Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PGLawRp 470; [1984] PNGLR 74 (27 April 1984)

Papua New Guinea Law Reports - 1984

[1984] PNGLR 74 - Herman Gawi v png Ready Mixed Concrete Pty Ltd 

[1984] PNGLR 74

SC267

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

HERMAN GAWI AS REPRESENTATIVE OF A CLASS OF PERSONS

V

PNG READY MIXED CONCRETE PTY LTD

Waigani

Kidu CJ Kapi DCJ McDermott J

27 March 1984

27 April 1984

LANDLORD AND TENANT - Recovery of possession - Summary ejectment proceedings - Available only where clear title in landlord - Judicial assumption of landlord’s rights for purposes of determining occupier’s rights not declaratory of landlord’s rights - Summary Ejectment Act (Ch. No. 202) - District Courts Act 1963, s. 29(4).

JUDGMENTS AND ORDERS - Assumption of legal rights for purposes of hearing - Not declaratory of rights - Not evidence of legal title.

Held

N1>(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.

N1>(2)      A judicial assumption for the purpose of a hearing to determine occupier’s rights that a party “had a legal estate in the leasehold ... but without making a positive decision to that effect” is not declaratory of the party’s rights and is not evidence of clear title sufficient to found proceedings for recovery of possession of land under the Summary Ejectment Act (Ch. No. 202).

Cases Cited

Adelstein Investments Pty Ltd v. Morgan [1968] 2 N.S.W.R. 170.

Freeman v. Hambrook [1946] VicLawRp 58; [1947] V.L.R. 70.

png Ready Mixed Concrete Pty Ltd v. P.N.G. and Ors. [1981] P.N.G.L.R. 396.

Appeal

This was an appeal from a decision of Gajewicz J. allowing an appeal from a magistrate’s refusal to deal with a complaint under the Summary Ejectment Act (Ch. No. 202) on the ground that the title to land being in issue he had no jurisdiction pursuant to s. 29(4) of the District Courts Act 1963 to hear the matter.

Counsel

B. Narokobi and T. Doherty, for the appellant.

B. Avery, for the respondent.

Cur. adv. vult.

27 April 1984

KIDU CJ: I agree with the reasons and conclusions of the Deputy Chief Justice and McDermott J. I have nothing to add.

KAPI DCJ: This is an appeal from a decision of the National Court. The decision of the National Court arose out of an appeal from the District Court.

In order to appreciate the precise nature of the issues before this court, it is necessary to analyse the decision of Miles J. png Ready Mixed Concrete Pty Ltd v. P.N.G. and Ors [1981] P.N.G.L.R. 396, the decision of the District Court dated 2 July 1982 and the grounds of appeal argued before Gajewicz J., from which this appeal is brought.

The background to these proceedings is as follows.

The land which forms the subject matter of these proceedings is part of the Lae Town Purchase, Book vol. 31, at p. 153. This land is subdivided into lots 25, 26, 27 and 28 of s. 42. This land was apparently required by the respondent. The land was advertised in accordance with the Land Act (Ch. No. 185) and the respondent applied. On 19 February 1981 it was notified of the success of its application. Notice was given under s. 37a of the Land Act (Ch. No. 185) and the respondent complied with all the requirements. Apart from this no formal lease had issued under the Land Act (Ch. No. 185) and no interest was registered under s. 17 of the Land Registration Act 1981.

In the meantime, the respondent took out an originating summons dated 8 July 1981 seeking the following declaratory orders:

N2>“(1)    THAT the applicant is possessed of an estate in leasehold pursuant to the provisions of s. 31(1) of the Land Act 1963 as amended to date in respect of each of allotments 25, 26, 27 and 28 of s. 42 in the City of Lae, Morobe Province.

N2>(2)      THAT the applicant is entitled to immediate vacant possession of each of allotments 25, 26, 27 and 28 of s. 42 City of Lae, Morobe Province.

N2>(3)      THAT the various persons occupying dwelling houses, shanties and other constructions on parts of Allotments 25, 26, 27 and 28 of s. 42 in the City of Lae, Morobe Province, have no right to be in possession or occupation of part or all of Allotments 25, 26, 27 and 28 of s. 42, City of Lae, Morobe Province.

N2>(4)      THAT the applicant is entitled to have a warrant issued by the District Court at Lae under s. 9(2) of the Summary Ejectment Act 1952 as amended to date, directing a member of the police force to enter into the premises and give possession of the premises to the applicant.

N2>(5)      THAT the second respondent has acted unlawfully in advising that persons occupying parts of Allotments 25, 26, 27 and 28 of s. 42, City of Lae, Morobe Province, not to leave their dwelling houses, shanties, or other constructions until the National Government has provided alternative land for them.

N2>(6)      THAT there is a covenant, express or implied, in the lease from the first respondent as lessor to the applicant as lessee in each of the leases in respect of each of Allotments 25, 26, 27 and 28 of s. 42, City of Lae, Morobe Province, that the lessor will ensure that at the time the lease is granted to the lessee, the land is capable of immediate occupation and possession by the lessee to enable it to comply with all improvement covenants thereon and generally to utilise the land for the purposes designated therefor.

N2>(7)      THAT by virtue of the provisions of s. 134 of the Lands Registration Act 1924 as amended to date the first respondent as lessor is obliged to take all necessary steps to ensure that the applicant, as lessee in respect of each of Allotments 25, 26, 27 and 28 of s. 42, City of Lae, is able to exercise its right to immediate vacant possession of each of those allotments.

N2>(8)      AND for such further and other declarations or orders as to this Honourable Court shall seem meet.”

These proceedings were taken out because people had been squatting on the land. The matter came before Miles J. He handed down his decision on 13 October 1981, png Ready Mixed Concrete Pty Ltd v. P.N.G. and Ors [1981] P.N.G.L.R. 396. It is apparent from his judgment that orders 6 and 7 were not pursued. However, his Honour, at 410 of the report, declined to make the orders sought in Nos. 1 to 5. He went on and made the following orders at 411:

N2>“(1)    Order that Samson Kiamba be added as a third respondent to the application.

N2>(2)      Declare that the applicant png Ready Mixed Concrete Pty Ltd as lessee of the land described in the schedule from the Independent State of Papua New Guinea as lessor is entitled to possession of the said land subject to the following:

(a)      the applicant’s right to possession of the said land is not enforceable against Samson Kiamba nor Andrew Poli nor any person who was on 30th June 1981 residing with the said Samson Kiamba or Andrew Poli in the house occupied by him on the said land until one year from today;

(b)      subject to (a) the applicant’s right to possession of the said land is not enforceable against any other person who was on 30th June 1981 residing on the said land until six months from today.”

It is significant to examine closely what his Honour decided. It would appear, on the face of order No. 2 that his Honour decided that the respondent, png Ready Mixed Concrete Pty Ltd had a legal lease under the Land Act (Ch. No. 185). However this is not so. His Honour, at 399, 400, stated:

“... It was assumed I think for the purpose of hearing that the company had a legal title in the leasehold ... I shall consider the case on the basis that the company has acquired a legal leasehold estate but without making a positive decision to that effect, and without consideration of what implications, if any, arise from the facts, first, that no lease has been executed and secondly, that the company’s interest has not been registered under the Lands Registration Act.”

It is clear from this that the consideration of the respondent’s interest was not at issue and was not considered. His Honour set out the real issues at 400:

“The questions for determination then are first, what was the nature of the interest, if any, vested in the occupants at the time of the company being granted the lease and secondly did the company have notice of such interest so that it took subject to that interest?”

His Honour, after having reviewed the facts and the authorities, ruled that the occupants acquired an equitable interest to remain on the land. He went further and determined the extent of their interest and ruled to the effect that all persons who were already residing in the house of Samson Kiamba or Andrew Poli on this land at 30 June 1981, be allowed to remain on the land until twelve months after the date of the order and all others residing on the land at 30 June 1981 be allowed to remain until six months after the date of the order.

The decision was never appealed against and so the declaration of the equitable right of the occupants and the extent of this right is settled and cannot be questioned now.

At the expiration of the six month period, the respondent took out further proceedings in the District Court against the occupants with the exception of those persons residing with Samson Kiamba and Andrew Poli.

The proceedings in the District Court by the respondent were based on entitlement to possession of the land “under and by virtue of an Order made in the National Court of Justice of Papua New Guinea on the 13 October, 1981”. This action is quite different in nature to proceedings that may be taken under s. 6 of the Summary Ejectment Act (Ch. No. 202). The essential difference is that, in the former, the magistrate was being asked to enforce the terms of an order made by the National Court. Proceedings should have been taken in the National Court to enforce orders made by Miles J.

However, the parties appearing before the District Court treated the application as an application under s. 6 of the Summary Ejectment Act (Ch. No. 202). This Act gives the District Court jurisdiction on ejectment proceedings. Counsel for the respondent made submissions on the basis that it was entitled to possession because this was decided by Miles J. Such a remedy under the Summary Ejectment Act (Ch. No. 202) would be a consequential one arising out of the decision by Miles J. What the respondent submitted was that it, as lessee of this land, was entitled to possession. This was the only basis of its claim under the Summary Ejectment Act (Ch. No. 202). Presumably it was saying it was the “owner” under s. 6 of that Act, and the proof of its ownership was the decision of Miles J. His Worship came to the conclusion that it had no right to possession because the nature of its interest was not decided by Miles J. In this, his Worship reached the proper conclusion. As I pointed out earlier in my judgment, his Honour only assumed a legal lease for purposes of deciding the nature of the occupants’ interest. Insofar as the respondent puts any reliance on the decision of Miles J., this cannot be the basis of the claim to be the legal lessee of the land.

At the relevant time, the respondent was not registered as having any interest under s. 17 of the Land Registration Act 1981. Consequently it had no legal interest (s. 26). It cannot rely on these provisions.

It is clear from this that the respondent’s ownership of the land was in dispute. There was no evidence before the magistrate of any proof of ownership of the land. The nature of the respondent’s entitlement to the land was still unresolved. In my view it was in this context that the learned magistrate found that the respondent’s title to the land was bona fide in dispute. In accordance with s. 29(4) of the District Courts Act 1963, as amended, he had no jurisdiction to resolve the issue.

On appeal to the National Court, the only ground capable of being raised and argued was the following:

“That the magistrate erred in finding that he did not have jurisdiction to deal with the complaint”.

All other issues that were argued before the National Court did not arise and are irrelevant. It is not necessary to canvass them in this Court.

His Honour Gajewicz J. in the National Court directed his mind to the competing interests of the appellant and the respondent. He concluded that the respondent had a legal interest, based on the decision of Miles J. and that the appellant had no interest. In relation to his Honour’s findings of the appellant’s interest I am in agreement. At the expiration of the six months it had no interest. However I am unable to agree that the company’s interest was determined by the order of Miles J. As I have pointed out before, the company’s interest was assumed and therefore is not declaratory of its rights.

As to the nature of the interest held by the company at the time, that was not a matter that came within the jurisdiction of the District Court. I agree with the learned magistrate that this raised the respondent’s entitlement to the land, however he had no jurisdiction, in accordance with s. 29(4) of the District Courts Act to resolve this issue. In my view, the proceedings under the Summary Ejectment Act (Ch. No. 202) were not intended to cover this issue. They were intended to provide a quick remedy to people who have a clear title to premises. In the instant case, only the State could take out these proceedings. The course open to the respondent is to seek a declaration in the National Court of the nature of its interest. At the most, it can only be an equitable interest. It has been decided in cases involving similar registration provisions to those of the Land Registration Act 1981 that until a lease is registered, an equitable owner is not entitled to give notice to quit. Freeman v Hambrook [1946] VicLawRp 58; [1947] V.L.R. 70 and Adelstein v. Morgan [1968] 2 N.S.W.R. 170 at 172.

However all of this is not necessary. At the hearing of this appeal, the court was advised that the respondent has been granted a lease under the Land Act (Ch. No. 185) and that it has been registered as the lessee of this land under the Land Registration Act 1981. It is now in a position to take ejectment proceedings under the Summary Ejectment Act (Ch. No. 202).

I would allow the appeal with costs.

MCDERMOTT J: This appeal has resulted from the decision by the Senior Magistrate at Lae on 27 July 1982 in declining to hear an application by the present respondent company for an order under the Summary Ejectment Act (Ch. No. 202). The application was refused because the magistrate found he had no jurisdiction under s. 29(4) of the District Courts Act 1963 as amended because “... the title to land is bona fide in dispute”.

The land in question is lots 25, 26, 27 and 28 s. 42, Lae being part of the land in Certificate of Title vol. 31 at 153 issued in the name of the former administration on 16 January 1942. The respondent’s interest dates from its tender for a lease over the land following an advertisement for such in the Government Gazette of 15 November 1979. By notice in the Gazette of 19 February 1981, the company’s application was accepted and on 6 March 1981, a notice (pursuant to s. 35 — Land Act, (Ch. No. 185)) setting out the terms and conditions of the proposed lease and details of fees due in respect of the proposed lease together with the payment date was received by it. This money was paid.

That is all that happened. The company could do no more other than wait (and wait) for the lease to issue. It had then a granted application for a lease.

Because the land was not vacant, the company in July 1981 commenced an action in the National Court seeking a number of declarations including (1) the possession by the company of an estate in leasehold, (2) a right to immediate vacant possession and (3) that certain occupants of the land had no right to possession or occupation. Unfortunately, this action is not documented in the appeal book and I do not know what course it took. Suffice to say Miles J. gave judgment with this proviso; ([1981] P.N.G.L.R. at 399, 400).

“I shall consider the case on the basis that the company has acquired a legal leasehold estate but without making a positive decision to that effect, and without consideration of what implications, if any, arise, from the facts first that no lease has been executed and secondly that the company’s interest has not been registered under the Land Registration Act.”

He concluded that the occupiers who came onto the land after 1976 and those who arrived earlier had acquired by 1981 a sufficient interest in the land to give rise to an equity entitling them to remain despite the State’s legal right to possession. He regarded the right as analogous to a licence. He determined the extent of his right as against the company’s right to possession by granting to one group (pre 1976 arrivals) a period of twelve months’ further occupation and the other (post 1976 arrivals) a period of six months’ further occupation, both periods effective from the date of the declaration (13 October 1981).

Summary ejectment action before the magistrate was thus taken at the end of the six month period when the post 1976 group failed to vacate. The appellant belongs to this group and acted to defend the action on his own behalf and in a representative capacity for the group.

The company without a registered lease sought to rely on the Summary Ejectment Act (Ch. No. 202) to gain vacant possession. It could not produce a registered lease but instead had to rely upon the cumulative effect of the State’s title, the “granted application” letter to it from the State and the declaration of Miles J. which on a close reading did no more than set out the extent of the occupiers’ interest.

The ownership issue was raised before the magistrate and it is simply not the case that the company “obtained a declaration that it was entitled to possession of that land in question” as was submitted to the magistrate.

It may well be that as against all others, the company has a better claim to possession but this could only be as the result of a contested hearing. To establish the claim via the provisions of the Summary Ejectment Act (Ch. No. 202) is in my view to misuse that Act. 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 persons 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.

The company appealed the magistrate’s decision before Gajewicz J. in the National Court, the main argument centring on the seventh ground of appeal:

N2>“(7)    That the magistrate erred in finding that he did not have jurisdiction to deal with the complaint”.

The judge below accepted the declaration of Miles J. in the following terms:

“The rights of the appellant to possession of the land in question are determined by and declared in the order itself. There is no need to look at the circumstances under which the order was made, nor is there need to dissect the reasons for his Honour’s decision to ascertain why he made the order. When I say ‘there is no need’, I mean there is no need as far as I am concerned in this appeal and with respect to the learned magistrate of the District Court, there was no need for him to consider anything else but the order itself and the evidence adduced before him, and, of course, the relevant statutory provisions”.

This finding is the crux of the appeal. In my view, the precise interest of the company had not been determined whilst that of the occupiers had. This was not appreciated in the court below and thus gave rise to error.

I do not think it necessary for this Court to consider the nature of the interest which the company had in the land prior to the issue of the lease and the registration of it, as events have now overtaken the dispute on this issue. Unbeknown to the appellant, the respondent company has now, (from 20 October 1982), a lease over the land which was registered on 9 May 1983. To obtain vacant possession against all occupants is quite simply a matter of the company going before the District Court and asking for an order pursuant to the Summary Ejectment Act (Ch. No. 202).

I would allow the appeal and set aside the decision below. In view of the issue of the lease to the company, and at no stage has any exception been taken to the company’s application for and subsequent grant of a lease, plus the fact that the findings of Miles J. as to the appellant’s rights, were not disputed, I would make no further order.

Appeal allowed.

Lawyers for the appellant: Bernard Mulu Narokobi.

Lawyers for the respondent: Avery & Sawong.