Surute v Dau [2021] PGDC 202; DC7058 (9 December 2021)

DC7058

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION
DCC NO: 141 /2020.

IN THE MATTER BETWEEN:

KEVIN SURUTE.
Complainant.
.
AND.

PREDDLY DAU and 17 others.
Defendants.

Popondetta: Michael W. Apie’e

2021: December 09^th.

CIVIL PROCEEDINGS. Claim for summary Ejectment of Defendants from Customary Lands. Claim of Traditional rights. Seeking to Restrain the Defendants from encroaching onto and dealing in any manner with the Property.

Cases Cited:

-Gawi v. PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 72

References:
District Court Act.
Summary Ejectment Act

Representation:
Complainant in person.
Mr. Preddly Dau and Mr. Benabe Bamre for the Defendants.

RULING ON AFFIDAVIT TRIAL

Background.

1. The Complainant Kevin Surute is originally from Kiorota Village in the Sohe District but Claims to have Traditional Title over the Simboro /Warisota Lands at Kakandetta in Popondetta Ijivitari District, which he claims was lands given to his family as bride Price for a his sister Petralina who got married in 1978 to on Kelly Sare (Pastor) or Kakandetta village.
   
2. He claims that two pieces of Lands were given to his family, one to his Brother Arthur and another piece to himself by Kakandetta Chief Mr. Benson Umota to their father James Surute.
   
3. He claims that the Defendant since 1997 have being in constant occupation and possession of the said Simboro Warisota Lands against his Traditional Interest and therefore seeks to have the Defendants Ejected pursuant to Section 6 of the Summary Ejectment Act.
   

History.

4. He filed suit before the District Court in DC 141 of 2020 on the 19/10/20.
   
5. This matter was previously mentioned before former SPM Mr. Leonard Mesmin but no action was taken until it came before me this year on the 16/02/21.
   
6. The Defendants made appearance through Late Mathew Towakakita on the 08/04/21 and claimed that they were permitted onto the Lands at Simboro /Warisota by the Traditional Land owners namely Kell Sare of Kakandetta and so they would oppose and deny the Complainants Claims.
   
7. They also stated that the Complainant himself is from Kiorota in Sohe District and not Kakandetta in the Ijivitari District.
   
8. The matter was then adjourned for Affidavits to be filed but due to other intervening factors such as the demise of Mathew Towakakita and also the Complainants travel to Port Moresby, the matter was delayed for some time.
   
9. The matter was finally mentioned on the 21/09/21 and the matter listed for trial on the 13 to 14/10/21.
   
10. On the 13/10/21, Pastor Kelly Sare’s affidavit of 30/08/21 is revealed to the Court and so the Complainant was allowed to respond to that and the trial fell through and matter adjourned to 21/10/21 for Complainants response.
    
11. On the 21/10/21, the Parties returned and agreed to an Affidavit Trial, and so after some more delay including on 02/11/21 when I was in Port Moresby, the matter returned on 09/11/21 for mention and ultimately Submissions on the Affidavit Trial is set for 12/11/21, however due to non-filing of Submissions the matter was further adjourned to Monday the 15/11/21.
    
12. On 15/11/21, submission was received fromr the Parties in respect of this matter, and the matter now returns for Judgement.
    

Applicants case.

1. The Complainant is from Kiorota village in the Sohe District but claims to be the Traditional owner of the Simboro/Warisota Lands due to a Bride Price Bequest made to his family through his father James Pondoke Surute in 1980 for his sister Petra-Lina Surute who got married to Kelly Sare by Kakandetta Paramount Chief Benson Umota.
   
2. He further claimed that, two pieces of lands were actually given to his family via his father James Surute, one to his brother Arthur and another piece to himself, Kevin Surute.
   

100. He further States that he never permitted the Defendants to flock onto these traditional land holdings but in 1997 to current, illegal settlers have being coming in to squat, garden and build on the lands without his permission against his traditional interests as the Land owner.
     

4. He therefore seeks Orders for Summary Ejectment/Eviction against them pursuant to Section 6 of the Summary Ejectment Act.
   

13. The Defendant Generally claim that they were permitted onto the Lands by the Actual Traditional Land Owner and one Pastor Kelly Sare seems to be the one claiming that status as follows;
    
    1. He deposed and filed two Affidavits dated 30/08/21 and 28/09/21 wherein he challenged Kevin Surutes’ right to claim ownership of the Lands in Question given certain infractions he had committed in custom including incestuously marrying his own sister Esther Surute thereby being disqualified from being call the Son of the Late James Pondoke Surute, and being unable to claim the estate of the said James Surute.
       
    2. Kelly further claimed that the fact of the Transfer documents bearing the name of Kevin Surute is largely based on fraud on the part of Kevin Surute as the passage of these Lands were from James to Arthur Surute and not to Kevin Surute.
       
    100. Additionally, the Defendants also claimed that the Land that was subject to the Traditional Bride Price Transfer is a specified Portion of Demarcated Land Called Simboro Hamlet, whilst they are occupying and living on Portion 329 by permission of Land Owner Kelly Sare.
         
    4. In conjunction with this claim by the Defendants, Kelly Sare in his affidavits stated that only one Land Transfer was done from his father Chief Benson Umota to James Pondoke Surute in 1990 and there was no other secondary Land Transfer done that he or anyone else is aware of.
       
14. Section 6 of the Summary Ejectment Act reads;
    

6. RECOVERY OF PREMISES HELD WITHOUT RIGHT, ETC.

(1) Where a person without right, title or license 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.

15. Observations /Assessments. Having heard the submissions in this Notice of Motion, I make the following observations and assessments;
    
    1. The Case of Gawi v. PNG Ready Mixed Concrete PTY Ltd [1984] PNGLR 7 is a case on point in respect of applications for summary ejectment applications before the courts especially the District Court.
       
    2. The reasoning of Late Kapi DCJ as he then was in the case of Gawi v. PNG Ready Mixed Concrete PTY Ltd [1984] PNGLR 74 is on point here wherein the Late Deputy Chief Justice in discussing Section 6 of the Summary Ejectment Act held that ‘If the one Claiming Ejection of someone else has clear title then this Provision should be invoked, but if such persons Title or Claim to the Alienated Land is ‘Bone Fide’ in Dispute, then Section 6 cannot be invoked’
       
    3. Granted the Simboro/Warisota Lands are largely traditional Lands, but What the Gawi v. PNG Ready Mix case in relation to the current case is that Kevin Surute ought to establish clear and undisputed Traditional Title to the Customary lands from which he seeks to Eject people before his claim can be entertained.
       
    4. In this case the Person Challenging his claim of Traditional Title is none other than the Son or Adopted or Foster Son of the Original Land Owner and the husband of the woman for whom the Land was transfer as Bride Price an is also the estranged brother in Law of the Complainant.
       

Section 29(4) of the District Court Act

5. Unlike Formal Land titles the Convey Indefeasibility, Traditional Land Claims are often time more Fluid and Flexible and so the Adjudication in the Gawi case wherein the Late Former DCJ Kapi in commenting on PNG Ready Mix Company’s claim of title the Disputed Land stated,
   

‘It is clear from this that the respondents ownership of the land was in dispute. There was no evidence before the magistrate of any proof of ownership of the land. The nature of the respondents entitlement to the land was still unresolved. In my view it was in this context that the learned magistrate found that the respondents title to the land was bona fide in dispute. In accordance with s. 29(4) of the District Courts Act 1963, as amended, he had no jurisdiction to resolve the issue.

6. The Complainant is claiming ownership of Traditional Lands which claim is challenged by Pastor Kelly Sare who happens to be a member of the Original Land owning family from Kakandetta.
   
7. Therefore, the Complainants Claim of title to the Simboro /Warisota Lands is Bona Fide in Dispute, and relying on the Ruling of Kapi DCJ in Gawi v. PNG Ready Mix Case, this claim should not be approved.
   
8. The Complainant also claims a memorandum of understanding between himself and the Original Land Owners Transferring the concerned Land to him is kept by the Lands office but has failed to produce it is court.
   
9. He merely stated that such memorandum was at the lands Department but failed to copy it to the Court which is not good enough.
   

Section 6 of the Summary Ejectment Act.

10. Also Section 6 of the Summary Ejectment Act requires ownership and title over property to be certain and not subject to dispute or challenges before it can be invoked to Eject people who are on it without right.
    
11. There are two ways in which Ownership over landed or real property can be proven and the first is through Indefeasibility Claim of Land Title as assured by Section 33 of the Land Registration Act and other way is through Clear Customary Title.
    
12. Given the Exposition by Late DCJ Kapi in the Gawi case above, in the Opinion of this court, Section 6 of the Summary Ejection cannot be invoke in respect of Customary Land Claims, so on that note, this Action is misguided and therefore untenable at Law.
    

16. In this matter the Court Rules as follows;
    
    1. The Complainants claim of title over the Simboro/Warisota Customary Lands is Bona Fide in dispute from other people with Traditional and Customary Claims of interest over the same lands.
       
    2. The Complainants Claims of Customary Ownership over the Simboro /Warisota Land is Bona Fide in dispute therefore under Section 29(4) of the District Court, this court is estopped from granting the orders sought in case.
       
    3. The Complainants initiation of this case to seek orders under section 6 of the Land Dispute Settlement Act is misguided and untenable at Law as this Provision can only apply to Alienated Lands or Property and not Customary holdings.
       
    4. The Complainant ought to initiate proceedings under the Land Dispute Settlement act to establish his Customary Claims and interest over the Simboro Warisota Lands first, before seeking to evict people who were allowed onto the Lands by other people with Customary Claims to that property like Kelly Sare.
       
17. Accordingly, the Court Finds and Rules as Follows;
    
    1. The Complainants claims are not made out and are therefore refused in Their Entirety.
       
    2. No orders on Costs.
       

Complainant in person.
Mr. Preddly Dau and Mr. Benabe Bamre for the Defendants.