N6587
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
	
OS NO 595 OF 2013

JOHN SEBEPMIN

V

MADANG URBAN LOCAL-LEVEL GOVERNMENT
Defendant

Madang : Cannings J
        2015: 25 September, 11 December 
                                                 2017: 11 January 

LAND – government land in town area – whether a person in long-term occupation of residential land acquires equitable interest in it – whether equitable interest can prevail over legal interest of registered proprietor.

REMEDIES – declarations – need for plaintiff to establish factual basis of claim – he who asserts must prove. 

The plaintiff was an officer of the defendant, a local-level government, from 1991 until his resignation in 1997. As a condition of employment he occupied a property controlled by the defendant. He remained in occupation of the property after his resignation. In 2009 the defendant was granted a State Lease over the property and asked the plaintiff to vacate it, but he refused. In 2013 the defendant sought and was granted by the District Court an eviction order under the Summary Ejectment Act against the plaintiff. The plaintiff then commenced proceedings by originating summons against the defendant in the National Court. The District Court order was stayed, pending the outcome of the National Court proceedings. The plaintiff sought declarations that the defendant had, upon his resignation, failed to pay his final entitlements or repatriate him and his family to his home province and had agreed to transfer the property to him as part of his final entitlements and that he had an equitable interest in the property by virtue of his occupation of it for more than 20 years. He also sought a permanent injunction restraining the defendant from evicting him and his family. The defendant opposed all relief sought, and the matter proceeded to trial.  

Held:

(1)	All relief sought in the originating summons was refused, as: (a) the plaintiff had adduced only a scintilla of evidence to support the factual basis of his claim; (b) the plaintiff had sought equitable relief without clean hands; (c) the defendant was the registered proprietor and had indefeasible title to the property subject only to the exceptions in Section 33(1) of the Land Registration Act, none of which applied; and (d) the proceedings were an abuse of process.

(2)	The proceedings were dismissed, with costs. The District Court order, though not made in error, was set aside and the National Court order staying that order was dissolved. In place of those orders was a fresh order allowing the plaintiff a reasonable time to vacate the property and clarifying the procedure in the event that he does not vacate.  

Cases cited

The following cases are cited in the judgment:

Aro Investments Pty Ltd v Fly River Provincial Government (1997) N1519
Gabriel Miai Bizei v Joseph Gabut (2014) N5669
Galem Falide v Registrar of Titles (2012) N4775
Koang No 47 Ltd v Monodo Merchants Ltd (2001) SC675
Mudge v Secretary for Lands [1985] PNGLR 387
Philip Takori v Simon Yagari (2008) SC905
Poge Gewane v Ulli Kiki (2016) N6206
Shaw v Commonwealth of Australia [1963] PNGLR 119
Supreme Court Reference No 4 of 1980 [1982] PNGLR 65

ORIGINATING SUMMONS

This was an application for declarations and orders regarding government land within a town area.

Counsel:

B W Meten, for the Plaintiff
T M Ilaisa, for the Defendant

11th January, 2017

1.     CANNINGS J:  The plaintiff, John Sebepmin, applies for declarations and orders concerning government land in Madang town that he and his family have occupied since 1991. The property is Section 66, Allotment 52, Kuperu Road. The registered proprietor of the property is the defendant, Madang Urban Local-level Government.

2.   The plaintiff was an officer of the defendant –Senior Rules Inspector – from 1991 until his resignation in 1997. As a condition of employment he occupied the property, which was at that time controlled, but not owned, by the defendant. 

3.   The plaintiff and his family have remained in occupation of the property since 1997. In 2009 the defendant was granted a State Lease over the property. 
It asked the plaintiff to leave, but he refused. The defendant sought and was on 10 July 2013 granted by the Madang District Court an eviction order under the Summary Ejectment Act against the plaintiff. 

4.  On 8 November 2013 the plaintiff commenced the present proceedings by originating summons in the National Court. On 22 November 2013 the District Court order was stayed, pending the outcome of the National Court proceedings. 

RELIEF SOUGHT

5.   The plaintiff seeks declarations that:

•	the defendant has since 1997 failed to pay his final entitlements or repatriate him and his family to his home province;

•	the defendant agreed to transfer the property to him as part of his final entitlements;

•	he has an equitable interest in the property by virtue of his peaceful occupation of it for more than 20 years.

6.  The plaintiff also seeks: 

•	a permanent injunction restraining the defendant from evicting him and his family. 

DEFENDANT’S POSITION

7.    The defendant opposes all relief sought in the originating summons. It denies any failure to pay the plaintiff his final entitlements and denies any agreement to transfer title to the plaintiff. It says that the plaintiff has continued to resist the defendant’s attempts over many years to get him to leave the property, so that it can be used by the defendant, which has been the effective and lawful owner since 2009. The defendant says that the plaintiff has managed to occupy the property rent-free for 18 years after he ceased to be employed and that this should not be allowed to continue and that the defendant should be allowed to use its property as it sees fit. 

CONSIDERATION

8.   This is a clear-cut case. I refuse all relief sought in the originating summons for the following reasons: 

(a)	The plaintiff has adduced only a scintilla of evidence to support the underlying factual basis of his claim: that he was not paid his final entitlements and that it was agreed that the property be transferred to him. The only evidence that that was in fact the case is the plaintiff’s bald assertion that that is what happened. There is no corroboration of these claims. And the defendant has presented contrary evidence in the form of an affidavit by former Madang Town Manager, Titus Futrepa, who deposes that the plaintiff was paid all his entitlements. There is a basic principle of litigation to be invoked here: he who asserts must prove (Shaw v Commonwealth of Australia [1963] PNGLR 119, Supreme Court Reference No 4 of 1980 [1982] PNGLR 65, Galem Falide v Registrar of Titles (2012) N4775).The plaintiff has failed to prove his case.

(b)	The plaintiff has sought equitable relief without clean hands and without doing equity himself (Koang No 47 Ltd v Monodo Merchants Ltd (2001) SC675, Philip Takori v Simon Yagari (2008) SC905). He has been occupying the property rent-free for many years and resisted reasonable attempts to have him vacate the property or be evicted.

(c)	The defendant is and has been since 2009 the registered proprietor and holds indefeasible title to the property subject only to the exceptions in Section 33(1) of the Land Registration Act, none of which apply or have even been argued to apply (Mudge v Secretary for Lands [1985] PNGLR 387).

(d)	These proceedings are an abuse of process as the plaintiff, having been ordered by the District Court vacate or be evicted, should have appealed to the National Court, prior to commencing these proceedings(Aro Investments Pty Ltd v Fly River Provincial Government (1997) N1519, Gabriel Miai Bizei v Joseph Gabut (2014) N5669, Poge Gewane v Ulli Kiki (2016) N6206).

CONCLUSION

9.    The proceedings will be dismissed. There is no reason costs should not follow the event. The District Court order, though not made in error, will be set aside and the National Court order staying that order will be dissolved. In place of those orders will be a fresh order allowing the plaintiff a reasonable time to vacate the property and clarifying what can be done in the event that he does not vacate.  

ORDER
(1)	All relief sought in the originating summons is refused and the proceedings are dismissed.

(2)	The Madang District Court order of 10 July 2013 in DCC 42/2013 is set aside and the National Court order of 22 November 2013 in these proceedings is dissolved and are replaced by this order.

(3)	The plaintiff and all other persons in occupation of the subject land, Section 66, Allotment 52, Kuperu Road, Madang, shall, at their own cost, vacate the land, removing all their properties and possessions, by 12 noon on 10 February 2017, leaving the land and its improvements, including all buildings on it, in good order and condition. 

(4)	If the plaintiff and other persons in occupation of the subject land fail to comply with order (3), the defendant and the Police are authorised, from 12 noon on 10 February 2017, to take all reasonable steps necessary to remove the plaintiff and other persons in occupation of the subject land, from the land, including the use of reasonable force, and to seize and destroy their properties and possessions, provided that such steps are taken under the supervision and control of the most senior member of the Police Force available at that time in the vicinity of the subject land.

(5)	The plaintiff shall pay the defendant’s costs of the proceedings on a party-party basis which shall, if not agreed, be taxed.

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

Ordered accordingly,
______________________________________________________
Meten Lawyers:                           Lawyers for the plaintiff				
Thomas More Ilaisa Lawyers:   Lawyers for the defendant