Evodia v Terifax Plantation Ltd [2019] PGNC 467; N8286 (18 November 2019)

N8286

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA 121 OF 2016

BETWEEN:
MONICA EVODIA & ORS
Appellants

AND:
TERIFAX PLANTATION LIMITED
Respondent

Kavieng: Kangwia J
2019: 03^rd September 18^th November

PRACTICE AND PROCEDURE -Appeal against District Court decision to evict Appellants under Summary ejectment Act – Issue of customary land ownership relied on by Appellants – Customary Land ownership not in issue - Magistrate accepted Land title held by Respondents under a lease in “fee simple” – Opposing views of surveyors conflicting

Held

Magistrate did not err in deciding the Respondents as owners of the land - Appeal dismissed and District Court Orders affirmed.

Counsel:

M. Titus, for the Appellants
V. Maraleu, for the Respondent

18^th November, 2019

1. KANGWIA J: This is an appeal seeking to quash a decision of the District Court made on 15^th September 2016 which orders are as follows verbatim:

1. The Defendants, agents, clan members and any others are given one month to give possession and vacate the property.
2. The Defendants, relatives, clan members, agents, servants and others are restrained from entering the property or using others to interfere with the caretakers and the workers currently residing on the property.
3. The Defendants, and relatives, agents or clan members agents are further restrained from interfering with the complainants and his agents and employees’ rights to quiet enjoyment of the property.
4. The portion of land now occupied by the Defendants belongs to Teripax Plantation as the Title Holder.
   

2. The Respondents contended that the District Court decision should remain and be enforced.

3. From material contained in the appeal book and from submissions of counsel the undisputed facts seem to be these;

The Respondents commenced proceedings under the Summary Ejectment Act to have the Appellants vacate the land named as Tongalabu Plantation or portion 458 on Tanga Island. The Appellants claimed that they were residents on customary land which was outside the boundary of portion 458.

The District Court ruled in favour of the Respondents and made the orders the subject of this appeal.

3. The grounds of appeal are as follows;

1. Her worship erred in Law in dealing with the complaint when the matter involved issues of ownership of land.
2. Her worship erred in Law and Fact when she failed to consider the surveyors report provided by the Defendants.
3. Her worship erred in Law and Fact when she found that the Defendants encroached upon the Complainant’s land when they were in fact living outside the boundary on customary land.
4. The Learned Magistrate erred in Law when she failed to disqualify herself from dealing with the matter when there was apprehension of bias against her.
   

4. From the grounds of appeal three issues arise for determination. Grounds 2 and 3 are dealt with together as they relate to the learned Magistrates consideration of evidence and the conclusions reached therefrom.

1. Whether the proceedings involved issues of land ownership.
   

5. The Appellant’s submitted that the Learned Magistrate erred by not calling evidence that clearly demarcated or in the event that there was a dispute as to boundary by calling both surveyors to explain why both surveyors with the same training and vast experience gave conflicting evidence.
They submitted that the surveyor’s reports did not confirm whether the appellants and their activities occurred on the Respondents “Tongatabu” land or outside the plantation land.

6. The Respondents contended that the Learned Magistrate did not err as she had jurisdiction to deal with the claim under the Summary Ejectment Act for recovery from unlawful possession of the land. They further submitted that the Respondent was the titleholder and ownership of the land was not in issue.

7. It is obvious from the information on record and from the decision of the District Court that land ownership whether customary or otherwise was not in issue.

8. It is undisputed that the portion of land under Portion 458 is owned by the Respondent under a title in fee simple. It is also undisputed that the Respondent pursuant to the Summary Ejectment Act sought vacant possession of Portion 458 for which they had title over. Under those circumstances the Learned Magistrate had jurisdiction under the Summary Ejectment Act to make the orders it made. The Learned Magistrate made no error as ownership to land was not in issue.

2. Whether the Learned magistrate erred in the consideration of the evidence and the conclusions reached therefrom.
   

1. As to the ground of failing to consider the surveyor report provided by the Appellants, the records compiled in the appeal book shows that both parties called evidence and relied on affidavits tendered. The Court also required an inspection report by a surveyor to verify the boundaries as per the survey plan.
   

The Appellants engaged one Michael Luruam who is a surveyor of Island Surveyor Services to further confirm the boundary pegs which separated portion 458 and customary land. His written report of his inspection report dated 26 August 2016 made the following observations;

1. Original cement pegs were found on the middle of the 20-meter road reserve.
2. The portion of area the Bungutua clan is claiming is from the middle of the 20-meter road reserve. That is the starting point of the plantation so the plantation is on the northern side of the road reserve.

100. This is a very clear indication that from the 20-meter road reserve to the beach is the customary land which he later deposed in his affidavit as 300 meters in distance.

4. He knew of no other part of the plantation the other party was intruding into.
5. The land the Bungutua clan is claiming is rightfully their customary land.
   

9. The Respondents engaged one Peter Lanovene a surveyor with Lano Surveys who in a written report of his inspection of Portion 458 on the 4^th and 5^th July 2016, made the following observation:

1. Old survey marks were located on the south east and south west boundaries which confirmed with survey information shown on the survey plan of this plantation. The southern boundary as definitely along the shoreline.
2. A clearing by the other party (referring to the Appellants) to indicate their land boundary which was inside the plantation and the land claimed to be theirs as shown on the survey plan.

100. The survey plan clearly shows no customary land within this plantation as indicated with the vinculum on both sides of the 20m road thus the southern portion of the land is still part of portion 458 -Tongalabu plantation.
     

10. From the surveyor’s observations referred to it is also obvious that the two professional surveyors made conflicting and opposing observations and statements to the Court. The surveyor engaged by the Appellants made observations favourable to the Appellants. The surveyor engaged by the Respondent made observations favourable to the Respondent.

11. Under such situation where opposing evidence before the Court is equal a Magistrate in the exercise of discretion is entitled to accept relevant evidence or reject evidence that is not so relevant.

12. In the District Court decision, the Learned Magistrate relied on the information in the title deed to hold that Kolonubu road was not the border but inside the plantation land.

13. According to the title deed the Kolonubu road was excluded from the land delineated. The Learned Magistrate also relied on the encumbrances set out in the title deed which obligated the titleholder to allow persons to use the foreshore for fishing, roads and landing places etc.

14. Her reliance on the information in the title deed was further affirmed in the report by surveyor Peter Lanovene. It is therefore obvious that the Learned Magistrate accepted the survey report by Surveyor Peter Lanovene as an independent report and not the report by the Appellants Surveyor.

15. From the information before the Court the Learned Magistrate appropriately reached the conclusion that the Appellants were within the boundaries of the Respondent’s land and issued the orders to give vacant possession of the land to the Respondents.

16. The Learned Magistrate did not err in the consideration of the matters before her and the conclusions reached therefrom.

3. Whether the learned Magistrate erred in failing to disqualify herself from dealing with the matter on apprehension of bias.
   

17. This ground was not pursued by the Appellants at trial and is considered as abandoned.

18. In view of the above considerations the following orders are made:

1. The appeal is dismissed in its entirety.
2. The decision by the District Court dated 15 September 2016 is affirmed.
3. Each party shall bear their own costs.

______________________________________________________________
Titus Lawyers: Lawyers for the Appellants
Maraleu Lawyers: Lawyers for the Respondents