Haoro v Hauko [2021] PGDC 222; DC7083 (7 December 2021)

DC7083

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]
DCC NO: 192146 /2021.

IN THE MATTER BETWEEN:

SAMSON HAORO.
Complainant.
.
AND.
DONALD HAUKO
Defendant.

Popondetta: Michael W. Apie’e

2021: October 19^th, December 07^th.

CIVIL PROCEEDINGS. Action seeking Summary Ejectment of Defendant and his Family from Titled Property/house the Complainant has Indefeasible Title over.
CIVIL PROCEEDINGS. Claim for Ejectment under Section 6 of Summary Ejectment Act.

Cases Cited:
Mudge and Mudge v. Secretary of Lands and others [1985] PNGLR 387
Emmas Estate Development Pty Ltd v. John Mea & Ors [1993] PNGLR 215
Hi Lift Pty Ltd v Setae [2000] PGNC 71; N2004
Gawi v. PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 72

References:
District Court Act.
Land Act
Land Registration Act
Summary Ejectment Act

Representation:
Complainant Samson Haoro in Person.
Defendant Donald Hauko by Next of Friend Leslie Asimba.

JUDGMENT.

Michael W. Apie’e-a/Principal Magistrate.

Background:

1. The Complainant filed suit on the 26/02/20 seeking the Summary Ejectment of the Defendant from Titled Property at Section 23 Allotment 24 Township of Popondetta in the Northern Province.
   
2. The Complainant holds Indefeasible title to that Property which title was issued to him on the 27/06/16 by the Minister of Lands in Conjunction with the Registrar of Titles.
   
3. After taking over the tile in 2016 on the basis of his father Champion Haoro’s history with Haoro Business Group and the initial purchase of this Property via Give Away Scheme (GAS) The Complainant sought to repossess the Property to no avail as he claim he is impeded and threatened by the Defendant and his Children.
   
4. He Claims that the Defendant who used to work for Works Department was allowed onto the Property by one Mr. Crible Kuku, the Complainants uncle and the Defendants brother in-Law, as a Temporary arrangement when he arrived from Rabaul to live on until he secured his own Accommodation.
   

Complainants claim:

5. However, the Defendant has lived on the property permanently for over 20 years and the Complainants attempted to inspect and survey the house as owner has being impeded with threats and harassments.
   
6. The Complainant therefore is aggrieved and seeks to have his rights as title holder enforced against the Defendant.
   
7. The Complainant relies on both oral and documentary Evidence to press his claim in the District Court seeking orders of Eviction/Summary Ejectment against the Defendant and his family from the property at Section 23 Allotment 24 Township of Popondetta in the Northern Province.
   
8. Apart from the Oral Testimony, The Complainant as deposed into Evidence several supporting documents as follows;
   
   1. Title Document to the Property itself issued to him on 27/06/16.
      
   2. Letter dated 04/10/18 from Provincial Housing Officer Ms. Esmie Bundu Confirming Complainant as owner of Section 23 Allotment 24.
      

Defendant Response to the Claim:

9. The Defendant Disputesthe Complainants claims and state as follows in his Affidavit of 26/03/21 also echoed in his Submission dated 11/10/21;
   
   1. The Complainant is not the owner of the property.
      
   2. Haoro Business Group was just a Tenant of the Property from National Housing Corporation.
      
   3. One Crible Kuku was the managing Director of Haoro Business group and an Occupant of the house.
      
   4. When the business ceased in the 1990’s, they vacated the premises.
      
   5. The Defendant then approached Crible Kuku and inspected the Property.
      
   6. There were no company properties on site.
      
   7. He inspected the house and noted a run down and dilapidated house with overflowing sewage and unsanitary conditions.
      
   8. He said he was told the property was proposed for give away (GAS) but not Haoro Business Group property as claimed.
      
   9. Defendant moved into the property in July 1997 and carried out repair, maintenance to meet GAS Residence Lease under 61(68/1731).(?)
      
   10. He claimed to have Expended as follows; K85,000.00 for Total Refurbishment, K35,000.00 for Materials and Labour Cost and K50,000.00 in Security Costs potentially a total of K170,000.00.
       
   11. He raised issue about the Authenticity of the Complainants documentations of title and support letter etc.
       
   12. He claimed to have better claim to the property to be considered for GAS.
       
   13. He also claimed that the property Section 23 Allotment 24 was one of the properties purchased by Parliamentary Member for Ijivitari District Honorable Richard Masere for Tenants and that he was one of them.
       

Observations:

10. The Complainant claims to have clear Title to Section 23 Allotment 24 and no matter how dubious the title might seem to be given the skepticism the Defendant might have of it, the Concept if Indefeasibility of title to Property under Section 33 of the Land Registration Act and also the Support letter from Ms. Esmie Bundu taken on face value (Prim Facie) impresses on this court that the powers that be have allocated title to that property to the Complainant and that is all that matters to this court.
    
11. That fact also put this case outside the reach of this court (Jurisdiction) to enquire or question the title in any manner as to whatever transpired before title was issued. That is a remedy or redress that can only be sought in the National Court
    
12. Indefeasibility of Title dictates that a ‘Title on Face Value/Prima Facie cannot be question and must be given full recognition and effect according to Law.
    
13. In the case of Mudge and Mudge v. Secretary of Lands and others [1985] PNGLR 387, the Supreme Court of Papua New Guinea upheld the principle that Indefeasible title is Protected under Section 33 of the Land Registration Act.
    
14. Other Subsequent cases in Both the Supreme and National Courts such as Emmas Estate Development Pty Ltd v. John Mea & Ors [1993] PNGLR 215, and the case of Hi Lift Pty Ltd v Setae [2000] PGNC 71; N2004 (17 November 2000) by Late Sevua J all reiterate and establish the same Principle of Indefeasibility of Title being protected under Section 33 of the Land registration Act except in prescribe circumstance where fraud is involve in the Processing of and issuance of Title.
    
15. Section 33 of the Land Registration Act Reads;
    

33. PROTECTION OF REGISTERED PROPRIETOR.

(1) The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except–

(a) in the case of fraud;

(b) the encumbrances notified by entry or memorial on the relevant folio of the Register; and

(c) the estate or interest of a proprietor claiming the same land under a prior instrument of title; and

(d) in case of the omission or miss-description of any right-of-way or other easement created in or existing on the same land; and

(e) in case of the wrong description of the land or of its boundaries; and

(f) as to a tenancy from year to year or for a term not exceeding three years created either before or after the issue of the instrument of title of the registered proprietor; and

(g) as provided in Section 28; and

(h) a lease, licence or other authority granted by the Head of State or a Minister and in respect of which no provision for registration is made; and

(i) any unpaid rates, taxes, or other money which, without reference to registration under this Act, are expressly declared by a law to be a charge on land in favour of the State or of a Department or officer of the State or of a public corporate body.

(2) The operation of Subsection (1) is not affected by the existence in any other person of an estate or interest, whether derived by grant from the State or otherwise, which, but for this Act, might be held to be paramount or to have priority.

16. The Complainant alleged Collusion and Fabrication and Dishonesty between the Complainant and one Ms. Esmie Bundu insofar as Samson Haoro’s claims to this property are concerned but, unfortunately that is a redress that can only be sought in the National Court as for all intents and purposes the Complainant seems to have Indefeasible title to Section 23 Allotment 24.
    
17. The Defendant in challenging the Complainants claim of title to Section 23 Allotment 24 has also claimed that the Parliamentary Member for Ijivitari has purchased this Property alone with others but there are two problems with this claim as follows;
    
    1. The Defendant has not deposed proof of this claim of the Ijivitari Members purchase before this Court.
       
    2. It is not logically and lawfully possible for the Member to purchase a property that is already proven to have being purchased by a private individual, namely Samson Haoro with prove and confirmations of payments to the National Housing Corporation deposed into evidence.
       
18. That being so, this Court therefore has no basis to rule that the Complainants title to Section 23 Allotment 24 is Bona Fide in dispute by other persons including the Defendant as per the Dictates of Section 33 of the Land Registration Act and also Section 21 (4) (f) of the District Court Act.
    
19. Following on, the Complainant brings his action and Seeks orders according to Section 6 of the Summary Ejectment Act which also carries with it similar requirements.
    
20. Section 6 of the Summary Ejectment Act reads; 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.

21. 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’
    
    1. What this simply means for this case is that ‘If the Defendant and his relativescan lawfully claim an interest over this Property either legal or Equitable either by custom or Law’ then the Court should not invoke Section 6 against him in this instance but rather resort to other processes or avenues to resolve the matter.
       
    2. It also means that ‘If the Complainant does not have clear title and even if he had purchased the Property but title was still not granted to him, then Section 6 could not be invoked in his favour as his title is ‘Bona Fide’ in dispute.
       
22. However, in this case the following is apparent and that is;
    
    1. The Defendant has not established any Legal rights over Section 23 Allotment 24 to counter the Complainants Claim of Indefeasible Title to Portion 1824.
       
    2. The Complainant has established Title to the Property, and such Title is Indefeasible insofar as the District Court is Concerned unless it is established by the one claiming it that such title is bona Fide in Dispute because of Fraud through appropriate proceedings before the National Court.
       
    3. The Defendant has not provided any evidence to counter the Complainants claim of title
       
    4. However, having lived on the Property for over 20 years, the Defendant can be said to have acquired Equitable interest over the Property however as was the result in the Gawi v. PNG Ready Mix case cited above, the Squatters/occupants of the Property the subject of that case had to ultimately move.
       
    5. The Defendant also claims to have spent over K170,000.00 on the Property at Section 23 Allotment 24.
       
    6. K170,000.00 is substantial amount of money and without Receipts, invoices, bank statements and quotes for work done being produced/deposed into evidence, this court will take this claim by the Defendant ‘with a grain of salt’ so to speak and observe that ‘K170,000.00’ could easily be used to build a new house or even refurbish any old L40 house like the one at Section 23 Allotment 24 to almost a brand new State.
       
    7. Apart from claiming to have expended K170,000.00 on the property, there is no evidence provided by the Defendant to reveal the improvements to the property because of the K170,000.00 he claims to have being expended.
       
23. In the final Analysis, the Court finds and Rules as follows that;
    
    1. The Complainant has established an existence of rights or interest over Section 23 Allotment 24 sufficient to compel the Summary Ejectment of the Defendant from Section 23 Allotment 24
       
    2. The Defendant has not established any Legal interest in Section 23 Allotment 24 sufficient to offset the Complainants claim of Indefeasible Title to this land.
       
    3. However, by virtue of over 20 year’s occupancy of the Property initially by approval of the Complainants uncle Mr. Crible Kuku, this Court finds the Defendant to have Equitable interest in the property.
       
24. Accordingly, the Court Adjudges and will Order as follows;
    
    1. The Complainants Claim(s) is Approved in its entirety and The Defendant and his family and relatives are hereby found to be in Illegal Possession and occupation of Section 23 Allotment 24.
       
    2. The Defendant and his family are allowed 60 days within which to;
       
       1. Renegotiate their continued occupation of the said Section 23 Allotment 24 with the Complainant in light of the Work and Improvements claimed on the property by the Defendant or.
          
       2. Seek alternate accommodation elsewhere with a view to vacate and give vacant possession to the Complainant within 60 days.
          
    3. If after 60 days, no agreement can be reached, then the Defendant and his family are to vacate the Property and give vacant possession to the Complainant.
       
    4. Failing that, enforcement under section 6 (1) (b) (c) and (d) of the Summary Ejectment Act is to ensue forthwith.
       
    5. No orders as to cost.

Complainant Samson Haoro in Person.
Defendant Donald Hauko by Next of Friend Mr. Leslie Asimba.