Kare v Angoman [2015] PGDC 1; DC2053 (27 March 2015)

DC2053

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 523 OF 2014

BETWEEN

BUI KARE
Complainant

V

WILLIE ANGOMAN AND LONDA ANGOMAN
Defendant

Port Moresby: TATAKALI DCM
2015: 27th March

Summary ejectment proceedings are straight forward – merely raising allegations of fraud and equitable interests insufficient defense---- taking formal legal steps to challenge is an appropriate interim defense.
No formal legal steps taken—No defense available

Case cited:

Yandu v Waiyu [ 2005] PNGNC N289

Counsel

L.Tanguua (Mr) for the complainant
P. Wariniki (Mr) for the defendant

RULING

Tatakali DCM This is a complaint filed under section 6 of the Summary Ejectment Act for eviction orders against the defendants.

The complainants allege that they have a clear title to a property described as State Lease Volume 88 Folio 39 at section 302 Allotment 04 Hohola ( Gerehu) National Capital District.( the property)

A copy of that alleged title is attached as an annexure B in the affidavit of the complainant. The complainants claim that they have not been successful in trying to evict the defendants from their above property and therefore filed these proceedings at the District Court to have the defendants evicted under section 6 of the Summary Ejectment Act

The matter proceeded to trial as both parties had legal representation.

The defendants did not file any defense but eventually filed an affidavit by Linda Angoman without actually filing a defense . Defense counsel also was unable to submit a written extract of their defense, which was not very helpful to the court. They instead chose to make oral submission relying more on the affidavit filed by Linda Angoman. The defendant claimed that they too have title to the same area and they have produced their copies of their title to the same piece of land.

The court has examined this other title and it also appeared to be a copy of a genuine title.

So the question now must be whether or not there are more than one title to this property?

However in response the complainants claim that these other titles are fraudulent titles and confirm this by referring to a letter of confirmation that these other titles are not genuine, from the deputy register of land titles a Mr Benjamin Samson.. The complainants therefore claim that their title is the genuine one.

In the complainants supporting affidavit of Turi Kuruwa he attaches as exhibit B a letter from the office of the deputy register of Land Titles a Benjamin Samson. The deputy registrar replies/ writes

21st October 2014...........

Please be advised that the legal, true and correct title recognized by this office as per the records kept by this office for allotment 4 section 302 Gerehu is the one that has the Official Copy and Owners Copy stamps on it which also has the entries S, 53383, Transfer to Fred Ngoman and S, 53384, Transfere to Mose Kopyoto

The other title without the official copy and Owners Copy Stamps entries to Mr. Angoman and Mr Kopyoto is not the legitimate, true and correct title for allotment 4 section 302 Gerehu Stage 3. This title was fabricated and issued outside of this office, hence did not follow the statutory prescribed process and procedures for obtaining a title. All in all that particular title is fraudulent, fake and hence is not recognized by this office

Furthermore the current legal and legitimate registered proprietor of the subject state lease (Gerehu Stage 3) allotment 4 section 302 Hohola NCD as contained in state lease vol 88 folio 39 is Bui Kare with a registered mortage tot Westpac Bank (PNG) Limited

For more information or if there is any query please do not hesitate to contact this office

Your Faithfully

Benjamin Samson

Deputy Registrar of Titles

The defense did not challenge this letter in any way nor question its contents and therefore and the court accepted this letter into evidence. That being the case the office of the registrar of titles has confirmed the confusion of competing titles for he same property. The court now accepts that the title submitted by the complainants is in fact the correct and genuine title for section 302 Allotment 04 Hohola ( Gerehu) NCD

The defense also raised the issue of equitable interest saying that certain monies were exchanged between the parties based on a written contract of sale and understanding that there would be a sale of this property to the defendant.

There is not much dispute as to whether these monies were exchanged or not. A sum of K50,000 was initially alleged to have been paid and thereafter, further sums of K20,000 and K10,000 were alleged to have been also paid.

Was there such a contract of sale and was this contract actually breached. And if so did the defense file relevant proceedings to claim damages at the appropriate courts. These are perhaps interesting questions and matters, however they are not issues for this court to determine. These sorts of arguments can be properly raised through due process and in an appropriate and formal legal manner, and, at the appropriate forum, which is not the District Court.

There is also no evidence to show this court that the above issues raised by the defense in terms of the duplicate titles, the contract of sale to the defendant, the alleged monies being paid and other related matters, are being properly and formally raised at the appropriate forum, which in this case should be at the National Court of Justice.

Merely raising allegations of fraud, impropriety and unfairness and breaches of agreements as a defense in the District Court, without seriously taking formal legal steps to progress these allegations, is in my view insufficient as a defense, so as to deny a registered proprietor of a State Lease his right to peaceful possession of his lawfully recognized property

There are a number of cases that make this issue clear including the case of Yandu v Waiyu [ 2005] PNGNC N289 where His Honour Cannings, J stated that:-

"If the registered proprietor of a State Lease commences proceedings in the District Court to enforce their interest in land there is no bona fide dispute about title to the land unless some other person demonstrates that they have taken some distinct, formal, legal step to disturb that title." ( emphasis mine)

In the current case the defendants have not sufficiently demonstrated to this court that distinct, formal, legal steps have been taken to disturb or challenge the title of the complainant. They have not even bothered to challenge what this court views as the most critical evidence, which is of the letter written by the so called, deputy registrar of land titles a Samson Benjamin who stated that one title is genuine and not the other.

Finally the failure by the defense to provide the court with a properly written extract of its defense made it a bit cumbersome for the court to try to work out exactly the relevant defenses being raised. It should not be the courts job to try to figure out what, if any, the defenses might be. These should be stated precisely and with clarity so that the court easily understands what the defenses are

COURT ORDER

Therefore this court makes the followings orders

1 Under section 6 of (1) and (2) of the Summary Ejectment Act the defendants, and any other persons currently in occupation of the property known as section 302 lot 4, Hohola, ( Gerehu ) National Capital District are ordered to give vacant possession of the property to the complainant within 14 days from the date of this order

2 That failure to comply with the above order within 14 days, from the date of these orders will automatically attract the issuing of a warrant directing members of the Police force to forcefully effect the above orders.

3 That parties are to bear their own costs

COURT

Dated at Port Moresby this 27th day of March 2015

Lawyer for the Complainant: Baniyamai Lawyers
Lawyer for the Defendants: Wariniki Lawyers