DC389

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 238 OF 2003

BETWEEN

Andrew Ogil Chief Executive Officer for Office of Civil Aviation
First Complainant

Rovo Some – Manager – Mt.Hagen Airport
Second Complainant

Francis Damien Attorney General for the State
Third Complainant

V

Thomas Kapal
Defendant

2004: 27th February, 25th March
Mt. Hagen: Appa, Principal Magistrate

JUDGEMENT

This is a Summary Ejectment proceeding – Purpose of Summary Ejectment Act – whether or not a National Executive Council decision prevails over an Act of Parliament – Compliance with Land Act procedures or lease.

Case cited
Herman Gawi –vs- PNG Ready Mixed Concrete [1984] PNGLR 78 Followed.

Counsel
Ms. Tindiwi for the Complainant
T. Palme for the Defendant

25th March 2004.

APPA, PM. The complainants instituted this eviction proceeding to evict defendant from a house or property described as residence 04, section 33, allotment 04 situated near the Mt. Hagen General Hospital.

The complainant’s case was that the resident concerned had always been an institutional house for the Civil Aviation Department since colonial times and was recognized by the National Executive Council decision of 13/82 but defendant unlawfully took possession of it. The complainant rebutted defence arguments that the actions taken by the National Housing Corporation (NHC) to sell the property was against the NEC decision. No case authority was cited, perhaps there is none on hand.

Defence put up arguments that the property in issue belongs to the NHC with the title and it had the legal right to sell it. On the NEC decision, defence argued that the latest introduction of the Land Act of 1996 superseded that NEC decision of 1982.

Courts findings after considering the arguments from both parties are that the NHC had exercised its ownership right to sell the property to the defendant and they have entered into a contract of sale whereby the defendant had paid the 10% deposit and is in the process of completing the payment to get the title from the NHC. The complainant therefore has sufficient interest in the property.

The other observation was that if there was any dispute as to the title or ownership of the property, the NHC would have been made a party to the proceeding since they (NHC) have legal standing, not the complainants. The purpose of the Summary Ejectment Act is to protect and provide quick remedy to one that has the title to a property. The case of Herman Gavi –v- PNG Ready Mixed Concrete [1984] PNGLR 78 is on the point. 

Also in the court’s view, the defendant comes with clean hands as an approved purchaser of the property after complying with statutory procedures (equity).

On those considerations the proceeding is dismissed with cost.

Solicitor General Officer: Complainant
Kunai & Co. Lawyers: Defendant