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Keiu v Gaina [2021] PGDC 200; DC7080 (12 November 2021)

DC7080

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]
DCC NO: 116/2021.

IN THE MATTER BETWEEN:

PAUL PORA KEIU.
Complainant.
.
AND.

DICKSON GAINA.
Defendants.

Popondetta: Michael W. Apie’e

2021: November 12^th.

CIVIL PROCEEDINGS. Action seeking Summary Ejectment of Defendants from Lands supposedly Subjected to Alienation /Title in favour of the Complainant and others under Section 6 of Summary Ejectment Act.

CIVIL PROCEEDINGS. Claim for Restraining Orders against the Defendants

Gawi v. PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 72

References:
District Court Act.
Summary Ejectment Act

Representation:
Mr. Paiya from Paiya Lawyers for the Complainant.
Defendant for himself.

JUDGMENT ON TRIAL.

Background.

1. The Complainant filed suit before the District Court in DC 145 of 2021 on the 08/09/21.
   
2. The Complainant is titled owner to property at Popondetta namely Allotment 1999C Sangara in Popondetta after purchasing the said property from Land Owner namely Winches Dama.
   
3. The Defendant and his family and Friends are in occupation of the same property allegedly without right and so the Complainant filed suit to seek their summary ejectment within a number of days.
   
4. Complainant also filed a Notice of Motion dated 09/09/21 and he moved that Notice of Motion via Counsel Mr. Paiya from Paiya Lawyers before me on Wednesday the 10/11/21.
   

Applicants case.

5. In pressing this current Notice of Motion before this Court the Applicant/Complainant seeks the following orders Against the Defendant as follows
   
   1. Pursuant to Section 6of the Summary Ejectment Act 1952, the Defendant and his family, friends and agents be allowed 14 days to self-evict from the property described as Allotment 1999C Sangara.
      
   2. Alternately for the court to Direct Police to enter said Property Pursuant to Section 6(2) of the Summary ejectment Act and give vacant possession to the Complainant.
      
   100. Costs.
        
   4. Any other orders the Court deems meet.
      
6. The Complainants affidavit in support discloses in Annexure “A” the Leasehold Title to the said Property and on face value, the title seems to be in order and therefore conveys Indefeasible Status as title Holder to the Complainant.
   
7. On the basis of being title holder, the Complainant seeks the summary ejectment of the Defendant and others of his family and friends from the said property and to allow him vacant possession and enjoyment of his titled property.
   

Defendants case.

8. The Defendant in his response raised the following matters;
   
   1. He claims to have being the Complainants first contact in Popondetta.
      
   2. He further claimed that the Complainant used his (Defendants) contacts to establish his PMV operations in Popondetta and even named his Bus in the Complainants Daughters name, later renaming it ‘Jiwaka Style Flower’ after establishing himself.
      
   100. He also claimed that the Complainant could not have purchased this Land Portion 1999C Sangara if he had not acted as a middleman between the Complainant and the Land Owner Winches Dama.
        
   4. He claimed that the Complainant ought to compensate him before he can move out.
      
   5. The Defendant has not claim any legal of Equitable rights over the Property, let alone he has not claimed any relationship or Kinship to the Landowner Winches Dama, in order to claim any connection to Portion 1999C Sangara.
      
   6. He is an Outsider insofar as this Lands History is concerned thereby making his continued and persistent lingering on this land a nuisance.
      
9. Section 6 of the Summary Ejectment Act reads;
   

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.

10. Observations /Assessments. Having heard the submissions in this Notice of Motion, I make the following observations and assessments;
    
    1. I note that the Defendant had previously filed a claim against the Complainant in CI No: 7 of 2021 wherein he filed against the Complainant to seek compensation or Forfeiture of this same Land Portion 1999C to him, as compensation for what he calimed were promises made to him by Paul Pora Keiu.
       
    2. I threw out that case as being misguided and untenable at Law on the 13/04/21.
       
    3. It seems this issue is back before this court.
       
    4. The Complainants reliance on Section 6 of the Summary Ejectment Act to seek ejection of the Defendant from the Property, is in order.
       
    5. The Defendant has not established any justifiable excuse or grounds sufficient to grant him and his family and friends an interest or right to remain on the Land.
       
    6. The reasoning of Late Kapi DCJ as he then was in the case of Gawi v. PNG Ready Mixed Concrete PTY Ltd [1984] PNGLR 74 is on point here wherein the Late Deputy Chief Justice in discussion discussing Section 6 of the Summary Ejectment Act held that ‘If the one Claiming Ejection of someone else has clear title then this Provision should be invoked, but if such persons Title or Claim to the Alienated Land is ‘Bone Fide’ in Dispute, then Section 6 cannot be invoked’
       
    7. What this simply means for this case is that ‘If Dickson Gaina and his relatives can lawfully claim an interest over this Property either legal or Equitable either by custom or Law’ then the Court should not invoke Section 6 against them in this instance but rather resort to other processes or avenue to resolve the matter.
       
    8. It also means that ‘If Paul Pora Keiu does not have clear title and even if he had purchased the Land but title was still not granted to him, then Section 6 could not be invoked in his favour as his title is ‘Bona Fide’ in dispute.
       
    9. In this case the court notes the following;
       
       1. Paul Pora Keiu is title holder to Portion 1999C Sangara and his therefore holds clear indefeasible title to the Property.
          
       2. Dickson Gaina and his family and friends have not established any Legal or equitable interest or rights over Portion 1999C Sangara, but are merely Illegally Squatting on the said Land.
          
    10. Dickson Gaina’s claims of a Civil Debt against the Complainant are a separate matter having no relevance to the case at hand and therefore does not equate to a Legal or Equitable Right or Interest to disrupt the Complainants right to the Enjoyment of Vacant Possession of his titled Property.
        
    11. The Defendant is at liberty to rationalize his claim of civil debt against the Complainant and pursue appropriate venues to recover such instead of resorting to illegalities and also resorting to unlawful, frivolous and vexatious means to realize this concern.
        
11. Accordingly, the Court will order as follows;
    
    1. The Complainants claims are made out.
       
    2. Pursuant to Section 6 of the Summary Ejectment Act the Defendant Dickson Gaina and his Family, Friends and Relatives are allowed 21 days to Self-Evict from Portion 1999C Sangara and allow Vacant Possession of the Property to the Complainant Paul Pora Keiu.
       
    3. Failing the Complete Eviction of the Defendant and his Family and Friends from Portion 1999C Sangara, Orders will be issued to Police pursuant to Section 2 of the Summary Ejectment Act to Enter and give vacant Possession to the Complainant.
       
    4. Costs to the Complainant.
       

Paiya Lawyers for the Complainant.
Defendant for himself.