DC6098

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE
CIVIL JURISDICTION

CV NO. 11 OF 2021 and CV NO. 12 OF 2021 - CONSOLIDATED

Between:
ISSAC MATIABE 
Complainant

And:
MICHAEL KILAMBU
Defendant

Koroba: DCM E. Komia
21st September 2021 and 23rd September 2021

SUMMARY EJECTMENT PROCEEDING – summary ejectment proceeding - ejectment of occupant – title to land - equitable interest over property – legal interest against equitable interest – powers of the court in eviction proceedings – s.6 Summary Ejectment Act – protection of title holder – indefeasibility of title – s.33 of Land Registration Act

Legislations
Summary Ejectment Act
Land Registration Act

Papua New Guinea cases cited
Garabe v Kora [2021] PGDC 106; DC6060   
Kaevaga Land Group v Tulia [2020] PGDC 68; DC5088
Herman Gawi v Ready Mixed Concrete PNG Pty Ltd [1984] PNGLR 74 
Putput Logging Pty Ltd v Ambalis [1992] PNGLR 159; N1094 
Mudge v Secretary for Lands & Ors [1985] PNGLR 387

A.	INTRODUCTION

1.	This proceeding concerns property located in Koroba Station registered as section 01 allotment 04. There are two proceedings registered respectively as CV 11 of 2021 – Michael Kilambu v Isaac Matiabe and CV 12 of 2021 – Isaac Matiabe v Micjael Kilambu. 

2.	In CV 12 of 2021, the applicant, Isaac Matiabe seeks orders for free and vacant possession of the property (eviction orders) whilst in CV 11 of 2021, the complainant Mr. Michael Kilambu seeks to restrain Mr. Matiabe from evicting him from the said land.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        
B.	FACTS.
 
3.	 Mr. Kilambu (the complainant in CV No. 11 of 2021, and respondent in CV No. 12 of 2021) started residing on the property described as allotment 04 section 01, Town of Koroba, Hela Province.

4.	Mr. Matiabe (the defendant in CV No. 12 of 2021, and applicant in CV No. 12 of 2021) is the registered proprietor of the property described herein as allotment 04 section 01, Town of Koroba, Hela Province.
 
5.	Mr. Kilambu and Mr. Matiabe entered into a verbal agreement in 2011 for sale and purchase of the property, and the agreement was done without assistance of any lawyer. The agreed purchase price was K 65, 000.00.

6.	An initial payment of K 8, 000.00 was made around the same time, followed by other payments made by Mr. Kilambu followed on in 2015 totaling to K 18, 000.00.

7.	There were no other payments made apart from the total of K 18, 000.00 that was paid by Mr. Kilambu. 

8.	Mr. Matiabe occasionally asked for the settlement of the balance, but Mr. Kilambu responded that he was out of job between 2016 and 2019, followed on by the covid 19 pandemic which made it even more difficult, as such he couldn’t make any payment. 

9.	Around May 2021, Mr. Matiabe requested for free and vacant possession of the land since Mr. Kilambu wasn’t able to settle the balance payment for the property. Mr. Kilambu then filed CV No. 11 od 2021 to restrain Mr. Matiabe from evicting him from the property.

10.	Mr. Matiabe also filed an eviction proceeding against Mr. Kilambu.

11.	Both proceedings were consolidated and the Court then directed that parties prepare affidavits or statements and have them filed for a proper trial to be conducted. On 21st September, the Court proceeded to hear the case by way of affidavit and heard their submissions, and reserved it’s ruling, which I now hand down. 

C.	ISSUE

12.	Whether Mr. Isaac Matiabe should be granted orders for free and vacant possession and Mr. Kilambu be ordered to vacate the premises.

D.	EVIDENCE

13.	Mr. Matiabe is the proprietor of the property, and has a current license.

14.	Mr. Kilambu has been residing on the property and done various improvements to the property by erecting a semi-permanent house during his tenure of residency.

15.	There was a verbal agreement for the sale and purchase of the state lease property.

16.	The verbal agreement had an agreed price of K 65, 000.00 for the sale and purchase of the property, but there was no specific date when the transfer would occur or in other words, the specific time Mr. Kilambu would make the full and final payment for the purchase price of the property.

17.	The two parties never engaged a lawyer to assist them with the conveyancing of the property

E.	THE LAW
18.	It is trite law that, a registered proprietor (title holder) has the right to free and vacant possession, which is also free from all encumbrances, unless there is fraud which can then be used to challenge the title.

19.	All registered land lord who have state lease are protected by the Torrens System of indefeasibility of title, and this is given recognition by Land Registration Act, specifically encapsulated under s. 33 of the Act. This provision states;

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)	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 favor 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.
20.	Where a landlord’s right to possession has been disturbed and the landlord is not given the ease of right to access and occupy the land, which he has the title, the District Courts have the power to deal with matters concerning eviction proceeding such as the proceeding CV No. 12 of 2021. This is provided for under s.6 of the Summary Ejectment Act, which states as follows;
6. Recovery of premises held without right, etc.
(1) Where a person without right, title or license 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.

21.	The provision has been the jurisdictional basis for the District Courts to order eviction, and free and vacant possession of property to land lords and registered title holders. From the most recent decisions such as Herman Gawi v Ready Mixed Concrete PNG Pty Ltd [1984] PNGLR 74 ensures that a tenant or squatters equitable interest allows for a proper consideration of period notice given for eviction to the occupant, but does not override the legal interest of the proprietor.
 
22.	In the case of Kaevaga Land Group v Tulia [2020] PGDC 68; DC5088 (04 November 2020), I stated that;

“it is a well settled law that the registered proprietor of a state lease has an indefeasible title, and this principle has been adopted and widely applied in our jurisdiction beginning with the case of Mudge v Secretary for Lands & Ors [1985] PNGLR 387, in which the Supreme Court extensively discussed the principles of indefeasibility of title, and held that a person who is a registered proprietor of title is protected by the Torrens System of indefeasibility of title.”

23.	Mr. Kilambu then raises an argument that the verbal agreement for sale and purchase of the property was made and there is an existing agreement on the sale, purchase and eventual transfer of the property between himself and Mr. Matiabe. 

24.	The argument is quite correct but no so in its entirety because of certain legal requirements that need to be satisfied. Firstly, the nature of the agreement, and secondly, the statutory requirement required to be satisfied for the sale and transfer of alienated land and its chattels and fixtures attached to or on that land.

25.	In considering our first argument, the law of contract dictates that every term of an agreement must be binding on parties, and parties entering into such agreement must ensure that there are no ambiguities in the terms of the agreement. (include a case law)

26.	Nevertheless, in an agreement for sale of property, such agreement to sell and purchase properties that are State Land, the statutory requirements and the nature of such agreement are statutorily guided and must be in conformity with the Land Title Registration Act.

27.	If the agreement made is inconsistent with the legislative prerequisites, then the agreement would be void and unenforceable. In the case of Garabe v Agiru   I considered the views of Sheehan J in Putput Logging Pty Ltd v Ambalis [1992] PNGLR 159; N1094 (18 June 1994) where His Honour set out succinctly that if a class of contract has been expressly declared by a statute to be unlawful, the courts are strictly bound to observe such express declarations made by the statute. 

28.	Whilst we also appreciate the protection of the interest of a registered proprietor, I am also wary that, the Frauds and Limitations Act also set out the strict limitation and requirement in creating an interest over land. The provision which set the parameter is specifically S.2(1)(a)(i) of the Act, whilst the other provisions talks about interest created through will and trust, which basically states that;

		PART II. — TRANSACTIONS THAT MUST BE, OR BE EVIDENCED, IN WRITING.
Division 1. — Land Transactions.
	2.	Creation, etc., of interest in land.
(1)	Subject to Subsection (2) and Section 5—
(a)	no interest in land can be created or disposed of except—
(i)	by writing signed—
(a)	by the person creating or disposing of the interest; or
(b)	by that person's agent lawfully authorized in writing for the purpose; or
(ii)	by operation of law; or
(iii)	by will; and
(b)	a declaration of trust respecting any land or interest in land must be manifested and proved—
(i)	by some writing signed by a person lawfully able to declare such trust; or
(ii)	by that person's will; and
(c)	a disposition of an equitable interest or trust subsisting at the time of the disposition must be—
(i)	in writing signed—
(a)	by the person disposing of the equitable interest or the trust; or
(b)	by that person's agent lawfully authorized in writing for the purpose; or
(ii)	by will.
(2)	Nothing contained in Subsection (1) shall be construed as affecting the creation or operation of resulting, implied or constructive trusts, and that subsection shall be read and construed accordingly.

29.	It is therefore a statutory requirement for every agreement regarding creation or disposal of property interests to be properly documented. The essential requirement of such is to avoid chaotic and conflicting versions of the agreement between parties intending to create and dispose interests concerning property.

30.	On the other hand, the courts are tasked to protect legislative requirements and shun practical and hypothetical arguments that arise from actions that a contrary to the statute, or requirements of a statute. What has happened in this case is where both parties have engaged in a purported verbal agreement which was not only a vague agreement, but also an agreement that was inconsistent with statute.

31.	In the case of Garabe v Kora [2021] PGDC 106; DC6060 I considered the principle of ‘in pari delicto’  applied by Sheehan J, in the case of Putput (supra), and I made orders for parties to share the monies arising from future sale of the land. This was on the basis that land is communally owned and is not a sole property of an individual, which is contrasting to a state lease property, as is in this current proceeding. The Garabe (supra) case concerned land that was customary land and its user rights, possessory rights and interests connected to the land is controlled by the Huli Custom, and that customary land are communally owned and both parties were traditional landowners and had equal rights to benefit from the land.
32.	In this matter, can I penalise Mr. Matiabe? To my mind, the answer is ‘NO’. The simple reason is that both parties had an agreement that was convoluted with uncertainty, and statutory irregularity, which this court finds improper to enforce.

33.	In furtherance of that, the plausible difference between the Garabe case and this one is that the Garabe case concerned land that was customary land and its user rights, possessory rights and interests connected to the land is controlled by the Huli Custom, and that customary land are communally owned and both parties were traditional landowners and had equal rights to benefit from the land.

34.	In this case, it is different. This is a case where the rights of a land owner is protected by statute, and it is a contrasting concept of ownership, which acknowledges and protects the rights of a landlord by providing an avenue for the landlord’s interest to be recognised by the Courts in ensuring that free and vacant possession is given to the landlord, to the exclusion of others.

35.	Whilst the statute must never be used as a cloak to distinguish an illegal act, in circumstance such as this where the parties both had not engaged lawyers and were in ignorance of law, is it proper to penalise both parties? If that would be the case, then Mr. Matiabe would be ordered to honour the agreement and proceed to transfer the property upon full settlement of the purchase price, and Mr. Kilambu will have to settle the balance. This will then pose one major problem for me if I was to make an order for specific performance of that agreement, as I stated above. That problem is that the verbal agreement had no specific dates and terms which would bind parties so as to bind parties. 

36.	Mr. Matiabe is the holder of the title, and Mr. Kilambu is the occupant who has done developments on the said land. It is only fair for this court to order eviction but Mr. Kilambu must be given considerable timeframe to vacate the property. Therefore, in assessing all that is before me, I do not need to say anything further. I will proceed to make the following orders.

THE COURT HEREBY ORDERS THAT:
1.	The proceeding CV No. 11 of 2021 – Michael Kilambu v Isaac Matiabe is dismissed.

2.	The applicant Isaac Matiabe is hereby granted free and vacant possession of the land described as Allotment 04 Section 01, Town of Koroba, Hela Province.

3.	The defendant is given thirty (30) days to vacate the premises and remove any structures and improvements, whether chattel or fixture erected during his tenure of stay, and vacate the property described as allotment 04 section 01, Town of Koroba, Hela Province.

4.	Cost be borne by parties

5.	Time for the entry of this order is abridged.

BY THE COURT
Magistrate Mr. E. Komia