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Boinamo Enterprises Ltd v Kapi [2007] PGDC 4; DC504 (10 April 2007)

DC504

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

DCCi 17 OF 2006

BETWEEN

BOINAMO ENTERPRISES LTD
Informant

AND

KONDES KAPI
Defendant

Lae: C Inkisopo
2007: 10 April

Case Cited
Herman Gawi –v-PNG Ready Mixed Concrete (PNG) Pty Ltd [1984] PNGLR 74

References
District Courts Act: Sections 21 & 22 of the District Courts Act, Chapter 40

Summary Ejectment Act Chapter 202: proceedings under this Act available to persons with clear proof of title and not available to holders of titles that are in dispute nor to holders of rights or other interests short of a clear title

Counsel
Mr.G. Anis, (Gamoga & Co. Lawyers) For the Informant
Miss R.Yayabu, (Yayabu Lawyers) For the Defendant

April 10:2007

DECISION

C Inkisopo: The informant issued this proceeding against the defendant claiming “the Defendant was without right, title or licence being in possession of the Complainant’s land described as River Reserve at the end of Ngalung Street, Lae, Morobe Province. He therefore/accordingly seeks an eviction order to evict the Defendant from the land known as River Reserve at the end of Ngalung Street, Lae, Morobe Province pursuant to Section 6 of the Summary Ejectment Act. No 202 and that it be given possession of the said parcel of land forthwith.

2. The Informant in support of its claim relied upon the lone affidavit with Annexures of one Mario Cobuccio, the Managing Director of the Informant, sworn dated and filed April 10, 2006.

3. The Informant through it’s Managing Director Mr. Mario Cobuccio, in saying that it is an incorporated company involved in the building and related activities and based at Lae on property described more as Section 24, Allotments 1, 2, 3, 4 and 5 located near the Bumbu River side at Kamkumung.

4. In continued on to say that the Bumbu River was always flooding its banks as well as causing washouts that posed serious land slips causing further future problems for the Informant as its operation was near these flood zones.

5. As the Informant’s business primarily involved river gravel and sand in its business, and in view of the continued usages of the said Bumbu River, it applied for sub-division and re-zoning to the National Physical Planning Board for Re-zoning permission from Open Space (River Reserve) to a General Industrial Zone.The Informant produces copy of the approval by the National Physical Planning Board, which is annexed to Mr Cobuccio’s Affidavit and marked letter “A”.

6. The Provincial Land Advisor Mr. Lawrence Billy has sworn to an affidavit in which he basically agrees to the fact as disclosed from material on file in his office in relation to this particular piece of land that the Informant has applied for and has been granted approval for Sub-division and re-zoning under the Physical Planning Act, 1999. The Informant is confirmed to be the holder of a sub-division and re-zoning approval and no one else apart thereof.

7. Mr. Billy Lawrence concludes by saying that “the Informant is at liberty to file any action or proceedings against any persons that are in occupation of the said land without authority”.

8. The defendant in his evidence basically is saying that the Informant does not possess title to the said parcel of land to initiate this sort of action. He therefore denies the Informant’s claim to the said piece of land to initiate such actions under the provisions of the Summary Ejectment Act Chapter 202.

9. The Defendant filed affidavit material in his defence to the claim in which he claims that he is from Mt.Hagen, Western Highlands Province. He moved to the site in issue about ten (10) years ago (1995). He said he moved in there owing to his adoptive father (Sugar) from Milne Bay Province who had been living there for as far back as World War II (1942). By 1995, there were houses put up by Sugar with poultry houses inclusive. Sugar, Defendant says was already living on the site in issue long before informant moved in. Defendant said that he cleared the bushes and cleared the waste dump area of the Informant near Sugar’s house. He said that he cared for and was looking after Sugar until he died in April 2004. When he died Complainant through Mr. Cobuccio provided a coffin towards Sugar’s funeral and burial. Defendant led evidence to say that the Complainant knew of his forebear’s residence on the land until his death and his continued residence was no difference to his forebear, Sugar, whom Mr.Cobuccio knew personally to be residing on the particular plot of land.

10. Apart from the re-zoning approval granted to Informant Defendant contended that Informant possesses no proper legal title to the plot of land in issue to institute eviction process under the Summary Ejectment Act.

11. In essence, Defendant raises a serious legal issue that goes to the heart of this case and the Informant’s legal basis to initiate this eviction process under the Summary Ejectment Act Chapter 202.

The Law

Section 6 of the Summary Ejectment Act provides;-

(1) Where a person without right, title or licence is in possession of premises, the owner may make a complaint to a Magistrate of a District Court to recover possession of the premises, and the Magistrate may issue summons in the prescribed form to the person in illegal occupation.

(2) Where the person summoned under Section 5(1),

(a) does not appear before the District Court at the time named in the summons, or

(b) appears and does not show reasonable cause why possession should not be given.

The Court may on proof of the matter of the complaint, issue a warrant directed to a member of the Police Force requiring him on or before a day specified in the warrant.

(c) to enter by force and with assistance if necessary, into the premises, and

(d) to give possession of the premises to the Complainant.

12. The Informant in this case brings this process under section 6 of the Summary Ejectment Act to evict the Defendant from the subject property. The Courts in this jurisdiction have had occasions to deal with this question particularly in the oft-cited case of Herman Gawi –vs- png Ready Mixed Concrete (PNG) Pty Ltd [1984] PNGLR 74. That case concerned an application for eviction by png Ready Mixed Concrete of Mr. Gawi and others who were occupying a plot of vacant State land that the company had been granted as a State lease but with a formal State lease yet to issue at the time when it issued the eviction process.

13. In considering the case and giving its judicial opinion, the Supreme Court in the majority held (as appear in the head note) that;-

(1) “Proceedings for recovery of possession of land under the Summary Ejectment Act Chapter 202 are intended to provide a quick remedy to people who have a clear title to land or premises; they are not intended to be available where title to land is in dispute.(2) A judicial assumption for purposes of a hearing to determine occupiers rights that a party had a legal estate in the leasehold but without making a positive decision to that effect is not declaratory of the party’s right and is not evidence of clear title sufficient to found proceedings for recovery of land under the Summary Ejectment Act”.

14. In my humble view and on the basis of the discussions of the above case, I am of the view that eviction or ejectment processes of one by another must be based upon clear proof of lease title and not under any other rights that fall short of being a clear State lease title as the Court held in the above case that recovery of eviction processes under the Summary Ejectment Act are intended to provide a quick remedy to one who has a clear title to land or premises and they are not intended to be available where title to land is in dispute or not clear.

15. In the present case, the portion of land in issue is a river reserve. In formant brings proceedings under the Summary Ejectment Act arguing it alone has a right to its use and occupation to the exclusion of the Defendant on the grounds that it has been granted a planning and re-zoning approval by the National Physical Planning Board for re-zoning from open river reserve to one of industrial zone. It has shown before this Court proof of this approval but has not provided evidence of a clear lease and title to the subject portion of land from which it seeks to evict the Defendant. It is obvious that Informant does not posses a clear little to the portion of land in issue but a planning approval only.

16. Accordingly, in my humble view, the question I find myself asking is, “Is an ejectment proceeding under the Summary Ejectment Act available to persons who have approvals only for re-zoning and planning purposes so that holders of such approvals can take actions in protecting their exclusive use of the portion of land in issue to the exclusion of all others”?

17. In my humble view and based on the above discussions as propounded by the Supreme Court in the majority in the above Gawi –vs- PNG Ready Mixed (Supra) case, proceedings under the Summary Ejectment Act Chapter 202 are not available to persons who do not hold clear titles to land or premises in issue. In our instant case, it is abundantly clear that the Informant does not possess a clear title of State lease to the portion of land but only a planning and zoning approval.

18. Taking the argument a step further, could it be argued that out of the two (2) parties, who of them has more proximate and an immediate rights to the property to the exclusion of the other and it would seem abundantly clear that the Informant by virtue of the planning approval granted to it would seem to be the one having a more proximate right to deal with the land for planning purposes than the defendant. The Informant issues this process under the Summary Ejectment Act and so the question arises as to whether or not ejectment or eviction processes are available to persons who do not only possess clear titles to lands but possess only planning approvals short of a clear title. In my humble view, this question must settle on what the Supreme Court has said in the Gawi –vs- PNG Ready Mixed Concrete (supra) case as the only authority in this jurisdiction giving it the intent and meaning of the Summary Ejectment Act Chapter 202. This case authority in my humble view stands for the proposition that “proceedings for recovery of possession of land under the Summary Ejectment Act are intended to provide a fast remedy to people who have a clear title to land or premises, they are not intended to be available where title to land is in dispute”.

19. On the basis of the above discussions, I am of the humble view that an eviction order in this case is not available to the Informant as it has not demonstrated to this Court a clear proof of title to the subject portion of land in order to take avail of the provisions of the Summary Ejectment Act Chapter 202.

20. Accordingly, I have no option but to refuse this application.

21. On the question of costs, as it is a matter of judicial discretion. I order each party to bear its/his own costs of proceedings herein.

____________________________________________________________________________

Messrs Gamoga & Co. Lawyers, Lawyers for the Complainant
Yayabu Lawyers, Lawyers for the Defendant