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Posai v Polup [2019] PGDC 9; DC4027 (14 February 2019)

DC4027

PAPUA NEW GUINEA

In the District Court of Justice at Kimbe
(sitting is its civil jurisdiction)

DC NO: 329 OF 2018

BETWEEN

ANDREW POSAI
Complainant

AND

JESRIEL POLUP
First Defendant

AND:

JSP LIMITED
Second Defendant

KIMBE : J. AMANU

2018: 18 December, 10, 31 May, 16, 19 June

2019: 08, 31January, 07, 14 February

CIVIL – Summary Ejectment Act, s.6 – Clear Title – no dispute over title – no distinct, formal legal step taken to disturb the title –

EQUITY – Defendant’s equitable rights considered – continuous occupation for a long period – property leased to third party without title.

Legislations:
Summary Ejectment Act
District Courts Act

Cases cited:
Herman Gawi vs. PNG Ready Mix Pty Ltd [1984] PNGLR 74
Tony Yandu & Anor vs. Peter Waiyu & Anor (2005)

Counsels:
Complainant: In Person
Defendant: In Person

1.J. AMANU; The Complainant instituted this proceeding against the Defendant alledging that the Defendants are illegally residing on his property described as Portion 2453, Patagalamo, Kimbe Town, West New Britain Province. The proceeding is filed pursuant to Section 6 of the Summary Ejectment Act.

Agreed Facts

3. The First Defendant’s father John Polup paid K20, 000.00 for a piece of land to the Complainant.

4. Any further payments was not made until he passed on.

5. The second Defendant invited Identity Limited, a logging company to the area and are not occupying the subject portion of the land.

6. The Complainant has a Certificate of Title over the subject land issued on the 25^th October 2018.

Disputed Facts

7. Late John Polup aid K20, 000.00 but was stopped by John Kaona Snr on the baisis that the Complainant was not the rightful landowner. Mr. Polup therefore did not complete the K50, 000.00 agreed purchase price.

8. The subject property is not owed by the Complainanat and there is an ongoing court case between Andrew Posai and John Kaona Snr in respect to the legalty of the Title over the property.

Law

9. This proceeding was filed under Section 6 of the Summary Ejectment Act. It provides that:

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.

Issue:

8. The Issue is whether the Defendants can be evicted out from the said property?

Analysis

9. Ejectment proceeding are well settled in this jurisdiction by the Supreme Court case of Herman Gawi vs. PNG Ready Mixed concrete Pty Limited comprised of then late Kidu, J; Kapi DCJ and Mc Dermott, J. It was discussed that:

“Proceedings for recovery of land under Summary Ejectment Act 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 dispute or unclear.”

10. In this case there is no issue that the Title is unclear or disputed. Although according to evidences before the Court that the First Defendant claimed that there are ongoing court cases in the National Court, there is no evidence to support this assertion. The District Court’s jurisdiction can be taken away if the title is in dispute pursuant to section 21 (4) (f) of the District Courts Act. However, in the case of Yandu vs Waiyu, His Honour Justice Cannings said that in order for the District Courts jurisdiction to be taken away under Section 21(4)(f) of the Act, the Defendant must show to the court that he has taken some distinct formal legal steps to disturb the title such as commencing a proceeding in the National Court challenging the legality of the title.

11. Applying the principle above, there is no evidence that the Defendant or some other persons have disturb the tile thus I find that there is no bona fide dispute over the title.

12. According to evidence, the Complainant and the First defendant’s father have entered into some kind of agreement or arrangement (there is no clear evidence of whether there is in fact an oral agreement or written). But there is evidence confirming that the First Defendant’s father have paid K20, 000.00 to the Complainant and further evidence claimed that the father ceased to continue payment thereafter.

13. Although the Second Defendant claimed that there are dispute over the subject land, there are no corroborative evidence to sustain his arguments.

14. Even if the Second Defendant claimed that they have spent substantial amount to money to the Complainant that issue may be brought to an appropriate forum to be dealt with.

15. The proceedings before this Court now is that of a summary ejectment under the Summary Ejectment Act, section 6.

16. I find that there is clear Title over the said property issued on the 25^th October 2018.

17. The Complainant has a valid legal Title over the property since 25^th October 2018. Any transactions, if any, prior to 25^th October 2018, to my mind, is not relevant to refuse the orders sought.

18. Upon careful examination of the Title document, it appears that the subject land was initially a customary land and was converted into an estate in fee simple and the sole proprietor is the Complainant, Andrew Posai.

19. I therefore find that there is no dispute to Title and if there is so, there is no evidence to confirm same and thus orders sought must be granted.

20. The Defendants may have lived on the property for a long period of time but their continuous occupation ceased on the 25^th October 2018 when the Title was issued to the Complainant.

21. Considering their long term occupation, I am of the opinion that a period of one (1) month is sufficient time for the Defendants to move out of the subject property.

21. The formal orders of the Courts are as follows:

1. The Defendants, their agents/associates or relatives shall vacate the property described as Patagalamo 3, Portion 2453C, Milinch of Megigi, Fourmil Talasea, West New Britain Province and give peaceful possession to the Complainant within thiry (30) days from today (14^th February 2019).
   
2. In default, warrant be issued to the Police to assist evict the Defendants, agents/associates with reasonable force, if necessary, and give possession of the said property to the Complainant.
3. Each party bear their own costs.
   
4. Parties may appeal to the National Court if aggrieved within 30 days from today.

Orders Accordingly.

__________________________________________________________________

Complainant: In Person

Defendant: In Person