DC187

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 2745 OF 99

BETWEEN

Hi-Lift Company Pty Limited
Complainant

V

Miri Setae
First Defendant

State of Papua New Guinea
Second Defendant

Mr. Iova S. Geita
Dated: 29th May, 9 June 2000

Counsels
Stephen Kassman for Complainant
Joseph Kais for 1st & 2nd Defendants

REASONS FOR DECISION

GEITA.I.S. - This is a proceeding in which the Complainant seeks to recover possession of property known as Portion 2413 Milinch Granville Flourmill Moresby (Konedobu) and being the whole of the land contained in State Lease Volume 20 Folio 85. The Complainant is the registered proprietor of the land pursuant to a State Lease under Section 92 of the land Act Chapter 185 on 9th July 1998.

The brief facts are these:

On 27th August 1993 the Complainant was granted title by the former Land Administration to a portion of land in Waigani known as Allotment 14 Section 38, Hohola. Unbeknown to the Lands Department the same portion of land was granted earlier to Tabudubu Pty Limited, hence a situation of double allocation surfaced.

The title issued to Hi-Lift Pty Limited was recalled by the current Land Administration with a view to resolving these administrative bungling.

As it turned out on, 8th July 1998 the Complainant Company was granted lease and title over the portion of land now in dispute. The Complainant has since demand that rent be paid by the defendant to it. Presumably having received no response they have resorted to evict the defendants from the property by use of Summary Ejectment procedures.

Defence Counsel in opposing the complaint deposed that the Department of Agriculture and Livestock had a legitimate interest, which was still current and valid for all purposes. They maintained that the said land had been a Public Institutions zone since Independence date. The Department of Agriculture & Livestock had occupied the land since 1985 and still had buildings on it.

Counsel submitted that the whole of the land was 0.2618 bigger than the Hohola grant. Attempts to negotiate with the complainant to forgo these portions now occupied by the Defendants have proven unsuccessful.

Defence Counsel contended that the lease granted in 1998 was or made pursuant to the repealed Land Act Chapter No.185, which was already repealed by the current Land Act Chapter No.45 of 1996. He said the lease in effect derived its validity from the repealed legislation. Thus rendering the lease invalid.

Counsel argued that the title granted to Hi Lift Pty Ltd on 8th July 1998 contained grave crippling defects which render the said entire lease and title void ab intio thus invalid and of no use to anyone.

In response Complainant's Counsel invited the Court to rely on 8.3 & 8.180 of the Land Act to find for its client.

S.3. Application of Act to interests under repealed Land Act.

"Except where the contrary intention appears this act applies to agent, granted application, lease, licence, permit, estate, agent, title, interest, power, duty, obligation or liability granted under a Repealed Land Act. "

S.180. References to Repealed Acts.

"A reference in any Act, regulation, rule, by-law, instrument or document to a Act repealed by S.176, or any provision thereof, shall unless the contrary intention appears, be read and construed as a reference to this Act, or the law as pending provisions, if any, of this Act." -

I do not think it is necessary for me to go into the merits of that argument. I will give reasons later on in the decision.

The Defence Counsel has referred me to the unreported case of STC Vs. Garamut Enterprises Limited 08 552 of 1999 by Sheehan J. I agree with the Complainants Counsel that the facts of that case are not similar to the facts of the case. In that case the Court was asked to review the actions of an administrative tribunal.

I now turn to the relevant case authority touching on these issues. In the case of Gawi Vs. PNG Ready Mixed Concrete [1984] PNGLR McDermott J. at P.79 has this to say.

'"To establish the claim via the provisions of the Summary Ejectment Act (Ch.No.202) is in my view to misuse that Act. The remedy it is designed to give is a quick and efficient means of obtaining possession of premises, (and this on the authorities extends to land) from persons without any rights to possession. The whole procedure is designed to facilitate this. It is a matter for the claimant to show title, simply by producing a registered Certificate of Title or a registered lease and or producing evidence of adverse possession. If title is disputed, use of this Act is inappropriate." (emphasis mine)

In the case before me it is evident that title is in dispute. The Defendant is claiming that the title is void ab initio.

Clearly therefore the civil jurisdiction of this Court is brought into play here 8.21 (4) (f) District Court Act Chapter No. 40 reads:-

"A Court has no jurisdiction in the following cases: ... when the title to land is bona fide in dispute..."

I do not think that it is necessary for this Court to consider the complaint, as events have overtaken the dispute on the issue.

The proceedings are best taken before the National Court. S. 24 District Court Act Chapter No. 40 reads - Transfer of proceedings.

(1) 	Where proceedings have been commenced in a Court, the court m?-y, at any time before judgement, with or without an application from an interested person for that purpose, for reasons that shall be recorded, make an order staving the proceedings and, on such terms as to it seem just transferring the proceedings for hearing and determination by some other district Court or, if the proceedings are such that they could have been instituted before the National Court in the first instance, by the National Court. (emphasis mine)

The end result is that I make orders staying the proceedings and transfer the proceedings for hearing and determination by the National Court.

Order accordingly.

Steven Kassman: Complainant
Joseph Kais: Defendant