Ipo v Kundalin [2020] PGDC 4; DC4040 (20 July 2020)

DC4040

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

DC. NO. 200 OF 2020

PENI IPO

Complainant

V

RITA KUNDALIN

Defendant

Port Moresby: Clivson Philip, Magistrate

2020: 29^th June, 8^th July & 20^th July

IN THE MATTER OF AN APPLICATION FOR SUMMARY EJECTMENT PURSUANT TO SECTION 6 (2) OF SUMMARY EJECTMENT ACT, CH. NO. 202

Residential State Lease – Summary Ejectment Act – Section 6 (recovery of premises held without right, etc.) – pre-conditions for exercise of power by the District Court to order summary ejectment – need for proof of ownership by lessee.

Lessee – an individual with undisputed bona fide title may sue in his or her own personal name – pre-conditions to exercise of power to commence court proceedings.

Courts and Judicial Officers – need to conduct due inquiry to be satisfied that a matter is properly before the Court – duty to protect the Court against abuse of its processes.

The complainant is currently registered leaseholder of a residential state lease described as Section 232, Allotment 26 located at Hohola, Tokarara (June Valley) within National Capital District comprising a land area of zero point zero three six zero (.0360) hectares. She had acquired formal title on this property by virtue of due process of transmission in accordance with Section 125 of Land Registration Act 1981 thus formalized on 18^th March, 2015. The defendant is sister in-law of the complainant who had been residing on the premises under consent of the complainant effectively from 12^th February 2015 until on two occasions firstly sometime in early 2018 and secondly on 6^th June 2020 the complainant had demanded the defendant to freely give her vacant possession of the property but the defendant had refused it up to date of the summons.
Held:

(1) It is proven and clear that the complainant is the lessee of the land on which the defendant and her relatives are currently living on.

(2) It is also very clear that the defendant maintains no rental, lease agreement or a demonstrable valid contract between her and the complainant after the date she was demanded by the complainant to return full vacant possession of the property consequently, the defendant attained no interests in law to allow her to continue to remain on the residential property after the notices to quit were effected by the complainant.

(3) It is clear that the proceeding in the District Court was properly instituted with authority of the complainant in person consistent with the District Courts Act and Regulations.

(4) The Court had conducted its inquiry to satisfy itself that the proceedings were properly instituted by the complainant.

(5) Proceedings under the Summary Ejectment Act are intended to offer a quick remedy to people who have a clear title to the premises that are being frivolously hindered by acts of misconceived perceptions about certain untenable interests outside of the law.

(6) Here the title was clear but the defendant was deliberately or inadvertently pursuing a defense of fraud which the Court have no jurisdiction to delve into and so declined in it.

(7) Since the complainant has made out her case and defendant has not shown a better title to the land nor any rights in law to necessitate her continuity to remain on the property, a Warrant of Possession shall be issued forthwith effective from Wednesday 5^th August 2020 conditional on the defendant hereby granted 4 weeks from Wednesday 8^th July 2020 to voluntarily disassemble and remove all her stock, assets, personal effects, chattels and fixtures from the property and give its full possession back to the complainant.

Cases cited:

The ensuing case was followed by this ruling:

Kopen Yanda and Others v Apostolic Church Properties Association of PNG Inc. (2006) N3042.

Counsel:

P Ipo, in person for herself as Complainant.

S Olewale, for the Defendant.

20^th July, 2020

INTRODUCTION

1. This is an application for summary ejectment pursuant to Section 6 (2) of Summary Ejectment Act, Ch. No. 202 by the complainant for eviction of the defendant from a parcel of land on residential state (crown) lease described as Section 232, Allotment 26 at June Valley in National Capital District (NCD) registered in name of the complainant. The court has granted a conditional amicable settlement of the matter since both parties are very closely associated by family inter-marriage relationship. Therefore, the defendant was granted time of 4 weeks from Wednesday 8^th July 2020 inclusive of weekends up to Wednesday 5^th August 2020 to give 100% full vacant possession of the property to the complainant. In default, a Warrant of Possession shall be issued to members of the Police Force for lawful removal of the defendant and all her relatives, agents and servants inclusive of their stock, fixtures and chattels from the property and shall give clear vacant possession to complainant.
   

BACKGROUND

2. The complainant is currently registered leaseholder of a residential state lease (previously a crown lease) described as Section 232, Allotment 26, Hohola (June Valley), NCD which had been formally transferred to her name pursuant to a Transmission Certificate dated 26^th February 2015 by virtue of Section 125 of Land Registration Act, 1981 Chapter No. 191. The transfer was formally effected in consequence to death of her late husband, Mr. Erepan Kundalin who was previously title holder having died intestate on 6^th December 2014.
   
3. Transmission entry No. S.69990 caused on the title document by Registrar of Titles show that the whole estate of the late Mr. Kundalin was transmitted to Peni Ipo of Porgera which was produced on 17^th March 2015 at 9:08am and entered on the 18^th March 2015.
   
4. The complainant had initially been married to the defendant’s elder brother being the late Mr. Erepan Kundalin who then remained as sister in-law of the defendant until sometime later when under Engan custom she re-married to the defendant’s younger brother namely Mr. Billson Kundalin. Consequently, the complainant continued to maintain her family marital status as sister in-law to the defendant by both the previous and current marriages.
   
5. The complainant is employed by Porgera Development Authority as an accountant and is resident at Porgera thus after death of her husband she arranged for her sister in-law, the defendant to be a caretaker of her property being Section 232, Allotment 26, Hohola (June Valley), NCD. On 12^th February 2015 both the complainant and defendant conveyed their verbal intentions into an agreement constituting a formal arrangement by way of two reciprocated Statutory Declarations signed at Boroko, NCD. These had been later disputed.
6. A particularized combined terms of the two Statutory Declarations show that the defendant is to perform specific duty of a care-taker with possessory and user rights over the property and operating rights of the trade store until such time when the complainant returned to the NCD to further develop the property or requested her to quit and give early vacant possession.
   
7. Then after some time the complainant was re-married to her late husband’s younger brother, Mr. Billson Kundalin in accordance with their Engan custom and they both resided at Porgera, Enga Province while the defendant continued to have custody of the property and operated the trade store (tuck-shop) located within the property under terms of the agreement.
   
8. The complainant have allowed the defendant to operate the trade store (tucker stop) for almost five years and may presume that the defendant had substantially profited from the business and therefore is aggrieved that the defendant had refused to give vacant possession of the property following her numerous requests made to the defendant to quit with a final notice being issued by the Port Moresby District Court under the Complaint and Summons to a Person On Complaint dated the 12^th of June 2020.
   
9. If the defendant had any doubts about how serious the complainant had been with her previous attempts that were made through different modes of communication to inform her to formally quit and give back immediate vacant possession of the property then this was validated by the Summons to a Person On Complaint that commanded the defendant’s appearance on 29^th June 2020 at 09:30am pursuant to Section 6 (2) of Summary Ejectment Act, Chapter No. 202. The summons itself is sufficient legal notice to initiate a notice to quit.
   
10. The complainant had sought from the District Court a specific order that the defendant and her relatives, agents and servants to peacefully give vacant possession of the property within 14 days or in default then members of the NCD Police Force be empowered to peacefully take possession of the property and deliver vacant possession to the complainant.
    
11. Previous attempts to resolve the matter amicably were unsuccessful hence this proceeding.
    

DISTRICT COURT PROCEEDINGS

12. Matter was mentioned in court twice initially on 29^th June 2020 and for hearing on 8^th July 2020 respectively then the court had adjourned to 20^th July 2020 to deliver its full ruling. The matter however stands adjourned to Wednesday 5^th August 2020 at 1:30pm by which time the defendant is required to confirm that full occupational possession of the property has been clearly vacated for the complainant or in default a Warrant of Possession shall ensue.
    
13. No defense and written submissions were filed except for respective affidavits of the parties. No additional documentary evidence was filed by the defendant together with her single affidavit sworn and filed on 7^th July 2020. Only the complainant filed documentary evidence in both her sworn and filed affidavits of 12^th June 2020 and 2^nd July 2020 respectively. Apart from the Complaint and Summons to a Person on Complaint which were filed on 12^th June 2020 and returnable to 29^th June 2020, the court was required to consider the single affidavit of the defendant and two affidavits of the complainant together with the Notice of Motion filed on 12^th June 2020 by the complainant. Following these materials no further evidence was filed and the parties opted not to cross-examine each other on their individual affidavits or call any additional witnesses to testify on their positions and assertions.
    
14. After those two days of appearances the court was able to reach an amicable settlement with the combined ingenuity of the parties. On both occasions counsel appeared for the defendant and assisted the court but did not file a Notice of Appearance.
    

ATTEMPTED MEDIATION

15. At rising of court on 29^th June 2020, the court directed parties to commit to amicably resolve the matter. On 8^th July 2020, counsel for the defendant had applied to seek leave of court to adjourn for two weeks in order to gather both parties for purposes of amicably reaching a win-win settlement. However, this offer was rejected by the complainant who argued that she lives and work at Porgera and this proposed adjournment if accepted by the court would amount to a third one in the proceedings which would only cause her more stress and costly as she will be required to travel between Enga Province and the NCD again.
    
16. Because the court was satisfied at this point that complainant had made her case and a further adjournment would serve no utility to advance an early resolution of the case, it was accepted and sanctioned by the court on agreement of both parties for the matter to be fully resolved amicable within a convenient timeframe of four weeks commencing from rising of the court.
    
17. It was further accepted by the parties that a Warrant of Possession is to be issued on Wednesday 5^th August 2020 if this agreement for an amicable settlement of the matter failed.
    

MAJOR ISSUES

18. The defendant opted not to file a defense and both parties did not file written submissions so I will distill from the respective three affidavits filed and court room admissions what appears to be the two main grounds of consideration as follows:
    
    1. Did a valid contract exist between the parties in the terms of the Statutory Declarations sworn and signed on the 12^th February 2015 that effectively gives rise to a right for the defendant to continue to remain in the property apart from the obvious possessory right which she had been duly granted given that there had been no further evidence solicited by both of the parties to corroborate further clarity on the terms of the relationship?
       
    2. Did the complainant have a valid bona fide title which prima facie gives a right to institute this proceeding that had been commenced on the 12^th of June 2020?
       
19. If either or both of them are upheld I will address two other substantive legal issues:
    
    1. What are the pre-conditions for a warrant of possession to be issued under the law that must be satisfied by the complainant?
       
    2. What remedies should be made by the court under Section 146 of the District Courts Act?
       

RELEVANT LAW

20. Three relevant statutory provisions apply to this case.
    

Land Registration Act Chapter No. 191

21. Section 125 (transmission to person entitled by custom) is relevant provision which the court takes judicial notice of since it establishes due procedure by which the complainant had used in order to acquire title of the residential property upon death of her husband intestate which is the subject of this summons. It states:
    

Notwithstanding Section 118 or 119, where–

(a) a registered proprietor of an estate, interest or security dies intestate; and

(b) the estate, interest or security is transmitted to a person entitled to it by custom,

the Registrar shall, on production of a certificate in the approved form signed by the Custodian, register the person so entitled as proprietor of the estate, interest or security.

Summary Ejectment Act Chapter No. 202

22. Section 6 (recovery of premises held without right, etc.) is the provision under which the District Court has jurisdiction to deal with the complainant’s summons. It states:
    
    • (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 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.

District Courts Act Chapter No. 40

23. Part IV (commencement of proceedings) provides for three mandatory modes of commencing proceedings in the District Court which are: by information, complaint or a traffic infringement summons.
    
24. Section 28 (information and complaints) allows an aggrieved person or complainant to lay a complaint either in person or by another person on behalf of the complainant. It states:
    

Proceedings before a Court shall be commenced–

(a) by an information or a complaint, which may be laid by the complainant in person, or

by his legal representative or other person authorized for the purpose; or

(b) by a Traffic Infringement Summons.

25. Section 146 (court to decide case) is relevant as it invokes power of the District Court to consider the entire matter before it and give finality in settlement of legal issues raised in the summons by either the complainant in person or upon his/her authority delegated to a legal representative or a lawyer. Section 146 is within Part VIII (proceedings in connection with complaints). It states:
    

The Court, having heard what each party has to say and the evidence adduced by each, shall consider and determine the whole matter, and shall make an order against the defendant or dismiss the complaint, or make an order against the complainant or dismiss the set-off, as the case requires.

COMPLAINANT’S CASE

26. An original Government of PNG official yellow colored receipt No. R000011450000 dated 11^th June 2020 in sum of K3.00 received from Peni Ipo is on file as confirmation that the complainant had duly paid requisite filing fee necessary to commence this proceeding.
    
27. The complainant had filed a Complaint on 12^th June 2020 pursuant to Section 28 of the District Courts Act. It is shown that she had signed her signature on bottom right hand corner of document being in the prescribed Form 15 of District Courts Regulations and finally at its end is an affixed signature and seal of Clerk and Port Moresby District Court respectively.
    
28. The Summons to a Person on Complaint was addressed to Defendant, Rita Kundalin of Section 232, Allotment 26, (June Valley) Hohola, NCD. It was issued by the District Court also on the 12^th June 2020 in accordance with Sections 41, 42, 44 and 47 of the District Courts Act being in the prescribed Form 18 of the District Courts Regulations and bears an affixed signature and seal of the Clerk and the District Court respectively. It commanded the parties a returnable date being 29^th of June 2020 at 9:30am in Port Moresby District Court.
    
29. A Proof of Service was filed at Port Moresby District Court registry on 7^th July 2020 and sworn by deponent Constable Gordon Peter of Waigani Police Station confirming that the defendant was served the complainant’s Further Affidavit in Support comprising 5 pages with two sets of annexures dated and filed on 2^nd July 2020. This was preceded by an initial Proof of Service sworn and filed at the registry by Sergeant Jacob Igidu also of Waigani Police Station on 17^th June 2020 in regards to confirming actual process service upon the defendant at 10:45am at the property being service of sealed copies of the Complaint, Summons on Complaint, Notice of Motion and Affidavit in Support with 2 sets of appendices.
    
30. Both the complaint and summons carry identical content of pleadings comprising five (5) statements with a concluding paragraph stating four reliefs being sought as follows:
    
    1. An order that the defendant and her immediate family members peacefully vacate complainant’s property described as Section 232, Allotment 26, (June Valley) Hohola, NCD and give back vacant possession of the property to complainant within 14 days from the service of the eviction order.
       
    2. Members of the NCD Police Force be empowered to peacefully take possession of the named property and deliver vacant possession to the complainant.
       
    3. Costs of be at K300; and
       
    4. Any other or further orders deem appropriate in the circumstances by the Honourable Court.
31. The five pleaded grounds which formed main argument of the complainant states:
    
    1. The defendant without any reasonable or lawful excuse refused to voluntarily vacate complainant’s legitimate property described as Section 232, Allotment 26, (June Valley) Hohola in the NCD despite of numerous verbal notice being given;
       
    2. Defendant was invited as a care taker to the above property purposely on the reasons that the complainant was working outside NCD especially residing at Porgera where she was employed by Porgera Development Authority (PDA);
       
    3. Defendant and complainant had a written agreement in form of a Statutory Declaration dated 12^th February 2015, in which such clearly demonstrates that defendant would peacefully handover and / or give back vacant possession the property to the complainant at any time complainant intends to move or settles in her property (sic);
       
    4. Title of Section 232, Allotment 26, (June Valley) Hohola, NCD was formally transferred to the complainant after former owner of the named property and husband of the complainant was death (sic); and
       
    5. Defendant has been given forewarning notices in form of telephone communication and messages through other people were ignored and continued to occupy the property since early 2018.
       
32. Following sealed documents were also filed by the complainant on the 12^th of June 2020:
    
    1. A Notice of Motion seeking those remedial orders also pleaded in both the Complaint and Summons To A Person On Complaint being signed as returnable on 29^th June 2020; and
       
    2. A three page affidavit with two sets of appendices:
       
       • (i) Annexure “A” comprises an Owner’s Copy of Residential Lease for the property recorded as Crown Lease registered under Volume 30, Folio 7430 for parcel of land known as Section 232, Allotment 26 comprising 0.0360 hectares located at Hohola, Tokarara under File No. 76/550. Also attached as subsidiary part of this evidence is a copy of Reconciliation Print-out for Land Lease Rental Records dated 5^th September 2019 for the property in name of complainant billed from 12^th March 2013 up to same in 2019 at K625.00 being fully paid by the complainant.
       • (ii) Annexure “B” comprises two Statutory Declarations each one being signed by complainant and defendant respectively at Boroko, NCD on 12^th February 2015.
         
       • (iii) The Statutory Declaration of the complainant is re-stated as following:
         

“I do take note of Rita Mark Kundalin’s expenses incurred for property Sect 232, Lot 63 Hohola, NCD. And at the funeral of my late husband Mr. Erapan Kundalin. I authorize Rita to run the trade store within the property until such time appropriate. During this time frame, I do not want her to entertain any other members of the Kundalin family or be disturbed by any one of them.”

(iv) The Statutory Declaration by the defendant is re-stated as following:

“Penny Erapan Kundalin and I have come to an agreement that I will remain in the property of Sect. 232, Lot 63, Hohola NCD until such time appropriate. Also agreed that I will run the trade store within the premise and during this time frame, I will not entertain any member of the Kundalin family or be disturbed by anyone of them.”

33. It is unclear from these two Statutory Declarations which jointly formed a sort of agreement based on maybe a consideration of value for two expenses incurred by the defendant. Firstly by her part in purchasing or development of the property and secondly by her past action in financially assisting the complainant related to funeral expenses of her late husband, Mr. Erapan Kundalin although no specific amount was described from these two considerations.
    
34. It is unclear that the complainant had intended to permit the defendant to operate the trade store until such appropriate time whereof the defendant would have fully recovered all her costs incurred in relation to the purported expenses committed toward the improvement or purchase of the property and the funeral repatriation costs for the complainant’s late husband.
    
35. From the 12^th February 2015 up to the date of the summons being 12^th June 2020, it is not clear that the defendant could have operated the trade store for a period of five years and four months and recovered some amount of her funds or in full or beyond the initial costs she had incurred in outlaying her combined expenses on account of the complainant’s late husband, the previous leaseholder of the property in dispute.
    
36. It is not clear as to what sum of money was the actual consideration and furthermore there is no assertion drawn from the purported agreement to confirm any payment regime whereby the defendant is required to pay a fixed sum of rental fees for use of the shop and in the event of slow business or default of payment then what were the agreed detailed progressive steps and arrangements for a continued accountability on arrears collection and remission of rental payments and finally termination of the agreement if any. The critical terms to determine a simple agreement were not pleaded nor asserted therefore were of no assistance to the court.
    
37. It is however clear as to what point in the purported agreement could the complainant claim vacant possession under this arrangement or terminate the agreement and these are enumerated specifically as conditions in the respective Statutory Declarations as following:
    
    1. I authorize Rita to run the trade store within the property “until such time appropriate”.
       
    2. During this time frame, I do not want her to entertain any other members of the Kundalin family or be disturbed by any one of them.
       
38. It is clear that an appropriate or reasonable time frame given after a verbal or service of written notice by the complainant to the defendant is all that is sufficient for a notice to quit to be issued to the defendant by the complainant in order to discontinue any further authority on the part of the defendant to cease operating the trade store then give vacant possession.
    
39. It is also clear that as a condition for the continued enjoyment and use of the trade store, the defendant must not be proven or held liable in committing the act of entertaining any other members of the Kundalin family or be disturbed by any one of them.
    
40. These conditions are also discerned from the defendant’s Statutory Declaration as follows:
    
    1. Penny Erapan Kundalin and I have come to an agreement that I will remain in the property of Sect. 232, Lot 63, Hohola NCD “until such time appropriate.”
       
    2. Also agreed that I will run the trade store within the premise and during this time frame, I will not entertain any member of the Kundalin family or be disturbed by anyone of them.
       
41. Again it is clear that a continued right of the defendant to enjoy further running of the trade store and remain within lawful confines of the property is subject to an appropriate time given after a reasonable notice to quit is issued by the complainant to the defendant. That is all that is sufficient in order to discontinue any further authority on the part of the defendant to enable her to stop from any extended tenure of right to operating the trade store.
    
42. Furthermore, it is clear that as a condition for the continued enjoyment and use of the trade store the defendant must not be proven or be held liable by the complainant in committing the act of entertaining any other members of the Kundalin family or be disturbed by any one of them. This second condition was not breached by the defendant hence was not in issue.

DEFENDANT’S CASE

43. The defendant relied on her nine (9) pages affidavit which comprised a cover sheet and a one page interpretation clause deposed and filed on 7^th July 2020 following the court directions.
    
44. On paragraph 2 of her affidavit, the defendant admitted that she is currently in occupation of the property in issue being Section 232, Allotment 26, Arere Street, June Valley, NCD.
    
45. On paragraph 3, the defendant states that she is elder sister of the complainant’s late husband who asked her to occupy the subject property after it was purchased by her late brother.
    
46. From paragraphs 4 to 17, the defendant detailed her family affiliation and relationship with the complainant’s late husband by raising him up from primary school to Mount Hagen Technical College thus it had been a shared obligation between her and her husband.
    
47. On paragraph 18, the defendant states that between April and May 2014, on a midday her late brother had visited her and delivered to her gate keys to the subject property and instructed her to obtain its title from Mr. Roy Askon (son of late complaint’s husband’s elder brother) who works for Bank South Pacific. The late Mr. Erapan Kundalin then departed for Porgera where he resided with the complainant and their family until he fell ill and had passed away.
    
48. On paragraph 21 and 22, it is deposed that after the defendant gave Mr. Askon a sum of K300 as the processing fee he later delivered original title of the property to the defendant.
    
49. On paragraph 23, she admitted that she resided on the property for about seven months until her brother then passed away on 6^th December 2014.
    
50. On paragraph 25, she deposed that she had personally contributed K10, 000 and a total of K40, 000 was raised with relatives as medical expenses before the brother had passed away.
    
51. On paragraph 26, the defendant had an argument with her 6^th born brother who ordered her to surrender the title to him so that he could transfer ownership to his name but the defendant had refused it saying it was given to her by her late brother when he was still alive.
    
52. On paragraph 27, the defendant deposed that she was hit on her face with a hot rice pot by her younger brother Mr. David Billson and she then travelled to Port Moresby at end of January 2015. Then on the next day the complainant and Mr. Billson also travelled to NCD.
    
53. On paragraph 28, the defendant deposed of having another argument with her brother David regarding possession of the title to be given to him and the defendant replied that it was given to her due to her hard work and expenses incurred in raising the late brother. Hence this had become a point of contention therefrom regarding future ownership of the property.
54. On paragraphs 29 to 30, the defendant deposed that she was assaulted and intimidated thus in fear of her safety she had released the title to David and furthermore was forced to sign the Statutory Declaration form so that she can recover her school fee and funeral cost expenses.
    
55. On paragraphs 31 to 32, the defendant deposed that both her husband and sister in-law were shocked of news that she was forced to sign the Statutory Declarations.
    
56. From paragraphs 33 to 39, the defendant deposed of matters regarding hardships she encountered in her endeavors to recover the title which she asserts again as having been duly bought by her late brother and given to her however no evidence was adduced to this effect.
    
57. From paragraphs 40 to 42 of her affidavit, the defendant asserts that original Owner’s Copy of title (state lease) was given to her by Mr. Askon of BSP Bank and questioned why it was so. It is obvious that she had custody of the property and it was obligatory for it to be given to her for safe keeping since the complainant was at work in Porgera. Any potential answer to this assertion does not bring to conclusion any progression of a better title to the property.
    
58. In paragraph 43, the defendant stated she had expended a large sum of money to raise her late brother to finally become a senior electrician with Porgera Gold Mine before his demise.
    
59. From paragraphs 44 to 49, the defendant related to her customary obligations and requested for those of her relatives who are supporting the complainant to find a change of heart hence return the title to her because the complainant was never part of this transaction.
    
60. On paragraphs 50 to 51, the defendant deposed that her late brother had died intestate and the Office of Public Curator had an interest on his assets and the subject property but the complainant had concealed it and is not coming to court in clean hands.
    
61. On paragraph 52, the defendant deposed to setting up a canteen and operating it within the property without approval of the complainant.
    
62. In paragraph 53, the defendant asserts bribery in the way the complainant had acquired the title fraudulently and in paragraph 54 that the Office of Public Curator had an interest on the property since the previous interest holder late Mr. Kundalin died intestate. But the defendant has not provided real documentary evidence to substantiate this assertion. If indeed the Public Curator is involved then those information and records are relevant to pursue at National Court. There is no evidence of the matter being raised with Fraud and Anti-Corruption Unit.
    
63. The defendant took issue with the Statutory Declarations of the 12^th February 2015 as having been fraudulently obtained without full knowledge and voluntary consent of the defendant’s family but obtained through duress and inducement claiming that the defendant is illiterate and could not speak, read or write English language. The defendant argued vehemently that this particular statutory declaration is defective by operation of law since it did not accompany an interpretation clause to legally bring into law scope for ability of the defendant to have agreed to be able to have signed the instruments. All rights claimed therein are lost.
    
64. However this assertion was not substantiated fully in evidence and is less reliant by the court.
    
65. The defendant asserted that over a persistent period of time she was physically abused, threatened and beaten up by her bigger brother namely Mr. Billson in order for her to finally hand-over original copy of title to the complainant. The complainant had denied this claim given that there was no further additional evidence to corroborate the defendant’s assertion since this fact remained to be proven. However, the act of abusing the defendant had been denied by the complainant in paragraph 7 of her second affidavit filed on the 2^nd July 2020.
    
66. Much of the defendant’s assertions stood up as vulnerable due to non-reliance of additional witnesses’ affidavits or further documentary and medical evidence to verify these matters.
    

DID THE COMPLAINANT HAVE THE POWER TO SUE AND HAD BEEN PROPERLY EXERCISED?

67. In interpreting the law the court shall give paramount consideration to the dispensation of justice under Section 158 (2) of the Constitution to satisfy itself that the matter was lawfully brought to court to protect the court against any abuse of its procedures and processes provided under the District Courts Act and District Courts Regulations.
    
68. The complainant has clearly shown in both fact and in law that she is demonstrably in evidence aggrieved by a persistent and evasive inaction directly on the part of the defendant from voluntarily giving up in entirety a free and vacant possession of the property despite her numerous forms of notices to quit inclusive of the formal complaint and summons issued by the District Court respectively on the 12^th of June 2020.
    
69. A purported agreement had been let to the defendant effective from 12^th February 2015, the terms of which were stipulated in the two respective Statutory Declarations duly sworn and signed at Boroko, NCD on 12^th of February 2015 but vehemently denied by the defendant.
    
70. The complainant is an individual citizen of Papua New Guinea by Engan origin who clearly is being shown as the duly registered lease-holder to property entitled as Section 232, Allotment 26, Milinch of Granville, Fourmil of Port Moresby a residential state lease registered under Registrar of Titles within Department of Lands and Physical Planning colonial crown lease records by Volume 30, Folio 7430 thus is entitled to sue and be sued under her personal name and description. She therefore has legal standing in this matter.

STANDARD OF PROOF

71. The court’s adjudication process is premised on analyzing cogent and credible information before accepting relevance and usefulness of all materials provided by the both parties in order to prove the assertions of each parties and give due weight in accepting or denying admission of truthful evidence. Thus in its civil jurisdiction the standard of proof on litigants to prove their case is on a balance of probabilities. Taking into count that the defendant had not filed a defense, it is clear from all pleadings lodged by the parties that the defendant had filed only the one Defendant’s Affidavit in Response to Complainant’s Affidavit in Support dated and filed on the 7^th of July 2020 comprising 9 pages inclusive of both the cover and interpretation sheets. Notwithstanding filing of this detailed affidavit, the defendant did not provide any material documents and appendices or sworn testimonies as evidence to validate or corroborate any of her assertions enumerated by her fifty-five (55) paragraph affidavit.
    
72. Although the defendant was represented by counsel, the defendant preferred not to adduce any additional evidence apart from the only single affidavit filed. Furthermore she did not opt to call additional witnesses or verified affidavits from other official sources to validate her deposed assertions or cross-examine the complainant on any of the materials she had filed.
    
73. At the last hearing date, counsel for the defendant requested the court for a 2 weeks adjournment in order to solicit crucial information at hand to then file a second affidavit in effect to adduce evidence related to Office of Public Curator which would mount an attack on a defense of fraud. However, the court ruled it as being ultimately counterproductive to finality of this matter which had been premised under the Summary Ejectment Act. Moreover, the court have no jurisdiction to determine issues of law where the validity or effect of a devise or bequest or a limitation under a will or settlement, or under a document in the nature of a settlement, is in dispute or when the title to land is bona fide in dispute as is clearly sanctioned under provisions of Section 21 (4), (a) and (f) of the District Courts Act.
    
74. In the two affidavits filed and relied upon by the complainant, she attached material evidence regarding information she had administratively acquired by her formal interaction in her application of transmission process through the due procedure of acquiring the title to be registered to her maiden name pursuant to Section 125 of the Land Registration Act.
    
75. The court need not look elsewhere to be convinced that a copy of the Owner’s Copy of the Residential State Lease registered under Volume 30 and Folio 7430 for all the residential parcel of land under Survey Plan Number 49/1/88, Milinch of Granville, Fourmil of Port Moresby for land described as Section 232, Allotment 26, Hohola (June Valley) is bona fide duly registered to the sole name of the complainant. This is prima facie evidence weighted in favor of the complainant which stands strongly against totality of all claims and assertions linked to the defendant’s case on the balance of probabilities that the court had considered.
76. Again in her second affidavit which was not rebutted also by any documentary evidence of the defendant, the complainant solicited evidence of bank accounts and transactions she and her late husband had caused toward formal settlement for purchase of the property.
    
77. Therefore, the counsel’s initial application for adjournment was not allowed but the court proceeded further on the basis that counsel made a supplementary application for adjournment over the same proposed period of two weeks in order to amicably and fully resolve the matter peacefully with the parties.
    
78. At the end of this, the court further ruled against the second ground for adjournment and concluded that a period of 4 weeks from Wednesday the 8^th of July 2020 to Wednesday the 5^th August 2020 is reasonably sufficient and useful time for the parties to amicably resolve the matter and give clear vacant possession of the entire property back to the complainant without any need for the court at return date on the 5^th of August 2020 to issue in default an order for summary ejectment of the defendant, her relatives, agents and servants inclusive.
    

POWERS OF DISTRICT COURT IN THE MATTER OF AN APPLICATION FOR SUMMARY EJECTMENT PURSUANT TO SECTION 6 (2) OF THE SUMMARY EJECTMENT ACT AND COURT FINDING

79. The court’s power under the summary ejectment proceedings is amplified by His Honour, Justice Cannings’s decision in Kopen Yanda and Others v. Apostolic Church Properties Association of PNG Inc. (2006) N3042 as binding on this case and usefully explained how Section 6 of the Summary Ejectment Act should be applied to a summons.
    
80. The relevant extract of His Honour’s judgment outlined on page 21 states:
    

“For a warrant of possession to be issued under this law, the following pre-conditions must be satisfied:

1. a person (the defendant) must be in possession of the premises;
   
2. the defendant has no right, title or licence to be in possession;
   
3. a complaint to recover possession is made by the owner;
   
4. to a magistrate of a District Court;
   
5. the magistrate issues a summons to the defendant;
   
6. the defendant does not appear before the District Court at the time named in the summons OR appears and does not show reasonable cause why possession of the premises should not be given;
   
7. there is proof of the matter of the complaint (ie sufficient evidence).”
81. His Honour went on to say this:
    

“Only if all of the above pre-conditions are satisfied is the District Court authorized to issue a warrant of possession, in the following terms:

1. the warrant must be directed to a member of the Police Force;
   
2. requiring the member;
   
3. on or before a specified day;
   
4. to enter into the premises, by force and with assistants if necessary; and
   
5. to give possession of the premises of the complainant.”
   
82. This court’s application of the law after weighing of the parties’ evidences is as follows:
    
    1. a person (the defendant) must be in possession of the premises:
       

The defendant admits and there is sufficient evidence that she is currently in possession of the land the subject of this proceeding being described and shown on the body of the Owner’s Copy of the state lease as Section 232, Allotment 26, Hohola (June Valley), National Capital District (Volume 30, Folio 7430 and Milinch of Granville). She has offered to give in its entirety full vacant possession by Wednesday the 5^th of August 2020 to the complainant through a proposed family gathering which the complainant have rejected in her second affidavit sworn and filed on the 2^nd of July 2020 at paragraph 15.

2. the defendant has no right, title or licence to be in possession:
   

The defendant does not state what right, title or licence she has to stay on the property except to assert at length about the affiliation to her late brother and former leaseholder, Mr. Erapan Kundalin and had accused the complainant of fraudulently acquiring title over the property. The defendant had also asserted in her affidavit but it was however not corroborated by any evidence going to validate that she maintained a formal lease agreement with the complainant except what had been shown in the complainant’s affidavit of the two Statutory Declarations which gave her a possessory right over the property that was duly terminated by previous notices to quit issued by the complainant. If there were any rights created under the two Statutory Declarations for the defendant to take custody and possessory rights on the property then these were abdicated because the defendant had taken issue with notarizing of the Statutory Declarations as void in law.

3. a complaint to recover possession is made by the owner:
   

The complainant has filed a complaint on the 12^th of June 2020 to Port Moresby District Court and the District Court had accordingly issued a summons on the same day to the defendant to appear in court on the 29^th June 2020 which she had done through her lawyer. At 10:45am on 17^th of June 2020, the defendant was served with the Complaint, Summons to a Person on Complaint, Notice of Motion and Affidavit in Support as evidenced in the Proof of Service dated and filed on the 17^th June 2020. A Further Affidavit in Support was deposed and filed on the 2^nd July 2020 and served on the defendant. This proceeding is properly instituted and seized by this court’s jurisdiction.

4. to a magistrate of a District Court:
   

The Summons upon Complaint has been shown to have been correctly signed by the Magistrate or Clerk of Port Moresby District Court (Section 7 of the District Courts Act).

5. the magistrate issues a summons to the defendant:
   

The Summons to a Person on Complaint was correctly signed by the Clerk of Port Moresby District Court in accordance with Section 7 of the District Courts Act.

6. the defendant does not appear before the District Court at the time named in the summons OR appears and does not show reasonable cause why possession of the premises should not be given:
   

The defendant had been represented by counsel on two occasions firstly when the matter was initially mentioned on return date being the 29^th June 2020 and subsequently heard on the 8^th July 2020 before it was adjourned for the court’s ruling. It is clear that at both of these hearing dates the defendant has not shown any reasonable cause why possession of the land should not be given to the complainant.

The defendant’s two main grounds of argument which were asserted in her single affidavit are summarized in terms of firstly how she is closely related to her brother being the late husband of the complainant and secondly that she deserves to be given title to the property because she had raised the late brother from primary school to being a senior electrician at Porgera Gold Mine before he passed away. Notwithstanding close affection for her late brother, she has not provided actual documentary evidence to substantiate these assertions except to claim that the complainant had acquired the property fraudulently. It is not clear what legal interest the defendant had intended to demonstrate to the court from her lengthy affidavit following her denial of any agreement in this case.

7. there is proof of the matter of the complaint (ie sufficient evidence):
   

There is proof of the complainant’s ownership of the property as shown in Annexure ”A” to the first affidavit of the complainant deposed and filed on the 12^th of June 2020.

The defendant has not been able to amply demonstrate to the court by sworn evidence to be tested and admitted as reliable cogent material a better title nor any contractual agreement between her and the complainant which gives her clear legal rights to retain access, possessory or user rights to the property after the date of the notices to quit were issued to her by the complainant.

The summary of the defendant’s single 9 pages affidavit sworn and filed on the 7^th July 2020 comprising 55 paragraphs amounted to her assertion that she is a rightful owner of the property in dispute. But from date she commenced occupancy of the property being the 12^th February 2015 to now, a period of five years and four months, she has failed to provide to court any documentary evidence of her attempts and pursuits with Registrar of Titles or other appropriate bodies to confirm that she indeed had progressed her initial interest to register the property in her name as duly authorized by her late brother.

83. The court’s additional findings are as follows:
    
    1. There are no clearly agreed terms and arrangements on what is to be administered when the complainant gives notice for the defendant to render vacant possession and what obligations fall due upon a receipt of notice to quit by the defendant from the complainant. Therefore, it can be seen that the defendant is unable to move out of the property at such short notice.
    2. Given that the terms of the Statutory Declaration agreement is vague by not spelling out clearly what reasonable course of action or steps would enable the defendant to quit and give vacant possession upon being informed by the complainant, it is obvious that the defendant require specifically agreed reasonable time frame to deliver vacant possession.

3. The defendant’s two pronged defense was firstly as to how the title was acquired under a personal name of the complainant being Ms. Peni Ipo and not Mrs. Peni Kundalin as successor of her late husband, Mr. Erepan Kundalin. Secondly, as to why this had come about given that original title entry was not under a joint tenancy between the complainant and her late husband but these matters don’t belong to this court to consider.
   
4. No evidence of a binding contract exists between the parties which gives any rights for the defendant to continue to remain on the property beyond her formal receipt of the notice to quit for her to give vacant possession of the property.
5. Even if there was any such agreement in place then the defendant had taken issue with both authentication and validity of the statutory declarations. Therefore, the court is left only to accept that any rights generated directly or indirectly from the purported agreement premised on the statutory declarations was effectively diminished to giving the defendant only a temporary possessory right over the property.
   
6. The defendant offered no evidence from within the Lands Department or from the Section 125 transmission procedure going to question integrity of the registration process. Even if available but were not admitted as evidence in this court then those can be adduced in the National Court if the defendant wishes to pursue this remedy further.
   
84. In conclusion, the defendant has not shown any rights, license or a better title to the land.
    
85. I am satisfied that the complainant’s case has been made out.
    

WHAT ARE OTHER REMEDIES AVAILABLE TO THE DEFENDANT?

86. The defendant raised issues in relation to fraud regarding how the title was transferred to the complainant’s maiden name without it being registered to her marriage name under family name of her late husband notwithstanding that the title initially had not been registered jointly under joint-tenants in co-names of both the complainant and the late husband.
    
87. However, the court is precluded by virtue of jurisdiction to delve into how such a transaction may have occurred and to inquire into any impropriety in such an allegation not properly before it therefore could not allow the defendant to raise these issues as cogent and pertinent matters to subsequently fully prosecute them in this forum as valid grounds in defense.
    
88. Therefore, the defendant is at liberty to take up these issues administratively or legally with the Office of Public Curator, Registrar of Titles, pursue the matter for relief in National Court or formally lodge a complaint for investigation by Fraud and Anti-Corruption Unit.
    
89. If the complainant had forcefully and fraudulently acquired the title over this property as asserted by the defendant then the remedy to correct this anomaly lies in the National Court whereby the defendant is at liberty to pursue at own convenience.
    
90. Since the parties are closely related by family and are sister in-laws thus this matter has caused much discomfort and had become entangled into an embarrassing situation and family feud for both parties that has a disruptive potential to impact and influence continued cordial and harmonious sustenance of their affinity and bonding, an amicable settlement of the matter is naturally a less costly, readily available and viable option duly encouraged.

COSTS

91. In practice a losing party gets an order from the court in terms that they must pay the other side’s legal costs. However, in this case the rule of thumb is not being strictly considered by the court for a fact that in the court’s attempts to mediate this matter on both occasions pursuant to Section 22B of the District Courts Act, the defendant through her counsel had agreed to amicably resolve the matter by giving 100% full vacant possession of the land to the complainant after four weeks by Wednesday 5^th of August 2020. This in effect substituted the defendant’s initial position on the 8^th July 2020 in foregoing an initial application to seek an adjournment of two weeks to solicit further evidence from Office of Public Curator pointing to the issue of the complainant having fraudulently acquired title over the property.
    
92. The court had also received clearly evidence from both parties in the proceedings that the defendant had not only sought adjournment of court for two weeks in an attempt to amicably resolve the matter by Enga custom in order to effectively give vacant possession of the property to the complainant but on the 29^th June 2020, between 5:15pm and 7:09pm the defendant directly contacted the complainant on her deceased husband’s mobile telephone to the effect that she intended to peacefully vacate the property in front of all their relatives and family members and had offered for a family gathering to initiate this amicable outcome.
    
93. The complainant resides and work at Porgera hence continues to incur actual costs to prosecute this matter on the two occasions when this matter was first mentioned on the 29^th of June 2020 and at the return date on the 8^th of July 2020 whereas the defendant was legally represented by the counsel on both occasions and is a resident of the NCD.
    
94. The court reserves its decision on costs against the defendant conditional on the defendant giving full vacant possession of the property in entirety to the complainant by the 5^th of August 2020 as offered by the defendant and agreed by the complainant who has been prejudiced by this proceeding due to her residence of work at Porgera. A breach of this conditional order to vacate the property within the 4 weeks granted by the court shall commit the court to impose costs against the defendant.
    

REMARKS

95. The court had accepted the counsel’s formal apology for being discourteous to the complainant when she was invited by the court to respond to both the counsel’s submissions and reply. This happened on the 8^th of July 2020 which had been to some extent disrespectful to the court, the parties and other interested persons who had occupied the courtroom.
    
96. The court was being informed by the counsel that he is related through some form of traditional Engan kinship to both the complainant and the defendant and accepted that an act of representing a paying client of such nature bordered on professional and ethical rules of conduct without leave regarding an independent ability and credibility of a lawyer and client position to maintain a genuine and strong fiduciary relationship in conduct of legal proceedings thus bordering on a conflict of interest situation. Given nature of this relationship between the counsel and the parties, the court had declined the defendant’s application of a two weeks adjournment in a final attempt to secure a meeting of the parties to mediate over the matter and reach an amicable settlement of the dispute.
    
97. However the court had exceeded the defendant’s application and was inclined to grant a final returnable date of 4 weeks for the defendant to make good its intended good will to amicably resolve the matter by allowing the defendant this opportune time to voluntarily disassemble and remove all her assets, fixtures, stock, equipment, semi-permanent buildings and possessions and transfer all these materials out of the property in order to give vacant possession in entirety of the property to the complainant by Wednesday the 5^th August, 2020.
    
98. Failure by the defendant together with her relatives, agents and servants to comply with this order shall invoke the court’s power to issue a Warrant of Possession under Section 6 (2) (b), (c), (d) of the Summary Ejectment Act in order to fully discharge this summons.
    

JUDGMENT

99. Judgment is entered in following terms pursuant to Section 6 (2) (b)(c)(d) of the Summary Ejectment Act:
    
    1. The Complaint and Summons to a Person on Complaint is allowed.
       
    2. The defendant is granted a period of four (4) weeks inclusive of weekends from rising of this court being today Wednesday 8^th of July, 2020 to conclusion of the 4 weeks on Wednesday 5^th August 2020 to effectively disassemble and conveniently remove all her temporary fixtures inclusive of: (1) a semi-permanent trade-store; and (2) two temporary residential houses from the property and give in entirety full vacant possession to the complainant.
       
    3. The complainant is entitled in law to the peaceful possession and enjoyment of all of the property at Section 232, Allotment 26, Hohola (June Valley), National Capital District.
       
    4. A Warrant of Possession shall be issued forthwith for the Police Force’s intervention against the defendant and her relatives, agents and servants in default of or by their failure to give fully 100% vacant possession of the property to the complainant by Wednesday 5^th of August, 2020.
       
    5. On interim, no orders are made on costs.

_________________________________________________________________________

Ms. Peni Ipo: The Complainant appeared in person.

Sannel Lawyers: Lawyers for the Defendant.