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Papua New Guinea District Court |
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
Complaint and Summons Upon a Complaint.
Facts
Complainant’s Evidence
Defendant’s Evidence.
13. Consequently this Honourable Court is left only with the Complainant’s Evidence.
Issues.
(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.
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.
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.”
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.
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.
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URL: http://www.paclii.org/pg/cases/PGDC/2022/121.html