[national court of justice]

tony yandu and eddie guken

v

peter waiyu and jita guken

kimbe: cannings j

8 July, 24 August, 7 October 2005

Courts – District Court – Jurisdiction of District Court in land matters – District Courts Act, Section 21(4) – District Court has no jurisdiction in cases where title to land is bona fide in dispute – Identification of bona fide dispute – Effect of registration of interest in land.

Land – State Lease – Indefeasibility of title – Land Registration Act, Section 33 – Summary Ejectment Act

LAND – State Lease – Intestates succession according to custom.

Facts

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 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 s.21(4)(f) of the District Courts Act as there was a bona fide dispute about title to the land. 

Held

1.	The District Court has no jurisdiction in cases where the title to land is bona fide in dispute. 

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.

3.	Proceedings under the Summary Ejectment Act are intended to provide a quick remedy to people who have a clear title to premises. Gawi v png Ready Mixed Concrete Pty Ltd [1984] PNGLR 74 applied. 

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. 

5.	The appellants failed to establish any error of law by the District Court, so the appeal was dismissed.

Papua New Guinea cases cited

Gawi v png Ready Mixed Concrete Pty Ltd [1984] PNGLR 74.
Mudge v Secretary for Lands and Others [1985] PNGLR 387.

Counsel 

S Lupalrea, for the appellants.
O Oiveka, for respondents.

7 October 2005

Cannings j. This is an appeal against a decision of the District Court at Kimbe, constituted by Mrs G R Coppard, in which her Worship upheld a claim to evict the first appellant from a block of land. 

Background

The appellants, Tony Yandu and Eddie Guken, and the respondents, Peter Waiyu and Jita Guken, are related. Tony and Eddie are brothers and their sister is Jita. Peter is Jita's husband. The father of Tony, Eddie and Jita was Guken Yapite. They all come from the Wosera district of East Sepik Province but have been living in West New Britain Province for many years.

Yapite was the lessee of an agricultural lease at Sarakolok, near Kimbe: Portion 910. It is a sizeable block, being 12.82 hectares in area, approximately 31.68 acres. A 99-year lease was originally granted in May 1971. Yapite acquired the lease in December 1982. Oil palm is grown on the block. It is harvested and sold to New Britain Palm Oil Limited (NBPOL), which processes the produce at its mill at nearby Mosa. 

Yapite died some time between 1992 and 1994. The documents on the court file give different dates of death. It is difficult to say exactly how old he was and it does not matter for the purposes of these proceedings. He was an old man. He died without leaving a will, ie intestate.

The appellants and the respondents had been living on the block, in different houses, for some years prior to Yapite's death. It seems that they have not been getting on very well for at least 15 years. They continued to live on the same block. But a dispute continued between Peter and Jita, on the one hand, and Tony, on the other hand. Peter and Jita claimed that Tony was not Yapite's biological son. He was only a relative who Yapite looked after. He was not formally adopted. Peter and Jita were concerned that Tony was harvesting too much oil palm, selling it to NBPOL and pocketing the proceeds. Peter and Jita thought they were not getting their fair share and that Tony had no right to be on the block.

In 2001 Jita applied to the Registrar of Titles to get title to the block transferred to herself, apparently on the ground that Yapite had died intestate and she was his eldest child and therefore entitled by custom to the land. Jita's application was made under s125 (transmission to person entitled by custom) of the Land Registration Act Chapter No 191, which states:

Notwithstanding Section 118 or 119, where—

(a)	a registered proprietor of an estate, interest or security dies intestate; and
(b)	the estate, interest or security is transmitted to a person entitled to it by custom,
the Registrar shall, on production of a certificate in the approved form signed by the Custodian [for Trust Land], register the person so entitled as proprietor of the estate, interest or security. 

In mid-2001 the Oil Palm Industry Corporation (OPIC) became involved in the ongoing dispute. On 15 June 2001 one of its officers, Michael Wila, made this statement, a copy of which is on the Registrar of Title's file:

RE: DECEASED ESTATE – BLOCK 003 – 0910 	SARAKOLOK
According to our office records, it depicts that above property has an ongoing in fighting between deceased's sons, Tony Guken and his in-law. Peter Waiyu, over ownership of the property.

The dispute actually started in 1990 and both parties have attended several OPIC/Lands mediations that even went further to local and district courts, however the differences among both parties still exist today.

Our records also states that deceased, Guken Iapiti has two (2) blocks, portion 003-0913 which he successfully applied for & developed while portion 003-0910 was purchased. 

Portion 003-0913 was allocated to eldest son, Eddie Guken while the purchase block, portion 003-0910 was under Tony Guken's care.

Our recent mediation, having considered the length period of differences recommended for a better understanding to prevail among them to come together, reconcile and sort themselves out to live in peace & harmony.

Tony Guken is in possession of the lease title document. [sic]

On 21 June 2001 Peter and Jita filed complaint No 366 of 2001 in the District Court. They sought orders that Tony be restrained from harvesting oil palm on the block and evicted under the Summary Ejectment Act Chapter No 202.

On 29 November 2001 the Custodian for Trust Land certified that Jita was entitled by customary succession to be the registered proprietor. On 20 December 2001 the Registrar of Titles entered a transmission of Yapite's estate in the following terms:

In consequence of the death of the said Guken Yapite in 1994 and pursuant to a certificate … given in accordance with s125 of the Land Registration Act Chapter No 191 his whole estate in the within lease is now transmitted to Jita Guken of Kimbe. Produced 06/12/2001 at 9.00 am entered 20/12/2001.

On 18 January 2002 the matter came before the District Court. The matter was heard ex parte, in the absence of the sole defendant, Tony Yandu; however, it is not claimed by Tony or Eddie that there was any procedural irregularity. Her Worship Mrs Coppard made the following order:

1	The defendant shall vacate the property described as Portion 910 at Section 5, Sarakolok, Kimbe, WNBP, within fourteen (14) days from the date of this order failure of which a Warrant to enter and give possession pursuant to the Summary Ejectment Act shall be issued to the members of the Police Force to forcefully enter and give vacant possession of the abovenamed property to the Complainants.

2	That the defendant pays to the Complainants the sum of K318.00 as costs forthwith.

Tony and Eddie have complied with the District Court order. They no longer live on the block.

On 19 February 2002 the Registrar of Titles, Raga Kavana, wrote to Jita's husband, Peter, suggesting that Peter had used false documents to get the block transferred to Jita. The Registrar stated:

You have misled this office through the Provincial Affairs Office by lodging in false documents that resulted in issuing of replacement title and registering the transfer of the title by transmission to your wife Mrs Jita Guken from her father Mr Guken Yapite.

According to the documents presented to this office, the Original Owner's Copy of the title has not been lost or destroyed as you have claimed. Also the Transmission Certificate Details show that Antonia Guken, Eddie Guken, Pako Jita (Jita Guken) and Tony Guken are willed to have ownership over the property as joint tenants and not Jita Guken as sole proprietor as you claimed.

On 21 February 2002 the Director of the Border and Special Projects Division of the Department of Provincial and Local Government Affairs, Christopher Kati, wrote to the Magistrate, Mrs Coppard, requesting that her Worship's order of 18 January 2002 be set aside. The Director stated:

I understand that Kimbe District Court had on 18th January 2002 had issued a Court Order to Tony Yandu to vacate the property situated on Portion 910, Sarakolok oil palm block.

According to records held by the Registrar of Titles, the original owner of the property (block) is the late Guken Yapine (who is the adopted father of Tony Yandu).

It has been recently discovered that during the transmission process on the property, Peter Waiyu, husband of Jita Guken (daughter of the deceased Guken Yapite) had provided false documents and information to this department to authorise transmission/transfer of the title for that property to his wife Jita Guken.

Eddy Guken, elder son of the deceased had lodged complaint with my department and the Registrar of Titles requesting us to cancel the title from Jika Guken and transfer it to himself and his adopted brother Tony Yandu.

Transmission of that property was authorised by my department's secretary who is the official Custodian of all trust/customary land as provided for under Section 124 of the Land Registration Act (Chapter No 191). This transmission is mostly done accordingly to customs.

Documents recently provided by Eddy Guken indicated that the property (Portion 910) should be jointly inherited by the following persons:

1	Antonia Guken (wife)
2	Eddie Guken (son)
3	Pako Jita (daughter)
4	Tony Guken (son)

Eddie Guken had lodged his complaint with my department and the Registrar of Titles regarding this matter. Mr Raga Kavana, Registrar of Titles, has written to Peter Waiyu (husband of Jita Guken) informing him of the complaint and would in due course request him to verify this claim/documents that he lodged for transmission.

Based on the facts above, I request that you set aside that order so that Tony Yandu could continue to reside on the property until the matter is dealt with by the Registrar of Titles.

Despite the suggestion that Peter and Jita acted improperly nobody has taken any action to disturb the transmission of the block to Jita. She has been, since 20 December 2002, the registered proprietor.

On 12 July 2002 Lenalia J granted Tony an extension of time to appeal against the District Court and joined Eddie Guken as a party to the appeal. The appellants filed a notice of appeal to the National Court on the same day, 12 July 2002. The appeal was filed at the Kokopo Registry by the appellants' original lawyers, Latu Lawyers. On 25 July 2002 a notice of entry of the appeal was filed, again at Kokopo. On 6 February 2004 Bidar AJ ordered that the file be transferred to Kimbe. 

The appeal was heard on two separate days. On the first day, 8 July 2005, I heard the background of the case. I asked the appellants' lawyer, Mr Lupalrea, to search the Registrar of Titles' file on the property. The respondents' lawyer, Mr Oiveka, agreed that that was a good idea. So the hearing was adjourned. Mr Lupalrea arranged the search then swore an affidavit dated 9 August 2005 annexing the results. Many of the documents referred to above are annexures to Mr Lupalrea's affidavit. The second day of the hearing was 24 August 2005. Mr Oiveka did not object to the documents annexed to Mr Lupalrea's affidavit being used for the purpose of determining the appeal, so their authenticity and admissibility is not in dispute. 

THE DISTRICT COURT DECISION

Her Worship gave no reasons for her decision at the time of handing it down or immediately afterwards. However, after the notice of appeal was filed she prepared a statement of reasons that explains how and why she made the decision. Her Worship also responded to the grounds of appeal. This seems an unusual approach. However, neither counsel made an issue of it. It appears that her Worship's statement complies with Section 225 (report by magistrate) of the District Courts Act Chapter No 40, which requires the Magistrate, after being notified of a notice of appeal, to forward to the Registrar of the National Court a written report setting out the reasons for the making of the decision being appealed against. 

Her Worship pointed out that the matter first came before the District Court, before other magistrates, on 28 June and 13 July 2001. She became seized of the matter on 18 July 2001. She was informed by Peter and Jita's lawyer that transmission of the lease to Jita was in train. She was shown documents to prove that that was the case. She warned herself that she would have no jurisdiction if there were a dispute about title:

I made it clear to the parties that only the person with the clear title can evict the other. I was sure from the necessary documents and procedures taken by Lands Office, a transmission and lease title was forthcoming. 

When the matter came before her Worship again on 18 January 2002, a copy of the lease was presented. The transmission (to Jita) had been effected on 20 December 2001. Tony, who was the sole defendant, did not appear, so she dealt with the matter ex parte. Her Worship considered that Tony was given proper notice of the hearing. As the lease made it clear that Jita was the registered proprietor she considered that it was expedient to make an order under Section 6(2)(a) of the Summary Ejectment Act. 

Section 6 (recovery of premises held without right, etc) states:

(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.

This authorised the Police to go to the block and give possession to Peter and Jita. Therefore Tony was ejected.

Her Worship considered that Jita was the oldest surviving child of Yapite and that normal procedures were followed before the lease was transmitted to Jita. Tony was not Yapite's biological child but it was Tony who was reaping the proceeds of the sale of oil palm to the exclusion of the biological children. Peter was not the real complainant in the District Court. He was not holding himself out to be the registered proprietor. He was only helping Jita, his wife, who was the legally recognised registered proprietor. 

There was no evidence before the District Court that the title was in dispute. If Tony had appeared and produced evidence of a dispute, she would not have had jurisdiction to make the order. However he did not appear. There was no other evidence available. So there was no dispute. Therefore the District Court had jurisdiction to make the order, her Worship ruled.

GROUNDS OF APPEAL

The notice of appeal states the following grounds:

1	That the learned Magistrate erred in fact and law when she made the orders on the 18th January, 2002 because at the date of filing of the Summons the respondents did not have any clear title or at all in respect of Portion 910 either as joint tenants or severally. 

2	That the learned Magistrate erred in fact and law when she found in favour of the respondents when there was overwhelming evidence that the Title was absolutely and substantially in dispute and that the other declared beneficiaries to the said Title did not consent to the purported Transmission of the said Title to Jita Guken. 

3	That the respondent Peter Waiyu lacked locus standi in being a Complainant to the said proceedings as he is not one of the Proprietors to the said property nor a beneficiary. 

4	In the alternative, assuming that Peter Waiyu had no locus standi [sic], to bring such eviction proceedings, the learned Magistrate erred in law in that she did not comply with the procedures set out in the Summary Ejectment Act Chapter 202. 

MAJOR ISSUE

Mr Lupalrea, for the appellants, did not press ground Nos 3 and 4 strongly and I can see no merit in them. Peter was an occupier of the block and Jita's husband. He clearly had a legitimate interest in the District Court proceedings. He had locus standi. So ground No 3 is dismissed. No details were provided to support ground No 4. It is a bald assertion, and poorly drafted. It is also dismissed. 

The central issue is raised by ground Nos 1 and 2, which argue the same point: that there was an ongoing dispute about title to the land and therefore the District Court had no jurisdiction. This is a substantial ground of appeal that requires careful consideration in view of Section 21(4)(f) of the District Courts Act which states:

A [District] Court has no jurisdiction in the following cases: …
when the title to land is bona fide in dispute.

Section 21 is the provision that sets out the nature and extent of the jurisdiction of the District Court in civil matters. It complements Section 20, which sets out the Court's criminal jurisdiction.

APPELLANTS' SUBMISSIONS

Mr Lupalrea argued that when the District Court determined the proceedings under the Summary Ejectment Act, Jita did not have clear title to the block. She had applied for the block, still in Yapite's name, to be transmitted to her. But that had not happened when the case was heard. There was no clear evidence before the District Court. Jita had gone behind the backs of her brothers to get the lease transmitted. Peter had misrepresented the situation. There is clear evidence in the correspondence from the Registrar of Titles, the OPIC officer and the Department of Provincial and Local Government Affairs that title to the block was a very contentious issue. Her Worship would have been aware that this was a case of family infighting and she should have refused to deal with the matter. Therefore the District Court order of 18 January 2002 should be quashed. 

RESPONDENTS' SUBMISSIONS

Mr Oiveka submitted that her Worship had carefully considered the relevant law, satisfied herself that there was no dispute – that there was clear title – and made the correct decision. The appellants were not present at the hearing of 18 January 2002 when her Worship made the order. It was an ex parte order. They had the right to go back, under Section 25 of the District Courts Act, and ask that the ex parte order be set aside. They did not do that, so they have lost the opportunity to argue that there was a dispute. 

WAS THE TITLE TO THE LAND BONA FIDE IN DISPUTE?

This is the critical issue. If the answer is yes, the District Court erred. It had no jurisdiction and its decision will be quashed. If the answer is no, the District Court did not err. The appeal will be dismissed and the District Court's decision will remain intact. 

It is important at this juncture to restate some facts. The decision being appealed against was made on 18 January 2002. There was a hearing that day which the appellants did not attend. The transmission to Jita had been effected a month previously, on 20 December 2001. A copy of the lease, showing the transmission, was shown to the District Court on 18 January 2002. I point this out clearly as when the appeal was argued both counsel gave the impression that the learned Magistrate was acting on assurances that the transmission was going ahead but that she had not sighted any documents. Her Worship's statement of reasons indicates the opposite. I find that the lease, showing the registered transmission to Jita, was before the District Court. 

This meant that Jita was, on the day that the District Court made its decision, the registered proprietor of Portion 910. She had an indefeasible title subject only to the exceptions prescribed by Section 33 of the Land Registration Act (protection of registered proprietor), which states:

(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 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.

'Indefeasible title' means that Jita was recognised by the law as the owner of the property (Mudge v Secretary for Lands and Others [1985] PNGLR 387, Supreme Court, Kidu CJ, Pratt J, Woods J). It also means that it was proper for Jita to make an application under the Summary Ejectment Act to eject anybody from the block that she did not want there, including her brothers. Proceedings under the Summary Ejectment Act are intended to provide a quick remedy to people who have a clear title to premises (Gawi v png Ready Mixed Concrete Pty Ltd [1984] PNGLR, Supreme Court, Kidu CJ, Kapi DCJ, McDermott J).

The only way that the District Court's jurisdiction could have been removed in this case is if Tony, who was at the time the sole defendant, had shown that he had commenced some proceedings to challenge Jita's title. But there was no evidence that he had done so. Even now, almost four years after transmission of the lease to Jita, no court proceedings have been commenced that challenge Jita's title. 

I have considered the three documents annexed to Mr Lupalrea's affidavit: the statement by the OPIC officer of 15 June 2001; the letter from the Registrar of Titles of 19 February 2002; and the letter from the Director of the Borders and Projects Division of the Department of Provincial and Local Government Affairs of 21 February 2002. They make interesting reading. They suggest that the issue of transmission of the block to Jita has been a controversial issue. Allegations of impropriety have been made against Jita and Peter. However, it does not follow from that, that there was in the relevant sense a bona fide dispute about title to the land at the time that her Worship made her decision.

If a person, such as Jita, commences proceedings in the District Court to enforce her interest in land, and she is the registered proprietor of a State Lease, then 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.

In this case no such steps were taken by Tony or Eddie or anybody else. There was no bona fide dispute. The District Court had jurisdiction and did not err in law. This appeal will be dismissed. 

REMARKS

The result of this appeal is that the District Court decision will remain in force. This is very much an intra-family dispute. It might be that, with time, the parties can again live together peacefully on the same block. Jita is the owner of the block. As long as she is the owner she has the right to decide who comes on to the block. Tony and Eddie have no right to be there unless they convince Jita that they should come back. That is something for them to sort out amongst themselves. 

If Tony and Eddie are still concerned about the way the lease was transmitted to Jita, they should ensure they have exhausted all administrative and legal steps to challenge Jita's title. A number of people have suggested that Jita might have got the title by fraud. It was not the purpose of this appeal to test those allegations. However, a person's interest in land can be set aside, if it has been obtained through fraud. There needs to be evidence, of course. 

If the parties cannot sort out a way for them all to live on the block and if Tony or Eddie take no administrative or legal action to challenge Jita's title then that will be it. Tony and Eddie must stay off the block and not cause any trouble for Jita or Peter.

COSTS

Normally the side that loses a case such as this will get an order from the court saying that they must pay the other side's legal costs. This is a matter for the discretion of the court. In this case I will not make an order for costs until I have heard from both sides.

JUDGMENT

The National Court dismisses the appeal. 

Appeal dismissed.

Lawyers for the appellants: Lupalrea Lawyers.
Lawyer for the respondents: Public Solicitor.