Tobar Business Group Inc v Teko [2020] PGDC 26; DC4081 (26 June 2020)

DC4081

PAPUA NEW GUINEA

In the District Court of Justice at Kokopo

(sitting in its Civil jurisdiction)\

DC 247 OF 2019

BETWEEN

TOBAR BUSINESS GROUP INC

Complainant

AND

JOSEPH TEKO, HIS FAMILIES, AGENTS ASSOCIATES

Defendants

KOKOPO: J. AMANU

2020: 13 January, 17, 26 June

DECISION

CIVIL – Summary Ejectment Act s.6 – conflicting titles – titles are bona fide in dispute – s.21(4)(f) District Court Act – this court lacks jurisdiction- essential ingredients of summary ejectment not made out – proceeding struck out

CIVIL – Complainant is an entity – can sue and be sued – Business Groups Incorporation Act – no meeting minutes authorizing commencement of proceeding- evidence by treasurer no credible.

Legislations:
Summary Ejectment Act
District Courts Act
Business Groups incorporation Act
Companies Act

Case Authorities cited:
Herman Gawi vs. PNG Ready Mix Pty Ltd [1984] PNGLR 74

Counsel:
Complainant - Mrs. N. Rainol
Defendants – In Person

26^th June 2020

1. J. Amanu: The Complainant Tobar Business Group Incorporation commenced this proceeding seeking to evict the Defendants, their agents/associates and families of Bitagaliplavu Clan.
2. Although it was not pleaded in the Complaint and Summons, I see that the proceeding was filed pursuant to Section 6 of the Summary Ejectment Act.
   
3. The Complainant alleged that the Defendants are illegally residing and/or trespassing on the Complainant’s property described as Portion 234, Gilalum Plantation, Kokopo, East New Britain Province.
   
4. The Defendant did file his Defence raising issue that the subject land is also leased by Bitagaliplavur ILG of which he is the chairman.

EVIDENCE

5. The Complainant relied on the Affidavit of Anthony Banit sworn and filed on 1^st November 2019.
   
6. The Defendant relied on the Affidavit of Jospeh Teko sworn and filed on 17^th October 2017 and Affidavit in Response sworn and filed on 11^th November 2019.

LAW

7. This proceeding was filed pursuant to section 6 of the Summary Ejectment Act thus I set out the provision: -
   

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) 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 my, 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.

ISSUE

8. Upon parties arguments or submissions, I find that there are two (2) issues for deliberation:
   1. Whether the Title is bond fide in dispute?
   2. Whether the Defendants have no right, title or license thus should be evicted out?

ANALYSIS

9. I have considered both parties’ oral submissions and their affidavit materials on file. Proceedings under S. 6 of the Summary Ejectment are well settled in our jurisdiction by the famous case of Gawi vs PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74. There are numerous subsequent reported and unreported cases which followed the established principles which will be discussed later in my judgment.
   
10. It was discussed and held in the Gawi vs PNG Ready Mixed Concrete Pty Ltd (supra) case that;
    

“Proceedings for recovery of land under S. 6 of 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.”

11. Section 6 of the Act basically means that if a person without right, license or title occupies a property, the owner may seek evictions orders from the District Court.
    
12. However, the District Court cannot issue eviction orders if the title is in dispute. Section 21 (4) (f) of the District Courts Act provides that “A Court has no jurisdiction where a title is bona fide in dispute”.
    
13. In this case, the Complainant submitted that it has a Title over the subject land. According to evidence the title to the land was granted to Meriba Tomakala and was subsequently transferred to Tobar Business Group Incorporated dated 19 May 2005 and entered on 23^rd May 2005.
    
14. On the other hand, the Defendants submitted that the subject land was leased by the State then to Bitagaliplavu Land Group Incorporated. A copy of the Special Agricultural and Business Lease (SABL) is in evidence and it provided that the subject land was leased to the said Incorporated Land Group on 30th July 2009.
    
15. I have carefully considered the land descriptions of the two Titles, and I find that the Special Agricultural and Business Lease was in respect to land described as Portion 234 Lot 2 & 3, Milinch Kokopo Town, Rabaul ENBP an area of 105.09 hectares.
    
16. Whereas the Complainant’s Title showed that the land is described as Portion 234 Milinch Kokopo Town Rabaul ENBP area of 305.700 hectares.
    
17. Obviously, there is a difference in the land mass claimed. However, I find that the Complainant’s Title includes the Defendant’s land area as shown in evidence through a map.
    
18. I also find that the Complaint’s Title was issued or transferred to it in 2005 whereas the Defendant’s ILG was issued with the SABL Title in 2009.
    
19. The Complainant argued that the Defendant’s Title was unlawfully granted and the Defendant also raised similar arguments. Nevertheless, on the face of it and on record both Titles are legal documents unless nullified in a Court of Competent Jurisdiction.
    
20. There are over lapping or encroachment of land Titles in respect to the land. Due to the encroachment and/or overlapping of these two Titles in evidence, I find that there is a genuine dispute in Title therefore this Court lacks jurisdiction pursuant to Section 21 (4)f) of the District Courts Act.
    
21. So the answer to issue one (1) is YES.
    
22. Since this Court lacks jurisdiction, there is no need for me to deliberate in detail the second issue. However, I wish to briefly state here that even if the Title is not bona fide in dispute, the Defendants do have Title to continue occupation on the subject property.
    
23. The essential ingredient of summary ejectment under S. 6 of the Summary Ejectment Act are:
    1. The owner must make the application.
    2. The Defendant has no right, title or license to occupy.
       
24. In this case, the Defendants do have a legal Title over part of the subject land therefore this proceeding must fail.
    
25. There is one other thing that I wish to address which was raised with counsel during submissions. That is the legal standing of the Complainant.
    
26. The Complainant in this matter is Tobar Business Group Incorporated. This means it is incorporated under Business Groups Incorporation Act. Section 17 of the Act do allows for an incorporated business group to sue or be sued.
    
27. However, the entity cannot speak on its own; a person or human being must speak on its behalf.
    
28. According to the Affidavit of Anthony Banit, he deposed that he is the Managing Director, Board Chairman and Shareholder of Tobar Business Investment Limited.
    
29. Tobar Investment Limited is, legally, a different entity as it is registered under the Companies Act. It is different entity from the Complainant.
    
30. I also find from the Business Group Inc.’s extract that Anthony Banit is the Treasurer of the Complainant. He is not the Chairperson.
    
31. There must be proper meeting resolution authorizing a person to institute proceeding if they wish to name the entity as a party (Complainant).
    
32. I therefore find that, Mr. Anthony Bait do not have the legal capacity or authorization to filed evidence for the Complainant.
    
33. In any event as I have already found that this Court lacked jurisdiction pursuant to section 21 (4)(f) of the District Courts Act, I will only make one formal order.

FORMAL COURT ORDER.

1. The entire proceeding is struck out as this Court lacks jurisdiction on the basis that the Title is in dispute.
   
2. The Complainant shall pay the Defendant’s costs to be taxed if not agreed.
   

Counsel for the Complainant: Natphil Lawyers

Counsel for Defendants: In Person