DC4091

PAPUA NEW GUINEA

District Courts Act, 1963

[In the Civil Jurisdictions of the District Court at Goroka]

Dc No 16 of 2019

Between:
GEORGE IKILA
(Complainant)

And:
YANAM KUBU & RELATIVES
(First Defendants)

And:
SAMUEL POKIA & RELATIVES
(Second Defendants)

Goroka: C Inkisopo

2019: 30th July, 5th August & 10th December
2020: 23rd January

CIVIL - Summary Ejectment Act, 1952:  - Act purposed to provide quick remedies to persons possessing clear legal titles to properties – not available where there are disputes as to titles or where titles are unclear –

Practice and procedure at District Courts set out by Act – on Complaint by person possessing title, Magistrate may issue eviction Orders against persons in illegal occupation – where no distinct formal legal steps are taken to disturb title - District Court or Magistrate could issue eviction orders;

Potential possible defence to eviction claims of long term residencies may have acquired limited equitable interests entitling them only to reprieves from immediate ejectment - not a complete legal defence 

Legislations & other Authorities

1:	District Courts Act, 1963
2:	Summary Ejectment Act, 1952

Cases Cited

1:  	Herman Gawi –vs png Ready Mixed (Concrete (PNG) Pty Ltd [1984] 	
PNGLR 74

2:	Anna Kaipare -vs- Kameso Clement [2016] DC 2079

3:	Roger Kuk -vs- Peter Nessat [2013] DC2068
 
4:	Tony Yandu & 1 Or -v- Peter Waiyu & 1 Or [2005] N2894

Appearances

Mr Jacob Kumbu of Parkil Lawyers = for the Complainant

Ms Vibie Mowe of the Public Solicitors Goroka Office = for the Defendants

23rd January, 2020
JUDGMENT

C Inkisopo:	This is a ruling on an application by the Defendants through Ms Vibie Mowe of the Goroka Office of the Public Solicitor via a Motion on Notice filed dated 29th May, 2019 seeking to have set aside a certain eviction order of this Court of 28th May, 2019 from a certain property described more as Section 43. Allotment 2, Township of Goroka, Eastern Highlands Province.

BACKGROUND

2:	The Defendants are living-in tenants of the above-described property under National Housing Corporation upon valid tenancy agreements dated 5th February, 2007. Then on 8th August, 2017, a State lease title was registered and transmitted in the Complainant’s name entered on 8th August, 2018.

3: The Complainant issued legal proceedings to have the tenants vacate the subject property to make way for further developments. He successfully took out an eviction order dated 28th May, 2019. After the subject Order was served on the Defendants requiring them to voluntarily vacate, they failed so to do.

4:	The Complainant in pursuance of Clause 2 of that Order, enlisted the assistance of the local Police to enter upon the subject property and eject the Defendants and give a peaceable and vacant possession of it to the Complainant.

5:	Then when the Police attended on the subject property to enforce the eviction Order, something else allegedly happened. Ms Mowe, lawyer of the Goroka Office of the Public Solicitor was present in person on site and is alleged to have prevented the Police from executing their Court sanctioned duties; the Police personnel then withdrew and returned to the Police Station – with their day’s mission un-accomplished!

6:	Counsel for the Complainant Mr Jacob Kumbu took immediate issue with the latest turn of events and raised his concerns by writing letters of complaint firstly to the Clerk of Court (30/05/2019) raising his concern over the conducts of Ms Mowe in literally frustrating the Police eviction exercise on site and not in the Court Room; as I glean and make out from the contents of his letter.

7:	He next took his concerns higher up the Police hierarchy by raising his concerns over the botched eviction exercise with the Commissioner of Police in a letter dated 3rd June, 2019. The Commissioner then replied through Superintendent Francis Aigilo directing the Goroka PPC Chief Inspector David Seine Jr to enforce the subject eviction order of 28th May, 2019. 

8:	This Court is aware of a letter from the Goroka PPC Chief Inspector David Seine Jr who whilst acknowledging the direction letter from Police HQ, explained that Police will only act to evict in Court sanctioned eviction cases in clear completed and finalized cases where the Defendants’ opportunities for set aside applications would have been fully exhausted and the subject eviction Order sustained or the subject Order set aside; whichever occurs first or whatever the outcome may be.

9:	The stand taken by the good PPC in his letter I must say; I’m most inclined to agreeing with him for very good reasons: it is possible that certain Court sanctioned eviction exercises would have been actually carried out firstly only later to be found to have been set aside by subsequent Court Orders. Great damage and inconveniences would more often than not have been caused before it is stalled by subsequent Orders by later Courts of competent jurisdiction or by the very same Court. These are the classic scenarios that the good PPC EHP may have had in mind when he wrote his letter in response to Superintendent Francis Aigilo’s and Complainant’s Counsel, Mr Jacob Kumbu’s letters.

10:	This, in my view, is to avert situations where in certain eviction cases honest mistakes can be made and do occur, Police evictions actions do in situations occur when the subject eviction Order would sometimes have been set aside and consequential original/initial status quo adversely seriously affected and/or irreparable damages or harm caused or the original status quo drastically and adversely altered. For these reasons the good PPC’s view in my view does have substantial merits; hence I do not consider it to being unreasonable and warranting further orders or correspondences on the good PPC’s official stand via his letter. I choose to leave that issue at that!

11:	The instant Application (pending set-aside application) lends credence to the good PPC’s such stand. The current application [to set aside the subject Order of 28/05/2019] is one such scenario that the good PPC would have had in mind and envisioned as the situation that can and do arise. Therefore, it is only necessary and appropriate that Police be kept at bay pending the resolution of the said Application for set aside of the 28th May, 2019 eviction Orders of this Court.   

12:	The subject Application to set aside filed dated 29th May, 2019 was fixed for hearing to 4th June, 2019 at 9:00am. Then on May 31st, 2019, the Complainant filed and served his Motion on Notice which was again fixed for hearing by the Registry to 11th June, 2019. 

BOTH COUNSELS’ YOYOING COURT ATTENDANCES TO MOVING MOTIONS

13:	The matter of the Defendants’ Motion on Notice came before me on 4th June, 2019 when Ms Mowe appeared whilst Mr Kumbu for the Complainant had not yet flown in from Port Moresby. Ms Mowe was alerted to an existing Notice of Motion filed by the Complainant that has been fixed by the Registry for 11th June, 2019 that was pending. 

14:	Seeing that Ms Move’s clients’ Motion and the Complainant’s being only a week apart; and also noting Mr Kumbu’s absence, the Court suggested to adjourn both Motions to 11th June, 2019 when Mr Kumbu would be available when both Motions could be heard together. Ms Mowe agrees and the Defendants’ Motion was rescheduled to 11th June, 2019 to coincide with the Complainant’s Motion on Notice. 

14:	On the 11th June, 2019 when the Court opened to resume its session, Complainant was present personally in Court while his Counsel Mr Jacob Kumbu had not yet arrived from Port Moresby. The Court notes an advice on a stick-on pad from the Registry that Counsel was not appearing that day as he was engaged in a pre-arranged National Court trial at Waigani and had instead asked for a further adjournment to 18th June, 2019. Ms Mowe took immediate objections to the proposed adjournment to 18/06/2019 reasoning that the said adjournment date is inconvenient to her as she’d be involved in a National Court Civil trial here at Goroka. She instead proposed 25th June to be convenient to set the two (2) Motions down for hearing. The Court acceded to the objection to give the two (2) Motions a definite fixture for hearing. 

15:	The Court notes that Ms Mowe for the Public Solicitor’s Office had yet to file formal appearance for the Defendants and on that basis alone, she could easily have been refused Court audience and representation either but given that Defendants were in immediate need of legal assistance such that they could not afford alternate legal representation given the imminence of forced ejection hovering over them from the subject property they live on, the Court feigned blindness/ignorance and bore along with Counsel’s ineptitude to allow her  appear in Court in this matter for the Defendants as their legal Counsel.

16: 	After much exchanges, both Motions were fixed for a final hearing to 25th June, 2019 at 9:30am. The Complainant who was present in Court was directed to advise his lawyer of the final fixture for both Motions and that the Court will proceed with the hearing of the Motions with or without both or any one Counsel’s assistance. Yet again, it seems that fixture was not convenient to Counsel for the Complainant Mr Kumbu who immediately entered into correspondence stating his reasons for the inconvenience and instead proposing an alternate date only for mention when the matter of the two (2) Motions’ hearing date could be fixed with the inputs of both legal Counsels.

17:	    Matter was recalled for mention to 18th June, 2019 when Mr Kumbu, Counsel for the Complainant appeared whilst opposing Counsel obviously did not. Mr Kumbu was given a run-down on the previous days’ exchanges with Ms Mowe as regards the hearing date for the pending Motions. Mr Kumbu whilst acknowledging and appreciating the dilemma; proposes for the matter to adjourn generally to the Registry until both Counsel had communicated and consensually agreed to a convenient date to them both; only then can the Motions be fixed for hearing. Matter therefore was left to return to Court for mention on 25th June, 2019 at 9:30am. Then came 25/06/2019, and the Court did not convene as I, the Magistrate presiding did not make it into town from the village  as the Office vehicle that I use to travel in broke down on Saturday 22nd June, 2019.

18: The matter therefore got mentioned on 11th July, 2019 when only the Defendants attended Court. Matter next got adjourned to July 16th for mention and possible listing for hearing. From then on, the matter got displaced and did not return to Court until 30th July, 2019 when both Ms Mowe and Mr Kumbu, both Counsels for the respective parties made appearances for their respective clients. Mr Kumbu made to present his application to which Ms Mowe opposed saying the matter should be mentioned that day when every interested party is present and each party consensually agreeing to secure a special fixture for hearing. 

19:	Despite an emphatic insistence to moving his client’s Motion saying; matter is protracting for unnecessarily too long and needed to be expedited and resolved quicker, the Court overruled Counsel’s application and opted to allocate a special fixture in particular view of the fact of the matter’s last failed mention date of 16th July, 2019 and now re-appearing on 30th July, 2019. In the interest of justice and in all fairness to the Defendants and their Counsel, the Court overruled the application by Complainant’s Counsel and opted to adjourn to 6th August, 2019 with the view to listing for hearing of the two pending Motions.

20:	 Since then, the matter got displaced once more from being heard for various other causes beyond anyone’s control including the vehicle break-down that affected very much the presiding Magistrate’s mobility as well as both Counsels’ yo-yoing Court attendances to progressing the matters of the two (2) Motions to a speedy and an expeditious conclusion. After a marathon correspondence and communication exercise between Counsel and Magistrate as well as hearing notices appropriately served, the matters of the two (2) Motions were finally fixed for hearing to 10th December, 2019

21:	Both matters after an inordinately long break returned before the Court on the 10th of December, 2019 at which time all the interested parties appeared except the Defendants’ Counsel, Ms Mowe. When the matters were called to mention, Mr Kumbu for the Complainant appeared whilst the Defendants did appear personally indicating their preparedness to argue their case through the Second Defendant, Mr Samuel Pokia and not wait any longer for their Counsel, Ms Mowe.

Applicants’ case

22:	Mr Kumbu, the Complainant’s legal Counsel consented for the Applicants to go first with their Motion and this is the crux of the Defendant’s case through the Second Defendant; Mr Samuel Pokia; (paraphrased)

•	Non-attendance during the first initial appearance when subject eviction Order was made, Defendants were confused as to which Court Room to attend, Mr Gerard Vetunava’s or the SPM’s Court as they argue that the matter was initially set for mention in Mr Vetunava’s Court;

•	Complainant not an eligible purchaser of the property as he was not a serving Public Servant and an illiterate and not even a lawful tenant of the subject property to become eligible for the purchase of the subject property even to begin with;

•	Defendants being lawful NHC long term rent paying tenants to the subject property never received notice of the change of ownership until the eviction Order was served on them then did they become aware of same;

23:	Defendants through Mr Pokia argued that on the bases of the above three (3) bulleted points, the subject exparte eviction Order of 28/05/2019 should be set aside and the matter reinstated for an inter party hearing at a later date of convenience to the Court. 
 
24:	Complainant’s Counsel, Mr Jacob Kumbu in response firstly handed up to Court an extract of a full written Submission that he prepared for his client, George Ikila which greatly assisted the Court in its arduous task of determining the matter. 

Respondent’s Case

25:	Complainant’s Counsel raised several points in response to the Defendants’ Application which can be broken down into three main points;-

•	Defendants’ legal Counsel Ms Mowe from the Goroka Office of the Public Solicitor had not filed a formal appearance  as Counsel for the Defendants as clients;

•	Defendants and Ms Mowe failed to file a defence nor Defences to the Complainant’s claim so as to gauge what Defence on merits Defendants would likely take avail of if their application was successful;

•	No distinct formal legal steps taken to disturb the Complainant’s legal title to the property; hence no bona fide dispute as to title held by the Complainant in order to take this Court to within the ambit of its jurisdictional injunctions under s 21(4)(f) of the District Courts Act, 1963.

Assessment of Parties’ respective cases

26:	The Defendants were from the outset; in my humble view, given raw deals by Ms Mowe when she failed to appear on the day of the Motions when it mattered the most; when her Clients appeared themselves in person and forced to take rash decisions to go it alone with their Application when she absented herself consecutively from subsequent several Court appearances for them. Counsel further, it seems, failed miserably to file an appearance in Court as well as failing to give the Defendants appropriate professional legal advice on the current established and well settled legal position on the subject; and literally dumping them on the 11th hour when her legal professional services were needed the most!

27:	 In the least, this Court is gravely concerned at the casual attitude displayed in this Court for the Defendants by Ms Mowe. Needless to mention her involvement in the alleged stalling of the earlier Police action in effecting the eviction Order wherein she is alleged to have physically gone on site the subject property and allegedly telling the Police personnel onsite that the eviction Order the Police were then armed with and acting upon was illegally obtained and that the Police should stop and leave the site immediately. 

27:	If Ms Mowe’s alleged interferences are correct; such actions are a cause for serious concern to this Court; especially when lawyers are supposed foremost to be officers of the Court and then lawyers to their clients. Being that as it may, I do not intend to take this matter any further including citing Ms Mowe for possible professional misconduct and ineptitude as a lawyer in the discharge of her lawyerly duties with tact, diligence and with a sense of professionalism. I opt not to take it any further but to leave it at that and deal with the primary matter of the application to set aside the subject eviction Order of 28th May, 2019 that is now before me.

28:	The law and the applicable legal principles in this jurisdiction applicable to set aside applications of exparte and default Court Orders are quite settled in our jurisdiction. There is a wealth of case authorities setting out the principles applicable to applications of this nature commencing with the oft-cited landmark case of Green & Co Pty Ltd –vs- Green [1976] PNGLR 73    

29:	The settled principles applicable to set aside applications in this jurisdiction as in our instant matter are;

•	An explanation why the subject judgment or order was allowed to go by default or exparte:

•	Affidavit materials filed in support of application to disclose Defence on merit:

•	Promptness of the Application or an explanation for delay in applying (if any):

30:	Section 25 of the District Courts Act provides the statutory jurisdictional basis for such applications. Section 25 of the District Courts Act, 1963 is in the following terms;

“A conviction or order made when one party does not appear may be set aside on application to the Court on such terms as to costs or otherwise as the Court thinks just; and the Court on service on the other party of such reasonable notice as the Court directs; may –

(a)	Proceed to hear and determine the Information and Complaint in respect of which the conviction or order was made, or
(b)	Adjourn the hearing and determination of the hearing to such time and place as it deems fit and directs such notice of the adjournment hearing as it thinks fit to be given a party.”

31:	 Whilst this provision is the statutory jurisdictional authority for such set aside applications, it will be noted that such a set aside application under s 25 does not of itself alone operate to automatically grant the relief sought but rides on the back of principles that have evolved through case precedents and are well settled in our jurisdiction which are as set out above in paragraphs 28 & 29 of this judgment.

Application of principles to instant case.

32:	I do not have to cite all the case authorities on this point after the Green -vs- Green case (supra) as there are a number and a wealth of it; suffice it that all of these cases are agreed and settled on the three (3) basic tenets of the principles applicable in such set-aside-applications as highlighted in paragraph 29 above.

33:	Zooming down and applying the above principles to our instant case, one will notice that the subject eviction order was entered exparte; meaning the subject eviction order was entered in the Defendants’ absence. 

34:	Owing to this fact, this Court is satisfied that, Applicants have met the first requirement in explaining why the subject order was allowed to be entered ex parte. This Court is also satisfied that the Application is made very promptly in relativity to the subject exparte order timeline. The exparte eviction order was entered on 28th May, 2019 and this application was filed on 29th May, 2019: a very prompt application indeed!
 
35:	However, I must admit I have difficulty reconciling with the second requirement; Affidavit material filed in support must disclose Defence to the claim on merit. The First Applicant/Defendant in her Affidavit filed in support says that Respondent/Complainant, an illiterate person, a non-public servant nor a sitting tenant who did not even possess the capacity to transact the said property with NHC as well as lack of advice by NHC of its intention to sell the property including lack of production to Court of documents giving rise to the transfer as well as not being presented by the Respondent/Complainant to the Court. (Paraphrased.). 

36:	The First Applicant/Defendant makes the following remarks purportedly as her Defence in paragraph #9 of her supporting Affidavit;-

“The original title is required to be presented to assure this hounourable Court that the title is a genuine title. Since we are unaware of the sale and transfer of the said property, the title is thus bona fide in dispute and therefore this honourable Court is not compelled to issue any eviction orders under these circumstances” (Emphasis added)

37:	From what I’m seeing, it is obvious and most unfortunate that the First Applicant/Defendant was not given appropriate legal advices in advancing the above statement as her Defence to the eviction claim. I say this because the jurisdictional injunction provision as found in s 21(4)(f) of the District Court Act, 1963 dealing with eviction cases before the District Court has lately been given a definition and meaning to the notion of District Court lacking jurisdiction in matters where title is bona fide in dispute by his honour Mr Justice Cannings in Tony Yandu and Peter Waiyu (2005) N2894 that holds to say; for there to be a bona fide dispute as to title, there must be distinct formal legal steps taken to disturb or challenge the title. And if no such steps are taken, the District Court or Magistrate could grant the eviction Order as there is no bona fide dispute as to title in order for s 21(4)(f) of the District Courts Act, 1963 to come in to play.
]
38:	This being the legal position in this jurisdiction in eviction cases, merely raising allegations of flaws and improprieties against the proprietor in securing the title to the subject property does not and cannot by that fact equate to founding a bona fide dispute as to title in matters of eviction claims. See Anna Kaipare -vs- Kameso Clement [2016] DC2079 compared with Roger Kuk -vs- Peter Nessat [2013] DC2068. Hence, in our present case; reflecting on what the First Applicant/Defendant is saying as her Defence as quoted verbatim above in Clause #35 and that which has been raised as Defence; such sentiments being raised as Defence sadly must fail on all fours. Merely raising those allegations and not taking any distinct formal legal steps to disturbing the Respondent’s (Complainant’s) registered lease title cannot be termed title is bona fide in dispute in order for the Court’s jurisdictional injunctions of s 21(4) (f) of the District Courts Act, 1963 to come into play to voiding the District Court’s jurisdiction from presiding over same.

Conclusion

39:	In the final analysis, this Court finds that the Applicants/Defendants have failed to file in their support affidavits materials disclosing Defence on merit; and on that basis alone, this Application should fail. 

40:	But further to that, this Court finds that the Respondent/Complainant’s registered lease title is safe and free from any encumbrances and thus remains unchallenged and that there is therefore no dispute as to title. The Applicants through the First Defendant raised allegations of flawed processes and improprieties in procuring the transmission of the title to Complainant which sadly cannot render the title to being bona fide in dispute and consequently did not found them a recognized legal Defence in order come to within the scope of the jurisdictional injunction of s 21(4)(f) of the District Courts Act, 1963. There is therefore no distinct formal legal step taken by either defendants or anyone for that matter to disturb the Complainant’s registered lease title; hence there is therefore no bona fide dispute as to the title possessed by the Complainant and the Court therefore  could proceed to deal with the matter and dispose of same as to it deems appropriate.

Court Finding and Ruling

41:	On the basis of the above discussions, I find that;- 

1)	The Applicants have failed to include in their supporting Affidavits materials disclosing Defence to the Complainant’s claim on Merit;

2)	The Complainant’s registered title is valid and safe with nil encumbrances to it as there is no distinct formal legal step taken by any person whether an interested party or not to disturb the Complainant’s valid legal lease title;

3)	The Defendants each and severally with their dependents are in illegal occupation of the subject property more described as Section 43, Allotment 2, Township of Goroka, Eastern Highlands Province without permission, right or licence; and given their status as long term living-in public servant tenants to the former proprietor the NHC; and allowing for and in recognising their long term residencies and extending them an equitable right flowing from their former long term valid tenancies, the Defendants shall be entitled in equity to a  reprieve of 21 days from the date of this Order to voluntarily vacate the subject property;

   Formal Court Orders;

42:	The formal Orders of this Court are;-

(1)	The Application filed dated 29th May, 2019 to set aside the exparte eviction Order of 28th May, 2019 is dismissed as lacking legal merits;

(2)	There being no distinct formal legal step taken to disturb the title possessed by the Respondent/Complainant over Section 43, Allotment 2 Township of Goroka, Eastern Highlands Province; there is therefore no dispute as to the lease title registered in George Ikila’s name which remains safe and is absolutely free of and without any encumbrances;

(3)	Allowing for their long term residencies of the subject property, from which tenancy they would have acquired a certain level of equitable interest, the Defendants are granted a reprieve of twenty (21) days within which they shall voluntarily vacate the subject property;

(4)	If the Defendants shall fail to vacate as per the above Order, the Police force shall enter upon the property, with reasonable force (if necessary) and eject the Defendants and their relatives from the subject property and deliver up a vacant and peaceable possession of it to the Complainant George Ikila.

(5)	Costs shall follow the event and also  noting to an extent Defence Counsel’s lacklustre presentation of this matter from the time of her initial filing the set aside Application to date of Ruling, I believe it is only fair and justice to the Defendants that their Counsel bears half their costs only from Application date to date of Ruling on a 50% apportionment basis between Counsel and Defendants : Ms Mowe pays half and the two (2) Defendants pay the other half of whatever the Complainant’s costs only of the set aside Application and the counter application up to date of Ruling only.

(6)	Orders accordingly.