Sabumei v Ovezo [2020] PGDC 32; DC4092 (23 January 2020)

DC4092

PAPUA NEW GUINEA

[In the District Court of Justice in its Civil Jurisdictions at Goroka]

DC. No. 221 of 2018

Between
AIJAY SABUMEI
(First Complainant)

And
TANIA SABUMEI
(Second Complainant)

And
GOSERETO SAITEN OVEZO
(First Defendant)

And

MARGARET SAITEN OVEZO

(Second Defendant)

Goroka: C. Inkisopo

2020: 23^rd January

CIVIL – District Courts Act, 1963 – District Court; a creature of Statute with its practice & procedure set out, defined and demarcated by Act –

Summary Ejectment Act, 1952 – Act purposed or designed to provide quick remedies to persons in possession of clear legal titles – not available where title is unclear or title is bona fide in dispute –

Summary Ejectment Act, 1952 - District Court or Magistrate could grant eviction orders where no distinct formal legal steps taken to disturb the title so held

Legislations & other Authorities

1: District Courts Act, 1963

2: Summary Ejectment Act, 1952

Cases Cited:

1: Herman Gawi -vs- png Ready Mixed Concrete (PNG) Pty Ltd [1984] PNGLR 74

2: Yandu -vs- Waiyu (2005) N2894

Counsel:

Mr Peter Siminzi Counsel for Complainants

Nil Lawyer for^t Defendants, Defendants self in Persons

23^rd January, 2020

REASONS FOR RULING

C. Inkisopo: The Defendants through the 2^nd Defendant apply by way of Notice of motion filed dated 27/03/19 in which they sought to have a Restraining Order on an eviction order of 7/11/19 set aside and the substantive proceeding numbered DC No 50/2018 stayed and have same transferred upwards and outwards to the National Court in Waigani for what they claimed to being for want of jurisdiction by virtue of s 21(4)(f) of the District Courts Act, 1963 under s. 24 of District Courts Act.

2: The Complainants jointly are holders of State Lease properties Title entered in their names jointly as joint tenants; such having been entered on 5^th March, 2018.

3: The Complainants filed eviction proceedings through their legal Counsel Mr Peter Siminzi against the Defendants and the court on being satisfied that they have a registered lease Title entered and registered in their names as joint tenants, the Court granted the subject Order for eviction dated 17^th November, 2018.

4: On the 27^th March 2019, the Defendants through the 2^nd Defendant filed a Notice of Motion seeking Orders for a set aside as well as a Stay Order and an order for transfer outwards and upwards to the National Court and have same transferred to Waigani, National Capital District

5: In support of the Application, Ms. Oveso filed and served her supporting Affidavit bearing the even date including a Comprehensive written Application which was much akin to a submission in which she argues her case with impressive legal presentations with relevant case authorities cited; one of which case authorities was one of my own District Court written judgments on the Paclii website. Ms. Oveso’s arguments and the legal presentations she advanced were more competently and tremendously expounded; especially for a lay person. All her legal arguments and the case citations she advanced to support her case are commendably just spot on for such a lay person as Ms Ovezo.
6: What emerges from her presentation can be summarized thus;-

(1) She is the daughter of the late legitimate principal customary owner of the subject portions of land, the late Mr Saiten Ovezo;

(2) She and her late father had filed documentations with the Department of Lands and Physical Planning to be issued titles to the several subject portions of land.

(3) The Defendants have been taking issues with the State over the subject portions of land for over decades now – opting to be granted State lease titles over the subject portions of land. Attempts to have titles over the subject portions of land were actually put in train by the Defendants and their late husband/father late Saiten Ovezo; thereby staking competing adverse interests over the subject portions of land.

(4) This in my humble view does not and cannot equate or amount to being a bona fide dispute as to the title held by the Complainants; a key consideration in matters of this nature in order to have the Court rendered devoid of its jurisdiction pursuant to s 21(4)(f) of the District Courts Act, 1963.

7: Ms. Oveso has in her supporting affidavit, made comprehensive presentations of her case complete with supporting documentations; all of which each and severally do not, in my humble view, go to raise any issue or dispute as to the Complainants’ title. Her family’s attempts through the years to be granted the title is a completely different matter to the title now so held by the Complainants.

8: I also note the Defendants’ raising the existence of this proceeding to being an abuse of the process of the Court - in that; whilst a Notice to Quit by the Minister is published and on foot, Complainants’ have taken out Court proceedings for eviction which Defendants say was an abuse of the process of the Court.

9: In my humble view, the s. 145 of the Lands Act, 1996 process of Notice to Quit by the Minister is an administrative mechanism which is purposed to free up occupation by illegal occupants of both either customary and alienated lands and restored to the owners; whether customary or State lease properties. That process (s. 145 Notice) has its own in-built enforcement mechanism that may be put in train at the behest and convenience of the owner; customary or State lease title holder. Here in our instant case, Complainants have, whilst the s. 145 Notice had yet to be exhausted, opted to take out formal Court sanctioned Eviction orders under s. 6 of the Summary Ejectment Act, 1952 which is another option perfectly open to them, in my humble view, to pursue to promote and protect their interests.

10: Eviction proceedings under s. 6 of the Summary Ejectment Act, 1952 and by the case authority of Herman Gawi -vs- png Ready Mixed Concrete (PNG) Pty Ltd [1984] PNGLR 74 is purposed simply to provide quick remedies to persons in possessions of clear registered legal lease Titles. In my humble view; the Complainants were perfectly within their rights and ambit of the law to come to a Magistrate or a District Court, the administrator Court of the Summary Ejectment Act, 1952. Hence, I do not consider the Complainants to be guilty of abusing the process by coming direct to the District Court whilst s 145 Notice had yet been exhausted.

11: I therefore dismiss the Defendants’ claim that the eviction proceeding under s. 6 Summary Ejectment Act, 1952 by the Complainants was an abuse of the process of the Court.

12: The crux of the Defendants’ arguments are that they are the principal customary land owners of the subject portions of land and that they have made submissions to the relevant State authorities to be issued titles over these portions of lands for which purpose their late father, late Saiten Ovezo fought on during his living years with nil success before he sadly passed on.

13: In all their arguments and affidavits and documentary materials presented before this Court, there is no iota or hint of a bona fide dispute disclosed and apparent as to the Titles so held by the Complainants.

14: Ultimately, I find that in our present case, there is no Dispute as to Title disclosed and apparent on the face of the Defendants’ several presentations.

15: For there to be a bona fide dispute as to title, there must be distinct formal legal steps taken to disturb the title. If there are no distinct formal legal steps taken to disturb the title possessed by the Complainants, then there is no bona fide dispute as to title and the District Court or Magistrate under s 6 of the Summary Ejectment Act, 1952 may grant Eviction orders on the back of the title so held. Entering into correspondences administratively to raise issues of flaws and improprieties in the way title was issued with the Department of Lands and Physical Planning does not amount to distinct formal legal steps taken to disturb the title as in the words of Cannings J in Yandu -vs- Waiyu (2005) N2894 “allegations of impropriety have been made..., however, it does not follow from that, that there was in the relevant sense a bona fide dispute about title to the land at the time...”

16: In that Yandu –v s-Waiyu case (supra), Mr. Justice Cannings in an appeal case at Kimbe, held that for there to be a bona fide dispute as to title, there must be distinct formal legal steps taken to disturb the title. Merely entering into correspondence with the Department of Lands & physical Planning raising this and that and issues of improprieties are not sufficient to found a bona fide dispute as to title in order to come to within the jurisdictional injunctions ambit of s 21(4)(f) of the District Courts Act, 1963.

17: Here in our present cases, I fail to discern any material of substance from the materials filed before the Court to found a bona fide dispute as to title.

18: That in this case, this Court cannot and does not consider there to being a bona fide dispute as to Title; because there is no evidence before this Court demonstrating that the Defendants have taken any distinct formal legal steps to disturb the title so held by the Complainants.

19: For any Court Order to be set aside as in exparte Orders, the Defendants have their opportunity of having their day in Court; being their next best opportunity to being heard of their case where they will advance their defence. And this opportunity is best served now in Court when they are applying to have the same set aside.

20: In any event, when the defendants fail to produce any evidentiary material demonstrating a bona fide dispute as to title, then there is no dispute; and the Court may confirm the eviction orders or have same actually set aside.

21: In our case here; I cannot see any material evidence going towards raising a bona fide dispute as to the Complaints’ title; All they are saying is that they are the original principal customary Land Owners of the subject portions of land and that they have filed submissions to be issued lease titles but were not issued them so taking up serious issues with the Office of the Lands Department both here at Goroka and Port Moresby.

22: In my humble view and on the basis of the case authority of Yandu -vs- Waiyu (supra), such cannot equate to taking “distinct formal legal steps to disturbing the title”, Hence in my humble view as in our instant case I find that there is no bona fide dispute as to title. Accordingly s. 21 (4) (f) of the District Courts Act, 1963 does not apply or come into play to effectively voiding the jurisdiction of this Court from presiding over and dealing with same.

Court Order:

23:

1: Application for set aside and transfer is refused and is dismissed entirely;

2: There is no bona fide dispute as to the title possessed by the Complainants and that the Court did properly act within its powers to grant the orders for eviction that was so made under s. 6 of Summary Ejectment Act, 1952;

3: As the Defendants being former original customary land owners of the subject portions of land, and also their being on the subject portions of land flowing from their former past occupations as customary owners, they may not necessarily be illegal occupiers in the relevant sense in unlawful occupation, having been on the subject land even long before the title was transferred to the Complainants; I hold that they have acquired a limited level of an equitable interest to being granted sufficient reprieves in terms of sufficient time frame of a period of two (2) months within which to meaningfully yield up the subject portions of lands as they have improvements and properties of substance to deal with and meaningfully yield up and vacate.

4: As costs follow the event and it also being a matter for judicial discretion, I order each party to bear own costs of this proceeding.

5: No further orders.