud in matters of titles to land is already taking the matter to within the ambit of this Court's jurisdictional injunction imposed by s 21 (4) (f) of the District Courts Act, Chapter 40.

25: Hence, to my mind, it is not for me as a District Court, a Court of limited jurisdiction, to venture on to even considering whether there is evidence or not to substantiate the allegation of "fraud"; which is a matter properly for the higher Courts (National Court) to consider and determine.

26: I consider it sufficient for our immediate purposes; that Peter Nessatt was the original approved purchaser of the subject property under the National Government's GSOS program through the NHC. Peter Nessatt said he had paid up the required fees and was awaiting the NHC to prepare the Contract of Sale and the subsequent transfer of the property to him when Roger Kuk came on the scene expressing interests over the same property evidenced by the actions he took as well as the Court actions he initiated over the property against Peter Nessatt and NHC. Here, we have Roger Kuk producing a title deed registered in his name for and over the very same property Roger Kuk and Peter Nessatt were engaged in Court battles for almost ten (10) years.

27: It is against the backdrop of these events and actions that prompted Peter Nessatt to allege "fraud" in obtaining the title to the subject property, because as he said; the title to the property can not have been obtained free from serious questions needing answers; especially when viewed against the peculiar background of this particular case.

28: On the other side of the equation, Mr Hai-Paito Counsel acting for Roger Kuk argues that his client has a valid legal title to the subject property that; he emphatically said took precedence over other interests including Peter Nessatt's as a mere legal tenant of the subject property. He next counter-argued that there is not and never a bona fide dispute as to title as Peter Nessatt claimed; simply because, as Counsel argued, Peter Nessatt has not provided evidence to support the claim of fraud on the part of Roger Kuk and NHC in procuring the transfer of the title over the subject property to Roger Kuk.

29: This Court is indebted to Counsel for Roger Kuk, Mr Hai-Paito for his comprehensive written submissions he filed in support of his client's case that I found very helpful in helping me deal with the issue before me. In it, Counsel addressed various legal issues and principles that I found most helpful.

30: Generally in other cases, I would have liked to accept that Peter Nessatt has not produced evidence in order to demonstrate the existence of "fraud" in the procurement and transfer of the title to Roger Kuk in order to show the existence of a bona fide dispute as to title; in order therefore to take this matter to within the ambit of the injunctions of s 21 (4) (f) of the District Courts Act, Chapter 40.

31: However, in my humble view, where an allegation of fraud is raised against titles in such ejectment proceedings before the District Courts, the National Court alone has the jurisdiction to deal with fraud issues and related or other matters arising out of the Land Registration Act, 1981 (See the Interpretation section of the Land Registration Act where it says "the Court means the National Court").Allegation of fraud over matters of title is in my view not for this or other District Courts to entertain or talk about; as fraud is a ground for voiding registered lease titles under s 33 (1) (a) of the Land Registration Act, 1981 as this is one of the exceptions to the principle of indefeasibility of registered titles; where the holders are guaranteed security and protection under s 33 of the Land Registration Act, 1981. See Mudge -vs- Secretary for Lands [1985] PNGLR 387, Keindip -vs- State & 6 Ors [1993] PNGRL 28, Lae Rental Homes Ltd -vs- Viviso Seravo & State [2003] N2483.

32: In my view, to require this Court to consider if there is or no evidence to support that allegation (of fraud) is effectively asking this Court, a Court of limited jurisdiction; to encroach upon issues it just lacks the appropriate jurisdiction to preside over in the first place!

33: Mr Hai-Paito raises a number of legal issues I consider to be crucial in this case. Counsel submits that there can not be bona fide dispute as to title because Peter Nessatt has not shown by evidence or otherwise that he or any other person has taken formal legal steps to disturb the title held by his client, Roger Kuk. He cited in support of this submission the case of Yandu -vs- Waiyu [2005] N2894 which holds for the proposition that for there to be a bona fide dispute as to title, formal legal steps must have been taken to disturb the title; or putting it in the words of his honour, Mr Justice Cannings, "if no formal steps had been taken to disturb the title, there was no dispute and the District Court could make orders under the Summary Ejectment Act, 1952.

34: Whilst I agree with Mr Hai-Paito on his presentation of the principles as alluded to above, I am but of the humble view that each case must be considered on its own individual circumstance, merits and facts and on a case by case basis. For instance, in the Yandu case, the Appellant did not take any step to disturb the title even four (4) years on after knowing of the title transmission to the Respondent except entering into correspondences with the Registrar's Office raising allegations of improprieties against the title holder but no actual formal legal steps were undertaken to disturb the title whereas our instant case is distinguishable in that, firstly, the knowledge by Peter Nessat of the existence of a title in Roger Kuk's name is only through this present proceeding that afforded him virtually no time to have taken any formal legal steps to disturb the title; and secondly, there is abundance of material evidence on file before this Court demonstrating numerous Court battles between the parties over the very same property at both the National and Supreme Courts which has already been a cause for serious disputes between them over this very same property. On the basis of these factors peculiar to this present case; I hold the firm view that there is an apparently inherent bona fide dispute as to title in this case such that the injunctions of s 21 (4) (f) of the District Courts Act, Chapter 40 shall have to come in to play.

35: According; I am of the humble view that this Court lacks the jurisdiction to deal with this matter by the operation of s 21 (4) (f) of the District Courts Act; as it is apparent on the face of the record and in view of the immediate past history of the parties over this very same property, it appears obvious to me that the title registered in the name of Roger Kuk is bona fide in dispute, and I so find!

36: Having reached this finding, I now find myself beset with the consequential question of what next should I do with this case; Dismissal or Referral? Peter Nessatt through his legal Counsel Mr Poka argued for the matter to be dismissed outright whilst Mr Hai-Paito speaking for Roger Kuk argued that s 21 (4) (f) of the District Courts Act 'does not operate as a jurisdictional basis to dismiss a matter as the instant case just because such proceedings relate to lands whose titles are bona fide in dispute'. I feel much inclined to accepting Mr Hai-Paito's argument for non dismissal of this matter but for referral to the National Court to be dealt with by that Court as the proceeding is such that it could have been instituted before the National Court in the first instance to be dealt with by that Court. I refuse to buy Mr Poka's arguments for dismissal but embrace Mr Hai-Paito's argument for referral; and also for one other important reason - if I were to dismiss this matter as Mr Poka urges me on, then I would in effect be dealing with a matter I already have found to be lacking the necessary jurisdiction to preside over.

37: I therefore refuse to dismiss this matter as urged on me by Peter Nessatt through his Counsel Mr Poka; but to invoke s 24 of the District Courts Act to refer this matter up to the National Court for that Court to deal with same and make determinations on. I so order!

The formal Orders of the Court are;

1: This Court has no jurisdiction to deal with this matter by the operation of s 21 (4) (f) of the District courts Act as the title registered in the name of Roger Kuk is bona fide in dispute.

2: Pursuant to s 24 of the District Courts Act, this matter is transferred to the National Court to be dealt with and resolved by that Court on the question of the title registered in Roger Kuk's name and the disputes associated with it.

3: DC No 671/2012 is hereby stayed forthwith until the National Court has dealt with same to completion and determinations made thereon.

4: Costs shall be in the cause

______________________________________

Lawyers

Messrs Nicholas Tame Lawyers: for Roger Kuk
Messrs Niugini Lawyers: for Peter Nessatt

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