Jant Ltd v Kell [2013] PGNC 4; N4953 (30 January 2013)

N4953

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 171 OF 2011

JANT LIMITED
Appellant

V

UMAT KELL
First Respondent

ELIJAH MARIBU
Second Respondent

THOMAS CHOLAI
Third Respondent

LUKE ULAD
Fourth Respondent

Madang: Cannings J
2012: 9 November,
2013: 30 January

COURTS – jurisdiction of District Court in land matters – District Courts Act, Section 21(4)(f): whether title to land is bona fide in dispute.

Employees of the appellant had their employment terminated but refused to vacate company-provided housing until their final entitlements were resolved. The appellant, which was the registered proprietor of a State Lease over the land, applied to the District Court under the Summary Ejectment Act for eviction orders. The District Court refused the application on the ground that it had no jurisdiction as title to the land was bona fide in dispute. This is the appeal against that decision.

Held:

(1) If the registered proprietor of a State Lease commences proceedings in the District Court under the Summary Ejectment Act to enforce their interest in land there is no bona fide dispute about title to the land unless another person has taken some distinct, formal, legal step to disturb that title.

(2) Here, the only conceivable evidence of a dispute about title was (a) a lease between a real estate firm which held itself out as lessor of a house on the subject land and another party and (b) a letter from a landowner group which claimed that the appellant's rights to the land had reverted to the customary owners. Neither document demonstrated any distinct, formal legal step to disturb the appellant's title.

(3) There was no bona fide dispute as to title. The District Court erred by declining jurisdiction. There was a substantial miscarriage of justice so the appeal was allowed, the order of the District Court was quashed and the National Court pursuant to Section 230(1)(e) of the District Courts Act granted the application for eviction of the respondents.

Cases cited

The following cases are cited in the judgment:

Tony Yagon v Nowra No 59 Ltd (2008) N3375
Tony Yandu v Peter Waiyu (2005) N2894

APPEAL

This was an appeal against a decision of the District Court refusing an application for eviction orders under the Summary Ejectment Act.

Counsel

W Akuani, for the appellant
B W Meten, for the respondents

30 January, 2013

1. CANNINGS J: Jant Limited is appealing against dismissal by the Madang District Court of its application under the Summary Ejectment Act Chapter No 202 for eviction orders against the respondents, four of its former employees. Jant terminated their employment in mid-2011 but despite being given two months notice they refused to vacate the employer-provided houses in which they had been living, on land known as Chipmill Compound, Section 128, Allotment 3, Madang town, until their final entitlements were paid. Jant refused to pay all their entitlements until they vacated the premises as it has had problems in the past with former employees who were paid their entitlements but refused to leave.

2. The District Court constituted by Mr S W Seneka SPM dismissed Jant's application on the ground that by virtue of Section 21(4)(f) of the District Courts Act Chapter No 40 it had no jurisdiction as title to the land was bona fide in dispute.

3. Jant appeals on five grounds. One of them – that the order of the District Court was harsh, oppressive and unreasonable – can be quickly disposed of as it has no basis and has been poorly articulated. It is dismissed. The other four run together. They raise the same argument: that the District Court erred in law by declining jurisdiction as there was no bona fide dispute as to title.

WAS THERE A BONA FIDE DISPUTE AS TO TITLE?

4. Section 21(4)(f) of the District Courts Act provides that a District Court has no jurisdiction "when the title to land is bona fide in dispute". The trial Magistrate took the view that there was a bona fide dispute as to title on the strength of two pieces of evidence. First, a 12-month residential lease agreement between Bismarck Real Estate (which is described as the lessor) and two persons (neither of whom have any apparent relationship to the parties to the appeal) in respect of a house on Section 128, Allotment 3. Secondly an 'open letter' (in that there is no addressee) dated 27 October 2011 from Gogol Naru Resource Owners Association, signed by four people purporting to be officers of that Association, evidently intended to be given to occupiers of Jant properties, notifying them that the project agreement and timber permits of Jant (a timber company) had expired and that this "automatically disqualifies Jant Ltd from further project operations and the ownership rights to all land, properties, infrastructure and other associated assets which now reverts back to its customary owners hence the immediate custodians are the landowners of Gogl Naru (Gogol Naru Resource Owners Association Board) and the Government of Papua New Guinea".

5. I uphold the submission of Mr Akuani for Jant that neither of those documents is evidence of a bona fide dispute as to title. At the material time – the date of the trial in the District Court, December 2011 – Jant Ltd was the registered proprietor of Section 128, Allotment 3, having been granted on 3 May 1973 a 50-year State Lease over the land, an area of 18 hectares abutting Binnen Harbour. Its certificate of title was in evidence before the District Court and there was no competing title and no suggestion that Jant had transferred the Lease to any other person. As I ruled in Tony Yandu v Peter Waiyu (2005) N2894 if the registered proprietor of a State Lease commences proceedings in the District Court under the Summary Ejectment Act to enforce their interest in land there is no bona fide dispute about title to the land (and the District Court is not deprived of jurisdiction) unless another person has taken some distinct, formal, legal step to disturb that title. Neither document referred to by his Worship demonstrated any distinct, formal legal step to disturb the appellant's title.

6. Neither document has legal integrity. The residential lease described Bismarck Real Estate as the lessor when clearly it was not; besides that it is un-stamped and should not have been perforce of Section 19(1)(a) of the Stamp Duties Act Chapter No 117 admitted into evidence. As for the open letter from Gogol Naru Resource Owners Association no mention is made of Section 128, Allotment 3, but even if there were a reference to this particular land the views expressed in the letter are spurious. Jant Ltd, though it may have lost the right to conduct timber operations in the province, remained the registered proprietor of Section 128, Allotment 3 and was vested with indefeasible title to the land subject only to the exceptions prescribed by Section 33 of the Land Registration Act (protection of registered proprietor).

7. There was no bona fide dispute as to title and the District Court erred in law by concluding that there was. There was no good reason for it to rule that it had no jurisdiction. The four grounds of appeal that raised this argument are upheld. There was a substantial miscarriage of justice and the appeal will be upheld.

WHAT ORDERS SHOULD BE MADE?

8. The order of the District Court was made in error and must be quashed but what should now happen to Jant's application for eviction of the respondents? Should it be remitted to the District Court for retrial? Or can I determine the application? Either course of action is available under Section 230 (power of National Court on appeal), which states:

(1) On the hearing of an appeal, the National Court shall inquire into the matter, and may—

(a) adjourn the hearing from time to time; and

(b) mitigate or increase a penalty or fine; and

(c) affirm, quash or vary the conviction, order or adjudication appealed from, or substitute or make a conviction, order or adjudication which ought, on the evidence before the National Court, to have been made by a District Court; and

(d) remit the case for hearing or for further hearing before the Court which made the conviction, order or adjudication or any other competent court; and

(e) exercise a power that the Court that made the conviction, order or adjudication might have exercised; and

(f) make such further or other order as to costs or otherwise as the case requires.

(2) An appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice.

9. I have decided that it is not necessary to remit the matter for retrial. All of the evidence that was before the District Court is before the National Court. The trial Magistrate made one error of law and it is clear that if his Worship had not erred by declining jurisdiction he would have granted Jant's application and ordered eviction of the respondents. It was argued that the respondents had an equitable interest in the land that they were occupying by virtue of being longstanding former employees whose entitlements had not been resolved. However, I do not agree with the submission of Mr Meten for the respondents that the nature of their interest in the land equated with that of the Dylup Plantation settlers in Tony Yagon v Nowra No 59 Ltd (2008) N3375. I consider that the respondents were upon termination of their employment "without right, title or licence ... in possession of premises" for the purposes of Section 6 (recovery of premises held without right, etc) of the Summary Ejectment Act and that there was no good reason for refusal of the application for their eviction.

10. I will under Section 230(1)(e) of the District Courts Act exercise the power that might have been exercised by the District Court and grant the application for eviction of the respondents. I will incorporate in the order determining this appeal the wording of a warrant that would normally be issued in Form 1 of the Schedule to the Summary Ejectment Regulation.

11. Mr Akuani submitted that the respondents should be given seven days to vacate the premises but I think that would be harsh. A period of 28 days is reasonable. I will under Section 230(1)(f) of the District Courts Act order that Jant pay any unpaid entitlements within 14 days. This appeal was made more complicated than it should have been because of the convoluted notice of appeal (which was not drafted by Jant's current lawyers) which contained five grounds of appeal when one was sufficient. In these circumstances it is appropriate that the parties bear their own costs.

12. Jant paid a recognisance of K5,000.00 on lodgment of its notice of appeal on 11 December 2011. Though it was slow in having the appeal listed for hearing this was actually of benefit to the respondents so it has in effect complied with the condition that it prosecute the appeal without delay. The recognisance will be refunded in full.

ORDER

(1) The appeal is allowed.

(2) The order of the Madang District Court of 16 December 2011 in DCC Nos 189-192 of 2011 is quashed.

(3) The appellant must pay all unpaid entitlements to the respondents by 14 February 2013.

(4) The appellant's application for eviction of the respondents from the premises at Section 128, Allotment 3, Madang is granted and accordingly under Section 6(2) of the Summary Ejectment Act:

• (a) the respondents and all other persons occupying the premises without the authority of the appellant must vacate the premises, leaving the premises in good order and condition, by 12 noon on 28 February 2013; and
  
• (b) the Provincial Police Commander, Madang Province, and all members of the Police Force are warranted with effect from 12 noon on 28 February 2013 to enter the premises by force if necessary with or without the aid of other persons whose assistance may be thought necessary and to eject the respondents and any other persons occupying the premises without the authority of the appellant and deliver full and peaceable possession of the premises to the appellant.
  

(5) The parties will bear their own costs of the appeal.

(6) The appellant's recognisance fee of K5,000.00 shall be refunded forthwith.

_____________________________________________

Akuani Lawyers: Lawyers for the Appellant
Meten Lawyers: Lawyers for the Respondents