Yapo v Kiap [2022] PGDC 121; DC9059 (30 August 2022)

DC9059

PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION

CV NO.08 OF 2022

Between:
AKO YAPO
Complainant.

And:
TIMOTHY KIAP
First Defendant.

And:

HEBREW LIMITED
Second Defendant

Mt. Hagen: ORIM KIVU
2022: 31 March, 31 May, 30 August.

PRACTICE AND PROCEDURE- Summary Ejectment Act -Recovery of Possession- Tenancy confirmed by Certificate of title-no reasonable cause shown by defendant-orders sought granted.

References:

S.6 Summary Ejectment Act. Chapter 202.
Section 33 Land Registration Act 1981.
Section 21 (4) (f) District Court Act 1963.

Cases Cited:

Gawi-v-PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74
Yandu-v-Waiyu [2005] PNGLR 594, PGNC 66.

Counsel:

Mr Piam, for the Complainant
First Defendant- No appearance.
Second Defendant-No appearance.

DECISION

30 August, 2022

O.KIVU

Introduction

1. The Complainant sued and commenced eviction proceedings under Section 6 of the Summary Ejectment Act against the First and Second Defendants for allegedly occupying his property in Mt. Hagen City, Western Highlands Province of Papua New Guinea.

Complaint and Summons Upon a Complaint.

2. That since 2001, the First Defendant and Second Defendant have been illegally occupying the Complainant’s property described as Section 15, Allotment 38, Volume 2, Folio 73, Mt. Hagen City, Western Highlands Province of Papua New Guinea. As remedy the Complainant sought eviction orders to evict the First and Second Defendants and Agents from his property.

Facts

3. This case was mentioned and adjourned several times. During those times that the case listed, called and mentioned in court only the Complainant through his Lawyers appeared. The First and Second Defendant never appeared in Court at all.
4. Consequently, the Court gave directions and directed that the case be set down for Ex Parte Hearing. The Parties were directed to file Affidavit Evidences they relied on and serve on each other before the Hearing date. It further directed if there was any need for cross examination that the Parties file “Notice to Cross-examine” before the hearing date.
5. A Notice of Ex parte Hearing was served on the First and Second Defendants but still they did not appear in Court at the hearing date.
6. Only the Complainant filed his Affidavit Evidence and served it on the Defendants.

Complainant’s Evidence

7. To support its case, the Complainant relied on the Affidavit Evidence of Complainant Ako Yapo sworn 07^th February, 2022 and filed 04^th March, 2022.
8. Basically, the Complainant attested on oath in his Affidavit that he was the registered Title holder of State Lease Volume 2, Folio 73, Section 15, Allotment 38, Mt. Hagen, Western Highlands Province.
9. That the Complainant bought the property from the previous owner and Title holder now deceased one Jimmy Nenegi for K66, 000.00. as confirmed in the Title Deed of the Property referred to paragraph #3, Annexure “A” of the Affidavit of Ako Yapo sworn 07^th February, 2022 and filed 04^th March, 2022.
10. The Complainant further attested in his Affidavit that the First and Second Defendants has previously instituted court proceedings in the National Court against the Complainant seeking certain Declarations and Declaratory Orders on the Title of the Property which the National Court sitting in Mt. Hagen refused. The National Court refused the Defendant’s application and ruled in favour of the Complainant as shown by Annexures “B” and “C” in paragraph #5 and #7 of the Affidavit of Ako Yapo sworn 07^th February, 2022 and filed 04^th March, 2022.
11. The First and Second Defendants then appealed to the Supreme Court challenging the ruling of the National Court. The Supreme Court dismissed the Appeal for Want of Prosecution. This is confirmed by Annexures “D & E” in paragraph #9 of the Affidavit of Ako Yapo sworn 07^th February, 2022 and filed 04^th March, 2022.

Defendant’s Evidence.

12. In their Defence the First and Second Defendants did not and elected not to file any Affidavit or Affidavits in Reply in their Defence despite being served with the “Notice of Ex parte Hearing”.

13. Consequently this Honourable Court is left only with the Complainant’s Evidence.

Issues.

14. There are basically two (2) issues for this honourable court to consider in these proceedings.

(i) Whether the Complainant has a valid title to the Property described as Section 15, Allotment 38, Volume 2, Folio 73 Mt Hagen, Western Highlands Province of Papua New Guinea?

(ii) Whether this Honourable Court has the jurisdiction to grant the eviction orders sought by the Complainant?

The Law.

15. Section 6 (1) of the Summary Ejectment Act provides for the recovery of possession of land from a person who is in unlawful occupation and states a District Court Magistrate upon complaint by the owners may issue a summons to the person in illegal occupation.

Subsection (2) states that 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 on 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 assistance if necessary, into the premises and;
(d) to give possession of the premises to the complainant.

Section 33 (1) of the Land Registration Act provides:

(1) The Registered Proprietor of an estate or interest holds it absolutely free from all encumbrances except- (a) in a case of fraud...

Section 21 (4)(f) of the District Court Act states:

(4) A court has no jurisdiction in the following cases-

(f) when the title to land is bona fide in dispute.

Applying the Law to the Issues.

16. In relation to issue no. #1 Whether the Complainant has a valid title to the Property described as Section 15, Allotment 38, Volume 2, Folio 73 Mt Hagen, Western Highlands Province of Papua New Guinea?

On the strength of the Complainant’s evidence in particular Annexure “B”, “C”, “D” and “E” in paragraphs #4, #5, #6, #7, #8 and #9 the Title Deed to the property is in the name of the complainant Ako Yapo and all the proceedings in the National and Supreme Court have all been refused and dismissed. It is clear that the Complainant has proven his case on the balance of probability.

Therefore, in relation to Issue #1, I answer in the Affirmative. The Complainant has clear title and is the registered owner of the property.

I refer to the case of Gawi-v-PNG Ready Mixed Concrete Pty Ltd [PNGLR] 74 wherein it was held that: “ (1) Proceedings for recovery of possession of land under the Summary Ejectment Act (Ch. No. 202) are intended to provide a quick remedy to people who have a clear title to land or premises: they are not intended to be available where title to land is in dispute or unclear.”

17. In relation to issue no.#2 Whether this Honourable Court has the jurisdiction to grant the eviction orders sought by the Complainant?

Again on the strength of the Complainant’s Affidavit Evidence in particular, Annexures “C,“D” and “E” of paragraphs #5, #6,# 7, and #9, it is very clear that there is no proceedings on foot in the National or Supreme Court disputing the Complainant’s Certificate of Title. Whatever proceedings instituted by the First and Second Defendant in the National and Supreme Court has already been refused and dismissed. This confirms that the Complainant’s Certificate of Title is not bona fide in dispute. I refer to the case of: Yandu –v-Waiyu [2005] PNGLR 594, PGNC 66.

Therefore, in relation to Issue no.#2 I answer in the Affirmative that “yes”. This Honourable Court has the jurisdiction to grant the eviction orders sought by the Complainant Ako Yapo.

18. Consequently, on the strength of the Complainant’s evidence before this Honourable Court and on the Balance of Probabilities being the civil standard of Proof, the Complainant has proven his case against the First and Second Defendants and is entitled to the remedies sought.
    

The court, therefore, concludes this matter by making the following orders:

Ex parte Order.

1. Eviction Orders sought by the Complainant is granted.

2. The Defendants, his Agents, Relatives and Servants must give back vacant possession of the property described as Section 15, Allotment 38, State Lease Volume No. 2, Folio 73, Mt. Hagen, Western Highlands Province to the Complainant by the end of a period of three (03) months from the date of service of this order on the Defendants.

3. The Defendants and his Agents, Relatives and Servants be restrained from interfering with threats of violence in any way against the Complainant from enjoying the property and to keep a distance of 100 metres away from the said property.

4. In the event that the Complainant is still unable to secure vacant possession, a Warrant of Entry shall be issued directed to the Mt. Hagen Police Station Commander and his subordinates to enter by force and seize vacant possession of the property and deliver same to the complainant.

5. The Defendants shall meet the Complainant’s costs if not agreed as taxed.