Tipara v Koropa [2021] PGDC 229; DC7089 (13 December 2021)

DC7089

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]

DCC NO: 80/2021

IN THE MATTER BETWEEN:

PAUL TIPARA.
Complainant.
.
AND.

GEORGE KOROPA.
Defendants.

Popondetta: Michael W. Apie’e

2021: December 13^th.

CIVIL PROCEEDINGS. Action seeking Summary Ejectment of Defendants from Lands supposedly Subjected to Alienation /Title in favour of the Complainants late father. Such title supposedly subjected to Extinguishment pursuant to section 77 of the Land act. Claim of Equitable interest by the Complainant over the Land subject of this case. Section 6 of Summary Ejectment Act to be effected.

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

References:
District Court Act.
Summary Ejectment Act

Representation:
Complainant for himself.
Defendant for himself.

JUDGEMENT ON AFFIDAVIT TRIAL.

Background.

Complainants case:

1. The Complainant Paul Tipara files action against the Defendant in his action of 10/06/21 and seeks the following orders;
   
   1. Orders compelling the Defendant to surrender Block Portion 101218-19 (Portion 1218) Isivini Road 5, previously held under his father Peter Tipara’s name.
      
   2. Other Orders the Court deems meet.
      
2. The Complainant is aggrieved by the Defendant in that he has taken over the Portion 1218 and is not allowing him back onto the block even though the Block was previously occupied and operated by his late father Peter Tipara.
   
3. The Orders he seek are more akin to an application for Summary Ejectment pursuant to Section 6 of the Summary Ejectment Act primarily and also other remedies or redress under Section 22 of the District Courts Act.
   
4. The Complainants claims can be said to be premised on a claim of superior rights or interest over Portion 1218 than that of the Defendant, as in order for him to effectively impose his will on the Defendant to the Extent of getting this Court to agree with him and to compel the Defendant to Surrender Portion 1218 back to him would entail the Complainant having rights and interest over Portion 1218 that would leave no other option but to grant him what he was asking of this court. I will address on that later in this Judgment.
   
5. The Complainant relies on his affidavit and other filings and the basis of his claim is that Portion 1218 was owned by his father and that he as the surviving son automatically had the right to take over the Land.
   
6. Instead the Defendant who was only the Care Taker has taken over the land and is making it difficult for him to take over his father’s block.
   
7. Indeed, the Defendant had by and large taken over and is fully operating the Block in Planting, Harvesting, Selling and dealing with Portion 1218 with the full knowledge and acceptance of Higaturu Palm Oil Company, Oil Palm Industries Corporation (OPIC) and the Lands Department.
   
8. The Complainant also established through evidence that his deceased father and brother are both buried on the same Portion 1218.
   

Defendants case.

9. The Defendant as stated above seems to have fully assumed control over Portion 1218 and is currently collaborating with the Palm Oil company in respect of this Portion.
   
10. The crux of the Defendants case is the claim that Peter Tipara’s title to Portion 1218 was extinguished and so he was allowed to come onto Portion 1218 afresh to make a go at it.
    
11. He tendered a letter to that effect from a Mr. D. P Katakumb Regional Manager of Lands and Physical Planning Northern Region date 22/08/91 which states in no uncertain terms that the Lease held under Peter Tipara’s name has being extinguished as per Government Gazzette No.G. 82 pf 20/12/90.
    
12. Gazzette No. G82 of 20/12/90 is annexed and it clearly includes a notice under Section 36(1) of the Land Act which clearly states that the Lease right of Peter Tipara was thereby Extinguished.
    
13. The Complainant has not provided any counter evidence for this court to disregard the letter of Mr. D.P. Katakumb above or the Extract of the Government Gazette N. G82 of 20/12/90 above.

Observations.

14. The Extinguishment of Peter Tipara’s rights to the Lease over Portion 1218 clearly eliminates any Next of Kin or Succession Claims the Complainant might have over Portion 1218 by virtue of his Late Father’s history on Portion 1218.
    
15. The essence of the Complainants Claim would entail the issuance of Orders under Section 6 of the Summary Ejectment Act which 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.

16. However, 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’
    
17. In this case, the Complainant has not established any legal rights or interest in portion 1218 to enable this court to attribute to him primacy over Portion 1218 as opposed to the Defendant.
    
18. However, the fact of the said Portion 1218 holding the Graves of his deceased father and Brother affords the Complainant with what I think is strong Equitable interest in this portion of Land.
    
19. The Extinguishment of Peter Tipara’s name from the Title of Portion 1218 was because of his demise and the block being not subjected to Public Curators Administration as the Complainant was not present at the time and only the Defendant was present as friend and caretaker, then he secretly started the takeover bid and hence the letter of Mr. D.P. Katakumb above followed by the Extract of the Government Gazette N. G82 of 20/12/90 above.
    
20. If this Portion of Land, being titled Property therefore a Proper Deceased Estate, had being properly subjected to Public Curator Administration after the death of Peter Tipara, I believe pursuant to Section 125 of the Land Registration Act and in conjunction with Section 35K of the Wills Probate Administration Act the Complainant would probably have being identified and allowed to come in to take-over as next of Kin and the situation could have been different.
    
21. Section 35K of the Wills Probate and Administration Act (WPAA) comes under Division 5 and following, of the WPAA which related to Distributions in intestate Formal Estates in accordance with Custom.
22. In Section 34 and Section 35G Clearly Identifies the Public Curator as the ‘Distributor’ to Intestate Properties and also accords the Public Curator with the power to appoint appropriate persons to act as Distributors.
    
23. The Role of Distributors under Section 35D is to Distribute the Estate of one who dies intestate in accordance with Custom applicable to that deceased person and in accordance with Section 35E, which further prescribes that a person to be deemed entitled to an intestate Estate must be identified and certified by a District Officer or other persons to be appointed as Distributor by the Public Curator.
    
24. Section 35K Relates to Disputes arising under this heading in respect of Distribution of the Estate of a person who dies intestate, by persons claiming rights to that estate.
    
25. As far as the Land Registration Act is Concerned, Section 125 allows for passage of Lands Subjected to Title to pass to persons entitled by custom to such Deceased Estates and so if this matter had been referred to the Public Curators Office at the passing of Original Title Holder Peter Tipara, then the Complainant could have potentially come to the fore as next of Kin, but it seems he was not even around when his father passed.
    
26. The Defendant has reached a level of prominence in relation to Portion 1218 and is currently considered by OPIC and others as the operator of this Block after the Extinguishment of Peter Tipara’s name as title holder.
    
27. However, the fact that the graves of Peter Tipara and one of his son’s is still on the Portion 1218 accords the Complainant with the Equitable Interest sufficient to challenge whatever presumed rights or licenses the Defendant might have over this property.
    
28. The Extinguishment of Peter Tipara’s name in the Government Gazette N. G82 of 20/12/90 was pursuant to Section 77 of the Land Act and as per section 79, within 60 days from that Extinguishment, a new Title should have been granted to the next person, but to this date some thirty (30) odd years later, the Title to this Property still remains vacant and not granted to anyone, not even the Defendant, as he would have obviously Flaunted it in this trial if indeed he had such title.
    
29. Paul Tipara as the son of the Original Title Holder who has his Late fathers and a late brother’s bodies buried on that Land has Obvious Equitable interest on that Land and therefore ought to have being considered ahead of anyone else including the Defendant to take over this Portion of Land.
    
30. I believe the suppression of family members and the secrecy in which the Defendant was communicating and dealing with the Lands and Physical Planning office especially with Mr. D.P. Katakumb of that office was calculated to take this Land away from the family of Late Peter Tipara, especially the Complainant.
    
31. Since new title has not yet been issued in respect of Portion 1218 to anyone pursuant to Section 79 of the Land Registration Act by the Registrar of titles some 31 years after it is extinguished, it is the adjudication of this Court that the Complainant as the son of the Original titleholder ought to be considered ahead of all others including the Defendant to assume and takeover title to Portion 1218.
    
32. In the final Analysis, the Court finds and rules as follows that;
    
    1. The Complainant has established existence of Equitable interest over Portion 1218 in the that the remains of his father and brother is interred /Buried on that Land.
       
    2. Apart from presenting Letters proving extinguishing of Late Pete Tipara’s title over Proton 1218, the Defendant has not established any prove of title apart from the fact that he is listed only as the Grower/Operator of Portion 1218, but not being issued with Title pursuant to Section 98 of the Land Act.
       
    3. The Defendant has being occupying and controlling this Portion 128 long enough to offset any expense he might have incurred on the block up to current.
       
33. Accordingly, the Court Adjudges and will Order as follows;
    
    1. The Complainants Claim(s) is approved in its entirety as he has established strong Equitable interest in Portion 1218.
       
    2. The Defendant is ordered to be Ejected from Portion 1218 within 30 days and that the National Department of Lands, OPIC and the Lands Department of New Britain Oil Palm Company consider registering the Complainant Paul Tipara’s name as the Block holder in place of Original Title Holder Peter Tiparawith a view ultimately to acquire title to this Land.
       
    3. No Orders on Costs

Complainant for himself.
Defendant for himself.