Kikia v Solowet [2009] PGNC 90; N3682 (26 June 2009)

N3682

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 117 0F 2006

PRIMUS KIKIA, DAVID KIKIA, JERRY KIKIA & HOLLOM KIKIA
Appellants

V

KIKIA SOLOWET
First Respondent

GILSON LESLEY
Second Respondent

Kimbe: Cannings J
2008: 12 December,
2009: 8 May, 26 June

APPEAL

LAND – Summary Ejectment Act proceedings – State Lease – sons of registered proprietor permitted to live on land for many years – whether long period of possession creates equitable interest – whether father can invoke Summary Ejectment Act to evict sons – whether reasonable notice to vacate must be given.

A father obtained orders in the District Court under the Summary Ejectment Act to evict his four sons from land over which he was the registered proprietor. The sons appealed against the order on the grounds that the District Court failed to take into account their equitable interest in the land and that their father had not proved his title to the land.

Held:

(1) The District Court can only issue an eviction order under the Summary Ejectment Act, Section 6, against persons who have no right, title or licence to be in possession of land.

(2) Here, the sons have an equitable interest in the land, arising from their long period of permitted occupation, which is akin to a licence to occupy it. An essential precondition to the making of an order under Section 6 of the Summary Ejectment Act was therefore absent.

(3) The District Court erred in law by making the order.

(4) The appeal was allowed and the District Court order quashed.

Cases cited:

The following cases are cited in the judgment:

Gawi v png Ready Mixed Concrete Pty Ltd [1981] PNGLR 396
Tony Yagon on behalf of Settlers of Dylup Plantation v Nowra No 59 Ltd (2008) N3375

Abbreviations

The following abbreviations appear in the judgment:

App – Appeal
CIA – Civil Appeal
DC – District Court
J – Justice
Ltd – Limited
N – National Court judgment
No – number
PNG – Papua New Guinea
PNGLR – Papua New Guinea Law Reports
Pty – Proprietary
v – versus

APPEAL

This was an appeal from a decision of the District Court ordering the appellants to vacate land.

Counsel:

T Gene, for the appellants
J Unido, for the first respondent

26 June, 2009

1. CANNINGS J: This is an appeal against an eviction order of the Kimbe District Court (Mr P N’Dranoh presiding) which was issued against the appellants.

2. The appellants – Primus, Yeri, David and Hollom Kikia – are brothers. They are the sons of the respondent, Kikia Solowet, a Morobe man who came with his wife to West New Britain thirty years ago and purchased land in the Buvussi oil palm settlement.

3. Several years ago a dispute erupted in the family over allegations that Mr Solowet had sexually abused his nine-year-old niece who was living in the family home. He was arrested and charged and, in 2007, convicted and sentenced to ten years imprisonment. He is now in custody at Lakiemata Jail. While the criminal proceedings against him were continuing, Mr Solowet commenced proceedings in the District Court under the Summary Ejectment Act aimed at evicting his sons and their families from his land.

4. On 18 July 2006, Mr N’Dranoh issued the eviction order under Section 6 of that Act giving the sons and their families one month to vacate two blocks: Section 4, Block No 1259 and Section 8, Block No 1274.

5. His Worship noted that repeated efforts to resolve the dispute through mediation had failed. Mr Solowet was clearly the titleholder of Block No 1259 and, though the State Lease over Block No 1274 was not in evidence, title to it was not bona fide in dispute. His Worship therefore decided to issue the eviction orders.

GROUNDS OF APPEAL

6. The appellants have raised two grounds of appeal. They say that the District Court erred in law by:

1. not taking into consideration their equitable interest in the land; and

2. making the order regarding Block No 1274 without evidence of ownership.

GROUND 1: FAILURE TO CONSIDER THE APPELLANTS’ EQUITABLE INTEREST IN THE LAND

7. The appellants argue that they have an equitable interest in the land due to their uninterrupted and unchallenged occupation of it for periods up to thirty years. They say that they were born in West New Britain and raised on this land by their father. They have helped him develop the land and they have brought up their own children on the land. They rely on the landmark National Court decision of Miles J in Gawi v png Ready Mixed Concrete Pty Ltd [1981] PNGLR 396 to support their argument.

8. There is considerable merit in this argument. I recently decided a Madang case in favour of a group of settlers who together with their ancestors had been living on a plantation with approval of the registered proprietor for eighty years (Tony Yagon on behalf of Settlers of Dylup Plantation v Nowra No 59 Ltd (2008) N3375).

9. I held that Section 6 of the Summary Ejectment Act can only be used where the persons the owner wants to evict are "illegal" occupiers of the land: people who have no "right, title or licence" to be on the land. The settlers did not fall into that category. They had an equitable interest in the land, which is akin to a licence to occupy it.

10. I based that decision on the wording of Section 6(1) and the interpretation put on it in numerous cases since Gawi was decided. Section 6(1) states:

Where a person without right, title or licence 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. [Emphasis added.]

11. The appellants in the present case are in a similar position to that of the Dylup Plantation settlers as they have lived on the land with the approval of the owner – their father – for many years. They have helped him develop the land and they have brought up their own children on the land. He is their father and he would seem to have a customary obligation to care for them, even when they are adults. The eldest son would have a legitimate expectation that the land would be transmitted to him upon his father’s death. All of these factors lead to the conclusion that the appellants have an equitable interest in the land. This does not mean that they have the right to live on the land for as long as they like or that their father, as long as he is the registered proprietor, cannot sell the land or obtain a court order to evict them. But it does give them the right to be given reasonable notice to leave and perhaps to be compensated for being required to leave.

12. In the present case it might well be argued that the appellants have been given more than enough time to leave as this case has been going on for three years; and there may well be an argument to say that they deserve no compensation or that any compensation should be nominal as they have enjoyed rent-free occupation and use of the land for a long time. Perhaps it would set a bad precedent for people in the position of the appellants to be paid compensation. This, however, is not the right time for those sorts of arguments to be determined.

13. For now, I am concerned with whether the District Court erred in making the order of 18 July 2006. I have concluded, with respect, after giving the matter careful consideration, that it did. The appellants had an equitable interest in, and therefore a licence to be on, the land. An essential precondition to the making of an order under Section 6 of the Summary Ejectment Act was absent. This was not an appropriate case for the making of an order under Section 6(2).

14. I therefore uphold the first ground of appeal.

GROUND 2: PROOF OF OWNERSHIP

15. Mr N’Dranoh acknowledged in his written judgment that Mr Solowet was unable to produce a copy of the State Lease for block No 1274. However, he held that, as there was no evidence disputing Mr Solowet’s title, it could not be said that title to the land was bona fide in dispute.

16. The appellants argue that the District Court should not have made the eviction order in the absence of the title document.

17. I am not convinced by this argument. Mr N’Dranoh was clearly conscious of Section 21(4)(b) of the District Courts Act, which states that the District Court has no jurisdiction in any case when the title to land is bona fide in dispute. He reached the considered view that this was not such a case. The parties seemed to accept that Mr Solowet was the registered proprietor of both blocks, even though he could only produce title to one. The question the District Court needs to address is whether title is bona fide in dispute, not whether the complainant has been able to produce his title documents. I consider that Mr N’Dranoh addressed his mind to the issue in a careful and considered way and made no error of law in reaching the conclusion that there was no bona fide dispute as to title.

18. I therefore dismiss the second ground of appeal.

SHOULD THE APPEAL BE UPHELD?

19. One of the two grounds of appeal has been upheld. The District Court order was infected by a significant error of law and should not have been made. There has been a substantial miscarriage of justice so I will under Section 230(2) of the District Courts Act allow the appeal.

20. I will under Section 230(1)(c) of the District Courts Act quash the order of 18 July 2006.

REMARKS

21. The best way to resolve this dispute is through mediation. I encourage the parties to try mediation again. If that does not work it is open to either side to commence proceedings in the National Court seeking declarations and orders as to their respective interests in the land.

ORDER

(1) The appeal is allowed.

(2) The order of the Kimbe District Court of 18 July 2006 in DC No 216 of 2006 is quashed.

(3) No person, including the respondent or the Police, shall evict the appellants from or interfere with their peaceful possession of Section 4, Block No 1259 and Section 8, Block No 1274 except by order of the National Court.

(4) The parties shall bear their own costs of these proceedings.

(5) Time for entry of the order is abridged to the date of settlement by the Registrar, which shall take place forthwith.

__________________________________

Paul Paraka Lawyers: Lawyers for the Appellants
Murumo Lawyers: Lawyers for the first Respondent