Puio v Warua [2015] PGDC 7; DC2078 (20 November 2015)

DC2078

PAPUA NEW GUINEA

(IN THE DISTRICT COURT OF JUSTICE)

DC NO. 365 OF 2014

BETWEEN :

WILLIAM BARNES PUIO

- Complainant –

AND

THOMAS WARUA

-Defendant –

Port Moresby – NCD : A. Kalandi

2015 : 20^th November, 2015

Civil Proceeding – Eviction Proceeding – Section 6 Summary Ejectment Act – Person without right, title or license on property – Shows reasonable cause as to why one cay stay on property.

Notice of Motion – Application filed by Defendant to dismiss proceeding to Section 6 Summary Ejectment Act.

Counsels: Mr. Kaki C – for the Complainant

Mr. Rake A – for the Defendant

Laws:

1. Section 6 of Summary Ejectment Act
2. Section 21 (4) (f) of District Court Act.
   

Cases Cited

1. Yagon v Nowra No. 59 Ltd (2008) N3375
2. Mudge – v – Secretary of Lands (1985) PNGLR 387
3. Mahuru v Dekena (2013) N5303
4. Siwi – v- Mathew (2006) N3048
5. Jant Limited v UlmatKell& Others N4953
6. Klkia v Solowet (2009) N3682
7. Gawi v PNG Ready Mixed Concrete Pty Ltd (1984) PNGLR 74,
   

RULING

KALANDI .A . Magistrate: The Complainant filed this proceeding against the Defendant for eviction under Section 6 of the Summary Ejectment Act over a property described as Section 47, Allotment 43, Volume 32, Folio 42, Fourmil Granville, Hohola, National Capital District. The Defendant filed an Amended Notice of Motion on the 30^th October, 2015 to dismiss the entire proceeding pursuant to Section 6 of the Summary Ejectment Act and Section 21 (4) (f) of District Court Act. Both parties consented to make submissions on the substantive relieves as both were to make submissions centered around the substantive issues. Thus, both party’s submissions and arguments were made around the substantive nature of the proceeding. As a result of the nature of the submission, the Court’s ruling of the application will go to the extent of determining the substantive issues of this proceeding.

BRIEF BACKGROUNDS

The Complainants is the registered proprietor of the property described as Section 47, Allotment 43, Fourmile Granville, Hohola, National Capital District. It’s claimed that the Defendant has been living and occupying this property without any lawful authority, permission, license or right. However, the Defendant claims that the Complainant is not the registered proprietor of the described property.

THE COMPLAINANT

The Complainant sought the following orders;

1. Pursuant to Section 6 of the Summary Ejectment Act, the Defendants be evicted by police to allow the Complainant to have immediate possession of the land.
   
2. The Defendants be restrained from causing any disturbance or interference to the Complainant after the eviction order is enforced by police.
   
3. Cost of the proceedings.
   
4. Any other orders the Court deems fit and just.
   

AMMENDED NOTICE OF MOTION

The Amended Notice of Motion sought the following orders;

1. The entire proceeding be dismissed pursuant to Section 6 (1) of Summary Ejectment Act and the common laws and laws of equity.
   
2. Alternatively, pursuant to Section 21 (4) (f) District Court Act, the entire proceeding be dismissed.
   
3. That the complainant be restrained from instituting further proceedings until the cost of the proceedings are paid
   
4. Any other orders the Court deems appropriate.
   

ISSUES

The issues to be determined by this Court are;

(i) Whether or not the Complainant is the registered proprietor of the property and if so the Defendants have shown reasonable cause as to why they can stay on the property

(ii) Whether or not the proceeding be dismissed per s.6 (1) of Summary Ejectment Act and alternatively per Section 21 (4) (f) of District Court Act.

(iii) Whether or not the Defendant can be evicted from the property described.

EVIDENCE

Counsel of Applicant/Defendant in submission relied on his submission filed 11^th November, 2015 making reference to the Affidavit of John Kawi filed onthe 17^th of July, 2014, 16^th June, 2015 and the one filed on the 03^rd October, 2015.

The Complainant/ Respondent’s Counsel made submissions in reliance of the Affidavits of Complainant, filed on the 26^th October, 2015 and the one filed the 19^th November, 2015.

SUBMISSION

The Counsel of Applicant/ Defendant submitted entirely on his submission filed 11^th November, 2015, Counsel in his opening remarks submitted that the entire proceeding be dismissed on the basis that the Complainant is not entitled to the orders sought per Section 6 of Summary Ejectment Act as he does not have title of the property.

It was submitted that one John Kawi whose affidavit was relied on in submission, who is not a party to this proceeding has been living on the property and that the Defendant is the adopted son of this Kohn Kawi. It’s very interesting to note that the defendant did not file any defense or any evidence to defend the case. It was submitted that the Complainant obtained the title to the property described under dubious and fraudulent means and the Registrar of Titles cancelled that title on the 23^rd August 2010 and issued the title to John Kawi on the 18^th August, 2015 and on the 10^th July, 2015, the property was then transferred from John Kawi to Thomas Warua (the Defendant)

Counsel submitted that the proceeding was instituted per Section 6 of Summary Ejectment Act, but the Applicant/ Defendant is the title holder of the property and therefore the complainant cannot be successful for the relieves sought per s. 6 Summary Ejectment Act and on that basis the proceeding must be dismissed unless the complainant produces a legitimate title to the property apart from the one cancelled by the Registrar of Titles.

It was further submitted that the Defendant’s title is indefeasible per Section 33 of Land Registration Act and that it can only be challenged where fraud is alleged in a competent Court of jurisdiction.

Counsel further submitted that per Section 21 (4) (f) of the District Court Act, this Court does not have power to hear and determine the issue over the title to this property and on that basis the matter can be referred to the National Court per Section 24 of District Court Act but added that Section 24 of District Court Act cannot be invoked in this case because; firstly there is no dispute over the property in the National Court and secondly the proceeding before this Court is not a dispute over the tile of the property, but is an eviction proceeding per Section 6 Summary Ejectment Act.

On those basis, submitted that the orders per the Amended Notice of Motion be granted.

The Counsel of Complainant submitted that he adopted the submission by Counsel of Defendant that there is no dispute over the property.
A copy of the title is annexed as “Annexure A” of the Complainant’s Affidavit filed 19^th November, 2015. This title shows that the property was initially a property of the National Housing Corporation and it was registered to the complainant on the 31^st March 2009.

Counsel submitted proceedings under the Summary Ejectment Act cannot be filed by persons who don’t have title to a property. Counsel submitted eviction proceeding was filed at the Central District Court in DC NO. 288/2009 and an order for eviction was entered on the 07^th January, 2010. The eviction order was not enforced as John Kawi filed several National Court proceeding over the property. There were three separate proceedings filed;

(1) OS NO. 07/2010 John Kawi’s v William Puio , Registrar of Titles & Secretary for Lands. The proceeding was filed in Lae, but it was dismissed because there was another proceeding filed in Waigani over the same property. Annexed as “Annexure B” is a copy of the Court Order of the Affidavit of complainant filed 19^th November, 2015.

(2) OS NO. 839/2010 – John Kawi v NHC , Managing Director, William Puio was joined as a party on application. This case was also dismissed, Annexed as “Annexure C” is a copy of the Order of the same affidavit.

(3) WS NO. 1472/2011 – John Kawi v William Puio&JonnahSasingan. This proceeding was withdrawn on the 04^th August, 2015. Annexed as “Annexure D” is a copy of the Order for Withdrawal of the same affidavit.

It was submitted, the proceeding was withdrawn upon inventing a fake title over the property, annexed as “Annexure A” of Affidavit of Thomas Warua filed 30^th October, 2010.

Counsel submitted all transfers and any changes to the descriptions of the title are entered on the title, but there is none of this in the fake title. This title does not entail all transfers (if any) as complainant is the initial holder of the title after being transferred from NHC.

When the Complainant realized that the Defendant has a fake title attached to the said property, it was reported to the Secretary for Lands and the Minister for Lands. The Secretary for Lands upon receipt of the complainant wrote a reference dated 01^st July, 2015 annexed as “Annexure E” in the Affidavit of complainant filed 19^th November, 2015, which asserted that the complainant is the registered proprietor of the said property. Annexed as “Annexure F” is an Investment Report conducted by NHC as the former owner of the property dated the 08^th October2015 stating that the complainant is the registered proprietor of the property as described as the sale to the complainant was legal. Annexed as “Annexure G” is a letter dated 05^th November2015 from the Managing Director of NHC to the Secretary for Lands requesting for cancellation of the purported title which the Defendant claim as the legal title.

Counsel submitted there is no dispute over the property and this Court has the jurisdiction to hear and determine this proceeding. On this basis, the application can be refused and an order for eviction against the Defendant is granted.

In respond, Counsel of Defendant said, the OS proceedings were seeking declaratory orders and that the WS proceeding was the proceeding disputing ownership. Counsel submitted “Annexure A” of John Kawi’s affidavit filed 17^th July 2015 shows that the complainant’s title was cancelled and that there is no evidence by complainant that the cancellation was revoked. There is no other title by the complainant, the title used to institute this proceeding was cancelled. Thus, the orders sought in the complaint can’t be granted.

APPLICATION OF LAW AND FACTS

Section 6 of the Summary Ejectment Act is in the following terms;

(1) Where a person without right, title or licence 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.

(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 complainant, 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.

The complainant filed proceeding per s. 6 SEA to evict the Defendant. Per this section, it’s mandatory upon the defendant, that he must show cause why they should not be evicted from the property. Further the Defendant was to satisfy the Court by coming to Court and showing reasonable cause why the property should not be given to the person complaining. A person without right, title or has licence to stay on the property has to show cause why they should continue to stay on the property.

The complainant claimed he was the legal legitimate proprietor of the property described as a result of the transfer of ownership from NHC, the initial owner of the property to William Puio, complainant dated 20^th March 2009 entered 31^st March 2009, annexed as “Annexure A” of his Affidavit filed 19^th November 2015.

The defendant on the other side submitted that the Complainant’s title annexed as “Annexure B”in the Affidavit of John Kawi filed 18^th August 2015 was cancelled on the 23^rd August 2010. The entries in the title shows the following information;

(a) Property transferred to William Puio from NHC was registered on the 31^st March 2009.

(b) Title canceled registered on the 23^rd August 2010

(c) The official copy of the title was lost or destroyed registered on the 18^th June 2015

There are separate titles annexed as “Annexure A” of this same Affidavit that the property was transferred from NHC to John Kawi dated the 01^st July 2004 registered on the 18^th June 2015.

Thus, there are four separate titles of the described property before this Court. These are set out hereunder.;

(i) The title dated 20^th March 2009 registered to William Puio dated 31^st March 2009 which is annexed as “Annexure A” to Affidavit of William Puio filed 19^th November 2015. This title has the only entry that it was transferred from NHC to William Puio.

(ii) The title dated 20^th March 2009 registered on the 31^st March 2009 annexed as “Annexure B” in the Affidavit of John Kawi filed 18^th August 2015. This title has three entries as I have alluded earlier. That’s ;

1. Title transferred from NHC to William Puio dated 20^th March 2009 and registered on the 31^st March 2009.
2. The title being cancelled registered on the 23^rd August 2010

100. The official copy of the title being lost or destroyed registered on the 24^th August 2010.

(iii) The title dated 01^st July 2004 registered to John Kawi dated 18^th June 2015

(iv) The title dated 01^st July 2004 registered to John Kawi dated 18^th June 2015 and then transferred to Thomas Tewa registered dated 15^th July, 2015. This title is not endorsed by the issuing authority.

I am of the view that entries of any transfers, changes to a property are entered and reflected in the one and same title, but here there are four different tiles. The title used by the complainant to institute this eviction proceeding has a single entry that it was transferred from NHC to William Puio dated 20^th March 2009 and registered on the 23^rd August 2010. It’s very interesting to note that the signature is that of the same person who entered the cancellation of the property to William Puio.

Further, all entries are not entered into the same title of the described property. There are no different properties and any entry on the property of any changes must be reflected in the same title. This has never been the case.

Submission by Counsel of complainant that the title claimed by John Kawi as the legal title is a fake title was not challenged by the Defendant. Counsel of complainant to confirm this position referred to numerous annexures in the Affidavit of William Puio filed 19^th November 2015, “Annexure E” letter dated 01^st July 2015 from the Secretary of Lands confirming that the Complaint was the legal owner of the property. This letter was done after the transfer to John Kawi was registered on the 18^th June 2015. Further, “Annexure F” an investigation report from NHC endorsed by the Acting Managing Director dated the 08^th October 2015 that the title to John Kawi was a fake title. Also “Annexure G” a recent letter dated the 05^th November 2015 from the Managing Director to Secretary Lands for revocation and cancellation of the fraudulent tile to John Kawi.

On the foregoing, this Court is of the view that the complainant has the legal standing to institute this proceeding with a genuine title to the described property.

This proceeding was filed in 2014, but it has taken two years to progress as the Defendant filed proceeding in WS NO. 1472/2011 – John Kawi v William Puio&JonnahSasingan after the OS Proceedings in the National Courts in Lae and Waigani were dismissed. However, this proceeding was withdrawn ordered on the 04^th August 2015 and entered on the 08^th August 2015. As it is the complainant’s title to the property is not challenged. The Defendants says John Kawi is the legal owner of the property and that it was transferred to him, but the evidence and submission by Counsel fo complainant that tile is fake was never challenged. In the event the title was challenged, that proceeding was withdrawn.

This Court has no jurisdiction to hear and determine proceedings filed under Section 6 SEA only when its put ot the Court that the title ot the land is in Bona Fide dispute per Section 21 ofDistrict Court Act. This was the very case, this proceeding was on hold pending the withdrawn, this Court has the jurisdiction to hear and determine this case.

Counsel of Defendant submitted the Defendant was on the property for a long time, the complainant’s tile was cancelled and that the proceeding was filed with the use fo a title that was cancelled and that Defendant has the legal title to the property and any issue by the complainant that the property is in bona fied dispute can be trired in the Naitonal Court and made reference to s. 21 (4) (f) of the District Court Act as title to the land is bona fide in dispute and that this court has no jurisdiction to hear and determine this proceeding. It was on this very reason that the John Kawi filed the proceeding in the National Court, but was withdrawn, thus the complainant’s title is not challenged by the Defendant but claims to be the legal owner of the property. This part of the argument should have been advanced at the National Court in the proceeding that was withdrawn. It can’t be made in this Court as there is no issue to ownership. As per the evidence before this Court, I’m of the view that there is no challenge on the title of this property and on that basis there is no dispute over this property.

In Mudge – v – Secretary of Lands (1985) PNGLR 387, the principle of indefeasibility of title is challenged only per s. 33 of the Land Registration Act, which is applied in many other cases. Any person affected by this principle has an interest for damages as an equitable interest in the National Court but there is no proceeding filed in the National Court, the only proceeding was withdrawn.

In Jant Limited b UlmatKell& Others N4953 as it succinctly sets out the application of s. 21 (4) (f) of the Act. In this case, the Appellant who was the registered proprietor of the State Lease appealed the decision of the District Court when the Court refused to enter judgement for eviction of the Respondent on the basis that it did not have jurisdiction as title to the land was bona fide in dispute. Cannings J, in the Ruling said, “ one can file an application under the Summary Ejectment Act to enforce their interest in land, unless a person alleges that there is bona fide dispute over the property and has taken some distinct formal and legal steps to disturb the title”. The Court realized that there was no distinct formal and legal steps take to disturb the title and that the District Court had the power to determine the matter, but was wrongly dismissed and thus was a substantial miscarriage of justice. Thus, appeal was allowed.

The proceeding in WS NO. 1472/2011 against the complainant, in my view was the right step forward, but it was withdrawn and as it is there is no dispute over the property. If there is then there is no formal legal steps taken by the Defendant to disturb the title.

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”.

The above case in PNG Ready Mixed Concrete also entails the principle of long stay on a property without objection whether as settlers or squatters as applicable to a licence to stay on the property. As a result, for purposes of eviction they have an equitable interest on the property and any claim for damages can only be tried in the National Court.

This case also settles the issue to licence. Even if the Defendant is on the property by licence, he can still be evicted on application of equitable interest. Further submitted, the case of Kikia v Solowet (2009) N3682, His Honor, Cannings J considered the equitable interest on land by way of compensation and is not an exception to stay on land.

Where the Defendant is not disputing the ownership of the property or alleging that the title is bona fide in dispute, the onus is on the Defendant as per Section 6 (2) (b) of the Summary Ejectment Act to satisfy this Court that there is reasonable cause as to why the Defendant cannot give up possession of the property of premises.

In the event, there is question as to the indefeasibility of the title, per s. 33 of the Land Registration Act, that question can only be raised in the National Court as per the case in Mudge v Secretary of Lands. As it is, the Defendant has not satisfied this Court that the title is bona fide in dispute or that there is issue as a result of Section 33 Land Registration Act, further the Defendant has not taken and formal legal steps to disturb the title. The only proceeding that was in the National Court was withdrawn.

COURTS FINDINGS

1. The Complainant is the registered proprietor of the property as described
   
2. The Defendant has not alleged there is a bona fide dispute over the property but instead claims to be the legal owner of the property, but there is no proceeding in the National Court to advance that argument. Thus, this Court has the jurisdiction to hear and determine this case.
   
3. The Defendant has not satisfied this Court that there is reasonable cause as to why he cannot give up possession of the property
   
4. The Defendant did not make any submission as to any equitable interest over the property.
   

ORDERS OF THIS COURT

1. The Defendant’s Amended Notice of Motion filed 30^th October 2015 is refused.
   
2. The Complainant is the registered proprietor of the property described as Section 147, Allotment 43, Hohola, National Capital District
   
3. The Defendant to be evicted from the Complainant’s property described as Section 147, Allotment 43, Hohola, National Capital District
   
4. The Defendant to voluntarily give vacant possession of the property to the Complainant within two (2) weeks from the date of this Order, taking into consideration the duration of time the Defendant continued to stay of the property knowing that the complainant was the legal owner to the property.
5. The Defendants, their servants and agents are restrained from interfering with the Complainant’s possession, use, occupation and enjoyment of the property
6. In the event, vacant possession is not given within time stipulation, the members of the Police Force are ordered to effect eviction of the Defendant, their agents and whosoever continues to occupy the described property.
7. Cost against the Defendant to be taxed if not agreed.
   

Lawyer for Complainant: KK Charlthom Lawyers

Lawyer for Defendant :Ame Lawyers