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Kolosi v Silo [2011] PGNC 279; N5154 (17 December 2011)

N5154

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA 46 OF 2011

BETWEEN:

JIMMY KOLOSI
First Appellant

AND

PATRICK JIMMY
Second Appellant

AND

AGNES SILO
Respondent

Kimbe: Kawi J
2011: 17th December

CONTRACT - Contract for sale and purchase of property- application to enforce contract by way of eviction proceedings under the Summary Ejectment Act.- Need for complainant to show that defendant has no right, title, or license to occupy property. Claim by appellant that there is a bona fide dispute as to the title to property-claim is false and baseless.- Evidence does not show genuine dispute as to title to property-Grounds of Appeal – Grounds raising bona fide dispute as to title to property not raised in District Court either in pleadings or evidence. – Matter raised for the first time in appeal- a party cannot raise issues not pleaded and raised in court below - Appeal is dismissed.

Brief facts

The appellants and the respondent entered into an agreement for the sale and purchase of a portion of land containing an oil palm block. Consideration of K30,000.00 was paid by the respondent of a total purchase price of K35,000.00.0 The agreement provided that the balance of K5,000.00 was to be paid when the appellants provided the title documents to the respondent/purchaser. The appellants failed to do this, but after the conclusion of agreement the appellants were still illegally in possession and occupation of the said property. The respondent took eviction proceedings against the appellants under section 6 of the Summary Ejectment Act. The appellants raised issues of dispute concerning title to property and the District Court's jurisdiction to hear cases dealing with title to property for the first time in appeal.

Held: (in dismissing the appeal)

(1)Matters not raised in the District Court either by way of pleadings or in evidence cannot be raised for the first time in appeal. The National Court will only consider and hear an appeal from the District Court, based on facts, evidence and issues considered by the District Court. Appeals from the District Court cannot be heard de novo.

(2)There was no dispute concerning title to property. This was a case of breach of contract of sale. The District Court had the jurisdiction and quite correctly proceeded to deal with the matter under the Summary Ejectment Act.

(3) Under section 6 of the Summary Ejectment Act, a magistrate must be satisfied that a person in illegal occupation of a property has no right, title or license to occupy a property, before he can issue eviction orders under section 6 of the Act.

Counsel

Gerhard Linge, for the Appellants
Joe Kumbari Abraham, for the Respondent

DECISION ON APPEAL
1. KAWI J: Introduction: The two appellants appeal against the decision of the Bialla District Court given in Bialla on the 18th of November 2010.
COMPLAINT BY THE RESPONDENT

2. Before the District Court in Bialla was a complaint filed by the Respondent/ complainant, Agnes Silo complaining that she had entered into a valid contract for the sale and purchase of an oil palm block described as Portion 389, section 7 Tiauru, Bialla. The consideration paid by Agnes Silo was K30,000. After receiving the payment, the two appellants were still in occupation of the property and had not yet given vacant possession of the property to the purchaser, Agnes Silo. The respondent /Complainant instituted proceedings in the District Court praying to the court for orders seeking the immediate eviction of the appellants from continuously occupying the property without any reasonable cause being shown under section 6 of the Summary Ejectment Act.

ISSUES BEFORE THE LEARNED MAGISTRATE

3. It is very clear therefore that reading from the District Court depositions that the Learned Magistrate was faced with three issues:

a) Was there a breach of contract?

b) Whether or not an eviction order ordering the eviction of the two appellants from the property under section 6 of the Summary Ejectment Act can be made?

c) Was there a dispute as to the title to this property?

d) did the respondent have a valid justifiable reason to ask the District Court to have the appellants evicted from this property?

ORDERS OF THE DISTRICT COURT

4. After an ex parte hearing, the District Court in Bialla made the following Orders:

a) That the Department of Lands shall issue a new Certificate of Title to the respondent.

b)The appellants and their immediate family members and associate are to vacate the property being State Lease Portion 389, section 7, Tiauru, Bialla.

c) The Respondent is at liberty to recoup money illegally retained by the appellants since 25th September 2007.

d) The two defendants/appellants are restrained from gaining re-entry to the said oil palm estate to harvest Fresh Fruit Bunch (FFB), receive payments and their related activities.

(e) The two defendants/appellants are restrained from harassing, threatening, intimidating or interfering with the complainant/respondent, her immediate family, agents, etc.... from quite enjoyment of the property.

f) The two defendants and their immediate family members, associates, and relatives or their immediate family members, including their agents and associates, are now ordered to vacate the property State Lease Oil Palm Estate, Portion 389, section 7, Tiauru, Bialla, West New Britain Province and give physical possession of the same to the applicant within 30 days ie on by the February 2011.

g) The two defendants, their immediate families, extended families, relatives, associates shall maintain peace with the complainant her immediate family members, relatives and agents etc......

GROUNDS OF APPEAL

5. As a result of this ruling, an appeal was lodged by the two appellants to the National Court citing the following grounds:

1. The learned magistrate erred in law and fact when he proceeded to hear and to have made orders against the appellants when the case involved a bona fide dispute to the title to which the District Court had no jurisdiction.
   
2. The learned magistrate erred in law and fact when he ordered the Department of Lands to issue a certificate of Title to the respondent when he has no jurisdiction to do so.
   
3. The learned magistrate erred in law and fact when he ordered the appellants and their family members, associates, relatives or their extended family members or agents to vacate the State lease being portion389, section 7 when there was no legal basis in law or equity to cause the appellants and their family to move out of that property.
   
4. The learned magistrate erred in law and fact when he made an ex parte order and did not allow the appellants time to call witnesses and or file affidavits.
   

LEGAL ISSUES

5. A number of legal issues arise for consideration. These are as follows:
   
   1. Was there a bona fide dispute as to the title to the property described as Portion 389, Section 7, Tiauru, Bialla?
      
   2. Did the magistrate have jurisdiction to deal with and hear this case?
      
   3. Was there a breach of contract of sale?
      
   4. Did the magistrate have jurisdiction to proceed under the Summary Ejectment Act to order the eviction of the appellants and their families from continuous occupation of the said property?
      
   5. Did the magistrate err in any of the orders he made?
      

All legal issues for determination in this Appeal will be determined by making reference to the transcript of proceedings and the evidentiary materials contained in those transcripts.

DETERMINATION OF LEGAL ISSUES.
ISSUE NO. 1

6. The first issue for determination is whether or not there was a bona fide dispute as to the title of the property described as Portion 389 Section 7, Tiauru, Bialla? Before the District Court in Bialla was a complaint filed by the complainant Agnes Silo seeking to have the appellants evicted from property Portion 389 Section 7 Tiauru, a block of land containing an oil Palm Plantation which the Respondent/Complainant had bought in good faith from the appellants? Having passed consideration of K30,000.00 she genuinely believed that the Title to the property would be transferred to her in accordance with the terms of the contract of sale? Going through the entire transcript of proceedings I do not find any iota of evidence which point towards a genuine dispute concerning the title to this property. Even in his reasons for decision the learned trial magistrate, never referred to a genuine dispute concerning the title to this property. I therefore find that the title to this property was never in bona fide dispute. It is trite law in this jurisdiction that matters raised in the appeal or any issues raised in an appeal must actually form part of the evidence or pleadings in the original complaint. Here the learned magistrate never had the benefit of receiving evidence and hearing arguments on this aspect. Consequently I find this ground of appeal and any associated issues to be raised for the first time in this appeal is rather preposterous. Matters not pleaded in the original complaint or defence should not be raised de novo in appeal. Even the complainant/Respondent was never given any opportunity at all to be heard or respond to any allegations concerning a bona fide dispute as to the title to this property. Consequently this ground of appeal is hereby dismissed as being without merit. Arguments raised by the first appellant that he was forced by the respondent to sign the contract of sale was never raised before the learned magistrate. It should not now be raised on appeal. I will again dismiss this argument as being without any merits. In any case this argument was raised well after the contract of sale was entered into. It was never raised as defence to this action either. In my view, no evidence was produced by the appellants to show that the first appellant was forced to sign the contract of sale. I will therefore dismiss this argument as being without merit.

7. The inevitable conclusion reached here in view of what I said above, is that there is no bona fide dispute as to title of the property in question. The District Court or the learned magistrate would clearly be deprived of jurisdiction if there was a genuine dispute concerning this property. Section 21(4) of the District Courts Act makes this very clear. The situation here is different. It is all about enforcing a contract of sale. Consequently I find that appeal grounds (a) (b) and (c) contesting the learned magistrate's jurisdiction to deal with this complaint have no merits at all and should be all dismissed.

ISSUE 2 & 3

8. The issue here is whether or not the learned magistrate had jurisdiction to deal with this case? Did the learned magistrate have jurisdiction to proceed under the Summary Ejectment Act?

9. In my view the question of jurisdiction will be largely guided by the nature of the complaint or pleading before the court. From the outset it is to be noted that the District Court is a creature of a statute. This simply means that they are established by a legislation, in this case, the District Courts Act. Having so established them, the legislation, then proceeds on to give the District Courts their powers, functions and responsibilities. The statute further defines the jurisdictional limits of the District Courts. In relation to questions and issues relating to bona fide disputes over titles to property, the District Courts Act makes it very clear, that a District Court has no jurisdiction to decide cases where there is a bona fide dispute as to the title to the property or land. This simply means a genuine dispute as to title and not a perceived dispute. This is made very clear by Section 21(4) of the District Courts Act. Relevantly Section 21(4) is stated in these terms:

s 21. CIVIL JURISDICTION

(1) ...............

(2)...............

(3) .................

(4) A court has no jurisdiction in the following cases:-

(a) where the validity or effect of a devise or bequest or a limitation under a will or settlement, or under a document in the nature of a settlement is in dispute;

(b) The infringement of a trade name.

(c) an action for or in the nature of slander of title;

(d) on action for illegal arrest, false imprisonment or malicious prosecution.

(e) for seduction or breach of promise to marry.

(f) when the title to land is bona fide in dispute.

10. It is now very clear that the District Court Act does not give a magistrate jurisdiction to hear a case involving disputes over title to a property.

11. A magistrate would clearly have jurisdiction to deal with matters prescribed by the primary legislation. In this case, a magistrate's powers are clearly spelt out by the District Court's Act. It will have no jurisdiction if the statute expressly states this. In cases of genuine disputes as to title to property, section 21(4) of the Act expressly states that a magistrate or District Court has no jurisdiction to deal with cases involving bona fide disputes concerning title.

12. But as I stated above, this case did not involve a genuine dispute concerning title to the property in question. This case was simply about enforcing and giving effect to a valid contract of sale of this property. To begin with the learned magistrate had before him a complaint to have the appellants evicted as they had not vacated the property and given vacant possession to the respondent as yet of the property described as portion 389 section 7 Tiauru. This is understandable as after the sale of the property the appellants had not even vacated the property and given the respondent quite enjoyment and vacant possession of the said property.
Secondly the District Court is given exclusive jurisdiction to hear any complaints brought under the Summary Ejectment Act. Clearly the learned magistrate had the jurisdiction to hear a complaint to evict another person who is illegally occupying someone else's property without any justification or reasonable excuses.

13. Section 6 of the Summary Ejectment Act is stated in these terms:

s. 6 Recovery of Premises held without right.

(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 a 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 complaint issue a warrant directed to a member of the Police Force requiring him, on or before a date 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.

14. The terms of section 6 of the Act are very clear. It states that a person who is to be evicted and who is in possession must be without Right, Title, or license. This requires the magistrate to inquire into the question of whether or not the complainant has a valid title, right, or license to the property being disputed. It is only upon being so satisfied that a magistrate can exercise his discretion to order a person to be evicted from the property he/she occupies. If the magistrate has caused such an inquiry here he would have found that the defendants/appellants had entered into a valid contract of sale for this property. After the contract was concluded the respondent quite naturally had a legitimate expectation that the title to the property would be transferred to her in accordance with the terms of the Contract of sale. It was in those circumstances and faced with a situation where the appellants after being paid K30,000 for the property, would not even give vacant possession of the property. It was in those circumstances that the order to evict the appellants from continuously residing and illegally occupying this property was made. I therefore find that the learned magistrate had the jurisdiction and acted within his jurisdictional limits to order the eviction of the appellant from occupying the property in question. As the learned magistrate acted within his jurisdiction to make the eviction orders, I find that he did not commit an error in how he excercised his discretion. I will therefore dismiss this ground of appeal as being without any merits at all.

ISSUE 3

15. Was there a breach of contract of sale? On the 25th of September 2007, a contract for sale and purchase of property described as portion 389 section 7, Tiauru was entered into between the appellants as the vendor and the respondent, Agnes Silo as the purchaser. In clause 2 of the contract of sale it was provided that the purchase price for the property was K35,000.00. Of this amount, the sale and purchase Agreement provided that an initial deposit amount of K30,000 should be paid by the purchaser Agnes Silo to the Vendor Jimmy Patrick upon signing the Agreement for sale and purchase. It was further provided in the Agreement that the balance of K5,000.00 would be paid after the Title is transferred by the vendor to the Purchaser Agnes Silo. In compliance with these requirements, a BSP Bank cheque no. 573030 in the amount of K30,000.00 was paid to the first appellant Patrick Jimmy by Agnes Silo in consideration thereof. The bank cheque is dated 25th September 2007. A Transfer Instrument was signed on the same day by Patrick Jimmy transferring, the said property to the Purchaser Agnes Silo.

I find that this was a straight forward simple and valid sale and purchase of property agreement. It was provided in clause 2 of the Agreement: "The balance of the purchase which is K5,000.00 shall be paid by unendorsed bank cheque to the vendor upon safe delivery of title document to the purchaser."

16. I find that there has never been any safe delivery of the title documents as envisaged by clause 2 hereof. After concluding the contract for the sale and purchase of the property, the appellants as vendors of the property no longer had any right, title or license to remain in occupation of the property. They were in effect illegally in occupation of the property. The vendor Patrick Jimmy was paid K30,000.00 by the purchaser Agnes Silo. He used that money but blatantly failed to safely deliver the title documents to the purchaser as agreed in the contract of sale. This blatant failure by Patrick Jimmy resulted in a clear breach of the Agreement. Patrick Jimmy cannot now belatedly turn around and argue that he was forced by Agnes Silo to sign the agreement. He is in effect contesting his own capacity to enter into the validity of the Agreement when the validity of the Agreement was no longer an issue. Patrick Jimmy's blatant failure to deliver safely the title documents to Agnes Silo left the latter high and dry and clearly frustrated by the actions of the appellants in not giving her vacant possession and quite enjoyment of the property. The end result was that the respondent was forced to take eviction proceedings under the Summary Ejectment Act to force the appellant's illegal occupation of the property.

17. I therefore find that the learned magistrate never erred but correctly proceeded under the Summary Ejectment Act to order the eviction of the appellants from this property.

ISSUENO.4

18. Did the learned magistrate err in making any of the orders that he made? The magistrate made orders reflecting the nature of the complaint before him. In my view the magistrate quite correctly ordered the immediate eviction of the two deceitful appellants. The two appellants as a result of finding that the appellant Patrick Jimmy had failed to deliver the title documents to the purchaser Agnes Silo after more than four (4) years, the court quite correctly ordered the Department of Lands to issue a new certificate or title of this property to Agnes Silo, the innocent Purchaser.

CONCLUSION

19. In the end I find that all the grounds of appeal are futile and unmeritorious. The grounds of appeal simply fail to disclose no arguable issues worthy of judicial intervention. I will therefore order the entire appeal to be dismissed with costs of the entire proceedings awarded to the Respondent Agnes Silo to be paid by the two appellants.

20. The power of the National Court on appeal is provided for by Section 230 of the District Court Act which is stated in these terms:

230. – POWER OF THE NATIONAL COURT ON APPEAL
     

(1) On the hearing of an appeal, the National Court shall inquire into the matters, 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 convictions, order or adjudication appealed from, or substitute or make a conviction, order or adjudications, which ought, on the evidence before the National Court, to have been made by a District Court; and

(d) remit the case for 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 convictions, 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 only be allowed if it appears to the National Court that there has been substantial miscarriage of justice.

21. His Honour, Cannings J in the case of Tony Yagon on behalf of Settlers of Dylup Plantation –v– Nowra No. 59 Ltd [2008] N3375 held that Section 6 of the Summary Ejectment Act can only be used where the persons whom the owner wants to evict are "illegal occupier of the land; people who have no right, title or license" to be on the land.

His Honour applied the same principle in the case of Primus Kikia –v– Kikia Solowet [2009] N3682.

22. In the present case, I agree with His Honour's ruling in those two cases and so applying these principles here, I find that the appellants are illegally occupying the property, described as Portion 389, Section 7, Tiauru Bialla.

23. I do not find that the learned magistrate erred in his judgment to order the eviction of the appellants from that property.

24. Pursuant to Section 230 of the National Court Act, I make the following orders:

(1) The appeal is hereby dismissed as being futile and unmeritorious with costs awarded to the respondent Agnes Silo. The costs of the entire appeal shall be paid by the Appellants, Jimmy Kolosi and Patrick Jimmy.

(2) The costs of the District Court proceedings shall also be paid by the two appellants, to Agnes Silo. All costs, both in the District Court and National Court shall be paid on a party-party basis by Jimmy Kolosi and Patrick Jimmy

(3) The orders of the learned magistrate dated 18th November 2010 are herby confirmed and varied and the following orders are made in lieu:

(i) The appellants Jimmy Kolosi and Patrick Jimmy shall immediately deliver up free and vacant possession of property known as portion 389, Section 7, Tiauru, Bialla, West New Britain to the rightful legal owner, Agnes Silo within one week commencing on Monday 2nd April 2012.

(ii) Jimmy Kolosi and Patrick Jimmy are ordered to move out of the property Portion 389 Section 7, Tiaru within 7 days of these Orders by Monday 2nd April 2012 and give free and vacant possession to Sam Oliver the legal owner of the property.

(iii) If Jimmy Kolosi and Patrick Jimmy or their agent, associates and family members put up resistance or try to prevent Agnes Silo from taking up vacant possession and quite enjoyment of this property, then Bialla Police are expressly authorized to move in use reasonable force to evict the appellants and all their families and agents. Such force shall include removing any permanent structures and buildings erected within the premises of this property.

(iv) Jimmy Kolosi and Patrick Jimmy, their family members, and agents are associates hereby restrained and injuncted from interfering, intimidating, or threatening and putting up resistance from moving out of this property. They are injuncted from harassing or intimidating Agnes Silo from moving in and taking vacant possession of her property.

(3) The Sale and purchase Agreement of the property described as Portion 389 section 7, Tiauru, Bialla entered into between Jimmy Patrick and Agnes dated 25th November 200 is hereby declared valid and effective for all purposes.

(4) The Agreement shall be enforced as between the parties. Jimmy Kolosi is hereby ordered to produce Title documents to this property in accordance with the sale and purchase Agreement and surrender the documents to Agnes Silo within 7 days from the date of decision.

Orders accordingly.

_____________________________________________________
Gerhard Linge & Associates Lawyers: Lawyer for Appellants
Joe Kumbari Lawyers: Lawyer for Respondent