Kaka v Jopare [2022] PGDC 10; DC8008 (18 January 2022)

DC8008

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]
DC NO: 184/2021.

IN THE MATTER BETWEEN:
MACDONALD KAKA as next friend of

1. WALLACE KAKI,
2. NATHANIEL SISINO

Complainant/Applicant(s).

AND:

1. FABIAN JOPARE.
2. FRED JOPARE.
3. PALA JOPARE

Defendants

Popondetta: Michael W. Apie’e

2021: December 21^st,23^rd, 2022: January 06^th and 18^th.

CIVIL PROCEEDINGS.

-Application pursuant to section 22 of the District Court Act to enforce District Court order.

-Action seeking Enforcement of District Court Orders dated by Magistrate Mr. William Noki dated 15/03/2012.

-Ejection of the Defendants from the said Portion 910 Milinch of Sangara, fourmil of buna encompassing the Hafa Land.

-they be further restrained from using the said Hafa Land within Portion Milinch of Sangara, fourmil of buna encompassing the Hafa Land.

Cases Cited:

Mudge and Mudge v. Secretary of Lands and others [1985] PNGLR 387
Emma’s Estate Development Pty Ltd v. John Mea & Or’s [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:
Macdonald Kaki for the Applicants
Fabian Jopare for the Defendants

JUDGEMENT ON TRIAL.
Background.

1. The Complainants who are from Urio village in the Oro-Bay LLG area of the Ijivitari District of Northern Province claimed to have obtained title over the said Portion 910 Milinch of Sangara, fourmil of buna encompassing the Hafa Land.
   
2. On the supposed basis of this title, they made application in their Action of CI No: 184 of 2011 before the District Court and Principal Magistrate Mr. William Noki on the 15/03/2012 did return a Judgment/Orders as follows;
   
   1. Judgment for the Complainant who are declared as Legitimate and Legal Owners of Portion 910 Milinch of Sangara, fourmil of buna encompassing the Hafa Land.
      
   2. Defendants are to deliver possession within 30 days of today.
      
   3. They are further restrained from using Hafa Land within Portion 910 Milinch of Sangara, fourmil of Buna.
      
   4. Failure to Deliver up peaceful possession to the complainants within 30 days, a warrant would be issued upon expiry of 30 days for Police to use reasonable force to evict the defendants.
      
3. The Defendants were aggrieved by the findings and Orders of 15/03/12 and so initiated Appealed of that Decision to the National Court as Plaintiffs in their Proceeding in Originating Summons (OS) No: 230 of 2012 against the Applicant/Complainants in CI 184 of 2011.
   
4. Consequential to this OS Proceeding, Stevens Lawyers on behalf of the Defendants/Plaintiffs took out Orders on the 18/06/2012, entered on the 20/06/12 which restrained Defendants in the OS Proceeding and Applicants in this action from seeking to enforce the District Court Orders in any manner.
   
5. Due to one reason or another as can be gleaned from the facts pleaded by both sides, the Plaintiffs did not expedite their OS Proceeding via their Counsel and so on the 02/06/16, Yansion Lawyers on behalf of the Defendants to the OS Proceeding and Applicants in this case moved for and got the OS Proceeding of OS No: 230 of 2012 dismissed for Want of Prosecution. (Orders attached)
   

Applicants current case.

6. The Current Application was filed on the 17/12/21 and came before me on the 21/12/21 and it is a rehash of the same Application previously made before Magistrate Mr. William Noki seeking to finally have the Orders of 15/03/2012 given effect to after a decade or so.
   
7. The Applicants have filed this Notice of Motion and rely on the affidavit of their Spokesperson and next friend pursuant to Section 59 of the District Court Mr. Macdonald Kaki deposed and filed on the 17/12/21.
   
8. They simply seek enforcement of the Orders by Mr. Noki dated 15/03/12 against the Defendants now that the OS Proceeding of OS No: 230 of 2012 had being dismissed for want of Prosecution.
   

Defendants case.

9. After mentions of this matter on the 21/12/21, 23/12/21 the Defendant Fred Jopare filed an affidavit dated 21/12/21 and another Affidavit dated 11/01/22 on behalf of himself and his brother Pala Jopare in which he insisted that the failure in the OS Proceeding was largely to do with Lawyering and lack of Communication between the Defendants Counsel Yansion Lawyers and their own Lawyers of Stevens Lawyers.
   
10. He insisted that the Hafa Land on which they have their homestead is Traditional Lands and they have resided there since the beginning and it would be unjust for their summary ejectment from that Land given their establishment on that Land.
    
11. He also insisted that there was no Land Court hearing into the Traditional Land Ownership of the Concerned Hafa Land between themselves and the Applicants and so the issue still remains on the manner in which the applicant obtained titled to Portion 910 encompassing their Hafa Land interests.
    
12. He basically alleges fraud in the Titling Process undertaken by the Applicants in Respect of Portion 910 Milinch of Sangara, fourmil of buna encompassing the Hafa Land.
    
13. In Paragraph 10 of his 11/01/22 Affidavit Fred Jopare requested an allowance for an adjournment of this matter to February of 2022 for them to seek further advice and clarification on the status of their case as to avenues that might be available to them.
    
14. After the various submissions made on the 23/12/21 and also after perusing the various Affidavits by the Parties, I make the following observations and Assessments;
    

Observations/Assessment.

15. The Applicants Notice of Motion is filed on the 17/12/21 after OS No: 230 of 2012 is actually dismissed for Want of Prosecution on the 02/06/16, almost six years earlier, but the Applicant do not seek to enforce the District Court Orders of 15/03/2012 until the 17/12/21.
    
16. Why it had taken them this long to seek the orders now sought is not explained, but nevertheless this Application is in order and so is properly before this court.
    
17. Fred Jopare’s contention in his affidavit that since the ‘Stay order of 18/06/12 taken out by Stevens Lawyers on their behalf was by a National Court and so can only be uplifted by the National Court’ on the enforcement of the District Court orders is misconceived and based on a misunderstanding as that stay order depended on the life of OS No: 230 of 2012.
    
18. Once OS No: 230 of 2012 is dismissed on the 02/06/16, the Stay orders accordingly terminates naturally and ceased to be of any legal effect, let alone exist, any longer.
    
19. The Defendants claim of not having being notified of the Application to dismiss is not a valid Argument as they had Lawyers on record who ought to have being on their game in keeping track of this case, and also why is it that for years after filing OS No: 230 of 2012, their Lawyers had not expedited the matter and were still sitting on the matter compelling the Application to dismiss for want of Prosecution on the 02/06/16?
    
20. The Applicants claim Indefeasible title and it is apparent they do hold Indefeasible Title to Portion 910 Milinch of Sangara, fourmil of Buna encompassing the Hafa Land.
    
21. The Law is Clear in both Statute and Case Law in that once title is issued over Land, such Title is Indefeasible.
    
22. 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, license 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.

23. In relation to the Issue of Indefeasibility of Title, Case Law is also prevalent and the following list is a sample of cases that are on point on this issue;
    
    1. 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.
       
    2. Other Subsequent cases in Both the Supreme and National Courts such as Emma’s Estate Development Pty Ltd v. John Mea & Ors [1993] PNGLR 215, the Supreme Court per Amet J as he then was discussed the impact of Indefeasibility of title in respect of a title Already issued to John Mea, as opposed to a Second supposed issuance of Title to the Same Property to the Appellant, and ultimately adjudging that the First issuance of title was indefeasible and could not be usurped by a Second purported issuance of title to the same property to the Appellant. The Supreme Court refused the appeal in that case.
       
    3. In the case of Hi Lift Pty Ltd v. Setae [2000] PGNC 71; N2004 (17 November 2000) by Late Sevua J, reiterated 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 involved in the Processing of and issuance of Title.
       
    4. In the case of Hi Lift Pty Ltd v. Setae [2000] PGNC 71; N2004 (17 November 2000) by Late Sevua J, the Learned Late Judge outline the various factors to be considered in considering challenges to Claims of Indefeasibility of title and he listed the bypassing or evading of set Titling or Transfer processes as the grounds on which Titles can be nullified.
       
24. Section 33 of the Land Registration Act at Section 33 (1) (a) lists the Occurrence of Fraud in the Titling Process as the exception to the Rule of Indefeasibility of Title, so if in Titling a portion of Land, Fraud is alleged, then the Title is no longer Indefeasible but can be subject to Challenge, especially on the question of the Titling Process only before the National Court.
    
25. The Defendant lists his concern over the Process undertaken to title Portion 910 herein, and this court surmises that this was probably the Principal reason the Appeal was filed in OS No: 230 of 2012, however this process was terminated with the Dismissal on the 02/06/16.
    
26. The Essence of the Application by the Applicants in their Notice of Motion of 17/12/21 is largely to do with the enforcement of the District Court orders of 15/03/12 especially Order No: 4 which is based on Section 6 of the Summary Ejectment Act.
    
27. Regarding Section 6 of the Summary Ejectment Act, it 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.

28. Regarding this Provision of Law, the Supreme court as deliberated on the impact of Section 6 of the Summary Ejectment Act fully in the case of Gawi v. PNG Ready Mixed Concrete PTY Ltd [1984] PNGLR 74.
    
29. In the Gawi case The reasoning of Late Kapi DCJ as he then was, 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’
    
30. In this case the Applicants had obtained title over certain lands including the Hafa Land on which the Defendant and their families reside without their knowledge or awareness.
    
31. The Defendants claim to have lived on that Hafa Land for a long time and therefore have established a homestead on that Land with improvement and development installed on it over the years.
    
32. They claim that their immediate summary ejectment from that property/Hafa land would be unjust as they have established homesteads on the Hafa Lands that might be lost to them if they are ejected.
    
33. They Lodged their appeal before the National court to possibly challenge the Titling Process or the District Court Adjudication but that has now been dismissed and they therefore have no recourse left to them in Law, except maybe a Judicial Review of the Summary Dismissal of OS No: 230 of 2012 by the National Court on the 02/06/16.
    
34. Such Judicial Review if any will depend on the Supreme Court First Granting Leave for Judicial Review Application of a National Court Order issued in 2016, which I believe is a very long shot with a high unlikelihood of success given the averaged Accepted time limit for Judicial Reviews at about Eleven months if I am not mistaken.
    
35. They seek an adjournment to February 2022 to rationalize their position before having this matter return to court for further processing.
    
36. The verdict is clear in this case, that a District Court Orders of 15/03/2012 remain unresolved and with no Stay Order in Place from the National Court given the dismissal of the Substantive matter of OS No: 230 of 2012, such orders ought to be enforced forthwith.
    
37. In a case such as this, however, in the event of Ejectment or Eviction of people from Lands or Property as has being amply established in Case Law in Papua New Guinea even in the Supreme Court Cases Listed above like Emma’s Estate case and Gawi’s case, title holders can still be held liable before the Appropriate tribunal to properly compensate occupants of lands before they can be evicted or even after they have been so evicted.
    
38. Such assessment depending on the total applicable valuated assessment that can be done before the National court as was Adjudged by Amet J. in the Emma’s Estate case above.
    
39. Even though the Defendants have not intimated an intention to do this in this case, their claims of having lived long on the Hafa Land and establishing a homestead on the said Hafa land I believe naturally gives rise to this consideration in this case.
    
40. I am inclined to believe that this is a course that ought to be fully considered by the Parties especially the Defendants before the District Court Orders of 15/03/2012 can be given effect to.
    
41. Given the Defendants request for Adjournment of this matter to February 2022 to allow them to Rationalize this case, the Court Hereby Accedes to their Request for Adjournment for them to fully assess and rationalize their case before revisiting this Application
    
42. In the final Analysis, the Court finds and Rules as follows that;
    
    1. The Applicants motion is deferred to the Tuesday the 22/02/22 for mention and Ruling.
       
    2. The Defendant is allowed that time to assess and rationalize their circumstance before returning to the District Court to be dealt with according to Law.
       
    3. Since the Parties are unrepresented by Legal Counsel, no orders will be made on costs.

Mr. Macdonald Kaki for the Applicant /Complainants
Mr. Fred Jopare for the Defendants.