N4192
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 2 0F 2009

GLENIS APOLOS OLOWA
Appellant

v

TRIKAS GOLA
Respondent

Kimbe: Cannings J
2010: 26 January,
2011: 17 January

APPEAL

LAND – Summary Ejectment Act proceedings – State Lease – appeal against ejectment order by District Court – whether the appellant was in illegal occupation of the land – whether there was a bona fide dispute about title.

The registered proprietor of a State Lease died and a dispute arose between the respondent (who claimed to be the deceased's adopted son) and the appellant (who claimed to be the deceased's widow). The respondent obtained an order in the District Court under the Summary Ejectment Act to evict the appellant and her family from the land. The appellant appealed against the order on the grounds that the District Court failed to properly consider all the evidence, including that the deceased had made a will, leaving the land to her son and that the respondent was not the deceased's son.

Held:

(1)	The District Court can only issue an eviction order under the Summary Ejectment Act, Section 6, against persons who have no right, title or licence to be in possession of land.

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

(3)	Here, the appellant had an equitable interest in the land, arising from her long period of permitted occupation, which is akin to a licence to occupy it. In addition, the respondent was not the owner of the land. Two essential preconditions to the making of an order under Section 6 of the Summary Ejectment Act were therefore absent.

(4)	Furthermore, the question of whether the deceased had made a will leaving the land to the appellant's son gave rise to a bona fide dispute as to title to the land.

(5)	The District Court thus erred in law by making the order.

(6)	The appeal was allowed, the District Court order quashed, and orders made to facilitate orderly resolution of the dispute.

Cases cited

The following cases are cited in the judgment:

Amos Bai as Representative of Lae Squatter Settlements v Morobe Provincial Government and The State [1992] PNGLR 150
Gawi v png Ready Mixed Concrete Pty Ltd [1981] PNGLR 396
Gawi v png Ready Mixed Concrete Pty Ltd [1984] PNGLR 74
Koang No 47 Limited v Monodo Merchants Limited and Melpa Properties Limited (2001) SC675
Koitaki Farms Ltd v Kemoko Kenge and Other Squatters at Itikinumu Plantation (2001) N2143
Primus Kikia and 3 Others v Kikia Solowet (2009) N3682
Siso Naso v National Housing Corporation (1999) N1947
Tony Yagon on behalf of Settlers of Dylup Plantation v Nowra No 59 Ltd (2008) N3375

APPEAL

This was an appeal from a decision of the District Court ordering the appellant to vacate land.

Counsel

G A Olowa, the appellant, in person
T Gola, the respondent, in person 

17 January, 2011

1. CANNINGS J: This is an appeal against an eviction order of the Kimbe District Court (Mr T Dawai presiding) which was issued against the appellant, Glenis Apolos Olowa.

2. The order was made on 9 December 2008 and gave Mrs Olowa one month to vacate the land, Portion 1761, Kavui. The respondent, Trikas Gola, obtained the order after commencing proceedings in the District Court under the Summary Ejectment Act. Mrs Olowa later obtained a stay order that allows her to remain on the land pending the result of this appeal. Portion 1761 is a 6.12 hectare block. The registered proprietor is "Aflos Koomun", also known as David Apolos Koomun, who died in 2005.

COMPETING ARGUMENTS

3. Mr Gola claims to be Mr Koomun's son. He says that he lived on the block with Mr Koomun and Mr Koomun's three daughters from Mr Koomun's marriage to a Tolai woman, and helped Mr Koomun develop the block, for many years. He says that Mrs Olowa was married to Mr Koomun but separated from him for 16 years and went back to their home province, East Sepik, and only came back to West New Britain and tried to renew her marriage so that she could secure the block for herself and the son she had from another man in East Sepik.

4. In the District Court Mrs Olowa claimed that Mr Gola was not her late husband's son. She agreed that she and Mr Koomun were separated from 1977 to 1993 and that she went back to East Sepik. During that period Mr Koomun married a Tolai woman and they had three daughters. Mrs Olowa says that in 1993 Mr Koomun came to her village in East Sepik and got her and the son, Shedrick, she had from another man and took them back to live on the block at Kavui with his Tolai wife and their three daughters. In 1997 the Tolai woman died, leaving Mr Koomun and Mrs Olowa on the block with Mr Koomun's three daughters and Shedrick. Mrs Olowa agrees that Mr Gola was also living with them but says that Mr Koomun chased him off the block in 2001 due to an alleged relationship between her and Mr Gola and purchased customary land at Mosa and gave it to Mr Gola. Mrs Olowa also gave evidence in the District Court that after her husband became seriously ill in 2002 he carefully considered who he should leave the block to and decided that he would leave it to Shedrick. He prepared a will and made a declaration in front of witnesses including a representative of the Oil Palm Industry Corporation that the block should be transmitted to Shedrick, who he regarded as his son.

DISTRICT COURT REASONING

5. The learned trial Magistrate considered the competing evidence and arguments and concluded that Mr Koomun had not made a will or declared that the block should be transmitted to Shedrick and that, in fact, Mr Gola was living on the block with Mr Koomun's three biological daughters up until the day that Mr Koomun died. His Worship for those reasons ordered that Mrs Olowa vacate the block.

GROUNDS OF APPEAL

6. Mrs Olowa's notice of appeal asserts that the learned Magistrate erred by failing to consider the evidence concerning the will made by Mr Koomun in favour of Shedrick, by not considering all of her evidence and by failing to take into account that Mr Gola was not Mr Koomun's son.

7. These grounds give rise to two distinct issues:

1	Did the District Court err by failing to consider Mrs Olowa's interest in the land?

2	Did the District Court err by failing to recognise that there was a bona fide dispute about title to the land?

1	FAILURE TO CONSIDER MRS OLOWA'S INTEREST IN THE LAND

7. I consider that the learned Magistrate erred by focussing too much attention on who had a better interest in the land, when the issues that should have been addressed were whether Mrs Olowa had no interest in the land and whether Mr Gola was the owner. The District Court proceedings were commenced under Section 6(1) of the Summary Ejectment Act, which states:

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. [Emphasis added.]

8. It was established by the National Court decision of Miles J in Gawi v png Ready Mixed Concrete Pty Ltd [1981] PNGLR 396, and accepted as correct by the Supreme Court in Gawi v png Ready Mixed Concrete Pty Ltd [1984] PNGLR 74, that the District Court can only make an order to vacate land under Section 6(1) when the order is sought by the "owner" and the person proposed to be the subject of the order is "without right, title or licence" over the land, ie an illegal occupier. 

9. If a person has an equitable interest in the land, that is sufficient to prevent them being regarded as an illegal occupier and it protects them against an ejectment order under Section 6(1). It does not mean that they can stay on the land forever or that they cannot be required (for example by an order of the National Court) to vacate the land. But it does protect them against being summarily ejected under Section 6(1). This is an important principle of land law in PNG, which has been applied in many cases since 1981, eg Amos Bai as Representative of Lae Squatter Settlements v Morobe Provincial Government and The State [1992] PNGLR 150; Siso Naso v National Housing Corporation (1999) N1947; the Itikinumu Plantation case (2001) N2143; Koang No 47 Limited v Monodo Merchants Limited and Melpa Properties Limited (2001) SC675.

10. In 2008, I decided a Madang case in favour of a group of settlers whose ancestors had been living on a plantation with approval of the registered proprietor for 80 years. This gave them an equitable interest and protected them against being evicted under the Summary Ejectment Act (Tony Yagon on behalf of Settlers of Dylup Plantation v Nowra No 59 Ltd (2008) N3375). 

11. In a Kimbe case, Primus Kikia and 3 Others v Kikia Solowet (2009) N3682, I upheld an appeal against an eviction order granted by the District Court under Section 6(1) on the ground that the District Court failed to take account of the equitable interest of the appellants in the land over which their father, the respondent, was the registered proprietor.

12. The appellant in the present case is in a similar position to that of the Dylup Plantation settlers and Primus Kikia: she lived on the land with the approval of the owner (her husband) for a number of years. This gave her an equitable interest in the land. For that reason alone, the District Court lacked power to order her eviction under Section 6(1) of the Summary Ejectment Act.

13. There is another reason that the District Court erred: even if it is accepted that Mr Gola was Mr Koomun's son and that he has a greater moral, legal or equitable right to the land than Mrs Olowa or Shedrick, he is not the "owner". He had no right to obtain an order under Section 6(1).

14. I conclude, with respect, that the learned trial Magistrate erred by failing to have full regard to Section 6(1) of the Summary Ejectment Act before making the eviction order.

2	FAILURE TO RECOGNISE BONA FIDE DISPUTE ABOUT TITLE

15. The learned trial Magistrate acknowledged that Mrs Olowa was arguing that her late husband had made a will leaving the land to Shedrick, but dismissed the argument due to lack of evidence. The existence of that argument and the facts that the registered proprietor was deceased and that Mr Gola was not the registered proprietor were sufficient to give rise to a bona fide dispute about title to the land. This means that the District Court had no jurisdiction, 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.

16. 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.

17. I conclude that the learned trial Magistrate erred in law by proceeding to make orders for the eviction of one of the parties when title to the land was bona fide in dispute.

SHOULD THE APPEAL BE UPHELD?

18. The grounds of appeal have, in effect, been upheld as I am satisfied that the District Court order was affected by two significant errors of law and should not have been made. There has been a substantial miscarriage of justice so I will under Section 230(2) of the District Courts Act allow the appeal and under Section 230(1)(c) of the District Courts Act quash the eviction order.

ORDER

(1)	The appeal is allowed.

(2)	The order of the Kimbe District Court of 9 December 2008 in DC No 206 of 2008 is quashed.

(3)	No person, including the respondent or the Police, shall evict the appellant from or interfere with her peaceful possession of Portion 1761 Kavui except by order of the National Court.

(4)	The Assistant Registrar of the National Court at Kimbe shall assist the parties in understanding this order and resolving their dispute and shall by affidavit filed within two days after the date of making this order notify the court whether the dispute has been resolved.

(5)	These proceedings shall be called at the first sittings of the court three days after the date of making this order, at which hearing the court shall:

(a)	consider the affidavit of the Assistant Registrar and any other matters raised by the parties; and 

(b)	determine what further orders, if any, should be made, including an order under Section 11(1) of the Public Curator Act that the Public Curator administer the estate of the deceased registered proprietor or an order under Sections 7B(1) or (2) of the National Court Act that the dispute be referred to mediation. 

(6)	The parties shall bear their own costs of these proceedings.

(7)	Time for entry of the order is abridged to the date of settlement by the Registrar, which shall take place forthwith.

__________________

Lawyers for the appellant : Nil
Lawyers for the respondent : Nil