New Ireland Enterprises Ltd (1-564) v Salo [2020] PGNC 479; N8830 (7 December 2020)

N8830

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 230 OF 2020

BETWEEN:
NEW IRELAND ENTERPRISES LIMITED (1-564)
Plaintiff

AND:
MATTHEW SALO AND 25 OTHERS WHOSE NAMES APPEAR IN THE SCHDULE ATTACHED TO THIS ORIGINATING SUMMONS WHO ARE THE OCCUPANTS OF KASELOK EXTENDED, BEING PORTION 858, MILINCH BALGAI, FOURMIL OF KAVIENG, NEW IRELAND PROVINCE
Defendants

Kokopo: Suelip AJ
2020: 21^st October & 7^th December

CIVIL – Practice and procedure – application for vacant possession of land and for leave to issue writ of possession – plaintiff registered proprietor – defendants squatters on land – notice given to defendants to vacate in 2019 – no evidence from defendant – plaintiff has indefeasible title – no issue or challenge to title by defendants – defendants on land when state made law to return traditional land to traditional landowners – no evidence that defendants are traditional landowners – defendants say they have equitable rights – application granted

Papua New Guinea Cases

Paga Hill development Company (PNG) Ltd v. Daure Kisu & 5 ors [2012] N5683
Eric Kiso v. Bennie Otoa & anor (2013) SC1222

References

Summary Ejectment Act

Counsel

Florian Cherake, for the Plaintiff
Epita Paisat, for the Defendants

RULING

7^th December, 2020

1. SUELIP AJ: This is a decision on whether a registered proprietor should be given vacant possession of its land.

2. The plaintiff seeks in its Originating Summons filed on 30 July 2020 the following relief pursuant to Order 4 Rule 26 of the National Court Rules:

(i) An Order for vacant possession of the land known as Keselok Extended, Portion 858, Milinch of Balgai, Fourmil of Kavieng, New Ireland Province being the whole of the land contained in Register Book Volume 10, Folio 56 (“land”).

(ii) Leave pursuant to Order 13, Rule 3, National Court Rules be granted to issue a Writ of Possession within 45 days of the date hereof.

(iii) An order that the defendants pay the plaintiff’s cost and interest pursuant to statute.

(iv) An order that time of entry of these Orders be abridged to the date of this Order.

(v) Such further or other orders as the Court deems fit.

Facts

3. The plaintiff is the registered proprietor of the land.

4. The plaintiff’s agents in Kavieng conducted an inspection of the land and confirmed that there are approximately twenty-six persons currently occupying the land and gardening there without the consent or authorization of the plaintiff.

5. The plaintiff’s agents attended at the property in August and September 2019 and served most, if not all persons who are in occupation of the plaintiff’s property, with a Notice for Eviction.

6. Pursuant to a signed Contract of Sale between the plaintiff as Vendor and Nimamar Capital Limited as Purchaser, the plaintiff has agreed to transfer ownership of land to the purchaser. However, it is a precondition before settlement that the plaintiff gives vacant possession of the land upon settlement. Thus, the reason for the plaintiff to seek an order for vacant possession and the other orders.

Issues

7. Whether an order for vacant possession of the land should be granted to the plaintiff and for leave to issue a writ of possession within 45 days?

The law

8. Order 13 Rule 3 of the National Court Rules provides:

3. Possession of land (42/4)

(1) A judgement for possession of land may be enforced by one or more of the following means–

(a) writ of possession in Form 53; or

(b) in a case in which Rule 6 applies, but subject to Rule 8–

(i) committal; and

(ii) sequestration.

(2) A writ of possession to enforce a judgement for possession of land shall not be issued without the leave of the Court;

(3) A person may move for leave for the purposes of this Rule without filing or serving notice of the motion.

(4) The Court may grant leave for the purposes of this Rule on terms.

(5) An applicant for leave for the issue of a writ of possession must show who was in occupation of each part of the land at the time of the commencement of the proceedings and who has been served with notice under Order 4 Rule 14.

(6) Where a person is, on the date of commencement of proceedings for possession of land, in occupation of the whole or any part of the land and he is not a party to the proceedings and notice under Order 4 Rule 14 is not served on him, the Court shall, when giving leave for the issue of a writ of possession, direct that the writ be restricted so as not to authorize disturbance of the occupation of that person.

(7) A writ of possession may include provision for enforcing the payment of money required to be paid by the judgement to be enforced by the writ.

Plaintiff’s arguments

9. The plaintiff submits that it has clear title and is the registered proprietor of the land and is entitled to vacant possession. It submits that a Certificate of Title dated 21 December 1936 transferred the land from one, Enid Gladys Saunders to the plaintiff on 1 June 1960. A copy of the title is in the plaintiff’s evidence. As such, the plaintiff says it has an indefeasible title to the land and the defendants do not have a better or indeed, any title. See Eric Kiso v. Bennie Otoa & anor (2013) SC1222.

10. The plaintiff says further that the first notice to vacate was served on the defendants in a letter dated 21 August 2019. A copy of that letter is in evidence. The date of the letter is not legible, but the plaintiff says it is dated 21 August 2020. Then on 30 July 2020, the plaintiff filed a Notice of Claim for Possession and thereafter, served a copy on all the defendants.

11. The plaintiff is now seeking an order for vacant possession of the land and for leave to issue a Writ of Possession within 45 days.

Defendant’s arguments

12. The defendants did not file any affidavit material and presented oral arguments from the bar table. First, they say that the correct mode of proceeding for the plaintiff is through the Summary Ejectment Act at the District Court, not here. They deny that the initial notice to vacate was given to them. They also submit that they have an equitable right to be on the land. They submit that the plaintiff is only asking for possession of land because of the contract of sale, which they say is undated and conditional.

13. The defendants further argue that pursuant to Order 13 rule 3, the plaintiff is trying to enforce a judgment it does not have.

14. When asked by the Court as to how the defendants are squatting on the plaintiff’s land, counsel said the State passed a law for traditional land to be given back to traditional landowners and that was how they came onto the land. Counsel did not produce a copy or cite the legislation. Further, the defendants do not say whether they are the traditional landowners.

Analysis of arguments

15. Let us start with the jurisdiction of this Court in determining such application. The defendants say the correct mode is to institute summary ejectment proceedings at the District Court, not at the National Court. The plaintiff argues that the National Court is also an appropriate forum to deal with such application. The jurisdictional basis of the plaintiff’s application is Order 4 rule 26 and Order 13 rule 3 of the National Court Rules.

16. I agree with the defendants’ counsel that Order 13 rule 3 can only be used to enforce a judgment. However, the plaintiff is asking for an order for vacant possession as the first relief it is seeking. If the order or judgment for vacant possession of the land is granted to the plaintiff, then the second relief the plaintiff is seeking is to ask leave of the Court to issue a writ of possession of land pursuant to Order 13 rule 3 which is in order. See Paga Hill Development Company (PNG) Ltd v. Daure Kisu & 5 ors [2012] N5683. This Court therefore has jurisdiction to determine this claim.

17. There is undisputed evidence that the plaintiff is the registered proprietor of the land and therefore holds indefeasible title to the land. This title is not challenged by the defendants, whether because of fraud or otherwise.

18. The defendants’ say they have equitable rights on the land but there is no evidence from them to show that they possess any such right or what they may have built on the land. They also say they are on the land as a result of the State giving traditional land back to the traditional owners but they do not show any evidence that they are the traditional owners or otherwise. Therefore, there is no evidence from the defendants to prove they have equitable rights on the land.

19. Further, even if the defendants have an equitable right, such a right does not defeat and is not superior to a legal right, a right conferred by statute, which is what the plaintiff has.

20. There is evidence that the plaintiff gave notice to the defendants in August or September 2019 to give vacant possession of the land before this proceeding was filed in July 2020.

21. For the above reasons, I am satisfied that the plaintiff is entitled to the relief that it seeks.

22. In determining the amount of time to be given to the defendants to vacate the property, in my view, the plaintiff’s calculation of 45 days is reasonable.

Orders

23. The Court orders that:

(a) The defendants shall give vacant possession of the land known as Keselok Extended, Portion 858, Milinch of Balgai, Fourmil of Kavieng, New Ireland Province being the whole of the land contained in Register Book Volume 10, Folio 56, to the plaintiff within 45 days from today.

(b) Leave is granted to the plaintiff to issue a Writ of Possession within 45 days from today.

(c) The defendants shall pay the plaintiff’s costs of and incidental to this proceeding on a party/party basis to be taxed if not agreed.

(c) The time of entry of these Orders is abridged to the date of settlement of this Order by the Assistant Registrar which shall take place forthwith.

________________________________________________________________
Cherake Lawyers: Lawyers for the Plaintiffs
Paisat Lawyers: Lawyers for the Defendants