Philip v Tengere [2018] PGNC 81; N7125 (23 February 2018)

N7125
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 143 OF 2016

BETWEEN
OTTO PHILIP for himself and for and on behalf of natural members of Kaevaga Land Group Incorporated of Baruni Village, NCD
First Appellant

AND
ROMNEY TENGERE for himself and for and on behalf of natural members of Morata One New Block Association Incorporated of Morata One New Block, NCD
Second Appellant

AND
SIXTH ESTATE LIMITED
Respondent

Waigani: Makail, J
2018: 14^th & 23^rd February

APPEAL – Appeal from District Court – Summary ejectment proceedings – Ejectment of illegal squatters – Title to land – Validity of – Urban Development Lease – Term of five years – Expiry of – Subsequent grant of State Leases for residence (medium covenant) purpose – Whether bona fide dispute to title established – Land Act, 1996 – Sections 104 - 110 – Summary Ejectment Act – Section 6 – District Courts Act – Section 21(4)(f)

Cases cited:

Herman Gawi v. PNG Readymix Concrete Pty Ltd [1984] PNGLR 74
Peter Ngan v. Andrew Yai (2016) N6920
Tony Yandu v. Peter Waiyu (2005) N2894
Henry Kwan v. Collin Bining (2014) N5836
Jack Bande v. Godowan Investment Limited (2016) N6378
Ronald Napitalai v. William and Jila Toluana (2013) N5139
Ruth Don v. Comfort Tours and Travel Limited (2014) N5730
Jack Amu v. Joe Simbu & Kingiko Kokowa (2008) N3703

Counsel:

No appearance, for the First Appellant
Second Appellant, in person
Mr. S. Keteng, for the Respondent

JUDGMENT

23^rd February, 2018

1. MAKAIL, J: This is an appeal from a District Court summary ejectment proceeding where an order was made on 23^rd November 2016 to eject the appellants from a piece of land described as Portion 2733, Volume 43, Folio 53, Morata within seven days. It is about ejectment of illegal squatters.

2. There is no dispute that the second appellant Romney Tengere and others have been living on the piece of land for a long time, Mr Tengere alleged, 20 to 30 years. At one stage, the second appellants alleged that it was customary land and with the consent and approval of the customary owners, the first appellant, Otto Philip and members of the Kaevaga Land Group Incorporated of Baruni village, they were allowed to occupy it.

3. They also alleged fraud being perpetrated on the title by the respondent by way of National Court Judicial Review proceedings, OS (JR) No. 589 of 2013. That proceeding was dismissed at the leave stage by Gavara-Nanu J on 25^th April 2014.

4. The question of whether the land was customarily owned was brought by both appellants to Court in a fresh proceeding by way of a writ of summons in proceedings styled, WS. No. 767 of 2014 against the respondent, the Secretary for Department of Lands and Physical Planning and the State. That proceeding was also dismissed on 18^th June 2015 by Sakora J for being an abuse of process.

5. The first appellant appealed that decision in SCA No. 77 of 2015. That appeal was dismissed with costs by the Supreme Court on 12^th August 2016. The second appellant asserted that the issue of customary ownership of the land has been referred to the Land Titles Commission to determine and is pending.

6. The second appellant contended that while that issue is still pending, it was wrong for the District Court to order their ejectment from the land. Importantly, the title which the respondent had produced and the District Court accepted had expired. It was an Urban Development Lease (UDL) granted on 26^th January 2011 for five years and expired on 25^th January 2016.
7. In effect, the District Court ignored Section 6 of the Summary Ejectment Act which required proof of title before it can make an order for ejectment. In this case, the UDL had expired prior to the ejectment order of 23^rd November 2016.

8. But according to the respondent, this is all misconceived. By virtue of the provisions of the Land Act, Sections 104-110, the UDL was issued for a period of five years for the purpose of the respondent developing it. As it was a big piece of land, about 53.55 ha according to the second appellant, it needed to be subdivided and converted into numerous allotments for residential and amenities purposes. Accordingly, it was subdivided and new State Leases were granted.

9. Based on the first and second grounds of appeal, the appellants alleged that first, the matter was listed on 23^rd November for mention and they had requested for an adjournment in order to respond to the complaint but it was refused. As a result, they were in no position to respond to the complaint.

10. Secondly, the District Court ignored their plea for adjournment, gave no consideration to their defence on the expiry and non-renewal of the UDL and proceeded to enter judgment against them even though their lawyer, Pac Oceania Lawyers had filed and served a notice of intention to defend and defence on 21^st November.

11. For these reasons, they alleged that the District Court denied them natural justice.

12. There is no dispute that the complaint and summons were served on the appellants. They were served on their lawyer, Pac Oceania Lawyers who were able to file and serve a notice of intention to defend and a defence in time before parties turned up to Court on 23^rd November.

13. It would appear, though, that the time between service of the complaint and summons and the date for mention/hearing was short and may support a case for the appellants that they were not given enough time to respond to the allegation of illegal squatting. But that is the very nature of a summary ejectment proceeding under Section 6 of the Summary Ejectment Act.

14. It is a quick remedy to an owner who has clear title to land or premises: see Herman Gawi v. PNG Readymix Concrete Pty Ltd [1984] PNGLR 74 which was cited with approval in Peter Ngan v. Andrew Yai (2016) N6920. Compare these cases to Tony Yandu v. Peter Waiyu (2005) N2894 and Henry Kwan v. Collin Bining (2014) N5836 where it is suggested that breach of natural justice may be a ground to set aside an ejectment order.

15. Be that as it may, the real issue is whether the respondent had clear title to the subject land which an ejectment order was granted.

16. If a complainant is able to produce evidence of clear title, it is open to the Court to grant an ejectment order. In this case, the respondent claimed that it is the owner of the land. It produced a State lease for UDL granted to it on 28^th January 2011 for a period of five years. The expiry date was 25^th January 2016. By the time the summary ejectment proceeding was instituted on 18^th October 2016, the UDL had expired.

17. The Court resolved the issue of expiry of the UDL in this way at [35] of its written decision:

“The lease is subject to renewal and expiry of the lease is a matter for the complainant and Registrar of Titles. If the defendants raised the issue of the lease being expired is a matter for the National Court and they have not filed any proceedings at the National Court to challenge the validity of the title at the time of the District Court proceedings.”

18. In my view, the appellants were entitled to challenge the validity of the title of the respondent in the way they did. And contrary to the Court’s finding that the appellants had failed to file a defence, they did on 21^st November. Pursuant to paragraph 4 of the defence, they denied the allegation that the UDL was renewed after it had expired.

19. At the hearing of the appeal, the respondent did not deny that the UDL had expired on 25^th January, and the summary ejectment proceeding was commenced after the UDL expired. But it argued that the UDL was superseded by the grant of individual State Leases for residence (medium covenant) purpose on 6^th November 2012 for 99 years. It was granted these State Leases after it complied with all the statutory requirements and approvals for subdivision of the land under the Land Act. The UDL was subsequently surrendered and it was issued new State leases for 99 years.

20. The problem with this submission is that, there was no evidence of these individual State Leases produced before the District Court to support this assertion. All that the Managing Director of the respondent, Mr. Philip Mark Peters Paguk said in his affidavit in support was about the respondent’s success in defending the two National Court proceedings referred to earlier and Supreme Court appeal brought by the appellants.

21. The absence of the State leases leaves only the UDL before the District Court to consider. As the UDL had expired, it casts doubt as to the respondent’s claim of clear title. In Jack Bande v. Godowan Investment Limited (2016) N6378, the Court observed at [5] of the judgment that:

“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.”

22. But is the doubt enough to avert the Court’s discretion to order summary ejectment? Section 21(4)(f) of the District Courts Act provides that the District Court has no jurisdiction when title to land is bona fide in dispute.

23. Past decided cases such as Tony Yandu (supra), Ronald Napitalai v. William and Jila Toluana (2013) N5139 and Ruth Don v. Comfort Tours and Travel Limited (2014) N5730 established that there must be a bona fide dispute as to title. In order to prove that, the party must show that it has taken distinct, formal, legal step to challenge the title to avert the summary ejectment order under Section 6 of the Summary Ejectment Act. This is purely on jurisdictional grounds, that is, the District Court lacks jurisdiction to determine dispute as to title.

24. In this appeal, other than the assertion that the land is customarily owned and has been referred to the Land Titles Commission for determination, there is no evidence of distinct, formal, legal step being taken by the appellants to challenge the respondent’s title.

25. Even the evidence of past challenges brought in the National Court and the Supreme Court no longer exists to prove a bona fide dispute as to title because those Court cases have been dismissed for various reasons. It would then be a case of the appellants failing to discharge the onus bestowed on them under Section 21(4)(f) of the District Courts Act.

26. Finally, since the respondent has produced State Leases and if they were considered by this Court, the appellants would be faced with multiple titles for the subdivided portions of land within the subject land granted to the respondent. Unless fraud is proved, which is, not the role of this Court in the exercise of its appellate jurisdiction, the State Leases are proof of the respondent’s title and must be upheld: see Jack Amu v. Joe Simbu & Kingiko Kokowa (2008) N3703.

27. In conclusion, even if the ground on expired UDL is upheld, the State Leases remained unchallenged and proof of the respondent’s title. I find that justice has not been miscarried. The appeal is dismissed with costs to the respondent, to be taxed, if not agreed.
_______________________________________________________________
Kandawalyn Lawyers: Lawyers for the Respondent