N4692

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 26 OF 2011

DEI KAPAKABANG
Appellant

-V-

GRAHAM PALIBUTU
Respondent

Kawi J

Hoskins: 14th September, 2011
Kimbe: 18th October 2011

CIVIL APPEAL – Decision of District Court – Issue of jurisdiction – Section 21(4) of the District Courts Act – Magistrate dealt with a dispute as to title to the property in dispute – Magistrate made findings of fraud – annulled the title to the property held by Appellant – Issue of jurisdiction – whether magistrate had jurisdiction to deal with a case where there is bona fide dispute as to title – Section 21(4) of the District Courts Act – Magistrate had no jurisdiction – Magistrate exceeded his jurisdiction – Appeal upheld – decision of District Court quashed.

A District Court Magistrate heard a case concerning a dispute as to the title to the property. The respondent had filed proceedings in the District Court to have the appellant evicted under Section 6 of the Summary Ejectment Act.

The Appellant produced a registered title to the property and argued that he had a valid title to the exclusion of everyone. The learned magistrate found that there was fraud affecting the appellant's title to the property.

Held:

(1)	There was sufficient evidence before the learned magistrate that there was a bona fide dispute as to the title to the land in question.

(2)	By hearing a case involving dispute as to the title to the property and making findings of fraud, the learned magistrate exceeded his jurisdiction and acted without jurisdiction.

(3)	The learned magistrate should have made findings of a legitimate title possessed by the complainant/respondent before he ordered the eviction under the Summary Ejectment Act. By not making such a finding he fell into error.

(4)	The learned magistrate had no jurisdiction to hear the case. The orders of the District Court are set aside and quashed. The appeal is upheld. 

Counsel:
Mr. Kari Doko, for the Appellant
Mr. Gerhard Linge, for the Respondent

18 October, 2011

1. KAWI, J: INTRODUCTION: Dei Kapakabang (Appellant) lodged an appeal against the decision of the Bialla District Court given and ordered by that court on the 6th October 2010.

ORDERS OF THE BIALLA DISTRICT COURT

2. The Bialla District Court made the following findings and orders:

(1)	The Department of Lands shall restore a new title under the name Graham Palibutu Tika who is the eldest son of the original lessee Tika Eliaser Galia (now deceased) who is entitled to succession under customary law as soon as that is practicable.

(2)	Hargy Oil Palms Ltd shall amend their records pertaining to the 99 years state lease at Section 1 Tiauru, Portion 242, Milinch Nakanai, Bialla, West New Britain Province to reflect this new status accordingly so that payments due from the fortnightly sale of the FFB after 10th January 2011 shall be made to the applicant and thereafter.

(3)	The Respondent, his relatives, agents or associates shall be physically ejected by Police under Section 6(1) of the Summary Ejectment Act and give back physical possession of Oil Palm Estate, Block No: 242, Section 1, Tiauru, Milinch Nakanai, Bialla, West New Britain Province to the Applicant after the 30 days lapses, which commences as from 10th January 2011.

(4)	The Respondent, his relatives, agents or associates are restrained from harvesting FFB, garden crops, hunting or from re-entering the said estate, threatening intimidating the applicant and his family, relatives or agents upon eviction on or by 10th February 2011 and thereafter.

(5)	The applicant is at liberty to seek proper advice and sue the Respondent for the purpose of recouping more than K87,000.00 illegally earned and retained from the sale of FFB over the last 15 years or so.

(6)	The Respondent and/or his associates etc …..shall not interfere with the complainant and family, relatives, associates and agents.

(7)	The defendant and family, relatives, agents or associates shall maintain the peace with the applicant and family, relatives, agents or associates.

(8)	A breach of anyone of the above conditions and failure to voluntarily vacate the estate within the given 30 days shall result in conviction and custodial sentence of 12 months in hard labour, of the defendant and family, relatives, agents, associates etc ---. These legal remedies shall remain in full force and virtue or suspended by a court of competent jurisdiction, which is the National Court of Justice.

GROUNDS OF APPEAL

3. Dei Kapakabang relies on 3 main grounds in his appeal.
These are:

(1)	The magistrate erred in law to precede issues exceeding District Court Jurisdiction when the Title to land is in dispute.

(2)	The magistrate erred in law and in fact to eject the defendant from block 242, Tiauru, Section 1, Bialla, West New Britain Province under the Summary Ejectment Act, when there was no evidence that the complainant is the proprietor of that state lease.

(3)	The magistrate erred in law and fact to give recognition to the complainant as the legal owner of the State lease of Block 242, Tiauru, Section 1, Bialla, West New Britain Province when there is no evidence that the complainant is the proprietor of that state lease.

STATEMENT OF ISSUES

4. A number of issues arise from these grounds of Appeal:

(1)	Does the District Court have the jurisdiction to deal with a case where the title to a land or property is in bona fide dispute?

(2)	Did the magistrate properly exercise his discretion to order an eviction under section 6 of the Summary Ejectment Act?

(3)	Did the learned magistrate err in law and therefore exceed his jurisdiction when he dealt with a court case dealing with a dispute as to the title to the property?

DETERMINATION OF ISSUES

Issue No: 1

Does the District Court have jurisdiction to deal with a case in which the title to the land or property is in bona fide dispute?

5. From the outset it is to be noted that the District Court is a creature of a statute. This simply means that they are established by a legislation, in this case, the District Courts Act. Having so established them the legislation, then proceeds on to give the District Courts their powers, functions and responsibilities. The statute further defines the jurisdictional limits of the District Courts. In relation to questions and issues relating to bona fide disputes over titles to property, the District Courts Act makes it very clear, that a District Court has no jurisdiction to decide cases where there is a bona fide dispute as to the title to the property or land. This is made very clear by Section 21(4) of the District Courts Act. Relevantly Section 21(4) is stated in these terms:

s 21. CIVIL JURISDICTION

(1) ……………
(2)…………… 
(3) ……………..

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

(a)	where the validity or effect of a devise or bequest or a limitation under a will or settlement, or under a document in the nature of a settlement is in dispute;	

(b)	The infringement of a trade name.

(c)	an action for or in the nature of slander of title;

(d)	on action for illegal arrest, false imprisonment or malicious prosecution.

(e)	for seduction or breach of promise to marry.

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

6. It is now very clear that the District Court does not give a magistrate jurisdiction to hear a case involving disputes over title to a property.

7. In the present case, Graham Palibutu, the respondent in the present appeal, and the complainant in the District Court, filed proceedings in the District Court, in which he sought to have Dei Kapakabang evicted from the property identified as Block 242, Tiauru, Section 1, Bialla under Section 6 of the Summary Ejectment Act on the basis that he was not the owner of the property in question. Dei Kapakabang on his part produced evidence to show that he had title to the property. This was hotly disputed by Graham Palibutu who adduced evidence to show that no proper consideration passed between the Appellant and Graham Palibutu's father, the late Tika Eliaser Galia. It was contended here that the property was to be sold for K40,000.00. The appellant paid only K3,000.00 and therefore no valid title can pass to the purchaser, until completion of the final purchase price in full. 

8. Further Graham Palibutu adduced evidence to show that there was no proper transfer of title from the late Tika Eliaser Galia to Dei Kapakabang. Dei Kapakabang adduced further evidence to show that he was the registered proprietor of the property in dispute and that the District Court was deprived of jurisdiction to deal with such disputes. 

9. This court finds that there was a dispute as to the title to the property between Graham Palibutu and Dei Kapakabang.

10. In my view before ordering a person to be evicted from a property the court must be satisfied that a complainant has a clear legitimate title to the property in dispute. Here the magistrate proceeded to make a finding that the Appellant's title was affected by fraud and therefore annulled his title to the property. By doing this the learned magistrate exceeded his jurisdictional limit.

11. In making these findings, the learned magistrate dealt with a case over which he had no jurisdiction to deal with. In this regard, the learned magistrate acted in excess of his jurisdiction. Rather than deal with the complaint there and then the learned magistrate could have transferred the case up to the National Court under Section 24 of the District Court Act. In this way the learned magistrate could be still acting within his jurisdiction. I would therefore answer the issue posed in 1 above in the affirmative.

ISSUE 2 

Did the learned magistrate properly exercise his discretion under section 6 of the Summary Ejectment Act when he ordered the eviction of the Appellant?

12. Section 6 of the Summary Ejectment Act is stated in these terms:

s. 6 Recovery of Premises held without right.
(1) where a person without right, title or license 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.

(2) Where a person summoned under subsection (1) – 

(a) does not appear before the District 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 of complaint issue a warrant directed to a member of the Police Force requiring him, on or before a date specified in the warrant- 

(c ) to enter, by force and with assistants if necessary, into the premises; and (d) to give possession of the premises to the complainant.

13. The terms of section 6 of the Act are very clear. It states that a person who is to be evicted and who is in possession must be without Right, Title, or license. This requires the magistrate to inquire into the question of whether or not the complainant has a valid title, right, or license to the property being disputed. It is only upon being so satisfied that a magistrate can exercise his discretion to order a person to be evicted from the property he/she occupies. If the magistrate has caused such an inquiry here he would have found that the defendant/appellant had a valid title to this property. The Order to evict the appellant was therefore wrongly made. 

14. Having made a finding that there was a bona fide dispute as to the title to the property, the learned magistrate exceeded his jurisdiction in dealing with this case, I will not deal with issues No. 3 as that issue has been adequately addressed.

VERDICT

15. I would uphold this appeal and quash the decision of the Bialla District Court.

16. It is strongly recommended that Graham Palibutu re-investigate these allegations of fraud and file fresh proceedings to challenge the title to this property on the basis of a fraudulent acquisition of the title to the property.

17. Costs follow the event.

____________________________
Public Solicitor: Lawyer for the Appellant
Linge & Associates: Lawyer for the Respondent