Solomon v Kipakap [2022] PGNC 532; N10040 (11 November 2022)

N10040

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 13 OF 2021

BETWEEN:

PETER SOLOMON HIS RELATIVES AND ALL OCCUPANTS OF ALLOTMENT 7, SECTION 100, HOHOLA (GORDONS) PORT MORESBY, NATIONAL CAPITAL DISTRICT
- Appellant-

AND:

EPEN KIPAKAP
-Respondent-

Waigani: Tamade AJ
2022: 15^th July; 11^th November

APPEAL – District Court – appeal challenging eviction orders – District Court has no jurisdiction in cases where title to land is bona fide in dispute – indefeasibility of title – Land Registration Act, Section 33 – Appellant failed to challenge title – Respondent has clear title – appeal dismissed.

Cases Cited:
PNG Ready Mixed Concrete Pty Ltd v PNG & Ors [1981] PNGLR 396
Yandu v Waiyu [2005] PGNC 66; N2894 (7 October 2005)
Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74

Counsel:
Mr. Emmanuel Elison, for the Appellants
Mr. Jacob Kumbu, for the Respondent

11^th November, 2022

1. TAMADE AJ: This is an appeal on the decision of the District Court made on 4 May 2021 that the Appellants remove all structures and fixtures on the subject property described as Allotment 7 Section 100 Hohola (Gordons) Port Moresby, National Capital District and vacate the property. The eviction proceedings were filed and granted pursuant to the Summary Ejectment Act. In default of the Orders of the District Court, the District Court ordered that a Warrant of Possession shall be issued to give vacant possession to the Respondent.

2. The Appellants, therefore, argue that the decision of the District Court is in error as the Magistrate had already come to a conclusion on the matter before hearing the parties make submissions on the matter. The Appellants also argue that the Respondent did not plead the correct jurisdiction of the Court when seeking the final orders. The other grounds of appeal are in relation to the transfer of the property to the Respondent as the Appellants claim that the initial title was vested with a Lawrence Solomon however the alleged transfer was between a James Solomon to the Respondent. The Appellants allege that they have lodged complaints with the Police that the transfer of the subject property from Lawrence Solomon to James Solomon was unlawful however the Court did not take this into consideration.

3. The other grounds for appeal challenges the title held by the Respondent as the Appellants state the title held at the Land Titles Office still has the name of Lawrence Solomon on the register and not the name of the Respondent. The Appellants essentially claim that the title of the subject land is bona fide in dispute and that the Appellants have taken legal steps to challenge the title by reporting the matter to the police however the District Court erred in not taking this into account and granting the orders for eviction.

4. Mr. Kumbu of the Respondent however has objected to the appeal that all the Appellants have not given their consent to file this appeal and that the Appellants have not taken any formal legal step to challenge the title held by the Respondent. The Respondent also states that the Appellant has failed to pay the sum of K500 as the Recognizance Fee as set by the District Court Magistrate on appeal. On 7 April 2022, the Court ordered that the Appellant pay a security of costs payment of K3000 into the National Court Trust Account before the hearing date of 3 May 2022, however, the Appellants have failed to pay the same. The Respondent also argues that based on evidence, the Appellants have since vacated the property and therefore these proceedings may be redundant.

5. At the outset, I am of the view that the fundamental issue in this matter is the standing of the Appellants. Have they had their names on the title to the subject land and or what is their legal interest in the subject land? If they have standing, the appeal has merits however if their interest is in so far as they have an equitable interest in squatting on the land, they are only entitled to a reasonable period of notice to give up possession of the land.^[1]

6. In the Appeal Book, the Affidavit of the Respondent states clearly that he is the title holder to the subject property having purchased the property from a Mr. James Solomon at a purchase price of K500 000. The title of the property was transferred to the Respondent on 14 December 2020 however the Respondent could not have full enjoyment of the property as the Appellants were still residing on the property and therefore, he took out eviction proceedings in the District Court. Upon enquiry with counsels at the hearing of the matter, counsels confirmed that there is no relation between James Solomon and Peter Solomon the lead Appellant.

7. Peter Solomon the lead Appellant however states in Affidavit evidence in the District Court as found in the Appeal Book that he and his family have been residing on the property since 1984. He states that his late brother Lawrence Solomon was the registered proprietor of the subject property but has since passed away on 18 March 1984. Following the death of his brother, Peter Solomon moved on to the property with his family. Peter Solomon states that his late brother had a mortgage with PNG Banking Corporation then and following his death, Peter Solomon took on the responsibility of paying the mortgage. He later liaised with the Public Curator’s Office to obtain Letters of Administration over his late brother’s estate however on 19 March 2019, he was informed that the file for his late brother’s estate had gone missing. Peter Solomon therefore claims that the title copy of the subject land held by the Respondent is different to the title copy held by the Department of Lands & Physical Planning and alleges some form of fraud in my view as against the Respondent. What is clear is that since the passing of Peter Solomon’s brother Lawrence Solomon in 1984, Peter Solomon never took any real step to obtain Letters of Administration through the Courts apart from waiting on the Office of the Public Curator.

8. I am of the view that Peter Solomon can only challenge the title held by the Respondent if he has standing, standing means the capacity that places him in direct link to the property. If there is a finding that there was fraud perpetuated from obtaining the said title by the Respondent, the title would resort to him. In this case, Peter Solomon is not even in the picture. He is a squatter on the land and has no legal interest that connects him to his brother as he has no Letters of Administration that shows that he is in charge of his brother’s estate. Even if Peter Solomon has taken a distinct legal step to challenge or disturb the title, he is still a legal stranger in my view to the property as he has no legal standing and has taken no step since 1984 to acquire legal standing through Letters of Administration over his brother’s estate.

9. In the case of Yandu v Waiyu^[2], Justice Cannings in that case on an appeal from eviction proceedings in the District Court held that;

(1) The District Court has no jurisdiction in cases where the title to land is bona fide in dispute.

(2) If the registered proprietor of a State Lease commences proceedings in the District Court to enforce their interest in land there is no bona fide dispute about title to the land unless some other person demonstrates that they have taken some distinct, formal, legal step to disturb that title.

(3) Proceedings under the Summary Ejectment Act are intended to provide a quick remedy to people who have a clear title to premises. Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74 applied.

(4) In circumstances where a person was the registered proprietor of a State Lease and no formal steps had been taken to disturb that title, there was no bona fide dispute and the District Court could make orders under the Summary Ejectment Act

10. I find that the Appellant has not taken any legal step to challenge the title held by the Respondent. I am of the view that lodging a complaint to the police in regard to the title held by the Respondent falls short of the appropriate legal step as I am of the view it has to be a proceeding in the National Court challenging the title pursuant to section 33(1) of the Land Registration Act that the Respondent’s interest in the land is tainted with fraud or he has obtained it fraudulently and therefore he does not hold an indefeasible title. It follows that there is no bona fide dispute to the title in this case.

11. Having read the decision of the District Court, I find no error on the decision on the merits of the matter as the District Court was satisfied with the evidence presented by the Respondent that he held a clear title and the Court also found that there was no formal legal step taken by the Appellants to challenge the title held by the Respondent.

12. The District Court also found that there was no Will or Letters of Administration granted to the Appellants that will challenge allegations on the indefeasibility of title held by the Respondent.

13. I find no error on the decision of the District Court in relation to this appeal.

14. I will dismiss this appeal on the basis that there is no error on the decision of the District Court in my view and that the Appellants have no standing at all to challenge the title held by the Respondent and there is no bona fide dispute as to the title held by the Respondent.

15. Regarding the objections raised by Mr. Kumbu, I have heard submissions

by Mr. Elison for the Appellants that due to financial constraints, the Appellants have not fully complied with the Orders of the Court in paying the full security of costs into the National Court Trust Account and it is not necessary to compel them to do so as the appeal has now been concluded. The security for costs in the sum of K1 500 as deposed to in the Affidavit of Mathew Wenge filed on 2 June 2022 and paid into the National Court Trust Account shall be paid to the Respondent forthwith.

16. As to Mr. Kumbu’s objections regarding the consent of other Appellants to file this appeal, I am of the view that the lead Appellant Peter Solomon has been heard, and the points of objection by Mr. Kumbu as to the consent of other Appellants to lodge the appeal are now water under the bridge.

17. The Court, therefore, makes the following orders:

1. This appeal is dismissed.
2. The security for costs in the sum of K1 500 paid into the National Court Trust Account by the Appellants shall be paid to the Respondent forthwith.
3. The Appellants shall pay the balance of K1 500 as security for costs to the Respondent within twenty-one (21) days from the date of these Orders.
   

Orders accordingly.

Luther Lawyers: Lawyers for the Appellants

Jacob Sanga Lawyers: Lawyers for the Respondent

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^[1] Png Ready Mixed Concrete Pty Ltd v PNG & Ors [1981] PNGLR 396.
^[2] [2005] PGNC 66; N2894 (7 October 2005)