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Papua New Guinea District Court |
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]
DCCi147Of 2017
BETWEEN:
AKUWE WAIJEPA
Complainant
AND
ROBIN GASE
Defendant
Goroka: P KAUMBA
2017: December 4
2018: January 22
CIVIL:
Cases Cited:
Nil
References:
Nil
Counsels:
Lawyer for the Complainant, In Person
Lawyer for the Defendant, In Person
22nd January, 2018
DECISION
P Kaumba, Magistrate: This is a complaint filed by the complainants seeking eviction orders from this court to get the Defendantout of the property described as Section 36, Allotment 5 Goroka Eastern Highlands Province(herein-after ’the property’) pursuant to section 6 of the Summary Ejectment Act(SEA).
2.ISSUES.
(i). Is the complainant the owner of Section 36, Allotment 5 Goroka EHP?.
(ii). Does the complainant have standing to issue proceedings under the SEA?
(iii). Does the Defendant live on the property?
(iv). Is the complainant’s legal title subject to the Defendants equitable interest?
3. LAW.
DISTRICT COURT ACT
Section 21 Civil Jurisdiction
(1) Subject to this Act and in addition to any jurisdiction conferred by any other law, a court has jurisdiction in all personal actions at law and in equity where the amount of the claim or the amount or value of the subject matter does not exceed-
- (a) Where the court consists of one more Magistrates Grade V-K10,000.00; and
- (b) Where the court consists of one or more Magistrates Grade VI-K8000.00 and ...
(2) Repealed.
(3) ...
(4) A court has no jurisdiction in the following cases:-
...(f) when the title is bona fide in dispute....
Section 22 General ancillary jurisdiction
Subject to this Act, a court as regards a cause of action for the time being within its jurisdiction, shall, in proceedings before it- (a) grant relief, redress or remedy or combination of remedies, whether absolute or conditional and(b) give the effect to every ground of defence or counterclaim, whether equitable or legal, as ought to be granted or given in a similar case by the National Court and in as full and ample a manner.
SUMMARY EJECTMENT ACT(S.E.A).
6 RECOVERY OF PREMISES HELD WITHOUT RIGHT,ETC.
(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) Doesnot appear before the District Court at the time named in the summons; or
- (b) Appears and doesnot show 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 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.
PRINCIPLES OF EQUITY. Osborn’s Concise dictionary defines Equity as Primary fairness or natural justice. A fresh body of rules by the side of the original law, founded on distinct principles and claiming to supersede the Law in virtue of a superior sanctity inherent in those principles(Maine). Equity is body of rules formulated and administered by the court of chancery to supplement the rules and procedure of common law. Where there is a conflict between law and equity. Equity will prevail. Some of the maxims of equity relevant here are: Equity acts on the conscience, Equity follows the law, Equity looks to the intent rather than the form, Equity looks on that as done which ought to be done, Equity regards the balance of convenience and equity will not permit a statute to be a cloak for fraud.
THE DOCTRINE OF INDEFEASIBILITY OF TITLE. A person who has registered title under the Land Registration Act holds it against the whole world that is it cannot be disputed unless fraud is proved to be involved in obtaining the title.
CASE LAW
1.Herman Gawi&Orsvs- Png Ready Mixed Concrete Pty Ltd(1984) PNGLR 74. The Supreme Court held inter alia that proceedings for recovery of possession of land under the Summary Ejectment Act are intended to provide a quick remedy to people who have a clear title to land or premises; they are not intended to be available where title to land is in dispute.
KapiDepCJ as he then was commenting on Miles J decision in the National Court (see below) said ‘The decision was never appealed
against and so the declaration of the equitable rights of the occupants and the extent of this right is settled and cannot be questioned
now’
2. PNG Ready Mixed Concrete Pty Ltd &Ors(1981)PNGLR 91
The National court held inter alia that(1) The State having raised no objection to the presence of the occupants, they should be regarded
as having acquired an equitable interest analogous to a licence(2) In the circumstances the applicant as holder of legal estate,
was estopped from insisting on his legal title.(3) It would be just and equitable to make declaratory orders recognizing the applicants
right to possession subject to the equitable rights of the occupants to remain in possession for periods of one year or six months
as appropriate.
4. HEARING.
The complaint came before meon the 12th of September 2017 and I directed parties to file affidavits in support of theirrespective positions in District Court Registry and serve on each other and I adjourned the case to the 26th of September 2017 for further mention. On the 26th of September 2017 I set the case for hearing on the 13th of October 2017 at 100pm. On the above date parties did not appear so hearing date was vacatedand the case was adjourned to the 13th of November 2017 for hearing. On the 13th November 2017 the case was not mentioned. It came before me on the 16th of November 2017 and I set the case down for hearing on the 4th of December 2017.
5. RELEVANT FACTs.
(1) The complainant claims he is the owner of the propertyand he has a title to the property dated the 1st of May 2015 and registered in the Registry of titles on 6th of July 2017.
(2). He is seeking this courts assistanceto evict the defendant who he says is illegally on his property.
(3).The defendant says he does not live on the property. He lives on Section 36, Allotment 32 Goroka EHP.
(4).The defendant was sued in 2008 by the complainant and the case was struck out because the complainant did not have title to the property then.
(5) I visited the area on my site visit and noted that the Defendant has a house (which he uses to live,trade in store goods and snooker table where he allows his clients to play) on the property and it seems he may have lived for long time even before the Complainant obtained title to the property.
(6) The complainants land is in a settlement area namely Piswara settlement and there are other properties apart from the defendants close to each other. The Defendants house is next to the Goroka Lodge and the Goroka lodge’s unfinished fence made of iron posts were standing there which confirms the defendants statement in court that he disputed the fencing because it was encroaching on to his land and Goroka lodge has yet to complete it.
(7)Lastly I noted that the complainant has no property on the land in dispute and he did not identify the boundaries of his property.
6. FINDINGS ON LAW, FACTS AND ISSUES.
1.The Complainant is the owner of the property in dispute after he obtained title to the same. The title was issued on the 1st of May 2015 and registered in the registry of leases on the 6th of July 2017. The complaint has produced document and title to show that he is the owner of the property.
2. The Defendant was already on the propertybefore title was issued to the complainant and has a house which he uses to live and trade in store goods and a snooker table which he allows clients to play snooker game on the property but the defendant did not produce evidence into court to show when he commenced living on the property and how he got into the property and how many fixed assets he has on the property.
3. The purpose of the SEA can be found under the heading SUMMARY EJECTMENT ACT and it reads ‘Being an Act to facilitate the recovery of premises after determination of a tenancy and for related purposes’. Heading of section 6 reads ‘Recovery of premises held without right etc. Section 6, subsection 1 of SEA(supra) uses the word recover. Recover is defined by Oxford English Mini Dictionary as to regain possession or control of. Hence the main purpose of the SEA was to help persons who have clear title to property to regain possession or control of the same after the lease, rental agreementetc. is determined or conditions of the same are breached by the person in possession.
4. The complainant was not the ownerof the property when the defendant moved to settle there. He obtained the title later so he cannot now say he has the right to regain what he never owned or possessed at the time the defendant first moved onto the property and set up his home.
5. The Independent State of Papua New Guinea was the owner of the property when the defendant and other settlers settled on the property and it did not do anything about it and as time went by, they have acquired an equitable interest in the property.
6. The State should be the one which should have evicted the defendant and others on the property before advertising it for lease and granting it to the complainant. The complainant may not have standing to sue under the SEA but the defendant has not raised any issue with the complainants standing so I intend to ignore it. Furthermore the Supreme Court decision in Gawi’s case(supra) is binding on this court and it should be followed.
7. The defendant says he is not living on the propertyin question. He is living on section 36, lot 32 Goroka Eastern Highlands Province but he did not produce evidence to confirm his submission and furthermore he has not shown whose property is Section 36, Allotment 32 Goroka EHP and what right he has to stay on the said property.
8. In a situation where the legal position is in conflict with equity. Equity will prevail under English law adopted at independence by Papua New Guinea so in this case the Defendants equitable interest in the property shall be considered in its decision in line with decision of Miles J in the case of PNG Ready Mixed Concrete Pty Ltd &Ors(supra).
9. The defendant was on the property before the complainant obtained title and complainant’s title may beis in dispute and this court may not have jurisdiction to deal with it pursuant to section 21(4)(f) of the District Court Act(supra) but the defendant is not disputing title and I will ignore it. Furthermore the complainant has obtained an indefeasible title against the whole world except the Defendant and his title is clear and this court will allow him to get into the property subject to the Defendants equitable interest in the property being extinguished in a determinable period.
10. To the issue of whether the complainant is on the property or not and the boundaries of the property, is a matter for a surveyor to determine. There are other occupants close to each other on the property in question and it is in a settlement area and the complainant did not identify the boundaries of his propertyto me when I visited the areaon my site visit so he should obtain a surveyor’s services to determine the boundaries of the property in question properly before he can put up a fence.
11. In conclusion I am of the view that the Complainant is the owner of the property but he has not proved on the balance of probabilities that the defendant is on his property without any right.However the Supreme Court decision in Gawi’s case is binding on this court that is, a title holder can seek remedy in the District Court under the SEA. I also note that the equitable interest of the occupants in the Gawicase was determined by his Honour Miles J in the National Court case of PNG Ready Mixed Concrete & or(supra) so the Supreme Court did not consider the appellants equitable interests. HenceI will follow Miles J’s decision to take the Defendants equitable interest into account in making my decision.
12. I find that the complainant has a valid title to the property but it is subject to the defendant’s equitable interest in the property.
13. I also note that the defendant has valuable properties fixed to the property and it seems he been on land for a long time so the defendant be allowed to remain on the property for 6 months and vacate the property upon expiration of the 6 month period. The 6 month period will commence from the date of this decision.
7. ANSWER TO ISSUES.
1. Yes.
2. Yes Supreme Court decision in Gawi’s case is binding on this court.
3. Yes.
4. Yes but for a determinable period only. Decision of Miles J in PNG Ready Mixed Concrete(supra) followed.
8. COSTS.
Cost is a discretionary matter for judge. I am of the view that parties should bear their own costs.
9. ORDER.
My formal orders are:
Counsels:
Lawyer for the Complainant, In Person
Lawyer for the Defendant, In Person
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