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Papua New Guinea District Court |
DC5046
PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE HELD IN KOKOPO
(SITTING IN ITS CIVIL JURISDICTION)
(CV NO. refer to Schedule)
BETWEEN:
LULUKA LAND GROUP INCORPORATED
Complainant
AND:
VINCENT YAUWE for himself and on behalf of 296 settlers of Raniolo Plantation whose names are attached in the Schedule
Defendants
KOKOPO: JASPER AMANU
DECISION
2020: 29th June; 10th, 17th Jul; 10th, 21st, 31st August; 07th, 11th, 25th September; 05th, 16th 30th October; 05th,06th, 16th November; 14th December
SUMMARY EJECTMENT – S.6 (1) AND (2) discussed – Complainant have valid, legal Title – Indefeasible Title – S.33 Land Registration Act considered – Title undisputed- s.22 District Act invoked
EQUITY –Defendants acquired equitable right from previous owners due to permitted occupation – no evidence of permitted occupation from current title holder – equitable right as opposed to legal right discussed – equitable right acquired unlawfully cannot be recognized in law – reasonable time considered due to Defendants’ permitted occupation since 1960s to 2007
Constitutional Law
Constitution of the Independent State of Papua New Guinea
Legislation
Summary Ejectment Act
District Courts Act
Land Registration Act
Case Authorities cited
Amos Bai vs. Morobe Provincial Government & others [1992] PNGLR 150
Kong No. 47 Ltd vs. Monodo Merchants Ltd (2001) SC 675
Koitaki Farms Ltd vs. Kemoko Kenge & other Settlers (2001) N214,
John Kameku vs. Patilius Gamato & others (2004) N2542,
Tony Yandu vs. Peter Waiyu (2005) N2894
Tony Yagon vs. Nowra No. 59 Ltd (2008) N 3375
Moses Kobale & others vs. Magaret Sindra & Others (2020) N8474
Counsels
Counsel for Complainant – Mrs. N. Rainol
Counsel for Defendants – In Persons
14th December 2020
J. AMANU The Complainant commenced proceedings against 297 individual families who are settlers on a property described as Portion 3275 Rem, Milinch Kokopo, Rabaul ENBP ( also known as Raniolo Sub-Division Plantation Stage 1, Kokopo, ENBP).
2. The proceeding is for eviction orders against the settlers. The Complainant filed 297 Complainants and Summons to A Person Upon a Complainant against individual families. During the cause of the proceedings it became clear that the issues raised are similar in nature thus with consent the entire 297 proceedings were consolidated.
3. On 16th November 2020 the matter proceeded for hearing. The settlers have appointed Mr. Vincent Yauwe to act for himself in person and for the rest of the settlers.
4. The hearing was conducted by way of affidavits and submissions.
BRIEF FACTS
4. The facts, in essence, are that the complainant is an entity established under the Land Group Incorporation Act (ILG). It obtained a Special Agriculture and Business Lease Title in 2007 over the subject land (Raniolo Plantation). The complainant wanted to develop the subject land into business and/or agricultural activities. However it cannot carry out these activities since the Defendants are still settling on that land thus it filed these proceedings.
5. The Defendants have being settling on the subject land for quite a number of years. Some have settled there since 1960s and 1970s as workers/labourers on the plantation. Some have passed on but their descendants are still residing on the land as 2nd, 3rd and even 4th generations. They are unable to return to their home provinces since they were born and raised on the property.
ISSUE
6. Whether the Defendants have no title, right or license and be evicted from the subject property?
EVIDENCE
7. The Complainant relied on the Affidavit of William Tonga sworn and filed on 1st of October 2020.
The Defendants relied on affidavits materials of:
| NAME OF DEFENDENTS | DATE FILED | NAME OF DEFENDANTS | DATE FILES |
| 30/10/20 | 16. Daniel Makip | 28/10/20 |
| 03/11/20 | 17. John Palipe | 30/10/20 |
| 03/11/20 | 18.Gerry Paul | 30/10/20 |
| 30/10/20 | 19.Guvi Kiap | 28/10/20 |
| 02/11/20 | 20.Steve Popon | 30/10/20 |
| 26/10/20 | 21.Peter Popon | 30/10/20 |
| 05/11/20 | 22.Bill Gape | 15/10/20 |
| 30/10/20 | 23.Benjamin Mopem | 14/10/20 |
| 28/10/20 | 24. Bernard Abarah | 15/10/20 |
| 02/11/20 | 25.Simon Komel | 22/10/20 |
| 30/10/20 | 26.Moses Popon | 30/10/20 |
| 16/10/20 | 27.Edwin Waino | 15/10/20 |
| 03/11/20 | 28.Lun Olape | 22/10/20 |
| 03/11/20 | 29.Alpha Menger | 30/10/20 |
| 15/10/20 | | |
LAW
8. Although not specifically pleaded, I find that this proceeding is commenced pursuant to Section 6 of the Summary Ejectment Act. Section 6 of the Act provides that:
“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 persons summoned under sub section (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 date specified in the warrant –
(c) to enter, by force and with assistance if necessary, into the premises; and
(d) to give possession of the premises to the Complainant.”
COMPLAINANT’S CASE
9. The Complainant through their counsel Mrs. Rainol submitted that the Complainant has a clear Legal Title over the subject land and the Defendants are currently illegally residing on the property. Counsel further relied on the case of Moses Kobale & others vs. Magaret Sindra & Others (2020) N8474 and submitted that the Defendants have not challenged the title to date, and they should be evicted out within 2 months period.
DEFENDANT’S CASE
10. The Defendants, through Mr. Yauwe submitted that he is also the Chairman of Law & Order Committee of Raniolo Settlement. Mr Yauwe submitted that about 471 settlers were brought in from the Highlands region under a Contract by former Plantation Owners since 1960s and 1970s. The settlers have Tenancy Agreement at that time. They have lived and worked under different administrations since then. In 1987 the company abandoned the employees (settlers) without any form of entitlements.
11. Since 1987, they have being living as subsistence farmers and have 3rd and 4th generation to date.
12. Mr. Yauwe further submitted that they have acquired equitable interest due to their long period of occupation. He is also submitted that since 2007, the executives of the complainant have being discussing with the settlers for resettlement. The settlers have formed a Resettlement Committee and agreed to contribute K500 per family of which over K50, 000. 00 has been raised and deposited into Warners Shand Lawyers Trust Account. They are yet to raise K150, 000.00 for purposes of resettlement. Mr Yauwe also submitted that the population is estimated around 3,000 and the court should consider their human rights and be given reasonable time to discuss and resettle themselves.
CONSIDERATION
13. I have considered the both parties’ affidavit materials and their submissions. There is no doubt that the settlers and/or their descendants have being living on the said property for a long period of time. On the other hand the complainant has a valid clear legal Title over the property.
14. Before I deliberate further I wish to set out the essential ingredients of Summary Ejectment under section 6 of the Act. The essential ingredients of summary ejectment are;
15. So in any ejectment proceedings under section 6 of the Act, the court must be satisfied that the proceeding is brought in by the owner, the owner’s title is undisputed and the defendants have no title, right or license to continue occupation.
16. In the famous case of Herman Gawi vs. PNG Ready Mix Concrete PTY LTD [1984] PNGLR 74 the Supreme Court held that;
“Proceeding of recovery of land under section 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 a land is in dispute or unclear”
17. The principle of equitable interest in land was also discussed in the above case and other subsequent cases such as Amos Bai vs. Morobe Provincial Government & others [1992] PNGLR 150, Kong No. 47 Ltd vs. Monodo Merchants Ltd (2001) SC 675, Koitaki Farms Ltd vs. Kemoko Kenge & other Settlers (2001) N2143, John Kameku vs. Patilius Gamato & others (2004) N2542, Tony Yagon vs. Nowra No. 59 Ltd (2008) N 3375.
18. I find that this case is similar to Koitaki Farms Ltd and Tony Yangon cases. The subject land was initially a plantation and the settlers and or their ancestors were brought in from the Highlands provinces to work on the plantation.
19. The previous owners have abandoned them and left in 1987. However, there is no evidence of previous title holder to the land. The only evidence in respect to title is the State Lease whereby the State leased the subject land to the Complainant for a period of 88 years 278 days from 30th March 2007 to 21st August 2095.
20. So from evidence I concluded that the subject is a State land and was subsequently leased to the Complainant. Therefore the Complainant is the legitimate entity by virtue of the State Lease thus they are entitled to commence this proceeding.
21. I therefore find that the first ingredient of summary ejectment is satisfied. Since the grant of the Title, the Defendants or other interested parties have not challenged the Title. The Title is therefore undisturbed or undisputed hence the Complainant has an indefeasible Title pursuant to section 33 of the Land Registration Act (See the case of Tony Yandu vs Peter Waiyu (2005) N2894)
Obviously, the Defendants have no Title but they may acquire equitable interest/right due to their long period of occupation on the land.
22. In the Koitaki Farms Ltd (supra) case, the Defendants were from Southern Highlands Province, brought into Itikinumu Plantation, Koiari Local Level Government, Central Province in the 1960s and 70s. The ownership of the plantation changed on numerous occasions until the Plaintiff obtained the Title. The Plaintiffs sought declaratory orders in the National Court that the Defendants were allegedly squatting on the Plantation thus they do not have any rights.
23. His Honour Justice Kandakasi (as he then was) whilst discussing legal principles on landlord and squatters settlers held that:
“The Plaintiff bought the land with full knowledge and acceptance of the Defendants occupation of the land, which gave rise to a limited right in equity to continue to occupy, subject to reasonable notice for them to vacate.”
24. His Honour then went on and ordered that the Defendants be granted 12 months to vacate with full repatriation costs to their home villages in Southern Highland Province.
25. Another case which is similar to this proceeding is the case of Tony Yagon (supra). This was an appeal from the District Court. The Respondent filed an eviction proceeding against the Appellants and the District Court granted eviction orders for the Appellants to vacate the property with 2 months. On appeal the National Court (Cannings, J) upheld the appeal and quashed the District Courts’ decision. The Appellants were settlers of Dylun Plantation in Madang Province and have lived there for almost 80 years. The Respondent was the new owner of the property (land). His Honour Justice Cannings deliberated and said, (I quote in parts):
“Section 6 of Summary Ejectment Act show that this law can only be used where the persons, the owners want to evict are “illegal” occupiers of the land: people who have no “right, title or licence” to be on the land. The settlers did not fall into that category. They are not squatters.........Settlers have equitable interest in land which is akin a licence to occupy it...............This does not mean that settlers have the right to live on the land as long as they like. But it does give them right to be given reasonable notice to leave and perhaps to be compensated for being required to leave........The settlers had equitable interest in land and therefore a licence to be on the land. An essential precondition to the making of an order under Section 6 of the Summary Ejectment Act was absent. This was not an appropriate case for making an order under Section 6 (2).”
The principle of equitable interest or right is a principle of equity which is adopted and applied in our jurisdiction pursuant to Schedule 2.2 of the PNG Constitution. This is a principle that encourages fairness and natural justice.
26. In this current scenario, the statute right is up against the equitable right. Statute right is actually provided by a statute (in this case an Act of Parliament) whereas equitable right is a right acquired over time; however, arguments in respect to the principle of equitable rights must be argued in the interest of natural justice as well. There is no good saying one acquired equitable interest when the acquisition of that interest/right was unlawful.
27. I say this in the light of late Justice Jalina’s remarks in the case of John Kameku vs. Patilious Gamato & Others (supra) where His Honour deliberated and said:
“Equitable interest acquired unlawfully cannot be recognized in law”
28. The previous plantation owners abandoned the plantation in 1987 and since then to 2007 I find that the settlers acquired equitable interest due to their permitted occupation (my emphasis).
28. In 2007, the Complainant became the Title holder of the land. It is my view that the equitable interest cannot continue and be enjoyed by the settlers from 2007 unless their continuous occupation is permitted by the Complainant.
29. So I find that the Defendants’ arguments that they have equitable interest/rights to date are misconceived. It is almost 13 years now since the Complainant obtained the Title. From evidence, I find that the settlers were very well aware of the Complainant’s position and have had discussions for possible resettlement.
30. The Court is also mindful of the fact that there are school children, kids, elderly people, subsistence farmers, informal and formal employees residing on the land. Although it was not specifically deposed to in evidence, the court took judicial notice of this fact during its visit to the property with both parties before hearing.
31. Now what orders will this Court grant? As discussed in the case of Tony Yagon (supra), this case is not an appropriate case for orders to be granted under Section 6 (2) of the Summary Ejectment Act. However, with respect, it is my view that S.6 (2) of the Act can be a consequential order to an order which calls for a reasonable notice to be granted to vacate.
32. Section 6(1) of the Act demands that if a person, who is the owner wishes to evict a person without title, right or license, can make a complaint to a Magistrate who will issue a summons to that person to be evicted. That requirement (s.6 (1)) was complied with by the complainant.
33. I am satisfied that the Defendants have no title, right or license therefore will invoke the general ancillary jurisdiction pursuant section 22 of the District Courts Act and the case laws discussed; and will grant reasonable time to the Defendants to vacate the property.
34. What is the reasonable time? The Complainant submitted for 2 months. The Defendants argued that that is too short of a notice. In the case of Koitaki Farms Ltd (supra) the Court granted 12 months. In the most recent case of Moses Kobale (supra), the District Court granted 12 months and the matter was appealed to the National Court and His Honour Acting Judge Dowa dismissed the appeal and upheld the District Courts decision.
35. I will therefore follow the above cases laws and order for 12 months for the Defendants to vacate the property. This will be sufficient time for possible discussion for repatriation or resettlement between the parties and other interested agencies if they wish to.
36. This court is unable to make orders for repatriation or resettlement because District Court does not have Jurisdiction to do so.
FORMAL COURT ORDERS
From the reasons advanced above I make the following orders;
Orders accordingly.
______________________________________________________________________________
Lawyers for the Complainant : Natphil Lawyers
Lawyers for the Defendants: In Person
“SCHEDULE”
LULUKA LAND GROUP –v- JULIE ARIKE & FAMILY & 296 OTHER FAMILIES.
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