N5836

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 21 OF 2014

HENRY KWAN & TONY KWAN
Appellants

V

COLLIN BINING
Respondent

Madang: Cannings J
2014: 2, 12 December

LAND – Summary Ejectment Act – whether District Court erred in law when making eviction order – whether appellants denied natural justice – whether appellants were settlers rather than squatters – whether complaint made under incorrect provisions of Summary Ejectment Act – whether decision of District Court unreasonable

The respondent was the registered proprietor of a State Lease over an urban property. He applied to the District Court under the Summary Ejectment Act for an order of eviction against the appellants, whom the respondent argued were unlawfully occupying the property. The District Court granted the application and ordered the appellants to vacate the property within 31 days. The appellants appealed to the National Court and raised five grounds of appeal, arguing that the District Court erred in law, by: (1) denying them natural justice; (2) not giving consideration to their status as settlers, rather than squatters; (3) making eviction orders sought under incorrect provisions of the Summary Ejectment Act; (4) making a decision that was so unreasonable no reasonable court could have made it; (5) failing to enforce a notice of discovery.

Held:

(1)	The appellants were given a proper opportunity to defend the case. They were not denied natural justice. Ground 1 was dismissed.

(2)	The appellants were not settlers or permitted occupants. They are squatters. Ground 2 was dismissed.

(3)	The respondent referred to incorrect provisions of the Summary Ejectment Act in his complaint to the District Court but it lay within the discretion of the trial Magistrate to correct the error; and the appellants were not prejudiced. Ground 3 was dismissed.

(4)	The District Court's decision was not in any way unreasonable, let alone so unreasonable no reasonable court could have made it. Ground 4 was dismissed.

(5)	Ground 5 was incomprehensible, so it was dismissed.

(6)	The appeal was dismissed and the decision of the District Court was affirmed subject to setting a new date by which the appellants must vacate the property.

Cases cited

The following cases are cited in the judgment:

Andma v Morasa (2013) N5224
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Christine Gawi v Public Services Commission (2014) N3720
Glenis Apolos Olowa v Trikas Gola (2011) N4192
Paul Dopsie v Jerry Tetaga (2009) N3720
Paul Saboko v Commissioner of Police (2006) N2975
Philipae v Igaso (2011) N4366
Ruth Don v Comfort Tours & Travel Ltd (2014) N5730
Tau Kamuta v David Sode (2006) N3067
Tony Yagon & Settlers of Dylup Plantation 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 granting an application for eviction orders under the Summary Ejectment Act.

Counsel

A Kintau, for the appellants
F Lunge, for the respondent

12th December, 2014 

1. CANNINGS J: Henry Kwan and Tony Kwan appeal to the National Court against an order of the Madang District Court of 1 April 2014 evicting them from Section 117, Allotment 13, Baidal Road, Madang. The eviction order was made on application by the respondent, Collin Bining, who is the registered proprietor of the State Lease over the property. The order has been stayed, pending the outcome of the appeal.

GROUNDS OF APPEAL

2. The appellants have raised five grounds of appeal, arguing that the District Court erred in law, by:

(1)	denying them natural justice;

(2)	not giving consideration to their status as settlers, as distinct from squatters;

(3)	making eviction orders that were sought under incorrect provisions of the Summary Ejectment Act (Chapter No 202);

(4)	making a decision that was so unreasonable no reasonable court could have made it;

(5)	failing to enforce a notice of discovery.

3. I have dealt with the grounds of appeal in the way in which they were actually argued, rather than the way in which they were set out in the notice of appeal (which contained seven grounds). The difference in numbering is not significant: grounds 1, 2 and 3 as described above correspond to grounds 1, 2 and 3 in the notice of appeal; ground 4 above corresponds to ground 5 in the notice of appeal; and ground 5 above corresponds to ground 6 of the notice of appeal. In effect, grounds 4 and 7 of the notice of appeal were abandoned.

GROUND 1: DENIAL OF NATURAL JUSTICE

4. The appellants argue:

That pursuant to the principle of natural justice under Section 59 of the Constitution the appellants were never given the chance to defend themselves appropriately by giving them enough time to file relevant evidence in support of their defence.

5. The appellants say that the trial Magistrate, his Worship Mr R Teko, rushed the proceedings, did not give them enough time to present evidence in support of their defence and ignored a notice of discovery that they had served on the respondent. They point to the following chronology of events in March-April 2014:

5 March:	complaint and summons filed;	
12 March :	appellants filed a notice of intention to defend;	
19 March:	first mention of the case in Court: adjourned to 31 March;	
31 March:	appellants filed a defence, alleging that they were lawful occupants and that the respondent had obtained title to the property by fraud;	
:	second mention of the case in Court: adjourned to 1 April for hearing;	
1 April:	hearing and decision.	

6. Mr Kintau for the appellants relied on three provisions regulating the practice and procedure of the District Court in civil matters to argue that the appellants were not given a proper opportunity to defend the case: Sections 22 and 135 of the District Courts Act and Section 46 of the District Courts Regulation.

7. Section 22 (general ancillary jurisdiction) of the District Courts Act states:

Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall, in proceedings before it—

(a)	grant such relief, redress or remedy, or combination of remedies, whether absolute or conditional; and

(b)	give the same effect to every ground of defence or counterclaim, whether equitable or legal,

as ought to be granted or given in a similar case by the National Court and in as full and ample a manner.

8. Section 135 (further particulars may be ordered) of the District Courts Act states:

(1)	At the hearing of a complaint under Section 134, the Court, on the application of the defendant, may order the complainant to deliver further and fuller particulars, wholly or in part, and with dates, items and prices or value, to the defendant or his legal representative within such time and on such terms as to costs or otherwise as the Court thinks just.

(2)	The Court shall not make an order for particulars under Subsection (1) unless it is satisfied that the particulars are necessary for the purposes of the defence and are not demanded for the purpose of delay, and the Court may adjourn the hearing of the complaint and stay all proceedings until the order has been complied with.

9. Section 46 (supplying deficiencies in regulation etc) of the District Courts Regulation states:

Where in this Regulation, there is no provision, or no sufficient provision, for or in respect of any matter or thing, then the Court may supply the deficiency, or allow it to be supplied, in such manner as may be just and proper, and for that purpose regard may be had to any relevant or analogous practice, procedure or form in use by, or for the purposes of, the National Court.

10. Mr Kintau submitted that though none of the laws regulating the practice and procedure of the District Court expressly allow a party to file a notice of discovery, it is not prohibited and it is a normal part of National Court practice and procedure, so the procedure can be invoked in the District Court under the above provisions; and if it is, then the District Court is obliged as a matter of fairness to let the notice of discovery run its course. That is, the party to whom it is addressed (in this case, the respondent) must provide the list of documents it has been requested to provide, before the case is set down for hearing.

11. I agree that a notice of discovery can be filed and served by a defendant in a District Court proceeding. It is a normal part of National Court practice and procedure, so it can properly be invoked in the District Court either by a party or by the Court itself. The three provisions relied on by the appellants are sufficient authorisation for it. Likewise with a defence. A defendant is not obliged to file a defence unless called upon to do so by the Magistrate under Section 140 (magistrate may request statement of defence before hearing evidence). But if he is not called upon by the Magistrate, he can file it of his own volition, and that is what happened in the present case.

12. However it does not follow that if a defendant files a notice of discovery and/or a defence, the District Court is obliged to refrain from setting down a matter for hearing until the defendant says he is ready. Each case must be considered on its merits. Here the notice of discovery required the respondent to produce the contract of sale and instrument of transfer by which he became registered proprietor of the State Lease. These documents would seem to be irrelevant to proceedings under Section 6 (recovery of premises held without right etc) of the Summary Ejectment Act, which invariably focus on just two issues:

•	Is the complainant the registered proprietor?

•	Does the defendant have any right, title or licence to be in possession of the premises?

13. As for the appellants' defence, it stated that the appellants are the legal occupants of the property, but gave no particulars as to their right, title or licence that made their occupation legal. It was then alleged that title to the property was bona fide in dispute as the respondent had obtained title by fraud, but provided no reference to any distinct legal step that the appellants had taken to challenge the respondent's title. Such a step must be taken before a dispute about title can be regarded as bona fide (Tony Yandu v Peter Waiyu (2005) N2894). In these circumstances the learned trial Magistrate was entitled to form the view that the filing of the notice of discovery and the defence ought not prevent the complaint being set down for hearing. I see no unfairness in his Worship's decision to set the hearing down for 1 April 2014.

14. Besides that, it seems that the appellants, who were legally represented at both mentions and at the hearing, did not apply for an adjournment either on 31 March (when the hearing date was set) or prior to commencement of the hearing on 1 April. As they did not apply for an adjournment and they were legally represented it is difficult to uphold an argument that they were treated unfairly due to them not being given sufficient time to prepare for the hearing.

15. The District Court is subject to an overriding duty to hear and determine complaints in accordance with the principles of natural justice, the minimum requirement of which is, under Section 59(2) (principles of natural justice) of the Constitution, to act fairly and in principle to be seen to act fairly (Philipae v Igaso (2011) N4366, Andma v Morasa (2013) N5224). I conclude that the appellants were given the chance to defend themselves appropriately. They were given enough time to present their evidence. They were not denied natural justice. The District Court acted fairly and was seen to act fairly. Ground 1 is dismissed.

GROUND 2: NOT GIVING CONSIDERATION TO STATUS AS SETTLERS

16. The appellants argue:

That the District Court erred in law by not giving consideration to the appellants' argument that they are settlers and not squatters and that they have been living on the land for more than eight years and as such had a licence and/or permissive right to occupy the land.

17. Mr Kintau submitted that the appellants had occupied the property for more than eight years with the permission of the owners and therefore should not have been regarded as illegal occupiers. He focuses on the wording of Section 6(1) of the Summary Ejectment Act, which 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.

18. Mr Kintau refers to my decision in Glenis Apolos Olowa v Trikas Gola (2011) N4192 in which I found that the District Court had erred in law by trying to assess which of the parties had better title to the land rather than determining whether the defendant had no "right, title or licence". He submits that the District Court made the same error in the present case by finding that the respondent was the registered proprietor (and therefore the "owner") and finding that the appellants had no title and then jumping to the conclusion that the eviction order should be made. He also submitted that if the District Court had considered the appellants' defence – which made an allegation of fraud against the respondent – it would have appreciated that there was a bona fide dispute about title, in which case the District Court had no jurisdiction by virtue of Section 21(4)(f) (civil jurisdiction) of the District Courts Act, which states:

A [District] Court has no jurisdiction in the following cases: …

when the title to land is bona fide in dispute.

19. I dismiss these arguments as there was no evidence before the District Court that the appellants were in permitted occupation of the property, as is now claimed, for more than eight years. Nor was there any other evidence that would have enabled the Court to conclude that the appellants had a "licence" to occupy the property or be in possession of the premises. The evidence before the District Court showed that the respondent became registered proprietor of the State Lease on 9 December 2009 and that at least as early as 7 January 2010 he took steps through the Physical Planning Office in the Madang Provincial Administration to notify the occupiers of the property that they had to vacate it. The respondent continued his efforts to remove the appellants from the property over a period of four years and this included getting the Provincial Administrator to serve on the appellants a notice to quit dated 14 October 2011.

20. I uphold the submission of Mr Lunge for the respondent that the facts of the present case must be distinguished from those in Olowa. In Olowa the defendant was the widow of the deceased registered proprietor and had been living on the land for many years without anyone challenging her right to do so. She clearly had a licence to occupy the land, ie she had a readily identifiable equitable interest in it. Similar circumstances existed in Tony Yagon & Settlers of Dylup Plantation v Nowra No 59 Ltd (2008) N3375: the defendants and their ancestors had lived on the land with the permission of a succession of owners for 80 years. The circumstances of the appellants are far removed from those of the settlers in Yagon. The appellants cannot reasonably be regarded as settlers. They are better regarded as squatters.

21. I also uphold Mr Lunge's submission that there was no bona fide dispute as to title. 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, for example by commencing proceedings in the National Court to challenge the title (Tony Yandu v Peter Waiyu (2005) N2894, Ruth Don v Comfort Tours & Travel Ltd (2014) N5730). There was no bona fide dispute as to title and the District Court did not err in law in continuing to deal with the matter.

22. I find the learned trial Magistrate made no error of law in finding that the appellants had no right, title or licence to be in possession of the premises. Ground 2 is dismissed.

GROUND 3: INCORRECT PROVISIONS OF SUMMARY EJECTMENT ACT

23. The appellants argue:

That the District Court erred in law when it made orders for summary eviction under Section 6(1) when the complainant instituted proceedings under Sections 3(1) and 4(1) of the Summary Ejectment Act.

24. Mr Kintau correctly points out that:

•	the complaint by which the respondent instituted the proceedings (under Section 28(a) of the District Courts Act), and

•	the summons issued by the District Court (under Sections 41(2) and 42(2) of the District Courts Act) by which the appellants were required to answer to the complaint, 

were based on Sections 3(1) and 4(1) of the Summary Ejectment Act. The complaint and summons stated:

The leaseholder [the respondent] ... hereby seeks to compel the eviction of the said defendants [the appellants] from the property pursuant to the Summary Ejectment Act, Sections 3(1) and 4(1).

25. I agree with Mr Kintau that the reference to Sections 3(1) and 4(1) was an error. These sections deal with situations where a lessee refuses to quit a property at the end of the term of a lease (Section 3(1)) and where a lessee is in arrears on the rent (Section 4(1)). They do not deal with the situation where a defendant is alleged to be in illegal occupation of a property. That was the allegation in the present case, so the complaint and summons should have referred to Section 6(1) of the Summary Ejectment Act.

26. I also agree with Mr Kintau that the order of 1 April 2014, which required the appellants to vacate the property within 31 days and authorised the Police to take possession by force in the event that the appellants refused within that period to vacate the premises of their own accord, was made under Section 6(1).

Did the District Court err in making an eviction order under Section 6(1) when the order had been sought under Sections 3(1) and 4(1)? Mr Kintau submits yes, an error of law was made, and he bases his argument on two provisions of the District Courts Act, Sections 137 and 138.

27. Section 137 (evidence of matters not in summons) states:

Evidence of a demand or cause of action shall not be given on behalf of the complainant on the hearing of a complaint other than a demand or cause of action stated in the summons issued on the complaint, or in the summons as amended.

28. Section 138 (general powers of amendment) states:

On the hearing of a complaint, the Court may allow such amendment of the summons as it thinks just, and on such terms as it thinks just, and all such amendments shall be made as are necessary for the purpose of determining the real questions in controversy between the parties.

29. Mr Kintau submits that although Section 138 allows amendment of a summons this can only be done when the complainant applies for amendment. It cannot be done by the Court of its own volition. In this case the respondent did not apply for amendment and the Court of its own volition allowed the summons to be amended by making the eviction order under Section 6(1). Allowing the amendment was an error, it is submitted; and the Court made a further error, it is submitted, by not rejecting the complaint, which should have been dealt with as a complaint under Sections 3(1) and 4(1).

30. I reject those submissions. Section 138 does not say that an amendment can only be allowed if the complainant applies for an amendment. It would undermine the District Court's ability to control the proceedings before it, to deprive it of the ability on its own initiative to amend the terms of a complaint or summons. Section 138 confers a broad power of amendment which can be exercised as the Court "thinks just", on terms that the Court "thinks just".

31. Here the learned trial Magistrate allowed an amendment of the complaint and summons of his own volition. His Worship did not actually refer to the need to amend and did not state that he thought it just to amend the complaint and summons. However, it is evident that in fact he did allow an amendment and it can safely be inferred that he thought it just to do so. This might be described as a tacit amendment but it is an amendment nonetheless and one that was properly regarded as convenient and just. I cannot see that the appellants were prejudiced by what happened. The complaint that the appellants were required to answer to was clear: the respondent was the registered proprietor of the property and they had continued to reside on it despite being issued notices to vacate, and on those grounds the respondent was seeking their eviction.

32. I find that the trial Magistrate made no error in making an eviction order under Section 6(1), even though the complaint was instituted under Sections 3(1) and 4(1) of the Summary Ejectment Act. Ground 3 is dismissed.

GROUND 4: UNREASONABLENESS

33. The appellants argue:

That the decision of the District Court was so unreasonable as per the Wednesbury principle that no reasonably constituted tribunal of law or fact would have made the decision it made.

34. The 'Wednesbury principle' referred to is the principle laid down in the classic case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223: an administrative or judicial decision may be set aside by a superior court if it can be objectively determined to be unreasonable. The test to apply is:

•	is the decision so unreasonable or absurd, having regard to all the circumstances, no reasonable decision-maker could have made the decision? (Paul Saboko v Commissioner of Police (2006) N2975, Tau Kamuta v David Sode (2006) N3067, Paul Dopsie v Jerry Tetaga (2009) N3720, Christine Gawi v Public Services Commission (2014) N3720.)

35. If the answer is yes the decision involves an error of law, the decision-maker will have exceeded its jurisdiction and the decision can be set aside. If the answer is no, there is no error of law, no excess of jurisdiction and this ground of review (or appeal) will fail. Applying the test here, the appellants have failed to prove that the District Court made any error of law or that its decision to order their eviction could properly be regarded as absurd, irrational or unreasonable, let alone that the decision exhibited such qualities to such an extent that it made a decision that no reasonable Court could have made. Ground 4 is dismissed.

GROUND 5: NOTICE OF DISCOVERY

36. The appellants argue:

The Magistrate erred in law in failing to allow litigation in the matter to be continued by directing the complainant to file his list of documents following service of notice of discovery on the complainant before the trial on the matter and subsequent decision [sic].

37. Mr Kintau has made a number of useful, well structured and thought-provoking arguments during the course of this appeal, but this is not one of them. I cannot make any sense of it. It is incomprehensible. Ground 5 is dismissed.

WHAT ORDERS SHOULD BE MADE?

38. All grounds of appeal have been dismissed. There was no miscarriage of justice so the appeal will be dismissed. I will generally affirm the order appealed from, order an immediate refund of the appellants' recognisance, allow the appellants a reasonable time to vacate the property and order costs in favour of the respondent. These orders are made in the interests of justice under Sections 230(1)(c), (e) and (f) of the District Courts Act.

ORDER

(1)	The appeal is dismissed.

(2)	The order of the Madang District Court of 1 April 2014 in DCC No 7 of 2014 is affirmed, subject to the following orders.

(3)	The appellants and all other persons in occupation of the respondent's property at Section 117, Allotment 13, Madang are ordered to vacate the property by 12 noon on 12 January 2015, failing which the respondent and members of the Police Force are authorised to use reasonable force to eject such persons and their personal effects from the property.

(4)	The appellants' recognisance shall, upon presentation of an authorised receipt, be refunded in full, forthwith.

(5)	The appellants shall pay the respondent's costs of the appeal on a party-party basis, which shall if not agreed be taxed.
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Eda Legal Services: Lawyers for the Appellants
Ninerah Lawyers: Lawyers for the Respondent