N7616

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 61 OF 2018

BETWEEN:
MATHIAS SAMBATKA, ALLAN AUA, EDDI KAPINIS, ANDE SLAIBOT, VINCENT SLAIBOT, TIMO PIUS, JOBAS PIUS, AMBROS GAGA, WILFRED AMBROS, MOSES JOSHUA, JOEL DUKDUK, PETER MOLOT PETRO, ERIC YANDU & JOSEPH LOKS
Appellants

AND:
BRUNO NIU WIRKA as Chairman of Lamus Incorporated Land Group
Respondent

Kokopo: Anis J
2018: 7 & 18 December

DISTRICT COURT APPEAL – Appeal against eviction orders commenced under the Summary Ejectment Act Chapter No. 202 – sections 2 & 6 - Constitution – section 59 – natural justice - Land Registration Act Chapter No. 191 – section 32 - Part IIIA – sections 34N, 34O and 34P - registration of customary land – whether customary land registered is state lease - section 3(1) of the Interpretation Act Chapter No. 2 discussed

Facts

The appellants appealed against a decision of a trial magistrate which was made on 26 June 2018.  The trial magistrate had issued orders under the Summary Ejectment Act Chapter No. 202, in favour of the respondent.  The orders had directed that they be removed from and not to interfere with, a land described as Portion 910C Millinch of Pondo, Fourmil Rabaul, Volume 1 Folio 11.

Held

1.	The District Court and its procedures for court hearings are express and are set out under its various legislations including the Summary Ejectment Act Chapter No. 202; its hearing processes are not complicated or well developed by case law like those of the National Court.

Case followed:  John Yula Andma v. Timothy A Morasa (2016) N5224

2.	Section 6 summonses issued under the Summary Ejectment Act involve summary hearings or determinations; a trial Magistrate need only be satisfied that a complainant has the title or has established his or her interest, over the land in question, excluding customary land, before the trial Magistrate may grant orders in his or her favour.

3.	If a defendant appears and objects to a section 6 summons hearing on the date fixed, he or she will be required to show reasonable cause why possession should not be given to the complainant.

4.	The appellants herein had been given numerous opportunities to be heard.  They had instead chosen not to file any evidence or submissions in response to the summons.

5.	Twenty sixth June 2018 was the date that had been reserved for the final decision; it was not a hearing date so the appellants’ claim that they were denied their right to natural justice on that day, was without any basis.

6.	The land in question was not a customary land, but rather, it was a registered customary land which had title because it was registered under Part IIIA of the Land Registration Act Chapter No. 191, and its registered proprietor was Lamus Incorporated Land Group.

7.	The appeal was refused with cost.

Cases cited:

Peter Ngan v. Andrew Yai (2016) N6381
Philip Telakul v. Mitchel Wakias (2017) N6688
John Yula Andma v. Timothy A Morasa (2016) N5224

Counsel:

Mr F. Chillion, for the Appellants
Mr P. Kendy Jr, for the Respondent

JUDGMENT

18th December, 2018

1.	ANIS J:	The appellants appealed against a decision of Her Worship Magistrate Kuvi (trial Magistrate) that was made on 26 June 2018.  The appellants cited 4 grounds of appeal.  At the hearing, counsel for the appellants reduced the grounds to 2, namely, (i) whether there had been a breach of natural justice, and, (ii), whether the land in question, which was registered under Part IIIA of the Land Registration Act Chapter No. 191 (LRA), was customary land.

2.	The appeal was contested.  It was heard on 7 December 2018.  Counsel presented their written submissions in Court.  I reserved my ruling to a date to be advised.

3.	Parties have been notified so I will now rule on it.

BRIEF BACKGROUND

4.	The land in question is described as Portion 910C Millinch of Pondo, Fourmil Rabaul, Volume 1 Folio 11 (the land).  The land is registered to the name of an incorporated land group called Lamus Incorporated Land Group (Lamus ILG), which is part of or whom the respondent represents, in this appeal.  The respondent is the Chairman of Lamus ILG.  Disputes started when developers, who were engaged by the respondent to conduct oil palm activities on the land, were denied access by the appellants.  As a result, the respondent filed proceedings at the District Court, under the Summary Ejectment Act Chapter No. 202 (SEA), to evict the appellants off the land.

5.	On 26 June 2018, the trial Magistrate handed down her decision in favour of the respondent.  She gave a written decision which is at page 118 of the Appeal Book (AB).  The AB was filed on 14 November 2018.  The orders were and I read in part:

1.	The Defendants, their relatives, agents, servants and associates shall vacate Portion 910C Milinch of Pondo, Fourmil of Rabaul being State Lease contained in Volume 1, Folio 11, within three (3) months.
2.	The Defendants, their relatives, agents, servants and associates are permanently restrained from interfering, harassing and disturbing the complainants in the use and enjoyment of the property.
3.	In the event that the Complainant is still unable to secure vacant possession, a Warrant of Entry shall be issued directed to the Kerevat Police Station Commander and his subordinates to enter by force and seize vacant possession of the property and deliver the same to the Complainant.
……

ISSUES

6.	The issues, in my view, are, (i), whether the appellants were denied natural justice at the hearing of the matter, (ii), whether the land is a state lease as regarded by the trial Magistrate (iii), Was there substantial injustice committed by the lower court, and (iv), if the appeal is upheld, what appropriate orders should I make?

NATURAL JUSTICE

7.	The appellants claim that they were not afforded natural justice by the trial Magistrate.  They allege breach of section 59 of the Constitution.  Section 59 states, and I read in part:  

59.  Principles of natural justice.

(1)	Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.
(2)	The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

8.	In my view, a good place to begin to consider this ground, would be to set out what the Court had said or ordered at the material time.  At page 2 at the last paragraph of the trial Magistrate’s decision (page 118 of the AB), Her Worship states and I quote:

Due to the fact that the Defendants’ Counsel was not present and also he still had not filed any affidavits and extract of submissions, I allowed him a final opportunity and adjourned the matter for a week to 26/06/18 for Decision.

9.	The actual order taken out by the respondent is attached at page 134 of the AB.  It reads, and I quote in part:

1.	The matter is adjourned to 26 of June 2018 at 9:30am for ruling.
2.	In the interim, the Defendants and agents or supporters are restrained from entering project site damaging properties therein until the matter returns on 26 June 2018.

10.	The summons upon complaint (the summons) filed by the respondent, was issued by the District Court pursuant to section 6 of the SEA.  It was filed on 12 March 2018 (page 77 of the AB).  Section 6 reads in part, and I quote:

(1)	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.
(2)	Where the person summoned under Subsection (1)—
(a)	does not appear before the District Court 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 the complaint, issue a warrant directed to a member of the Police Force requiring him, on or before a day 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.

(Underlining is mine)

11.	I also refer to the Summary Ejectment Regulation.  Section 1 states and I quote in part, A complaint or a summons under the Act shall be in accordance with a form of complaint or a form of summons prescribed under the District Courts Act.  The summons upon complaint filed in this case (page 13 of the AB) it seems had followed the said requirement. 

12.	So, let me ask this.  “What type of a hearing was it?”  In my view, proceedings that are commenced at the District Court using the form SUMMONS UPON COMPLAINT are summary proceedings in nature.  If a complainant wishes a summons to be issued, it shall be issued by a magistrate who shall sign the summons, set a return date in the summons, and affix the summons with the Court’s stamp.  The summons is then directed at a defendant to appear in Court on the date that is fixed.  Summonses are usually self-executory by the provisions that govern them.  The common provision will state that if the defendant fails to appear at the date that is fixed in the summons with evidence to say why default or summary judgment should not be entered, the Court may enter default or summary judgment against the defendant.  Or, there may be provisions that would say that if the defendant appears but produces no evidence, then summary or default judgment may be entered.  The summonses are deliberately formatted in line with these common provisions.  This is to ensure quick hearings or to avoid lengthy or prolonged hearings.  See case Peter Ngan v. Andrew Yai (2016) N6381.  An example is in relation to default summons proceeding.  Sub-section 4 of section 157 of the District Courts Act Chapter No. 40 (DCA) states, and I quote in part:

(4)	If the defendant or his legal representative does not give notice of his intention to defend a complaint to which this Division applies by serving notice at least 48 hours before the time appointed for the return of the default summons on the Clerk at the place where the Court sits, and—
(a)	personally or by post on the complainant at his address specified in the summons; or
(b)	on his legal representative at his address if specified in the summons,
the complainant need not attend personally or otherwise or prove his claim, and an order in his favour may be made by the Court in his absence.

13.	See also the case of Philip Telakul v. Mitchel Wakias (2017) N6688.  In my view, the SEA facilitates such summary relief, like an order for eviction or an order for vacant possession of registered properties or lands.  Section 6 of the SEA similarly gives the Court the power to award summary judgment at the first return date of the summons if the defendant fails to attend provided that the complainant is able to prove the matter of the complaint [section 6(2)(a)].

14.	The summons in this case which was before the District Court was filed on 12 March 2018.  It was fixed for hearing on 15 March 2018.  Both parties had counsel acting for them at the District Court at the material time.  The appellants challenged a defect in the summons.  When the matter returned to Court on 15 March 2018, both parties settled the issue regarding the defect in the summons by consent.  On the same day, the trial Magistrate issued directions for the parties to file their evidence.  The trial Magistrate then had the matter adjourned to 5 April 2018 for hearing.  A day after that, on 16 March 2018, the appellants filed another notice of motion to dismiss the proceeding.  The appellants’ motion was then set down for hearing on 27 March 2018.  The trial Magistrate heard the contested application on 27 March 2018 and reserved her ruling over to 3 April 2018.  On 3 April 2018, the trial Magistrate dismissed the appellants’ motion.  See pages 115 and 116 of the AB.  In her ruling, the trial Magistrate also set down the summons for mention at 9:30am on 5 April 2018.  On 5 April 2018, the trial Magistrate issued directions to the parties to file their affidavits they intend to rely on and their written submissions, before or by 20 April 2018.  The trial Magistrate, in the same ruling, set the summons down for hearing on 24 April 2018.  On the date of hearing on 24 April 2018, the trial Magistrate notified the parties that she had received a letter from the appellants which said that they had appealled against her interlocutory decision of 3 April 2018.  The trial Magistrate requested the appellants to furnish the Court with copies of the appeal documents.  The trial Magistrate also on that day notified the parties that she had received and had considered the evidence of the respondent regarding substantive matter (i.e., the summons) and that she would rule on the matter on 1 May 2018.  On 1 May 2018, the trial Magistrate notified the parties that the appellants had formally appealed against her interlocutory decision.  After notifying the parties, trial Magistrate adjourned the matter to 19 June 2018.  The appellants’ appeal was later dismissed by the National Court on 12 June 2018.  On 19 June 2018, the matter returned before the District Court and the trial Magistrate was briefed of the decision of the National Court.  The trial Magistrate adjourned the matter to 26 June 2018 to make a ruling on the summons.  On 26 June 2018, the trial magistrate handed down her final decision.

15.	Now, the appellants’ main argument regarding natural justice in my view appears confusing.  At paragraph 21 of their submissions, they accept what the Court had ordered on 19 June 2018 which was that the Court had reserved its decision which was to be delivered at 9:30am on 26 June 2018.  But in their (appellants’) submissions, they also say that on 26 June 2018, their counsel had requested for a week’s adjournment to file their defence.  They said their request was refused and that the trial Magistrate proceeded to and handed down her decision.  What I find troubling and would ask is this.  “Why ask for time to file a defence on the date of the decision?”  Both parties were present on 19 June 2018, were they not?  The appellants were aware that the decision on the summons would be delivered on 26 June 2018.  Yet they turned up in Court on 26 June 2018 and requested extra time to file their defence.  With that, I will say this.  When a Court or a tribunal sets a date to give its final decision, it means that the proceeding has closed, and the only thing left for the parties, is to appear on the scheduled date and receive the decision.  Therefore, and in my view, no right to be heard by the appellants could have been breached when the trial Magistrate handed down her decision on 26 June 2018, that is, after she had refused the appellants’ request for an adjournment for a week to file a defence.  I therefore find the argument breach of natural justice as misconceived for this reason.  But this is not all.

16.	In regard to the question of how the hearing was conducted, let me say this.  The actual summons hearing, in my view, was conducted by the trial Magistrate on 24 April 2018, that is, after the Court had on 5 April 2018 directed the parties to file their affidavit evidence and submissions; they were required to file them before or by 20 April 2018.  Apparently, the appellants did not comply with the Court’s direction, that is, they did not file evidence or submissions within the time as ordered by the Court.  I note that there is no evidence in the AB which shows that the appellants had asked for an extension of time to comply with the Court’s directions of 5 April 2018.  There is also no evidence in the AB which shows that they had filed any evidence or submissions after that.  When the matter returned to the Court on 24 April 2018, the trial Magistrate considered the evidence of the respondent, who had complied with the Court’s directions, and the trial Magistrate reserved her decision thereafter to 1 May 2018.  So, 1 May 2018, was, in my view, the original date which the Court had reserved to deliver its decision in relation to the summons.   As the facts show, the decision did not take place on 1 May 2018 because the appellant had appealed to the National Court before the said date.  So, when the matter finally returned to the District Court on 19 June 2018, what was left then was for the trial Magistrate to deliver on her reserved decision which had been postponed on or since 1 May 2018.  That explains, in my view, why the trial Magistrate had to adjourn to 26 June 2018, that is, to enable Her Worship to deliver her outstanding decision.

17.	The trial Magistrate has also said in her decision that she had allowed further time for the appellants to file their evidence and submissions as of 19 June 2018.  Such practice in the District Court is permitted.  I note that District Court procedures are not strictly the same as those practiced by the National Court.  District Court magistrates have wider discretions when it comes to hearings and how they are to be conducted.  I have already discussed the nature and types of hearings concerning summonses above in my judgment.  But let me refer to the case of John Yula Andma v. Timothy A Morasa (2016) N5224.  Justice Cannings therein summarised two (2) general propositions regarding District Court procedures.  His Honour stated, and I quote in part:

5.	Before dealing with these submissions there are two general propositions to note. First, the District Courts Act sets out a procedural code for dealing with civil cases. It cannot be presumed that the same rules of practice and procedure that apply in the National Court apply in the District Court. The District Court procedure is much simpler than in the National Court.
…..
6.	The second general proposition is that 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 (Bernard Steven Philipae v Atio Igaso (2011) N4366). Giving all parties to a court case proper notice of the hearing is a fundamental component of any court’s duty to observe natural justice or procedural fairness. Anybody joined as a party to a civil court case has a right to be dealt with fairly in open court under Sections 37(11) and (12) (protection of the law) of the Constitution

18.	I would adopt these as my own in this matter.  The appellants have had many opportunities to respond to the summons since its filing on 12 March 2018.  Despite several Court directions that had been issued, they had not complied with them.  My firm view therefore is this.  The trial Magistrate had afforded the appellants their rights to be heard, that is, their rights to be afforded with natural justice under section 59 of the Constitution, before she reached her final ruling.

19.	Let me also add these.  Based on the AB, the appellants have not filed their defence, evidence and submissions.  And that was why it seems that they had to ask for more time on the date that was reserved for the final decision, which of course was, in my view, rightfully rejected by the Court.  When I look at all that, it clearly appears that the appellants had not been paying attention to the District Court proceedings and to its directions, that is, from the commencement of the summons on 12 March 2018 to the date when the decision was made on 26 June 2018.  Or, it could be that they had deliberately ignored the orders or directions of the District Court.  And by the time they had realised what was required of them on 26 June 2018, it was too late.

20.	I dismiss the ground want of natural justice.

CUSTOMARY LAND OR STATE LEASE

21.	The appellants also argue as a ground of appeal that the land was customary land and not a state lease as held by the trial Magistrate.  I note that there is no contest to the validity of the title to the land that is held by Lamus ILG.  The appellants are raising a jurisdictional challenge.  They say the District Court did not have jurisdiction to deal with the land because it was customary land.  The appellants refer to section 2 of the SEA.  It reads, and I quote in part: This Act does not apply to customary land.  ‘Customary land’ is defined under section 3(1) of the Interpretation Act Chapter No. 2.  It is defined therein as, and I quote: “customary land" means land that is owned or possessed by an automatic citizen or community of automatic citizens by virtue of rights of a proprietary or possessory kind that belong to that citizen or community and arise from and are regulated by custom;...  The notable words there in my view is use of the phrase regulated by custom.  I say this because section 34N(1) of the LRA, states, and I quote in part: 

34N. Custom

(1)	Land entered in the Register under this Part and the right to ownership or possession of any such land or any right, title, or interest in or in relation to any such land shall cease to be subject to customary law.

(Underlining is mine)

22.	So, a customary land that is registered under Part IIIA of the LRA, like the land in the present proceeding, is not subject to application of custom or customary law.  And let me also refer to sections 34O and 34P of the LRA.  They read, and I quote in part:

34O.	Land transactions.

(1)	An Incorporated Land Group registered as owner of clan land has power to grant derivative rights and interests in the land or portions to itself, any land group, unincorporated or incorporated, an individual or any entity on payment of a rent or rent free in such manner as provided in Part VI of the Principal Act.
(2)	Land transactions, unless provided to the contrary, are deemed to be on such terms and conditions provided for in Parts VI, VII and IX of the Principal Act.
(3)	The transfer of allodial title in clan land is prohibited.

34P.	Controlling land transactions.

(1)	Part XVII of the Land Act, (Approval of Dealings). apply to dealings in land registered under this Part, except for transactions between the Incorporated Land Group and its members, corporate or unincorporated.
(2)	The grant of a mortgage or charge of land is regulated by terms and conditions contained in Section 23.

23.	The final provision which I think is relevant is section 32 of the LRA.  It states, and I read in part:

32.	Description of certain persons as proprietor.
Where an instrument of title—
(a)	describes a person as the proprietor of an estate or interest; or
(b)	indicates, by any other form of words, that a named person is seized of, or entitled to, or has taken, an estate or interest,
that person is the registered proprietor of the estate or interest.

24.	When I consider all that and when I take into account the fact that the respondent ILG has a current Certificate of Title which was issued over the land, it simply means, in my view, that the respondent ILG, namely, Lamus Incorporated Land Group, has a valid instrument of title that is recognised under section 32 of the LRA.  The land, in my view, would be regarded as registered customary land whose interest is recognised under the LRA with special applicable provisions that are stipulated therein (i.e., in the LRA) that governs the interest that is bestowed in the title.  With these, I do not find any substantial error committed by the trial Magistrate in her ruling.  I think the only notable error which is not significant, would be her worship’s description of the land as a State Lease.  This reference, in my view, is or can be misleading.  The correct reference to the land in my view should have been described as, a registered customary land, or lease, or a registered interest, or a registered instrument of title.  These descriptions of course are not exhaustive.

SUMMARY

25.	In the end, I will refuse the relief sought in this appeal.  I will dismiss the appeal and confirm the final orders of the trial Magistrate made on 26 June 2018.

COST

26.	I will order cost to follow the event.  Cost of the appeal will therefore be awarded to the respondent on a party/party basis which may be taxed of not agreed.

THE ORDERS OF THE COURT

27.	I will make the following orders:

1.	The appeal herein is refused.

2.	The appellants shall pay the cost of the appeal on a party/party basis which may be taxed if not agreed.

3.	Time for entry of these orders is abridged to the date of settlement by the Registrar of the National Court which shall take place forthwith.

The Court orders accordingly.

__________________________________________________________
Namani & Associates Lawyers: 	Lawyers for the Appellants
Edward Wamp Lawyers: Lawyers for the Respondent