Sipi v A & C Enterprices Ltd [2015] PGDC 5; DC2076 (7 March 2015)

DC2076

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

DC NO.490 OF 2014

BETWEEN:

ALUA SIPI

Complainant

AND:

A&C ENTERPRICES LTD

Defendant

Port Moresby - NCD: A. Kalandi

2015: 07March 2015
Civil Proceeding – Eviction Proceeding - Section 6 Summary Ejectment Act-equitable interest on the property as result of their long stay on the premises was akin to a licence on the property and that this needs to be considered prior making the eviction order.

Proceedings under the Summary Ejectment Act are for a quick remedy for recovery of a property or premises when there is a clear title of the property. It’s not intended for recovery when there is no clear title or in unclear.

Defendant nil appearance – Exparte hearing – under Section 143 District Court Act.

Hearing by way of Submission on Affidavit Evidence

Counsels:Mr.D. Kamen– for the Complainant

Nil Appearance

Laws:

1. Section 143 of District Court Act
2. Section 6 Summary Ejectment Act

Cases cited

1. Yagon v Nowra No. 59 Ltd (2008) N3375
2. Gawi v PNG Ready Mixed Concrete Pty Ltd (1984) PNGLR 74
   

RULING

KALANDI. A. Magistrate: The Complainant filed this proceeding against the Defendants for eviction under Section 6 of the Summary Ejectment Act. The Complaint, Summons Upon Complaint and supporting Affidavits were personally served on the Defendants. The matter was first mentioned on the 23^rd April 2014 and there was no appearance by the Defendants.

On the second mention, Mr.Korowa D of Simingi Lawyers showed appearance for the Defendant, but did not file necessary documentations to that effect. However, there was no further appearance by the lawyer of the Defendants thereafter in a number of adjournments until the Complainant made an application under Section 143 of District Court Act to have the matter heard exparte. The Court granted the application seeking leave to precede exparte and this hearing was exparte. Hence, the hearing proceeded by way of submission with the affidavit evidence filed.

BRIEF BACKGROUNDS

The Complainants are registered proprietors as joint tenants of the property described as Portion 2882, Volume 35, Folio 137, Millinch of Granvillie, Fourmil of Port Moresby, National Capital District. The property was transferred to them on the 05^th December 2012 from the initial owner in fee simple, Peter Thomas Vagi

The Complainant alleges that the Defendants have been illegally settling on the described property without the Complainants’ consent or approval or without right or licensee and remaining on the property without any lawful excuse or justification.

THE COMPLAINT

The Complainant in its complaint sought the following orders;

1. Pursuant to Section 6 of the Summary Ejectment Act, the Defendants be evicted from the Complainant’s portion of land, known as Portion 2882, Volume 35, Folio 137, Millinch of Granvillie, Fourmil of Port Moresby, National Capital District.
   
2. Pursuant to Section 6 of the Summary Ejectment Act, a warrant to be directed to the members of the Police Force to enter into the land and give vacant possession of the said portion of land to the Complainant.
   
3. The Defendants or their agents be restrained from interfering with the Complainant’s use, occupation and enjoyment of the land.
   
4. Cost of the proceedings
   
5. Such orders the Court deems fit and just.
   

ISSUES

The issues that emanated from evidence and the submission by Counsel that needs deliberation are,

(i) Whether or not the Complainants are the legal proprietors of the described property.
(ii) Whether or not the Defendants have any equitable interest or have licence to stay on the described property.
(iii) Whether or not the Defendant can be evicted from the described property.

EVIDENCE

Counsel of Complainant in submission relied on the following Affidavit evidence;

1. Affidavit of Lucy Gigiro filed 04^th April 2014
2. Affidavit of Tan Hoo Chow filed 04^th April 2014

There were also other Affidavits mentioned in submission, but were not relevant to the hearing of this proceeding as there relate to service of legal documents and letters of reminders of this proceeding.

Both Affidavits basically stipulates that the Complainants are the legal proprietors of the described property, they have title to the property and that the Defendant should vacate the property and give vacant possession to them.

APPLICATION OF THE FACTS.

ISSUE NO.01

The Counsel of Complainant in submission submitted that the Complainants were the legal proprietors of the property as the Certificate of Title is under the names of the Complainants. The property was transferred by a Contract of Sale and there is no issue as to ownership over the property.

The Defendants have been served all documents, Notice of Evictionhad been given, but the Defendants did not file any responds to defend the proceeding and thus silence means they are not disputing the ownership of the property. Counsel submitted that based on the Affidavits of the Complainants the Defendants be evicted per Section 6(1) of the Summary Ejectment Act. Counsel further submitted for orders as per the relives sought in the Complaint.

As the property was transferred through a Contract of Sale from the initial owner to the Complainants, and as a result of this exparte hearing, the Court is of the view that there is no dispute as to the property. However, through the negligence whether it be intentional or unintentional, Clause 7 of the Contract of Sale was not complied with. The property was sold to the Complainants when the Defendants were already on the property. Hence, the Complainants cannot run to this Court to give effect to something which should have been done through research prior to purchasing the property. This is not of discussion now as a result of the nature of this hearing.

However, as it’s now, as a result of this exparte hearing, the Complainants are the registered proprietors of the property described, as they are registered as joint tenants and thus have a valid title to the property..

ISSUE 02

Counsel further submitted that the Defendants be given fourteen (14) days to vacate the described property as they have no right or license to stay on the property.

The Counsel in submission did not assist the Court as to how the Defendants entered the property and how the Defendants were settled there. The Complainant further failed to assist this Court as to whether or not the Defendants have any equitable interest over the property. This is very vital as the hearing was exparte pursuant to Section 143 District Court Act and it was the onus of the Complainant to assist this Court to properly give its determination of the very issue.

The Contract of Sale entered into between the initial owner of the property and the Complainant in Clause 7 says that “the property is sold with vacant possession.” It’s the onus of the Complainants to ensure that this very clause was entirely right prior to transfer of the property. This Court is put to a situation where the Complainant became owners and took ownership of the property when the Defendants were already on the property described. As such it was the onus of the Complainant to satisfy this Court to that regard. Further to that, the ownership of the property was transferred to the Complainants around 2012 and this proceeding was filed in 2014, which means the Defendants have been on the property when the property was transferred.

The Counsel of Complainants in submission submitted that the Defendants did not file any respond to defend this proceeding, but I realised that there is an Affidavit filed by one Pr. Mark Walea, the Defendant. However, I need not go into that as the hearing was exparte.

Section 6 of the Summary Ejectment Act provides for recovery of property of premises occupied by persons without right of the premises. Section 6 is in the following terms;

(1) Where a person without right, title or DC2076%20Sipi%20v%20A%20%26%20C%20Enterprices%20Ltd00.png" alt="2015-03-07%20DC2076%20Sipi%20v%20A%20%26%20C%20Enterprices%20Ltd00.png" border="0" > licence DC2076%20Sipi%20v%20A%20%26%20C%20Enterprices%20Ltd01.png" alt="2015-03-07%20DC2076%20Sipi%20v%20A%20%26%20C%20Enterprices%20Ltd01.png" border="0" > 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. [Emphasis added.]

(2) Where the person summoned under Subsection (1)—

(a) does not appear before the District Court at the time named in the summons; or

(b) appears and does not show reasonable cause why possession of the premises should not be given,

the Court may, on proof of the matter of the complaint, issue a warrant directed to a member of the Police Force requiring him, on or before a day specified in the warrant—

(c) to enter, by force and with assistants if necessary, into the premises; and

(d) to give possession of the premises to the complainant.

Here the Defendants do not have the right over the property, but they might have some equitable interest over the property as a result of their long stay on the property. Thus, this gives them the licence to stay on the property. In Yagon v Nowra No.59 Ltd (2008) N3375, His Honor Justice Canning in an appeal from an Eviction Order of a District Court held; that the Defendants equitable interest on the property as result of their long stay on the premises was akin to a licence on the property and that this needs to be considered prior making the eviction order.

In Gawi v PNG Ready Mixed Concrete Pty Ltd (1984) PNGLR 74, it was held in an eviction proceeding under the Summary Ejectment Act that, “Proceedings under the Summary Ejectment Act are for a quick remedy for recovery of a property or premises when there is a clear title of the property. It’s not intended for recovery when there is no clear title or in unclear.”

In this present case, the ownership of the property was transferred to the Complainants when the Defendants were on the property. However, the Defendants have not presented themselves to argue as to show reasonable cause as to why they should not give vacant possession of the property to the complainants as per Section 6(2)(b) Summary Ejectment Act.

On the foregoing, I am satisfied that the title is clear, but not satisfied that there is no equitable interest over the property by the Defendants thus don’t have the licence to the property, but as it is, the complainants are registered proprietors of the described property.

ISSUE 03

Though Clause 7 of the Contract of Sale was not complied with, there is equitable interest over the property (if any) does not invalidate the sale and the transfer improper.Based on what’s before this Court, there is a Contract of Sale, the property has been transferred from the initial owner to the Complainants as joint tenants and that the property is now registered under the names of the Complainants thus they are the rightful proprietors of the property as described.

As the Complainants have the title registered under their names and have the right to the property or the land, the Defendants have been on the property when the title of the property was transferred to the Complainants and that the Complainants were fully well aware that the Defendants were there on the property.

As this hearing was an exparte hearing and that the Defendants were not given the benefit to be heard as a direct result of their not appearance in Court to defend themselves when they were fully aware that this case was ongoing, does not preclude them from and equitable interest or any other interest on the property. Thus, for purposes of fairness, the Defendants will be provided ample time to vacate the property.

COURT’S FINDINGS

1. This Courthas been satisfied on the balance of probabilities that the Complainants are the legal proprietors of the property as described.
2. The property was purchased, title transferred to the Complainants when the Defendants were already on the property described.
3. The Complainants will have the benefit of the orders sought, but for purposes of fairness and justice on the Defendants, ample time will be sufficient.
4. Where there is any equitable or any other interest over the property, the Defendants are at liberty to file proper proceedings in the higher Courts.
   

COURT ORDER

1. The Defendants be evicted from the Complainant’s portion of land, described as Portion 2882, Volume 35, Folio 137, Millinch of Granvillie, Fourmil of Port Moresby, National Capital District.
   
2. The Defendants to give vacant possession of the described property within five months from the date of service of this Order on the Defendants.
   
3. The Defendants are at liberty to file proper proceedings in the proper Courts in the event any equitable or any other interest over the property is affected as a result of this Order.
   
4. Parties to bear their own cost
   

Complainant:Kamen Lawyers

Defendant: Nil Appearance