N3048

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 336 0F 2005

YOMI SIWI
Appellant

V

LINCY MATHEW
Respondent

KIMBE: CANNINGS J
20 DECEMBER 2005, 20 APRIL 2006

APPEAL

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 – indefeasibility of title – transfer of interest in land – Land Registration Act, Sections 33, 42, 55.

Land – Summary Ejectment Act – whether title to land is clear. 

The appellant and the respondent were living in different houses on a portion of land near Kimbe. They are former employees of a businessperson who was thought to have purchased the land from an incorporated land group. However, the respondent was registered on the certificate of title as the transferee and he instituted ejectment proceedings against the appellant in the District Court. The respondent succeeded in the District Court, which ordered that the appellant be evicted from the land. The appellant appealed against that order, arguing that the District Court had no jurisdiction under the District Courts Act as there was a bona fide dispute about title to the land, which was customary land, and which should have been determined under the Land Disputes Settlement Act. 

Held:

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

(2)	However, if a registered proprietor of land commences proceedings in the District Court to enforce his interest in land there is no bona fide dispute about title unless some other person demonstrates that they have taken some distinct, formal, legal step to disturb that title. Tony Yandu and Eddie Guken v Peter Waiyu and Jita Guken (2005) N2894 applied.

(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 freehold land 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 appellant failed to establish any error of law by the District Court in the manner in which it dealt with the matter on the basis of the evidence before it.

(6)	An application by the appellant for the National Court to receive new evidence was granted; however, the new evidence failed to demonstrate any bona fide dispute about title and had no effect on the outcome of the appeal.

(7)	The appeal was therefore substantively dismissed though the orders of the District Court were varied to allow the appellant more time to negotiate a settlement with the respondent or leave peacefully.

Cases cited:

The following cases are cited in the judgment:

Busina Tabe v The State [1983] PNGLR 10
Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74
John Peng v The State [1982] PNGLR 331
Mai Kuri v The State (No 2) [1991] PNGLR 311
Mudge v Secretary for Lands and Others [1985] PNGLR 387
Ted Abiari v The State (No 2) [1990] PNGLR 432
Tony Yandu and Eddie Guken v Peter Waiyu and Jita Guken (2005) N2894

Abbreviations

The following abbreviations appear in the judgment:

CJ – Chief Justice
DCJ – Deputy Chief Justice
eg – for example
ie – that is; by which is meant
J – Justice
N – National Court judgment
No – number 
PNG – Papua New Guinea
PNGLR – Papua New Guinea Law Reports
SC – Supreme Court judgment

Tables:

The following tables appear in the judgment:

1 –	Documentary evidence before the District Court.	
2 –	New evidence the appellant wants the National Court to receive.	

APPEAL

This was an appeal from a decision of the District Court ordering the vacation of property under the Summary Ejectment Act.

Counsel:
O Oiveka for the appellant
G Linge for the respondent

CANNINGS J:

INTRODUCTION

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 appellant from a block of land. 

BACKGROUND

The appellant, Yomi Siwi, and the respondent, Lincy Mathew, have been living, in different houses, on the same block of land at Morokea, near Kimbe, for some years. The land is officially described as "Portion 2336, Milinch Megigi, Fourmil Talasea; Volume 33, Folio 2". It is also known as "Huviki".

The land used to be customary land but in 1995 a certificate of title was issued to Morokea Land Group Inc, a body recognised under the Land Group Act Chapter No 147, pursuant to the Land (Tenure Conversion) Act 1963.

For some years a non-citizen, Jerry Pan, was running businesses in Kimbe called Kimbe Marine Products and Kimbe Constructions. Some years ago he acquired the land from Morokea Land Group Inc. Whether he actually purchased the land is a moot point in view of the evidence that was before the District Court. However, the appellant and the respondent were Jerry Pan’s employees and Jerry Pan provided staff accommodation for them and another employee on the land.

At some time in the last couple of years – it is not clear when and it is not important for the purposes of this appeal – Jerry Pan left Kimbe. Some of the evidence suggests he might have fled the country, leaving his staff and creditors unpaid. That is not a fact that has to be determined for this appeal.

In 2005 the respondent took the view that the land was his – not Jerry Pan’s or anybody else’s. The appellant was living on the land, and the respondent asked him to leave. The appellant did not accede to that request and the respondent brought the matter to the District Court.

DISTRICT COURT PROCEEDINGS 

On 4 March 2005 Complaint No 183 of 2005 was filed in the District Court at Kimbe. The complainant was Lincy Mathew (the respondent in the present appeal). The defendant was Yomi Siwi (the appellant in the present appeal). 

The complaint was that the appellant was illegally residing on Portion 2336, Morokea. The respondent claimed that the land had been transferred to him by Jerry Pan, who had converted it to freehold. He sought an order for eviction under the Summary Ejectment Act.

On 18 May 2005 her Worship Ms J Valvona made an ex parte order that the appellant be evicted. But that order was set aside and the matter came before Mrs Coppard on 16 June 2005. Both parties were present. The respondent argued that the land was his and he wanted the appellant to leave. The appellant argued that the land belonged to Jerry Pan. He could not pay his employees but allowed them to stay on the land. 

The documentary evidence before the District Court is summarised in table 1. Column 1 gives the document number, column 2 describes the author and/or nature of the document and column 3 summarises the contents.

TABLE 1: DOCUMENTARY EVIDENCE 
BEFORE THE DISTRICT COURT

No	Description	Content 	
1	Affidavit,
Lincy Mathew, complainant, 
08.03.05	States that the defendant Yomi Siwi is illegally residing on his property, which was transferred to the complainant by Jerry Pan – annexes the certificate of title.	
2	Statutory declaration, 
Jerry Pan, 
03.09.04	States that he bought Portion 2336 from the customary landowners of Morokea village and transferred it to Lincy Mathew. [He gives no dates nor provides any documents in support of these claims.]	
3	Certificate of title, Portion 2336	States that Morokea Land Group Inc was:

"the proprietor of an estate in fee simple subject to the encumbrances noted hereunder in all that piece of land … known as Huviki being Portion 2336, Milinch of Megigi, Fourmil of Talasea, in Deposited Plan No 146"; then states:

"No I8245 transfer to Lincy Mathew of Kimbe. Produced 12/08/2003 at 10.06 am entered 16/08/2004", signed: Deputy Registrar of Titles.	
4	Affidavit,
Joel Ade,
Former operations manager, Kimbe Marine Products, 
17.05.05	States that he was employed by Jerry Pan as operations manager for ten years – Jerry Pan acquired Portion 2336 for a staff residential compound – three houses were built and occupied by the appellant, the respondent and another employee, Thomas, – he has no knowledge of any arrangement that the land was purchased for the respondent – Jerry Pan fled the country leaving his workforce unpaid – he sees no reason for the respondent being favoured ahead of other ex-employees – if Jerry Pan transferred the land to the respondent then Jerry Pan was lying to the other staff who had no knowledge of the arrangement.	
5	Affidavit,
Yomi Siwi, 
20.05.05	States that the title to the land remains with Morokea Land Group – it has not been transferred by Morokea Land Group or Jerry Pan to the respondent.	

Her Worship Mrs Coppard considered that evidence and the submissions made by the parties and decided in the complainant’s favour by making an order dated 16 June 2005 in the following terms:

It is adjudged that Yomi Siwi shall deliver peaceable possession of land known as Huviki, Portion 2336 Milinch at Megigi, Fourmil Talasea on or by 16 August 2005 to Lincy Mathew in default a warrant under the Summary Ejectment Act ordering police shall be issued to ensure eviction.

That order is the subject of this appeal. Her Worship published no formal judgment but the reasons for her decision are readily apparent from the civil worksheet included in the appeal book at page 10:

Looking at the title – the property/land is the complainant/respondent’s, Mr Lincy Mathew.

Court – explains to defendant [the appellant in the National Court] that the complainant has right and title and he must vacate the property as claimed by the complainant. Defendant understood and asks for two months to pack up and leave. 

APPEAL TO NATIONAL COURT

On 4 July 2005 the appellant filed a notice of appeal, stating the following grounds:

1	That the Magistrate erred in law and fact in that there was no evidence to show that the respondent had exclusive title over the portion of land known as Huviki land in Morokea whereas all that was before the court was certificate of land title of customary land known owned by Morokea Land Group Inc.

2	That the learned Magistrate erred in law by proceeding to exercise its authority under the Summary Ejectment Act and not the Land Disputes Settlement Act as the matter concerned customary land.

3	Any other grounds that become apparent upon the Magistrate’s reasons for the decision and the District Court’s depositions. [sic]

The appellant seeks the following orders in substitution for those of the District Court:

1	That the decision and orders of the Kimbe District Court made on 16 June 2005 be quashed forthwith.

2	That the substantive matter instituted by the respondent in the District Court be dismissed.

3	Any other or further orders that the court deems fit.

The appellant has subsequently filed two new affidavits that he wants the court to receive into evidence for the purpose of determining the appeal. These are summarised in table 2. 

TABLE 2: NEW EVIDENCE THE APPELLANT 
WANTS THE NATIONAL COURT TO RECEIVE

No	Description	Content 	
1	Affidavit,
Jackson Gah, former lawyer, 
06.10.05	States that he was the lawyer responsible for the transfer of Portion 2336 – he acted for Jerry Pan, not Lincy Mathew – he annexes a copy of the transfer instrument.

The transfer instrument describes the transferor as "Morokea Land Group Inc PO Box 34 Kimbe WNBP", the consideration as K3,000.00, and the transferee as "Lincy Mathew PO Box 64 Kimbe WNBP".	
2	Affidavit, 
John Kauna,
20.10.05	States that he is the chairman of Morokea Land Group Inc, the owner of Portion 2336 – they transferred the land to Jerry Pan and not to any particular worker like Lincy Mathew – the title is still in the name of Morokea Land Group Inc – the title given to Lincy Mathew by the Registrar of Titles is not true – the transfer is fraudulent and is a forgery. 	

I will need to consider whether this new evidence can be received into evidence in the course of hearing this appeal; and if it is received what its effect is.

MAJOR ISSUES

I propose to deal first with the grounds of appeal, and later consider whether the new evidence should be received. The grounds of appeal argue the same point: that the respondent did not own the land, rather it was customary land and the dispute should have been resolved under the Land Disputes Settlement Act. So the first issue is:

•	Did the District Court err by finding that the respondent had clear title to the land? 

I am going to address that issue before looking at whether the new evidence should be received because of the nature of an appeal to the National Court, which is a rehearing on the evidence in the District Court. The District Courts Act does not say that expressly (unlike Section 6 of the Supreme Court Act, which states that an appeal from the National Court is by way of rehearing on the evidence given in the court below). However, it seems to necessarily follow from Section 229 of the District Courts Act, which states:

Evidence other than the evidence and proceedings before the Court by which the conviction, order or adjudication was made shall not be received on the hearing of an appeal, except by consent of the parties or by order of the National Court.

After addressing the first issue I will consider the second and third issues, which are:

•	Should the court uphold the appellant’s application to introduce new evidence by making an order that the evidence be received under Section 229?

•	If an order is made under Section 229, what is its effect in this case?

I will then need to consider the question of remedies, which means that the issues become: 

•	Has there been a substantial miscarriage of justice? (This is a prerequisite to allowing the appeal under Section 230(2) of the District Courts Act.)

•	What remedies, if any, should be granted by the National Court? (The National Court’s remedial powers are prescribed by Section 230(1) of the District Courts Act.)

APPELLANT’S SUBMISSIONS

Mr Oiveka argued that when the District Court determined the proceedings under the Summary Ejectment Act, the respondent did not have clear title to the land. The certificate of title (document No 3 in the District Court; see table 1) showed that it was customary land owned by Morokea Land Group Inc. Therefore the dispute could not be settled under the Summary Ejectment Act. That Act can only be invoked if title to the land is clear. The Morokea Land Group Inc held the land in accordance with the Land Group Incorporation Act. 

If this court allows the new evidence to be received, it will become even more clear that there is a genuine dispute about title to the land. The intention of Morokea Land Group Inc was never to transfer the land to the respondent. The land was only to be transferred to Jerry Pan. The signature of the transferee on the transfer instrument does not match the respondent’s signature on the respondent’s affidavit of 8 March 2005 (document No 1 in the District Court; see table 1).

Her Worship should have inquired into the reason for the appellant residing on the land. She would have discovered that the appellant was still an employee of Jerry Pan and had the right to continue residing on the land together with Jerry Pan’s other employees. 

RESPONDENT’S SUBMISSIONS

Mr Linge 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. She sighted the certificate of title that showed the respondent as the holder of the title. This was proof of his indefeasible title by virtue of Section 26 of the Land Registration Act.

The land was customary land but it was converted to an estate in fee simple (ie freehold land) by a conversion order. Therefore under Section 16 of the Land (Tenure Conversion) Act it ceased to be regulated by custom. The respondent, as owner of the land, was entitled to seek redress under the Summary Ejectment Act. The Land Disputes Settlement Act did not apply. 

Mr Linge submitted that the court should reject the application to introduce new evidence into these proceedings, as the appellant had the chance to present that evidence to the District Court but failed to do so. If the evidence is received, however, it will not change the fact that the certificate of title shows that the respondent is the owner of the land. The allegation of fraud in John Kauna’s affidavit is not supported by any evidence.

FIRST ISSUE: DID THE DISTRICT COURT ERR BY FINDING THAT THE RESPONDENT HAD CLEAR TITLE TO THE LAND?

This is the critical issue. If the answer is yes, the District Court would have erred. It had no jurisdiction and its decision will be quashed. If the answer is no, the appellant will rely on the court exercising its discretion in his favour based on the admissibility of the new evidence.

It is important at this juncture to appreciate the evidence that was before the District Court. The key document was the certificate of title (document No 3; see table 1). This showed that Portion 2336 was no longer customary land. It ceased to be customary land in 1995 when it was converted to freehold tenure, with the owner being Morokea Land Group Inc. Mr Linge was correct to submit that from that point on the land was no longer regulated by custom. Section 16 (effect of order) of the Land (Tenure Conversion) Act applied.

Section 16 states:

Upon the making of a conversion order, but subject to any decision on review or appeal under Part V of the Land Titles Commission Act 1962—

(a)	the land the subject of the order … ceases to be customary land, and the land and any right to the ownership or possession of the land, and any other right, title, estate or interest in or in relation to the land, cease in all respects to be subject to or regulated by custom;

(b)	all rights, titles, estates and interests, whether legal or equitable and whether arising from or regulated by custom or otherwise, and whether in rem or in personam, subsisting before the date of the order, are abolished, other than such rights, titles, estates and interests as are specified in the order; and

(c)	the order has effect in respect of the land the subject of the order (other than land referred to in Section 11(1)(c)) in all respects as though the Registrar has taken the action referred to in Section 11(1)(a), (b) and (d) under the order, whether or not that action has been taken.

The certificate of title also showed that Portion 2336 was transferred to the respondent, Lincy Mathew, with effect from 16 August 2004. This meant that the respondent became the registered proprietor of the land. He had an indefeasible title subject only to the exceptions prescribed by Section 33 (protection of registered proprietor) of the Land Registration Act, 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 the respondent was recognised by 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 him to apply under the Summary Ejectment Act to eject anybody from the block that he did not want there, including the appellant. 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, Supreme Court, Kidu CJ, Kapi DCJ, McDermott J). 

I reject Mr Oiveka’s submission that there was no evidence in the District Court to show that the respondent had exclusive title. There was evidence: the certificate of title was proof that the land was no longer customary land. It follows that the Land Disputes Settlement Act, which only applies to customary land, had no relevance to this case.

The only way that the District Court’s jurisdiction could have been removed was if the appellant had shown that he had commenced some proceedings to challenge the respondent’s title. (Tony Yandu and Eddie Guken v Peter Waiyu and Jita Guken (2005) N2894, National Court, Cannings J.) If that had been the case there would have been a bona fide dispute about title and the District Court could not have dealt with the matter because 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.

If a person, such as the appellant, commences proceedings in the District Court to enforce his interest in land, and he is the registered proprietor of the land, 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 the appellant or anybody else. On the evidence before the District Court, there was no bona fide dispute. The District Court had jurisdiction and did not err in law by finding that the respondent had clear title to Portion 2336. 

SECOND ISSUE: SHOULD THE NEW EVIDENCE BE RECEIVED?

Neither counsel cited any authority to guide me on how to exercise the discretion under Section 229 of the District Courts Act. This reminds me of the following terse, but apt, comments made in an important early case on the reception of fresh evidence by the Supreme Court, in John Peng v The State [1982] PNGLR 331:

Counsel neither advanced argument nor relied upon authority which could assist this Court in its interpretation. The issue is important. We have had to research the matter. This is not the primary function of a court. Assistance from the Bar table is essential to the proper administration of the law.

I researched the issue but have come up empty-handed. I cannot find any case in which the National Court or the Supreme Court has set out how the National Court should exercise the discretion available to it in Section 229 of the District Courts Act.

The best guide, I think, is to be found in the way that the Supreme Court deals with the same sort of issue when it hears appeals against decisions of the National Court.

Some care has to be exercised when transposing the principles that apply in the Supreme Court to those in the National Court. In the Supreme Court it was held in the leading case, Mai Kuri v The State (No 2) [1991] PNGLR 311 (Kidu CJ, Hinchliffe J, Sheehan J, Brown J, Jalina J), that the Supreme Court only has power to admit fresh evidence, strictly so called. It has no power to admit evidence that is not fresh. That interpretation was arrived at due to the provisions of Sections 6 and 8 of the Supreme Court Act. The five-member bench regarded Section 6 as the sole source of power to admit new evidence. Section 8 was regarded as a machinery provision that had to be read subject to Section 6. The Court overturned the interpretation previously given to Sections 6 and 8 in John Peng v The State [1982] PNGLR 331, Busina Tabe v The State [1983] PNGLR 10; and Ted Abiari v The State (No 2) [1990] PNGLR 432. In those cases, three-member benches held (though in Abiari Amet J dissented) that evidence that was not fresh could nonetheless be admitted in an appeal if the interests of justice required it.

Section 229 of the District Courts Act is broadly cast: "Evidence other than the evidence [in the District Court] … shall not be received on the hearing of an appeal, except … by order of the court". It confers a wider discretion on the National Court, to hear new evidence in an appeal from the District Court, than the discretion conferred by Sections 6 and 8 of the Supreme Court Act on the Supreme Court, to hear new evidence in an appeal from the National Court.

I will therefore approach the issue this way:

•	First, I will ask: is the proposed new evidence ‘fresh evidence’? That is, is it: (a) evidence that has only become available since the trial in the District Court? or (b) evidence that has only come to the knowledge of the party wanting to introduce it since the trial and which could not by reasonable means have come to their knowledge before then?

•	Secondly, if the answer to the first question is ‘yes’ – ie it is fresh evidence – is it also relevant, credible, admissible according to the rules of evidence and such that it would cause doubt in the mind of a reasonable person whether the decision being appealed against was wrongly made? If the answer to this question is yes, the evidence should be admitted by order under Section 229. If the answer is no, the evidence should not be admitted.

•	Thirdly, if the answer to the first question is ‘no’ – ie it is not fresh evidence – is it nonetheless necessary or expedient in the interests of justice to admit it? If yes, the evidence should be admitted by order under Section 229. If the answer is no, the evidence should not be admitted.

I have posed those questions in relation to the two affidavits summarised in table 2 and conclude:

•	No, neither the affidavit of Jackson Gah (which annexes the transfer instrument) nor the affidavit of John Kauna (in which the deponent claims that the land was transferred to Jerry Pan and any transfer to Lincy Mathew would be fraudulent) is fresh evidence. It would have been available at the time of the trial in the District Court and it could have been obtained with due inquiry.

•	However, I think it is in the interests of justice to receive the new evidence – especially the transfer instrument – as it tends to throw light on the genuineness of the certificate of title. I think it was desirable – though not necessary – for this evidence to have been adduced in the District Court.

I will therefore order under Section 229 of the District Courts Act that I will receive the evidence set out in table 2 for the purposes of hearing the appeal.

THIRD ISSUE: WHAT IS THE EFFECT OF THE NEW EVIDENCE?

I have considered the new evidence and find myself agreeing with Mr Oiveka, to some extent, that Jackson Gah’s affidavit and the annexed transfer instrument raise some questions as to who the intended transferee was when the land was sold by Morokea Land Group Inc.

On the one hand, Jackson Gah states that he was the lawyer responsible for the transfer of the land and he acted for Jerry Pan – not Lincy Mathew. The signature of the transferee on the transfer instrument bears no resemblance to the signature of the respondent, Lincy Mathew, on the complaint filed in the District Court (appeal book, page 35) or in his supporting affidavit (document 1, table 1; appeal book, page 37). In fact the signature on the transfer instrument bears a striking resemblance to the signature on the statutory declaration of Jerry Pan (document 2, table 1; appeal book, page 24). You do not have to be a handwriting expert to suspect that Jerry Pan signed as transferee.

On the other hand, the transfer instrument clearly states that the transferee is the respondent, Lincy Mathew.

A reasonable inference to draw from Jackson Gah’s affidavit, considered in the light of all the other evidence, is that Jerry Pan provided the money (K3,000.00) to purchase Portion 2336 and that he gave instructions to Mr Gah to get the land transferred to one of his employees, the respondent, Lincy Mathew. It seems that that is what has happened. However, it is not necessary to make a finding to that effect. I agree with Mr Linge that if that is what has happened it does not alter the fact that the certificate of title shows that the respondent is the owner of the land. If anything, the transfer instrument – despite the possible irregularity it reveals – supports the conclusion that the respondent is the rightful owner as it names him as the transferee.

As for John Kauna’s affidavit, I accept Mr Linge’s submission that some parts of it are contradicted by the other evidence. For example, the claim that the title to the land is still held by Morokea Land Group Inc is plainly wrong. I also accept Mr Linge’s submission that the parts of the affidavit that say the transfer to Lincy Mathew was fraudulent are bald assertions – opinions – unsupported by any evidence.

I conclude that both pieces of new evidence have no bearing on the outcome of this appeal.

FOURTH ISSUE: HAS THERE BEEN A SUBSTANTIAL MISCARRIAGE OF JUSTICE?

I have allowed none of the grounds of appeal and found that the new evidence has no bearing on the outcome of the appeal. It follows that there was no miscarriage of justice in the District Court.

FIFTH ISSUE: WHAT REMEDIES, IF ANY, SHOULD BE GRANTED BY THE NATIONAL COURT?

As there has been no miscarriage of justice the appeal, in substance, cannot be allowed. However, upholding an appeal is not a precondition to the National Court making orders or granting other remedies calculated to advance the interests of justice.

Section 230 of the District Courts Act states:

(1)	On the hearing of an appeal, the National Court shall inquire into the matter, and may—

(a)	adjourn the hearing from time to time; and
(b)	mitigate or increase a penalty or fine; and
(c)	affirm, quash or vary the conviction, order or adjudication appealed from, or substitute or make a conviction, order or adjudication which ought, on the evidence before the National Court, to have been made by a District Court; and
(d)	remit the case for hearing or for further hearing before the Court which made the conviction, order or adjudication or any other competent court; and
(e)	exercise a power that the Court that made the conviction, order or adjudication might have exercised; and
(f)	make such further or other order as to costs or otherwise as the case requires.

(2)	An appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice.

Given the history of this matter I propose to dismiss the appeal but vary the orders of the District Court under Section 230(1)(d) in the following way:

•	I will make a declaration as to ownership of the land.

•	As, I think, the appellant is still residing on the land, it is appropriate that he be given a bit more time to leave. Though it could be argued that he has had enough time to comply with the District Court’s order I think it would assist in the effective resolution of this long running dispute if he were given six weeks from today to either negotiate with the respondent, who might be encouraged to let him stay on the land, or to leave peacefully.

•	I will set out what should happen after that six-week grace period lapses.

REMARKS

This case has similarities with Tony Yandu and Eddie Guken v Peter Waiyu and Jita Guken (2005) N2894, an appeal from the Kimbe District Court I dealt with last year. There was an intra-family dispute about ownership of land. General allegations were made by one side that the other side had procured the title by fraud. It was a bald assertion unsupported by facts. The District Court found in favour of the side that had its name on the certificate of title. I upheld the District Court decision on appeal.

I will make the same sort of closing remarks in this case that I did in that case. The result of this appeal is that the District Court’s decision will remain in force. It might be that, with time, the parties can again live together peacefully on the same land. It must be understood, however, that the respondent, Lincy Mathew, is the owner of the land. As long as he is the owner he has the right to decide who lives on it. The appellant, Yomi Siwi, has no right to be there unless he convinces Lincy Mathew that he should be allowed to stay. That is something for them to sort out amongst themselves.

If Yomi Siwi is still concerned about the way the land was transferred to Lincy Mathew, he should ensure he has exhausted all administrative and legal steps to challenge Lincy’s title. Somebody has suggested that Lincy might have got the title by fraud. It was not the purpose of this appeal to test those allegations. A person’s interest in land can be set aside, if it has been obtained through fraud. There needs to be evidence, of course. In this case there was none.

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

I will direct entry of judgment in the following terms:

1	The appeal is dismissed.

2	It is declared that Lincy Mathew is the registered proprietor and owner of Portion 2336, Milinch Megigi, Fourmil Talasea, Volume 33, Folio 2, also known as "Huviki".

3	Yomi Siwi has six weeks after today to either negotiate with the respondent, who might be encouraged to let him stay on the land, or to leave peacefully.

4	Either party is at liberty to apply to the court six weeks after today for further orders to give further effect to these orders, including the issuance of a warrant of forcible eviction to members of the Police Force.

Appeal dismissed. 
_____________________
Lawyers for the appellant		: 	Public Solicitor
Lawyers for the respondent		: 	Linge & Associates