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Papua New Guinea District Court |
DC6014
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
SUM NO. 01/2021
MARTINUS ADADIKAM
(Complainant)
-v-
HERMAN NIMBISAN
(Defendant)
VANIMO: B.Fehi
SUMMARY EJECTMENT PROCEEDINGS: Cause of action pursuant to Section 6 of the Summary Ejectment Act 1952 – Production of Title prerequisite to sustain proceedings before the District Court – Defendant must show evidence of necessary steps taken to disturb the title – Equitable interest limited to consideration over the time frame needed for giving up vacant possession of the property by the Defendant
Statutes:
Case Law Cited:
Representations:
Counsel Kennedy Masket from the Public Solicitors Office for the complainant.
Defendant appearing in person.
04th May 2021
1. FEHI. B. DCM: This is a complaint filed pursuant to Section 6 of the Summary Ejectment Act seeking orders for the eviction of the Defendant and his family from a portion of state land described as Section 41 Allotment 39 Township of Vanimo West Sepik Province. The complaint appears in the following form:
“THE DEFENDANT AND HIS FAMILY, RELATIVE, FRIENDS AND/OR AGENTS HAVE BEEN ILLEGALLY RESIDING ON THE COMPLAINANT’S PROPERTY DESCRIBED AS SECTION 41, LOT 39, TOWNSHIP OF VANIMO WEST SEPIK PROVINCE WITHOUT HIS CONSENT, AND HEREBY DEPRIVING HIM OF HIS RIGHT TO IMMEDIATE POSSESSION, USE AND ENJOYMENT OF HIS PROPERTY”
RECORD OF PROCEEDINGS
2. The originating process which comprises of a complaint document, summons upon a complaint document and affidavit in support document were received and registered at the Court Registry between the 22nd and 27th April 2021. All the registered court documents were served on the defendant on 03rd May 2021 by the Office of the Public Solicitors, Vanimo Branch, who were at this point, lawyers instructed by the complainant to act on his behalf.
3. The matter was set before me for fresh mention on 04th of May 2021. The defendant appeared in person, with Counsel Kennedy Masket from the Public Solicitors Office appearing for the complainant. Nature of complaint read and explained to the defendant who raises no defence to the complainant’s assertion of right for him to give vacant possession of the subject property. The defendant only asked the court to consider the following points he feels gives him some form of equitable rights to be compensated before giving up vacant possession to the complainant. Defendant said the following and I quate:
“firstly me understandim alsem ground blo provincial gavaman na me gat rite lon developing. Taim me payim money lon Housing Commission, na mi developim land. Mi apply lon lands but al ino givim lon mi, may be me no qualify lon winim displa graun. Me developim graun pinis, Gazette kam aut lon 2014. I kam lon affidavit blon em paragraph 11, 12, na 14, em tok em givim me warning, em lukim Lands na em wokim alsem. Mi no bin kisim copy blon displa letter. Em givim lon ron man. Em kisim title pinis me understandim, em must luksave lon mi na ba mi lusim aria. Ino lon property, lon swet blon mi mi developim graun tasol. Mi ba lusim within 5 days but em ba must stretim mi na mi go”
4. Having heard and noted the above remarks from the Defendant, I asked the defendant if he wish to defend himself, however, he replied saying that whatever he said is enough and he has nothing further to state. The court can go ahead and make a decision.
BRIEF FACTS
5. The complainant lodge his application with the Lands and Physical Planning Division of the West Sepik Provincial Administration for the property described as Allotment 39, Section 41, Vanimo Town in 2015, whereupon he was considered the successful applicant in 2016 with confirmation given through the Gazette released on 10th February 2017. The Land Title to the said property was issued to the complainant on 01st March 2018. For all intent and purposes the complainant portrayed himself to be the legal owner of the state lease. The Defendant had occupied the property prior to the date of the complainant’s application, his occupation as a matter of fact, was through an arrangement he had with Housing Corporation Office here in Vanimo. He remained on the property until the date of hearing.
APPLICABLE LAW
6. The complainant brings his claim under Section 6 (1) of the Summary Ejectment Act 1952 which the whole provision appropriately appears as follows:
6. 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 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.
7. Going by the book, it is my humble view an important prerequisite for the complainant to produce before me genuine copies of the State Lease indicating clearly his name, if he is a natural person, as for other legal entities, a clear document authorizing him to act on their behalf.
8. Should the above be satisfied by the complainant, the onus shifts to the defendant who must in the presence of such proof of complainant’s right to possession show that there exists a bona fide dispute as to the title, by taking some distinct legal steps to disturb the title. This necessarily involves commencement of action in the National Court and proving one or more of the exceptions under Section 33 of the Land Registration Act. I make reference to the case of International Education Agency of Papua New Guinea Ltd. V. Wadau [2018] SC1733, adopting the position taken by the affirmative side to emphasize this requirement. Also reference is made to the case of Kobale v. Sindra [2020] N8474, for a clear explanation on how the requirements are applied in eviction proceedings before the District Courts.
9. The powers of the District Court in eviction proceedings are quite limited; in my opinion discretion can only be clearly exercised upon the existence of equitable grounds, which may include considerations such as developments on the land, like gardens, structures built on the land, and other moveable properties stored on the land. The exercise of the court’s discretion is appropriate under such circumstances were sufficient time is needed by the defendant to take action and ensure vacant possession of the land, without causing any unnecessary hardship on their part.
10. Simply put, the production of clear title over the subject land before the court requires the Court to take action in favor of the complainant. Should that be not the case, the complainant has no right to bring such proceedings before the court. The defendant, when made aware of the status of the subject land must take all necessary actions to disturb the title (considerations under Section 33 of the Land Registration Act), evidence of such must be presented before the court as a reasonable defence to avoid being ordered to give up vacant possession of the land. Failing which, the defendant is only entitled to the exercise of the court’s discretion insofar as the time frame required for vacant possession to be complied with. Any associated claims other than that in my view will fall outside of the court’s jurisdiction, as per Section 6 of the Summary Ejectment Act 1952.
EVIDENCE BEFORE THE COURT
A) COMPLAINANT’S CASE
Complainant’s Affidavit Evidence
11. The complainant through his lawyer produced and relied on his affidavit filed and dated the 27th of April 2021. The relevant paragraphs for my consideration are:
Affidavit dated 27th April 2021
Paragraph #3: I applied for the title of the subject LEASE Allotment 39 Section 41 VANIMO TOWN in 2015 around March through the formal legal processes prescribed under the Land Act and Land Registration Act at the Provincial Lands and Physical Planning Division here in Vanimo Government.
Paragraph #7: There were 32 applicants who applied to secure the same Lease Allotment 39, Section 41 of Vanimo Town but through Lands Board Meeting No.4 of 2016, I was considered the successful applicant after it formally advertised.
Paragraph #8: The Lands Board out of 32 applicants considered my application and formally Gazetted it on the 10th of February 2017.
Paragraph #10: Then finally on the 01st of March 2018, the title of the Lease was issued to me under my name and wife’s name.
Annexure marked “F” is the copy of the Land Title issued by the Lands Department dated the first of March 2018.
Paragraph #11: I advised the defendant on various occasions to move out of the land as I am the legal indefeasible title holder of it since 2018. The defendant refused to move out of it and this has caused me effort and energy to file this matter at this court to evict him out of it.
The supporting document annexed to with referred to above is hereunder described as:
I accept the abovementioned document and marked it for my viewing, referring to it as ‘Exhibit’ i
12. The above reproduction is what I select as those relevant evidences produce by the complainant in support of his claim against the defendant. Several other documentary evidences were provided, however, I only consider exhibit i as relevant. The complainant’s case is hereby closed.
B) DEFENDANT’S CASE
13. As alluded to the defendant wished not to make any affidavit reply and further defend himself against the claim of the complainant. He only asked me to consider his effort in developing the land and that I should order complainant to pay him some form of compensation before he vacate the subject land. This is the only response he had. He also stated that he is willing to give up vacant possession of the land within 5 days to the complainant subject to him being paid some form of compensation.
14. This concludes the defendant’s case in response to the complainant’s claim.
15. Having faced with these set of claims by the defendant, I will adopt the approach I took in the case of Francisca Numbabus v. Camilus Weilobu Vanimo District Court Sum 49/2020 , were I dealt with such a claim as a cross-claim to the complainant’s main claim. In adopting this approach, I find the defendant’s cross-claim on compensation to be outside my jurisdiction; as such I will not entertain this under the current proceedings. Defendant is free to take up such claim before an appropriate court with the relevant jurisdiction.
16. What are now the relevant issues that I am required to consider before making a finding on whether or not to invoke my powers and order through the issue of a warrant the defendant to give up vacant possession of Allotment 39, Section 41 Vanimo Town.
RELEVANT ISSUES AND DISCUSSIONS
17. The relevant issues for my consideration are:
18. Provided below is my discussions regarding the respective identified issues.
i) Whether or not the complainant has produced before me clear title to the property described as Allotment 39, Section 41, Vanimo
Town?
19. I note exhibit i as genuine copy of the Title of the State Lease issued to the complainant and his wife Ursula Adadikam on 01st March 2018. There is no other copy of a different title document to the same property, as such I find in favor of the complainant on this issue. The complainant is for all purpose and intent the lawful owner of the State Lease for a period of 99 years.
ii) If so, whether the defendant has taken the necessary steps to disturb the title?
20. The defendant has failed to provide before me any evidence convincing to the fact that he has taken some necessary steps to challenge the title produced by the complainant. It is clear that he was aware of the process towards the change of status but yet has taken no reasonable steps to raise his claim before the Title was issued to the complainant or dispute the existence of the title issued to the complainant by alleging any one of the considerations under Section 33 of the Land Registration Act, of which the most common would be to contest it on grounds of fraud. Therefore, I am not satisfied that the defendant had taken any necessary steps to challenge the title, for all intent and purpose the complainant has an indefeasible title over the subject property.
iii) If not, then whether there is present equitable grounds for me to exercise my discretion to allow reasonable time for defend to give vacant possession of the land?
21. The complainant through his lawyer prays for orders that the defendant be required to give up vacant possession of the subject property within 14 days from the date this matter concludes. I have received no evidence from the complainant justifying a period of 14 days. There is no urgency disclosed before me as such I find it unreasonable to order defendant within 14 days to give up vacant possession to the complainant. Equity demands that I allow the defendant reasonable time to remove any structures he had erected during the term of his occupancy; however, this does not extend to include those structures already affixed to the ground forming part of it when he entered onto and commenced his occupation. The defendant is also entitled to remove whatever plants he had planted, but not including those that existed prior to his occupation. I assessed a period of 3 months to be appropriate under the circumstances to satisfy the equitable interest of the defendant.
FINDINGS
22. I find in favor of the complainant that he has an indefeasible title to the property described as Allotment 39, Section 41, Vanimo Town and he is entitled to come before this court pursuant to Section 6 of the Summary Ejectment Act with petition requiring the defendant to so course as to why he should not be removed from the property. The defendant, having been made aware of the complainant’s right to have vacant possession of the property has for all purposes failed to disturb the title and therefore has no right to remain on the property after the period ordered by me through this proceedings.
23. I find for the defendant equitable grounds only to an extent where he will be allowed to remove all structures erected by him during the term of his occupation and any plants planted by him during the same period. A period of no more than 3 months is considered sufficient under the circumstances.
CONCLUSION
24. Eviction orders pursuant to Section 6 of the Summary Ejectment Act is hereby issued in the form of a warrant to the Police here in Vanimo Town to remove defendant from the property described as Allotment 39, Section 41 if he continues his occupation after 3 months from the date of this orders.
25. The defendant’s occupation of the property is held to be illegal and as such all purported rights whatsoever exercised over the property ceased to exist exactly 3 months from todays date.
26. I hereby issue the following orders to give full effect to the above findings:
COURT ORDERS:
27. This brings to conclusion the matter before me.
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