N8131

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 124 OF 2018

BETWEEN
UNITED REFORM CHURCH KADEBORO 
INCORPORATED
First Appellant

AND
TAUNA VAVIA, as the President of the 
United Reform Church Kadeboro Inc.
Second Appellant

AND
SIMON IUBU, as the Pastor of United Reform Church
Kadeboro Inc., Dagoda Village, Central Province
Third Appellant

AND
UNITED CHURCH OF PAPUA NEW GUINEA 
& THE SOLOMON ISLANDS
First Respondent

AND
REV. BERNARD SIAI, as Moderator of the
United Church of Papua New Guinea & the Chairman 
Of the United Church Property Board
Second Respondent

Waigani:  Thompson J
2019:   20th November 

Appeal from District Court Decision – Summary ejectment - District Court refusal to grant adjournment to enable evidence to be obtained for defence – exercise of discretion

Counsel:

Mr E. Waifaf, for the Appellant
Mr D. Uyassi, for the Respondent
20th November, 2019

1.	THOMPSON J:	This is an Appeal against the decision of the District Court made on 21 November 2018, whereby the Court granted the Respondents’ Application to evict the Appellants, pursuant to S6 of the Summary Ejectment Act.
2.	That application for ejectment was made on the basis that the First Respondent was the registered proprietor of Portion 206 Dagoda Village, the Appellants were occupying part of that land, and so the Respondents were entitled to evict them.
3.	The case authorities are clear.  The District Court has jurisdiction under S21 of the District Court Act to determine applications for summary ejectment, except where the title is bona fide in dispute.  Here, there was no dispute as to title, only as to the boundary, and so the District Court had jurisdiction.
4.	In circumstances where the Appellants applied for an adjournment to enable them to produce evidence showing that they were not occupying the Respondents’ land, the Magistrate wrongly exercised his discretion to refuse an adjournment, by failing to attach sufficient weight to the relevance and necessity of that evidence, which was the entire basis of the Appellants’ defence.
5.	The Appellants have produced evidence in this Court, including a survey report, which shows that the area of land which is occupied by the new church and house, is not on Portion 206.  In fact, it is on the other side of the river, on what the Appellant say is customary land owned by their clan.  This was confirmed by the Respondents’ own survey report.
6.	Accordingly, if this evidence had been before the Magistrate, he would have been able to consider their defence, and would have been bound to come to the conclusion that the Appellants were not occupying the Respondents land on Portion 206, and so could not be evicted from that land.  He would have been bound to refuse the application for summary ejectment.
7.	I am satisfied that his decision therefore amounted to a substantial miscarriage of justice.
8.	Under S230 of the District Court Act, this Court has power to set aside the District Court Order, remit it back for hearing or make an order that the Court could have made.
9.	It would be an unnecessary expense for the parties to have to go back to the District Court for a fresh hearing on the summary ejectment.  I will therefore exercise my power to make an Order that the District Court could have made.
10.	On this point, the parties should note that this decision and the District Court proceedings, do not determine the issue of ownership of the new church building and house.  That issue remains to be determined.  If the Respondents claim ownership of those buildings, they will be entitled to issue the appropriate legal proceedings to determine ownership, if they are unable to reach agreement with the customary land owners of the land on which the buildings were built.
11.	At present, I am satisfied that the Appellants have shown that the Magistrate erred in refusing to grant an adjournment to enable them to produce the appropriate evidence to support their denial of unlawfully occupying the Respondents land.
12.	I am satisfied that the Appellants have produced sufficient evidence to show that they were not occupying the Respondents land on Portion 206, and so have a complete defence to an application for summary ejectment.
13.	I therefore make the following orders:
	(a)	The Appeal is upheld;
	(b)	The District Court Order made 21 November 2018 on CPDC No. 37 of 2018, is set aside;
	(b)	The application made by the Respondents to summarily eject 	the Appellants from Portion 206 Dagoda Village, is refused;
	(c)	Each party is to pay its own costs.
___________________________________________________________
Edward M Waifaf Lawyers: Lawyers for the Appellant
S. Uyassi Lawyers:  Lawyers for the Respondent