DC856

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

DCCi 624 of 2008

BETWEEN

BEMU BEGA
Complainant

AND

ANDREW KOSEAUNG PUAPU
Defendant

Lae: C Inkisopo
2009: 29th January

Legislations:

Constitution of the Independent State of Papua New Guinea 
District Courts Act 1963, Chapter No.40 
Land Act 1996
Land Registration Act 1981

Cases cited:

Herman Gawi –vs- png ReadyMix Concrete (PNG) Pty Ltd [1984] PNGLR 84

Text Book referred:

Modern Equity by H G Hanbury [1969] Stevens & Sons Ltd, 9th edition

Counsel:

1. Mr. Emmanuel Mambei for Complainant
2. Mr. Maik Karu for Defendant

DECISION
C Inkisopo: Complainant comes to Court seeking a restraining order against the Defendant and to take possession of a certain property that he says had been properly allocated to him upon his application by the Department of Lands and Physical Planning. The subject property is described as Section 101, Allotment 3, Cassowary Road, City of Lae, Morobe Province. The property seems to me to be a new State land that has recently been subdivided and allocated section/lot numbers.

2. The Complaint filed by Complainant claims the Defendant to be without right, title, licence or permission being in possession and occupation of the Complainant’s property described as Section 101, Allotment 3, Cassowary Road, City of Lae, Morobe Province. He therefore comes to this Court seeking an order of the Court to regain immediate possession and occupation of the subject property and have the Defendant evicted.

3. Defendant in his formal defence filed and dated 18/09/08 denied the Complainant’s claim of right and says that the land is customary land and not a State land and that any purported “title” over the land is “defective”.

4. He further claims that the Complainant therefore had no rights whatsoever to gain any or immediate possession of the land. He also claims in his ‘Defence’ that the Complainant’s purported State lease title (if any) to the property was defective or flawed in that the State did not own the land, hence it did not own the subject land and as such it could not issue a good ‘title’ to the subject land to the Complainant or just about any one for that matter.

5. The Defendant therefore claims as against the Complainant the following;-

1. The subject land is customary land,

2. The said deed of title, if any issued or to be issued to Complainant is null and void and hence, complainant possesses no right to the property and accordingly, has no right to the relieves sought in these proceedings.

3. Defendant also seeks an order for costs to be granted in his favour.

6. Let me now begin by posing the question whether the Complainant was within his rights to come to this Court seeking the kind of redress he seeks from this Court.

7. In such causes of actions for recovery of property applications, the PNG case law authority of Herman Gawi –vs- png ReadyMix (PNG) Pty Ltd [1984] PNGLR84 stands for the proposition that actions to give or retake possession of properties by claimants are normally granted upon clear proofs of titles. They are not available to claims without proof of clear title or otherwise.

8. Here we have a Complainant coming to this Court without one such but only with a “Notice” to him of having been the successful tenderer for the subject property having been served him by the State through the Department of Lands. The Complainant comes to Court from that angle.

9. It seems abundantly clear that Complainant was having difficulty complying with the terms and conditions set by the State as being the successful applicant.

10. The Defendant also appears to be the unsuccessful bidder for the same subject property. Meanwhile the property seems to have remained undeveloped since the notice was served on the Complainant as title deed was being prepared to be issued in due course of time. The land fees of K22,081.23 was assessed and imposed on the Complainant which was required of the Complainant to pay as part of the condition as the successful bidder for the subject property.

11. When the property seemed to have been undeveloped for sometime, Defendant seemed to have gone into the property and has carried out work on the subject property by clearing off the bushes and debris and also putting up cladding and picket fencing all around the entire perimeter of the property as can be seen from digital photographic images of the property and the extent of developments to it provided to this Court by way of Annexure III to the Complainant’s affidavit of 18/09/08.

12. This proceeding by the Complainant would seem to come under what I would consider to be for an equitable claim of right; for he lacks clear proof of title to the property but has provided what I would call and consider to be material showing that he has been approved as the successful tenderer over the property to whom the subsequent title deed was to issue when all administrative processes and other formalities within the Department of Lands have been finalized and settled.

13. I consider that the complainant possesses what I would call an equitable right over the property entitling him to take the kind of action he now takes before this Court to defend and protect that equitable interest from competing adverse interests. Complainant has that equitable interest or right over the property in issue in that the said property in the absence of proof to the contrary as asserted to by the Defendant (that it is a customary land) is indeed a fact that the subject land is a State land. It is State land through and through over which Complainant has been approved as the successful applicant and as such and to that extent, Complainant possess what I consider to be “equitable, interests” in the subject property that relatively speaking is more proximate than that of the Defendant.

14. On the other hand, Defendant’s Defence is that the subject land is “customary land”. He only makes a bare assertion to claim the subject land to being customary land without proof. But again, the presumption must be in favour of the subject land to being State land unless proven conclusively to the contrary by way of hard evidence.

15. However, Complainant through his counsel does not seem in submission to press his argument on that aspect to any greater height but only to later giving in to the obvious by acknowledging the fact that the said land is State land when he later filed in a tender application for the same piece of land to the Lands department to be allocated to him when he realized that the Complainant was seemingly failing to meet the Lands Department’ statutory requirements imposed on him as the successful applicant or bidder.

16. Defendant seems to me to be contending that because the Complainant failed to fully meet the Statutory requirements as successful applicant, he assumed (whether rightly or wrongly) the Complainant’s rights to the subject land to have been (or to be) extinguished and that he should be the next best Applicant to be allocated the subject property by the Department of Lands.

17. There is no existence of a title deed before this Court to make any definitive determination of the issue now before this Court as both parties seem to be contending before this Court as to their respective positions in so far as it concerns their respective interests in the land in whatever form and/or manner those interests may be.

18. In order therefore to make a certain determination here on the issue before this Court, the question I consider to be important and of more immediate relevance to be of any help to us would be;- 

“In all of the circumstances of the case and the evidence as it stands to date before this Court, who of the parties has the most proximate interest to the subject land?”

19. Complainant is the successful tenderer whilst Defendant is not. But defendant has some time later, after Complainant has been approved as the successful applicant, lodged in an application to be granted the lease over the same subject property even without the said land being advertised as being vacant as is normally the case.

20. He uses the apparent purported failure of the Complainant to meet the lease terms and conditions as his reasons to press his claim to be the next best person to whom the allocation of the said property should go.

21. Not only has the Defendant lodged his application but has actually physically moved onto the said property and taken possession of same as evidenced by the photographic images tendered into Court as annexure to the Complainant’s affidavit filed in support of his claim.

22. By the very fact of being the successful applicant minus the actual title deed, the Complainant would in my humble view possess the most proximate equitable interest over the subject property than has the Defendant; and besides all that and by virtue of that very fact, Complainant possess what I would consider as being an equitable interest in the subject land that he possesses that he should have to take steps to protect from any adverse competing claims or interests.

23. The law of equity is part of the underlying law as adopted in PNG by virtue of Schedule #2 of the PNG Constitution at Independence in this jurisdiction and forms part of the underlying laws of Papua New Guinea.

24. As such, it applies on all fours (4) in this jurisdiction and I am bound to apply the principle here and give it the kind of force and effect it deserves in this and other similar or appropriate cases.

HG Hanbury in his “Modern Equity” [1969] Stevens & Sons Limited, 9th Edition at page # 4 says;-

“Developed systems of law have been assisted by the introduction of a discretionary power to do justice in a particular case where strict rules of law cause hardships”
.

25. In my humble view, strictly in law, Complainant would seem to have no legal right to initiate this action as he has no legal title to take avail of under the leading case authority of Herman Gawi –vs- png Ready Mix Concrete (PNG) Pty Ltd [1984] PNGLR 84 case, yet the principles of equity adopted as part of the underlying law of Papua New Guinea will and does recognize Complainant’s rights to the subject property to take action to protect it against competing adverse interests and claims such as in this case.

26. Of the parties now before this Court, I consider the Complainant to possess the most proximate equitable entitlement over the subject property than that possessed by the Defendant.

27. The Defendant cannot be allowed to use the excuse of the Complainant’s apparent failure to comply with the lease requirement as successful applicant as his reasons and for him to undertake a unilateral action to take actual physical possession of the subject property even if he claims to be the customary owner of the said property. In order for that contention to hold water, it has not been proven to this Court that the purported “State land” is not one such but truly “a customary land”. Defendant does not seem to be emphatic in that line of contention nor has he shown evidence to prove his claim of the said land being customary land as opposed to it being State land. Later he seems to me to be conceding that it is a State land when he was said to have lodged an application to the Department of Lands to have the said land allocated to him; what inconsistency!

28. In the final analysis, I am satisfied that Complainant has an equitable interest over the subject property thereby entitling him to take the kind of action he now takes to protect what I find him to possess.

29. It is not for the Defendant to use the Complainant’s apparent purported failure in complying with his statutory lease obligation imposed by the State through the Department of Lands as his reasons to unilaterally assume actual physical possession of the subject property. That is the sole prerogative of the State entity tasked with that responsibility to initiate and take in accordance with the set procedures under the relevant empowering legislation and not by private individuals such as the Defendant in this case that he now tries to do.

30. I therefore rule that the Complainant was within his rights to take the sort of action he now takes in this case as he has an immediate equitable interest in the said property.

31. Defendant is therefore ordered to yield up possession of the said property and shall voluntarily vacate the said property within 14 days of date or risk being evicted with force. Each party is to bear his own costs of proceedings.

Orders accordingly.