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Faiwolok v David [2021] PGDC 77; DC6034 (4 June 2021)

DC6034


PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE HELD IN Mt HAGEN
(SITTING IN ITS CIVIL JURISDICTION)
DC 16 of 2021


BETWEEN:
NOKIM FAIWOLOK & TELLY NOKIM
Complainants


AND:
BETALI DAVID
Defendant


Mt HAGEN: MAGISTRATE L. MESMIN
2021: 31stMay


LAND - Summary Ejectment Act proceedings – State Lease – caretaker living on land for many years – whether District Court has Jurisdiction – whether applicant claiming he is the registered proprietor of a State Lease can evict in the absence of producing title document


SUMMARY EJECTMENT – Summary Ejectment Act, S.6 (recovery of premises held without right, etc) – pre-conditions to exercise of power by the District Court to order summary ejectment – need for proof of ownership – Complainant have not produced valid, legal Title – Indefeasible Title –Land Registration Act considered.


Legislation
Summary Ejectment Act
District Courts Act
Land Registration Act


Case Authorities cited
Tony Yandu vs. Peter Waiyu (2005) N2894
Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74


Counsels
Counsel for Complainant – Mr. Y. Kapili from Niuage Lawyers
Counsel for Defendants – In Person


4th June 2021

DECISION

L. MESMIN DCM:


  1. This is a contested eviction case. The complainants /applicants commenced proceedings against the defendant who is the caretaker of the property described as Section 59, Allotment 02, Fourmill Hagen, Western Highlands Province.
  2. He is seeking orders under the Summary Ejectment Act to evict Betaly David and his family from land over which he claims he is the registered proprietor.
  3. The Defendant contests the application arguing that Applicant failed to take into account his equitable interest in the property and that though the Applicant is adamant that he stole the title to the property, the Defendant denies that allegation out rightly.

INTRODUCTION


  1. The applicant moved by way of a Notice of Motion filed 8th March 2021 seeking the following orders:
    1. The requirement of service of documents to be dispensed with and that matter be heard ex-parte.
    2. An order that the Defendant, his family members, relatives, agents, servants and whosoever be evicted from Section 59, Allotment 02, Fourmill Hagen, Western Highlands Province .
    3. An order that the Defendants , their family members, relatives, agents, servants and whosoever be restrained from interfering in the development of from Section 59, Allotment 02, Fourmill Hagen, Western Highlands Province .
    4. An order that the Defendants are restrained from disturbing and harassing the Complainant with his relatives, agents and servants from developing the property.
    5. An order that that it the Defendants breach orders 2, 3 &4 shall be arrested by the police force.
    6. Costs of the application be in the cause.
    7. Such further or other orders this Honourable Court deems fit.
  2. On the 31st May 2012 the hearing was conducted by way of affidavit and oral submissions.
  3. The applicant relies on the complaint, summons to a person upon complaint and the supporting affidavit all filed on 8th March 2021.
  4. Parties made oral submissions and the following is the Court’s considered judgment in the matter.

BRIEF FACTS


  1. The Second Complainant, Telly Nokim, is the only biological son of Nokim Faiwolok, the first Complainant, who he claims is the registered title holder of the property.
  2. The property is described as Section 59, Allotment 02, Fourmill Hagen Western Highlands Province (the property).
  3. The Defendant is the caretaker of that property and it was alleged by the Complainants that the Defendant had put the property out on rent without the knowledge nor consent of the Complainant’s since 2016 till 2020 and he has benefited from the rental payments.
  4. The Defendant is the son of the sister of the First Complainant’s former wife, Ms. Magret Tokal.
  5. On or around early May 2020 the First Complainant instructed the Second Complainant to travel to Mt Hagen to retrieve the Original Owner’s copy of the Title and the copies that were made of it, if any, that were kept in the Faiwolok Nokim’s bag that was left in the house on the property.
  6. The Second Complainant alleged that upon arrival at the property and searching for the title he found out that the Defendant had stolen it and had lied to him that the title document was left in Wabag town and therefore, he needed to travel there to get it and bring it back.
  7. The Second Complainant laid a complaint with the police that resulted in the Defendant being arrested and charged for stealing and fraudulently hiding the title document.
  8. It was at that stage, when the Defendant was in the custody of the police that the he signed a statutory declaration on 7th July 2020 promising to give back the Title document within 3 days by the 10th July 2020 in the presence of police officers at Mt Hagen police station. That did not happen.
  9. Another statutory declaration form was signed by the Second Complainant on 7th July 2020 declaring that if the property was sold he would give K20,000 to the Defendant but that was subject to the Defendant returning the title document first to the Complainants.
  10. The Complainant’s lawyers submit that they are not able to produce a copy or the original title document to the property describes as Section 59, Allotment 02, Fourmill Hagen Western Highlands Province due to the Defendants reluctance and unwillingness to release it back into the custody of the Complainants. He submitted that they have also made numerous attempts to retain the document but to no avail.
  11. The Defendant is raising a defence in equity that he believes that he should have been treated better by the Complainant because of the reason that he had taken care of the property for such a long period of time.

ISSUES


  1. These are these issue to be addressed:
    1. Does this court have the jurisdiction to hear this application?
    2. Can the Applicant, who claims that he is the registered proprietor of a State Lease, succeed in an application for eviction under the Summary Ejectment Act without producing a copy or the original title to the property?

LAW


  1. Eviction proceedings and the right to vacant possession by an owner of land is primarily a matter of law. The law is that unencumbered ownership bestows upon the owner the right to evict a person or persons who are in occupation of premises without any rights.
  2. Section 6 of the Summary Ejectment Act reads:

“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.”


  1. The District Court has no jurisdiction in cases where title to land is bona fide in dispute under the Summary Ejectment Act.
  2. The District Court can only issue an eviction order under the Summary Ejectment Act, Section 6, against persons who have no right, title or license to be in possession of land.
  3. The complainant must establish that the defendant is in possession of the premises illegally or without right, title or license.
  4. However, if a registered proprietor of property commences proceedings in the District Court to enforce his interest in the property there is no bona fide dispute about title unless some other person demonstrates that they have taken some distinct, formal, legal step to disturb that title. Tony Yandu and Eddie Guken v Peter Waiyu and Jita Guken (2005) N2894 applied.
  5. Proceedings under the Summary Ejectment Act are intended to provide a quick remedy to people who have a clear title to premises. Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74 applied.
  6. In circumstances where a person was the registered proprietor of freehold land and no formal steps had been taken to disturb that title, there is no bona fide dispute and the District Court can make orders under the Summary Ejectment Act.

DEFENDANT’S INTERESTS OVER THE PROPERTY


  1. The Defendant in the present case has lived on the land for many years. The evidence does not show whether, as the caretaker, he had the approval of the First Complainant who is not even related to him by blood, to be the caretaker.
  2. There is no evidence to show if the Defendant had developed the land in any way since he has been there but only that he had rented the property out to tenants since 2016 and had been receiving rental payments up until 2020.
  3. The Defendant says that he has brought up his own children on the property. He submits that for those reasons he has an equitable interest in the property.

ADDRESSING THE 1ST ISSUE: DOES THIS COURT HAVE JURISDICTION?


  1. ANSWER: YES
  2. There was no evidence before the District Court that the title was in dispute.

ADDRESSING THE 2ND ISSUE: CAN THE APPLICANT, WHO CLAIMS THAT HE IS THE REGISTERED PROPRIETOR OF A STATE LEASE, SUCCEED IN AN APPLICATION FOR EVICTION UNDER THE SUMMARY EJECTMENT ACT WITHOUT PRODUCING A COPY OR THE ORIGINAL TITLE TO THE PROPERTY?


  1. ANSWER : NO.
  2. Woods J, in the case of Gawi v PNG Readymix PNGLR 1984 at p.79 said -

"The remedy it is designed to give is a quick and efficient means of obtaining possession of premises, (and this on the authorities extends to land) from person without any rights to possession. The whole procedure is designed to facilitate this. It is a matter for the claimant to show title, simply by producing a registered Certificate of Title or a registered lease and of producing evidence of adverse possession. If title is disputed, use of this Act is inappropriate."

  1. Proceedings under the Summary Ejectment Act are intended to provide a quick remedy to people who have a clear title to premises by simply producing a registered Certificate of Title or a registered lease and of producing evidence of adverse possession.”
  2. The Second Complainant has not produced a copy or the original registered Certificate of Title to this court.
  3. He submits he is not able to because the title document itself was stolen by the Defendant who refused to release it back into the Second Complainants custody.
  4. He referred to the statutory declaration form signed by the Defendant and dated 7th July 2020, stating that:

I Betaly David, Mulitaka village of Laiagam District, Enga Province


  1. Section 59 – Lot 02 at Warakum in Mt Hagen city. Hagen Central District of Western Highlands Province is not mine but belongs to Mr Nokim Faiwolok.
  2. I stole land title from his son Mr Telly Nokim. The original land title mentioned above so I will give back his land title after three days time from now to him.
  3. For 32 years of looking after my said area , I will sale the land area and give him (Betaly David) 20% of sales money.
  4. The Defendant submitted and argued quiet strongly that the Complainants assertions are not true and that he does not know where the document is. He further submitted that when he signed the Statutory Declaration form he was detained in the police station cells, and it was the Complainants that wrote up the terms and gave it to him to sign and that because of his situation at that time he did not read the document before signing it.
  5. On close examination of the statutory declaration form, I am of the view, it could not truly have been drafted by the Defendant, but by another person. I am inclined to believe the Defendants version that he may not have drafted the document due to absurdity of the term 3 where it states:

For 32 years of looking after my said area , I will sale the land area and give him (Betaly David) 20% of sales money.


  1. If it was truly Mr Betaly who has written this, then why would he sell the land knowing he is just the caretaker to it and why would he state that from the sale he would give himself 20% of the sales money.
  2. In any case, my job here is not to look into the validity nor the genuineness of the statutory declaration but rather to direct my mind to whether or not the Complainants have produced a clear indefeasible title as the registered proprietor of the subject land. The evidence shows us that, clearly, they have not.
  3. The Complainants have produced copies of the following documents which they rely on through the affidavit of Telly Nokim filed on the 8th March 2021:
    1. Inter-office Memorandum to NHC Managing Director dated 8th January, 2018 from their Mt Hagen Office confirming purchase of the property by the Nokim Faiwolok;
    2. An application to purchase land dated 9th February 2018;
    3. Internal and external Land status check forms dated 8th February 2018 from the Provincial Manager Mount Hagen confirming ownership status of property Section 59, Allotment 02, confirming tenant purchaser by Nokim Faiwolok;
    4. Instructions to the conveyance division confirming the name of the purchaser, Nokim Faiwolok;
    5. Inspection report from the NHC – Property Management Division dated 9th February confirming Nokim Faiwolok’s improvement report of the property;
    6. Respective payment receipts from NHC confirming payments of the outstanding Transfer fees and other necessary fees, that were lodge by the Complainants, confirming the ownership of the title; and
    7. The Valuation Report of the property by Kepa Maiya Real Property Consultants
  4. The parties seemed to accept that Mr Nokim Faiwolok was the registered proprietor of the property, even though he could not produce title to it.
  5. I am of the view though, that all these documents only go to show that the lawful pre-requisites have been met by the successful applicant resulting in the formalization and registering of an actual title deed under the provisions of the Land Registration Act by the Registrar of Titles.
  6. All these documents are not conclusive evidence of an actual grant of a State Lease or Title registered in the name of the First Complainant. Had the Second Complainant produced a copy of the State Lease or Title in favor of the First Complainant or even better the original owners copy in the District Court, it would have been conclusive evidence of title.

CONCLUSION


  1. For all the foregoing reasons set out above, I consider that the complainants cannot rely on the documents produced in the affidavit of Telly Nokim filed on the 8th March 2021, to assert that there is indeed an actual title. They must necessarily produce the actual title to the property in court as conclusive evidence in order for their application to be granted in their favor.
  2. In the absence of that actual title document, I am inclined to refuse the application and I do so.

ORDERS


  1. The application seeking eviction proceedings to commence pursuant to s.6 of the Summary Ejectment Act by the applicants, be dismissed.

Counsel for Complainant – Mr. Y. Kapili from Niuage Lawyers
Counsel for Defendants – In Person

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