Kaki v Jopare [2022] PGDC 92; DC9031 (1 March 2022)

DC9031
PAPUA NEW GUINEA.

CIVIL JURISDICTION.
DC NO: 184/2021.

(NO: 2)

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 February 24^th and March 1^st.

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.
Background.

1. This is the final Determination of this court relating to the Complainants application in DC No: 184 of 2021 wherein they applied for the immediate enforcement of the Orders by Magistrate 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.
   
2. During the hearing of the matter on 18/01/22 the Defendants asked for sufficient time to consult with their legal counsel and gauge their options and so on the 18/01/22 when delivering my substantive ruling on this matter I Ruled as follows;
   
   1. The Applicants motion is deferred to the Tuesday the 22/02/22 for mention and Ruling.
      
   2. The Defendant(s) 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.
      
3. On the 22/02/22 the Parties Returned to the Court and the Defendant(s) were asked to inform the court on their position.
   
4. The Defendants Spokesman Mr. Fred Jopare informed that Their Counsels at Stevens Lawyers were still on holidays or not available to consult with them and so he asked for some more time to be allowed them to properly consult with their Lawyers.
   
5. The Complainants who have In-defeasible title to the Lands encompassing the Hafa Land on which the Defendants claims are, have being awaiting vacant possession over their title Lands since the Court Orders of 15/03/2012.
   
6. The Defendants National Court Challenged in OS No: 230 of 2012 of the Principal Magistrate Noki’s Orders was ultimately dismissed for want of Prosecution by the National Court Per Gavara-Nanu J on the 02/06/16 and again a further delay of over five years was allowed them during which they could have consulted or re-instruct with their counsels if they still wanted to challenge the Learned Magistrate Adjudication of 2012.
   
7. As stated earlier in my Ruling of 18/01/22, the District Court is largely in matters like this guided by The National and Supreme Courts and the cases of Mudge and Mudge v. Secretary of Lands and others [1985] PNGLR 387 and Hi Lift Pty Ltd v. Setae [2000] PGNC 71; N2004, bear precedence wherein it was held in no uncertain terms that ‘Indefeasible title is Protected under Section 33 of the Land Registration Act.’
   
8. Gawi v. PNG Ready Mixed Concrete PTY Ltd [1984] PNGLR 74, as per Kapi DCJ as he then was adjudicated that in cases where Title to alienated Lands is clear, the District Court should proceed to hear the matter and Order vacant possession as per section 6 of the Summary Ejectment Act, but where the title is bona-fide in dispute then the District Court should be reluctant to proceed and in fact refuse to grant such orders for vacant possession.
   
9. In this case the Complainants acquire Indefeasible title to the Land and on the 15/03/12 they got orders granted to them to attain vacant possession of their titled Land but due to the Lawful application of the Legal Process of Appeal or Res-Judicata, wherein further proceedings were mounted in the National court, the Complainants right to Vacant Possession was further delayed.
   
10. On the 02/06/16, the National Court dismissed the Defendants National Court Proceeding of OS No: 230 of 2012 but the Complainants did not seek immediate enforcement of the District Court Orders until their Notice of motion of 17/12/21 giving a further 5year period during which the Defendants should have sought answers for their problem.
11. On the 18^th of January 2022, this Court granted a specific adjournment to 24/02.22 as asked for by the Defendant for them to seek further clarification from their Lawyers before specifically returning to rule on the Complainants Application in their Notice of Motion of 17/12/21.
    
12. On the 24/02/22 the Defendants asked for additional time due to the fact that their lawyers are still out somewhere.
    
13. The Law in the summary ejectment Act and Case Law referred above is clear, and the Complainant is justified in seeking and expecting vacant possession of Property to which they have clear and indefeasible title.
    
14. The Defendants on the other hand as per the case of Emma’s Estate Development Pty Ltd v. John Mea & Ors [1993] PNGLR 215 Per Salika J. as he then was, are entitled to seek appropriate liquidated value for improvements and Developments they might have installed on the Hafa Lands, even after giving vacant possession to the Lawful Title Holder, in this case he Complainants
    
15. In the final analysis, the District Court rules as follows that;
    
    1. the Defendants have not presented justifiable reasons or grounds before this court to further delay the Legally inevitable remedy available to the Complainants of Vacant Possession to their titled property namely the Hafa land or Portion 910 Milinch of Sangara Fourmil of Buna in the Northern Province.
       
    2. The Defendants retain the right to valuate and seek appropriate compensation for their improvements and developments on the Hafa Lands Against the Complainant at an appropriate tribunal.
       
16. Accordingly, the Court Orders as follows;
    
    1. The Defendants are allowed 31 days within which to finalize their affairs on Hafa Land or Portion 910 and to vacated and give vacant Possession of the said Hafa Lands or portion 910 to the Complainants.
       
    2. Failing that, an Order pursuant to Section 6(2) (b) (c) and (d) Summary Ejectment Act will be issued for Police to enter and give vacant possession of Portion 910 or Hafa Land to the Complainants.
       
    3. Once they are Evicted from the Hafa land, the Defendants are further Restrained from encroaching on and or tilling or dealing in the Hafa land in any manner on pain of penalties that might befall them in Law.
       
    4. No orders on costs.
       

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