Heritage Holdings Ltd v Dharmaraja [2021] PGDC 34; DC5089 (12 April 2021)

DC5089

PAPUA NEW GUINEA

In the District Court of Justice at Kokopo

(sitting in its Civil jurisdiction)

CV 747 OF 2020

BETWEEN

HERITAGE HOLDINGS LIMITED

Complainant/Respondent

AND

DARELL DHARMARAJA as the General Manager of Coconut Product Limited

First Defendant

AND:

COCONUT PRODUCT LIMITED

KOKOPO: J. AMANU

2021: 12^th April

CIVIL – Summary Ejectment proceeding – whether the Defendant is actually in possession or in occupation – pleadings does not disclose action for eviction – defendant trespassed thus orders sought for eviction refused – entire proceeding dismissed

Legislation cited:

Summary Ejectment Act

Case Authorities cited:

Papua New Guinea Banking Corporation vs. Jeff Tole (2002) SC

Counsel:

Complainant– Mr. J P Kendy

Defendants– Ms. S. Kienne

12^th April 2021
1. J AMANU. The Complainant commenced this proceeding against the Defendant for eviction order pursuant to section 6 of the Summary Ejectment Act and for restraining orders.

2. The Complainant alleged that on 26^th October 2020, the Defendants’ employees unlawfully entered the Complainant’s property described as Portion 230, Milinch, Kokopo, Fourmil Rabaul, without the Complainant’s knowledge and or consent and harvested balsa woods.

3. It was further all edged that on 26^th and 27^th October 2020, Police personnels with instructions from the First Defendant unlawfully entered the Complainant’s property and threaten and swore at the Complainant’s employee with the intent to continue harvesting balsa woods and the use of road. The Defendants also destroyed four (4) matured oil palm trees valued at K1000.00 each.

4. The Defendants denied the claim through a Defence filed on the 26^th November 2020.

5. Hearing was conducted by way of Affidavits on the 29^th March 2021. Counsel then made oral submission.

ISSUES
6. The issues for determination are:

a) whether the Defendants, their agents/servants or associated be evicted fron the Complainant’s property.
b) if the issue one is in the affirmative, whether restraining orders can be granted?

LAW
7. Since the proceeding was filed pursuant to section 6 of the Summary Ejectment Act, I set out the provision as:

“section 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 a prescribed form to the person in illegal occupation.
(2) Where the person summoned under sub section (1)-

1. Does not appear before the District Court at the time named in the summons; or
2. Appear 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

8. Mr. Kendy of counsel for the Complainant submitted relying on the Affidavit of Anthony Banit that the Complainant has a valid legal Title over the said property. They have an indefeasible Title and that there is no dispute over the Title.

9. Mr. Banit deposed in his Affidavit, in essence, that the First Defendant directed their workers to go and illegally harvested balsa wood at the Wandaru Plantation without seeking permission from the Complainant and in doing so destroyed the Complainant’s matured oil palm trees worth K1000.00 each. Furthermore, policemen were engaged to go in and abused the Complainant’s employees and have continued to use the Complainant’s private road to transport their employees.

DEFENCE CASE

10. Ms. Kienne, on the other hand, submitted that the Defendants were not in possession of the Complainant’s land or premises. Counsel relied on the Affidavit of Darrallel Damarajaha and argued that the Defendants’ employees may be only trespassing but the road is an access road for them to conduct their activities.

CONSIDERATION

11. This is a proceeding instituted under Summary Ejectment Act for eviction orders. Upon reviewing the Complainant’s pleadings in the Complaint and Summons to A Person Upon Complaint, I find that the Complainant is alledged that the Defendants’ servant or agents have trespassed the Complainant’s property.

12. The first relief sought is based on Section 6 of the Act. According to the preamble of this Act it is stated that:

“Being an Act to facilitate the recovery of possession of premises after determination of a tenancy, and for related purposes.”

13. Furthermore, heading of Section 6 provides that “Recovery of premises held without Right, etc”

14. So, I am of the view that the Summary Ejectment Act and Section 6, for purposes of this proceeding, is basically to recover possession of premises. The Complainant must plead that the Defendants are in actual possession or in occupation of the said property without right, title or license.

15. The relief sought by the Complainant under Section 6 of the Act does not reflect the pleadings in the Complaint.

16. In the case of Papua New Guinea Banking Corporation vs. Jeff Tole (2002) SC 694, Kandakasi, J (as he then was) emphasized that:

“ The principle governing pleadings can be easily be summarized in the terms of unless there is foundation in the pleadings of a party, no evidence and damages or relieves of matters not on pleaded can be allowed.”

17. In this case, the pleading of the claim was that it is more or less a case of trespass than that of in possession or in occupation of property without right, title or license.

18. On that basis alone, I find that the Complainant did not plead a cause of action leading to the relief sought under the Summary Ejectment Act. Therefore the entire proceeding must be dismissed with costs.

19. Since I have come to this conclusion, there is no need to deliberate on the issue of restraining orders sought in the complaint.

FORMAL ORDERS.

1. The entire proceeding is dismissed.
2. The Complainant shall pay the Defendants’ costs to be taxed if not agreed.
   

Orders accordingly.

Lawyers for the Complainant/Respondent: Edward Wamp Lawyers
Lawyers for the Defendants/Applicants: Cornerstone Legal Services