DC 2095

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]
DCCi  431  of 2014
BETWEEN

SELINA THOMPSON
-Complainant
AND
DAVID KURA BEUA
-Defendant

Kimbe:  M.L.Kivu

2014:  16th December, 2014
     
     
CIVIL-Recovery of Possession Land-Summary Ejectment Proceedings-Agriculture Lease for 99 years -Title not bona fide in dispute- Orders sought granted-

Cases Cited
Tony Yandu and Eddie Guken-v-Peter Waiyu and Jita Guken [2005]PGNC 66 ;N2894
Gawi v PNG Ready Mixed Concrete Pty Ltd [PNGLR]74

References
Section 6 Summary Ejectment Act.

Appearances
Rex Mann Rai from Mannrai Lawyers- for the Complainant
Josephine Waiwai of WagambieLawyers -for the Defendant

DECISION
16th December, 2014
M.L.Kivu: This is an action brought by the Complainant against the Defendant for recovery of possession of land pursuant to Section 6 of the Summary Ejectment Act and filed 14th October, 2014.
PLEADINGS
In his pleadings the Complainant stated that:
(1)	The Complainant is and at all material times the registered proprietor of land known as Portion 598, Milinch Megigi, Fourmil Talasea in West New Britain Province, State Lease Volume 21, Folio 203 containing an area of 16.51 hectares thereabout.
(2)	The Defendant is or has been in possession of the said land without any right, title, or interest whatsoever described in the said land.
AND the Complainant claims:
(1)	An order pursuant to the Summary Ejectment Act Chapter 202 that the Defendant, his servants, or agents give up possession forthwith of land known as Portion 598, Milinch Megigi, Fourmil Talasea, in West New Britain Province, State Lease Volume 21, Folio 203 containing an area of 16.51 hectares or thereabout to the Complainant.

(2)	In the event that the Complainant is unable to secure vacant possession, the Papua New Guinea Royal Constabulary or its authorised agents are hereby authorized to assist the Complainant to give effect to paragraph (1) of these orders.

DEFENCE
The Defendant David Kura Beua filed an Affidavit of Defence on the 29th October, 2014.The Defendant in his Defence states:
(a)	Portion 598 is locally known as Kako land and has been the subject of an order from the Provincial Land Court Kimbe awarding the land to his clan Vagolugolu Kilipalipa Clan on the 02nd December, 2010.Copy of Court Order is attached as Annexure “A”.

(b)	That at the end of April, 2010 Lands Officers from Kimbe and Port Moresby carried out an inspection following a complaint against Pacific Development Limited having lodged an application with the Land Board to Lease the Land and that after the inspection had been carried out two letters were written by the provincial Lands Advisor and the Provincial Lands Surveyor recommending that I be awarded the lease. Copies of both letters are attached.

(c)	Pacific Development started clearing away Defendant’s palm trees and matter was reported to the Provincial Government and a letter was written by Provincial Legal Officer putting a stop.

(d)	Defendant  at paragraph (7) of Affidavit in Defence state he denies any knowledge that Selina Thompson is the title holder and insists that Kako Land is customary land and requires proof by the State.

COMPLAINANT’S EVIDENCE
In support of her claim the Complainant Selina Thompson has filed an affidavit on the 14th October, 2014 wherein she confirms her statement of claim and annexes a copy of the Certificate of Title issued to her on the 20th June, 2014 over Portion 598 for a period of 99 years.
A supplementary affidavit has been filed by the Complainant confirming that 4 hectares of Portion 598 has been planted with Oil Palm by the Defendant.
She has also annexed as annexure “B” Survey Plan of the property.
She has also set out in her evidence that the grant to her of the lease over portion 598 was gazetted on the 20th June, 2014 and a copy of the Gazettal is annexed as annexure “C” That she was then advised by the Land Board of their Decision through a letter dated 2 May, 2014 a copy of letter is also annexed.
She states further that the Defendant and his agents and associates are still in adverse possession of the property despite attempts to gain vacant possession of and thus seek orders set out in her complaint.

DEFENDANTS’ EVIDENCE
The Defendant swore and filed an affidavit in Reply on the 24th -25th November, 2014 wherein he has deposed that:
(3)	The state land described as Portion 598 Milinch Megigi, Fourmil Talasea West New Britain Province only came to be registered as a state lease on the 26th June, 2014.

(4)	Prior to that it was customary land known as Kakokalo or Kalo and was awarded to his clan vagolugolu Kilipalipa clan after successfully appealing the District Decision on the 02nd December, 2010. Copy of Decision attached.

(5)	Suddenly the land was converted to State Land on the 26th June, 2014 bearing the description Portion 598 Milinch Megigi Fourmil Talasea, West New Britain Papua New Guinea.

(6)	We have developed the land planting 480 hectares of oil palm and another hectare in 2007.

(7)	Oil palm has a life expectancy of 20-25 years meaning the 25th year will be 2024. The second batch will reach full life in 2032. Copy of photos of palm annexed.

(8)	Oil palm is currently the means they sustain their living.

(9)	The current title deed illustrates that the state lease to the concerned land was only granted on the 26th June, 2014, whilst the Provincial Land Court Decision awarding land to us was granted in 2010. Four years has lapsed and my people know we owned the land which has now been converted and given to the Complainant Selina Thomson as an Agriculture Lease.

(10)	We did not reside and develop the land as trespassers onto the land but as customary owners as confirmed by Provincial Land Court decision in December, 2010.

(11)	The concerned land was never transferred from one registered proprietor to another as state land but a title deed that was effected in 2014 thus we ask the court to recognise our equitable interest in the concerned land and should meet the requirement  in showing reasonable cause and not be evict us.

On the 25th November, 2014 hearing of the matter was conducted where both parties had the affidavit evidence relied on admitted through their respective witness. 
Eachside also had the benefit of cross-examining each other’s witness on their affidavit evidence.
SUBMISSIONS
Counsel for the Complainant filed submissions on the 04th November, 2014. He submitted to the court that the main issue before the court is whether or not the court should order that the Defendant be evicted from the property pursuant to the Summary Ejectment Act.
He has submitted that in the present case the Complainant has clear title to the property and that there is no evidence to dispute the title and the Defendant and his agents are in adverse possession of the property since the State Lease was granted on the 27th June, 2014. They have done so without right, title or interest over the property. Counsel relies on and has cited the Supreme Court case of: Herman Gawi v PNG Ready Mixed Concrete Pty Ltd [1984]PNGLR 74 and Section 6 of the Summary Ejectment Act to seek the orders set out in the Complaint.
Counsel for the Defendant in her response however has submitted that the Defendant’s occupation is from much earlier than June, 2014 and before the Complainant Selina Thompson became proprietor. The Defendant is relying on S. 6 (1) (2) (b) in that he has appeared and shown reasonable cause why possession of the premises should not be given.
The Defendant legally and by customary ownership developed the land as confirmed by the Provincial Land Court Decision in December, 2010 four (4) years ago and thus the award to the Complainant is sudden and questionable.
The Defendant alleges fraud and also understands this is not the right court and relies on Section 21 (4) (f) of the District Court Act in submitting that this court lacks the jurisdiction as the Title over the land is bona fide in dispute.
ISSUES
1.	Has the Defendant shown reasonable cause under Section 6 (2) (b) not to be evicted?
2.	Is the Title bona fide in dispute?
3.	Can this court grant the orders sought by the Complainant?

THE LAW
A.SUMMARY EJECTMENT ACT
6. RECOVERY OF PREMISES HELD WITHOUT RIGHT, ETC.
(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 a summons in the prescribed form to the person in illegal occupation.

(2) Where the person summoned under Subsection (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 of the premises 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 assistants if necessary, into the premises; and
(d) to give possession of the premises to the complainant.

B.	LAND REGISTRATION ACT

33. PROTECTION OF REGISTERED PROPRIETOR.
(1) The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except–
(a) in the case of fraud; and
(b)[30]the encumbrances notified by entry or memorial on the relevant folio of the Register; and
(c) the estate or interest of a proprietor claiming the same land under a prior instrument of title; and
(d) in case of the omission or misdescription of any right-of-way or other easement created in or existing on the same land; and
(e) in case of the wrong description of the land or of its boundaries; and
(f) as to a tenancy from year to year or for a term not exceeding three years created either before or after the issue of the instrument of title of the registered proprietor; and
(g) as provided in Section 28; and
(h) a lease, licence or other authority granted by the Head of State or a Minister and in respect of which no provision for registration is made; and
(i) any unpaid rates, taxes, or other money which, without reference to registration under this Act, are expressly declared by a law to be a charge on land in favour of the State or of a Department or officer of the State or of a public corporate body.
(2) The operation of Subsection (1) is not affected by the existence in any other person of an estate or interest, whether derived by grant from the State or otherwise, which, but for this Act, might be held to be paramount or to have priority

C. DISTRICT COURT ACT.
21. CIVIL JURISDICTION.
(1) Subject to this Act, in addition to any jurisdiction conferred by any other law, a Court has jurisdiction in all personal actions at law or in equity where the amount of the claim or the amount or value of the subject matter of the claim does not exceed–
(a) where the Court consists of one or more Principal Magistrates.–K10,000.00; and
(b) where the Court consists of one or more Magistrates.–K8,000.00.
(c - d)[15][Repealed.]
(2) [Repealed.]
(3) Subsection (1) shall not be taken to limit the jurisdiction of Courts in cases where, by any law, money, irrespective of amount, may be recovered before a Court.
(4) A Court has no jurisdiction in the following cases:–
(a) where the validity or effect of a devise or bequest or a limitation under a will or settlement, or under a document in the nature of a settlement, is in dispute;
(b) the infringement of trade names;
(c) an action for or in the nature of slander of title;
(d) an action for illegal arrest, false imprisonment or malicious prosecution;
(e) for seduction or breach of promise to marry;
(f) when the title to land is bona fide in dispute.

APPLYING THE LAW TO THE ISSUES
1.	Has the Defendant shown reasonable cause under Section 6 (2) (b) not to be evicted?
In relation to this issue the Defendant has submitted that he has an equitable interest in the property that dates back four (4) years before the grant of Agriculture Lease in the property to the Complainant. He has submitted this interest is confirmed by Provincial Land Court Order attached. On this basis he is questioning the manner in which the land was converted to State land.
There is currently nothing in evidence to confirm that Kako Land is the same land as Portion 598 however if both parties applied for a Lease over it then it could only mean that it was vacant government land.
If it was then why did the government allow the Defendants to develop it over the years to the extent that 4 hectares was planted with oil palm to sustain their livelihood and does justice require this interest be recognised and protected?
Yes the Defendants have shown an equitable interest in the property the value of which if assessed may be well over this court’s jurisdiction.
At this point the question where does equity stand where there is a certificate of Title.Section 33 (1) (a) of the Land Registration Act the Certificate of Title issued to the Complainant is indefeasible except in allegations of fraud which has to be taken up at the National Court.

In the case of Wine v Gig/man [1990] PNGLR 462 at471 Brunton AJ said 
"The law of equity was always used by the courts to ameliorate the injustices of the harshness of common law or statute. It is therefore available to develop the underlying law and to ease those pressures on litigants that arise from the inefficiencies of centralist and unreformed statute law. In the case of land administration there are good grounds for developing the law of equity to ensure justice is done In particular cases."

When it comes to equitable interest according to the case of Herman Gawi –v-PNG Ready Mixed cited here it is recognised but not declaratory in the light of the legal interest confirmed by a Certificate of Title in leasehold.
But the facts of this case differ in that this is Agriculture Lease and prior to the grant to the complainant improvement of substantial value has been made by customary land owners over period without objection from the State if it was state land.
I would be causing grave injustice if I do not recognise the Defendant’s interest and will be failing in my duty to ensure justice prevails and peace and harmony is maintained in the community where the defendants originate from and have called home and will continue to live.
In recognising the equitable interest of the Defendants this court is mindful of making a decision that is fair in that the State and the Complainant stands to substantial benefit from the improvements made to the land by the Defendantas the lease granted is an agricultural  lease. This court lacks the jurisdiction to make declaratory orders in relation to the Defendant’s interest but recognises that and the indefeasibility of the Title granted to the Complainant.
Also the Complainant has only been proprietor since 24th June, 2014 clearly indicating that prior to that the defendants had no competing interests with her except on the last five (5) months since June, 2014. Considering the number of years the Defendant has been in occupation, sufficient time must be allowed for him to be properly compensated.
2.	Whether the title is bona fide in dispute.
The Defendant has submitted that as he is raising allegations of fraud and questioning the manner in which the Title was issued to the Complainant, this amounts to the title being bona fide in dispute.
The question before me at this point is, when exactly is a Title bona fide in dispute. 
To assist me in this matter I refer to the case of:
Yandu v Waiyu [2005] PGNC 66; N2894 (7 October 2005) N2894
In this case the appellants and the respondents, who are related, were living on the same oil palm block at Sarakolok, near Kimbe. Title to the block was held by their father, who died intestate. The second respondent took steps to get title transferred to her name and while that process was continuing, instituted <ejectment> proceedings against the appellants, her brothers, in the District Court. The first respondent is the second respondent’s husband. The respondents succeeded in the District Court. The appellants appealed against the decision to <eject> them from the block, arguing that the District Court had no jurisdiction under <Section> 21(4)(f) of the District Courts Act as there was a bona fide dispute about title to the land. 

Held:

(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. 

(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. 
In this case the Defendant must have already filed proceedings at the National Court alleging fraud against the Complainant’s Title prior to this court sitting down to grant eviction orders under Section 6 of the Summary Ejectment Act for it to amount to this title being bona fide in dispute. In the absence of any such proceedings current in the National Court the Complainant’s title before this court is not bona fide in dispute and this court does not lack the jurisdiction to grant the orders sought.
FINDINGS
In this case I am satisfied on the balance of probability that:

(a)	The Defendant does have an interest in equity ; and 

(b)	that the Complainant’s title is not bona fide in dispute.
On this basis I therefore make the following orders:
1.	The Defendant, his servants, or agents give up possession forthwith of land known as Portion 598, Milinch Megigi, Fourmil Talasea, in West New Britain Province, State Lease Volume 21, Folio 203 containing an area of 16.51 hectares or thereabout to the Complainant only after the following has been done to completion:
(a)	Valuation assessment of the improvement by the Defendant is carried out by the Valuer Generals’ Office through the Provincial Division of Lands, West New Britain Provincial Administration.

(b)	The Complainant in consultation with the State shall fully compensate theDefendant for the improvement he has done on the land and as per the valuation assessment done under Order (1) (a) above.
2.	In the event that the Complainant is still unable to secure vacant possession after having complied with Order (1) (b) above, a Warrant of Entry shall be issued directed to the Kimbe Police Station Commander and his subordinates to enter by force and seize vacant possession of the property and deliver the same to the Complainant.

3.	Each party shall bear their own costs except the adjournment which was specifically consented to and thus ordered.