Bande v Godowan Investment Ltd [2016] PGNC 185; N6378 (24 March 2016)

N6378

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 41 OF 2014

JACK BANDE

Appellant

V

GODOWAN INVESTMENT LIMITED
Respondent

Madang: Cannings J

2016: 23^rd & 24^th March

APPEALS – appeal against decision of District Court in proceedings under Summary Ejectment Act– whether alleged misdescription of land, the subject of the District Court order, should result in order being quashed.

The appellant appealed to the National Court against an order of the District Court made in proceedings under the Summary Ejectment Act Chapter No 202, requiring him to vacate an area of land the subject of a State Lease, described by its section and allotment number. The appellant argued that he did not occupy the area of land described in the District Court order and that he was not an unlawful occupier of the area of land that he did in fact occupy. The respondent argued that there was no misdescription of the land and that it held an urban development lease over the land, the subject of the District Court order.

Held:

(1) The evidence before the District Court and the National Court amply demonstrated that the appellant was not in occupation of the land described in the order of the District Court. For that reason alone the appeal was allowed and the District Court order quashed.

(2) Further, the urban development lease that the respondent relied on conferred a leasehold interest for a limited period, which had expired. There was no evidence before the District Court or the National Court that the respondent was the registered proprietor of the land or had any other legal interest in it.

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

Cases cited:

The following case is cited in the judgment.
Paul Kamang v Lina Joshua (2013) N5236

APPEAL

This was an appeal against the decision of a District Court in proceedings commenced under the Summary Ejectment Act.

Counsel:

E Wurr, for the appellant
T M Ilaisa, for the respondent

24^th March 2016

1. CANNINGS J: Jack Bande appeals against an order of the Madang District Court of 13 May 2014 requiring him to vacate an area of land in Madang town. The order, made in proceedings commenced by the respondent, Godowan Investment Ltd, under the Summary Ejectment Act Chapter No 202, DCC 22 of 2014, stated:
   

“Defendant [the appellant] is ordered to vacate the said portion of land Section 75, Allotment 21 within 14 days.

GROUNDS OF APPEAL

2. The appellant appeals on four grounds, the first three of which overlap. The appellant argues that he does not occupy Section 75, Allotment 21. I uphold those three overlapping grounds as the evidence before the District Court and National Court is clear. He occupies Section 75, Allotment 32. The order has been made in error.
   
3. As to ground 4, the appellant argues that he is occupying customary land leased to him by the customary landowner, Matulon Land Group Inc. I dismiss this ground as it highly unlikely on the evidence before the Court that this is in fact or law customary land.
   

COMMENTS

4. Before addressing the consequences of upholding the three grounds of appeal, there are two other matters on which I comment, which were addressed at the hearing of the appeal.
   
5. First, to the extent that the respondent was relying on an urban development lease over the area of land known as Portion 1226, the learned Magistrate was in error, as it was a five-year lease commencing on 19 June 2008, expiring on 19 June 2013. There is no evidence that the lease had been extended. So there was no evidence before the District Court or the National Court that the respondent was the registered proprietor of that land, Portion 1226, or had any other legal interest in it or any other land at the date of the District Court order, 13 May 2014.
   
6. Secondly, it is unlikely that the appellant’s lease over Section 75, Allotment 32, which was in evidence, showing the lessor as Matulon Land Group Inc, and based on the presumption that the land he occupies is customary land, gives the appellant good title. It is likely that the correct status of the land is that it is government land (Paul Kamang v Lina Joshua (2013) N5236). However, that is not the issue before the Court and I comment no further on it in these proceedings.
   

CONCLUSION

7. Three grounds of appeal have been upheld and I am satisfied for the purpose of Section 230(2) of the District Courts Act that there has been a substantial miscarriage of justice. I will allow the appeal and under Section 230(1) (c) of the District Courts Act quash the order appealed from. I will make other orders in the interests of justice.
   

ORDER

1. The appeal is allowed.
   
2. The order of the Madang District Court in DCC 22 of 2014 of 13 May 2014 is quashed.
   
3. The respondent and its servants and agents and all other persons including the Police shall not evict the appellant or any of his servants, agents or associates from the property at Section 75, Allotment 32 Madang or however else that property might be described, except by order of the National Court sought in separate proceedings, by notice of motion supported by affidavit.
   
4. All other proceedings relating to the ownership or possession of that property shall be commenced in the National Court.
   
5. The respondent shall pay the costs of the appeal in the sum of K1,000.00
   

Judgment accordingly,
__________________________________________________________________
Public Solicitor : Lawyer for the appellant
Thomas More Ilaisa Lawyers : Lawyers for respondent