Christen v Tsora [2019] PGDC 7; DC3093 (9 July 2019)

DC 3093

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CIVIL COURT JURISDICTION]

GFCr 19 of 2019

BETWEEN

RALPH CHRISTEN
Complainant

AND

ANTHONY TSORA
Defendant

BUKA: BTASIKUL

2019: 09^TH July,

     

Civil-

Cases Cited

References

Counsel

JUDGEMENT

1. B.TASIKUL PM: This matter came before me by way of a summon upon complaint. The complainant is seeking eviction orders claiming that the defendant is illegally in possession or occupying his property referred to asAllotment 363.Milinch Buka at Sohano Island, Autonomous Region of Bougainville.
   
2. In support of his claim he filed an affidavit dated 29^th April,2019 which he deposed in paragraph 1 states that the defendant is illegally in possession or occupying the said portion referred to as Allotment 3 Section 19 Sohano island where he have the legal title to the said property.
   
3. He further deposed in paragraph 5& 6 that he applied through the formal process to the National Land Board to secure the title to the easement area and after several years he was finally granted the opportunity to PNG Land Board. His application was successful and after paying relevant lease fees he was awarded the title to the easement which is known as portion 363 Milinch Buka, North Bougainville. He also annexes a true copy of the certificate of the title or state lease, which confirms that he is the legal owner of the said property.
   
4. He deposed in paragraph 7 that since he was granted the title the defendant illegally encroach his quite enjoyment of his property.
   
5. The defendant on the other hand testified that he came in on Sohano Island in 1986 and that particular area was used by the public for swimming, fishing and other used. Some years later he built a shed and a sea wall. The defendant also called several witnesses who also gave similar evidence which I do not intend to go through them as the evidence is irrelevant. They only confirm that the particular area was used for public purpose, which of course is not disputed.
   
6. Thefirst issueis: (1) Does the District Court has the jurisdiction to grant eviction orders?
   
7. Section 22 of the District Court Act gives the District Court ancillary jurisdiction to grant relief, redress or remedy or combination of remedies whether absolute or conditional and give effect to every ground of defence or counter claim, whether equitable or legal as oughtto be granted or given similar case by the National Court.Yes the District Court has the jurisdiction to grant eviction orders.
   
8. Therefore eviction proceeding under the Summary Ejectment Act Ch 202 is available as a quick remedy to people who have a clear title. In the case of Herman Gawi v PNGConcrete Ready Mixed (PNG) Pty Ltd [1984] PNGLR 74 His honour Kapi DCJ (as he then was) states; Proceeding for recovery of possession of land to people 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 or unclear.
   
9. In this present case before me the complainant tenered in court through his affidavit annexure a true copy of his State Lease title issued by Minister on behalf of the Independent State of PNG. The state lease issued under s.92 of the Land Act for a period of 99 years. It is therefore not disputed that the complainant have a valid title or state lease over the named property.
   
10. The second issue is; does the defendant have an equitable interest and if so does his equitable interest supersede a legal interest?
    
11. The defendant in his evidence did not disclose to the court what right or licence he has in continued to be in possession of the land. The only evidence before the court is that in 1986 he was residing at Sohano as a Public Servant and that area was used for public purpose. Some years later he came back again on the island and he built himself a shed and a sea wall. Basically, he was using that area on an ad hoc basis.
    
12. It was not disputed that the complainant on numerous occasions have approached the defendant informing him that he has obtained a state lease over that particular portion of land ,but the defendant has not responded positively to him.
    
13. It is therefore my view that there is no evidence before the court that the defendant has an equitable interest apart from having a small shed and a seawall on that property.
    
14. As I have mention throughout the proceeding that this court does not have jurisdiction to enquired into how the title was obtained. If the defendant has any issue with the title, then he can take the matter with other lawful authority.
    
15. In applying the doctrine of indefeasibility of title where a person who has registered title holds it against the whole world that if is not disputed unless fraud is proved to be involved in obtaining the title.
    
16. I therefore find that the complainant has a valid title to the property referred to as Portion 363, Milinch Buka Fourmil of North Bougainville, Autonomous Region of Bougainville.
    
17. I therefore make the following orders
    
    1. That the defendant, his family, servants and agents, are hereby ordered to vacate the said land describes as Portion 363, Milinch Buka, Fourmil of North Bougainville (Buka Passage), Autonomous Region of Bougainville, within two weeks.
       
    2. That the defendant, his family, servants or agents are not to interfere with the day to day operations of the complainant’s jetty or come within a 100 meters of the said land.
       
    3. Costs be awarded and be taxed