N8474

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 48 OF 2019

BETWEEN:
MOSES KOBALE & OTHERS
Appellants

AND:
MAGARET SINDRA (Acting on Behalf of mother AMAKANG SINDRA and Brother JOHN SINDRA, TIMOTHY SINDRA and KAMDRING KISSING
Respondents

Lae: Dowa AJ
2020:20th May & 24th June

APPEAL – appeal from district of orders granting summary ejectment – grounds of appeal – consideration of – district court issued eviction orders pursuant to s 6 Summary Ejectment Act – no bona fide dispute to title – no proceedings filed at National Court alleging fraud or to disturb title over land - respondents have clear indefeasible title to land – appeal dismissed – decision of District Court affirmed

Cases Cited:

Kimas v Oala (2015) PGSC69, SC1475
Gawi and Ready Mixed Concrete Ltd (1984) PNGLR 74
Yandu v Waiyu (2005) N2894

Counsel:

W. Kume, for the Appellant
In Person, for the Respondents

RULING

24thJune, 2020

1.	DOWA AJ:	This is my decision on the appeal by the Appellant against the decision of the District Court given 28th May 2019 by the Learned Magistrate, Pious Tapil.

2.	On 28th May 2019, His Worship made the following orders:

“1.  The Complainant has shown a clear legal title to the property located at Anginhu Portion 577, Milinch of Malahang, Fourmile, Huon, Kamkumung, Lae, Morobe Province.

2.	The Defendants, their agents, family or relatives are to vacate the property and give vacant possession to the Complainant within twelve (12) calendar months by 27th of May 2020.

3.	In breach thereof police will be empowered to forcefully evict any persons.”

3.	The Appellant, who was the Defendant in the District court proceedings appeal against the decision.  The grounds of appeal at page 5 of the Appeal Book are summarised as follows:

1)	The Magistrate did not have jurisdiction as it is a customary land.

2)	The Magistrate did not have jurisdiction under section 21 of the District Court Act as the title to the land was bona fide in dispute.

3)	The Magistrate did not have jurisdiction to deal with the matter because the value of the properties on land exceeded K10,000.00.

4)	The Magistrate erred in not giving due consideration to breach of section 53 & 54 of the National Constitution.

5)	The Magistrate did not conduct a proper trial.

6)	The Magistrate did not allow customary landowners to give evidence in support of the Appellant.

7)	The Magistrate failed to take due notice of more than 3000 people living on the land with substantial improvements on the land.

8)	The Magistrate failed to consider the fact that unnamed persons were affected by the decision.

Facts

4.	The Respondents, who were complainants in the District Court proceedings, brought eviction proceedings against the Appellants. The Respondents come from Kamkumung village, Lae, Morobe Province.The Respondents, are registered owners of land known as Haginhui, described as Portion 577, Milinch of Malahang, Fourmil Huon, Morobe Province, under State Lease Vol 33, Folio 242.

5.	The Respondents are also customary landowners of the land, Portion 577.  It contains 8.298 hectares of land area. The Appellant and others have settled and are still occupants of parts of portion 577. The Appellant and other settlers have made improvements on the property, including a church building constructed by the Lutheran church.

	 Evidence

6.	The complaint and summons named Moses Kobale as principal Defendant, along with other unnamed settlers on the land. Apart from the summons and complaint, the Respondents filed several affidavits in support. The Appellants have also filed several affidavits in support of their Defence. The Appellants brought evidence to dispute the exclusive ownership and title to the property by the Respondents.

Decision of the District Court

7.	The matter was heard on 28th May 2019, and thereafter, His Worship granted orders sought by the Respondents/ Complainants.

8.	The reasons for decision at page 14 of the Appeal Book are and I quote:

“Complainant seeks eviction pursuant to section 6 of the Summary Ejectment Act and relies on Affidavit in support enclosing a title to the said land.  
The Defendants filed their respective Affidavits which does not disclose any defence to show that the title as bonafide in dispute.  All they are alleging is that they were allowed by other customary landowners to settle on the land….”

19.	The learned Magistrate did not put in writing any detailed reasons for his decision.  However, from the above brief record, it is apparent, that upon presentation of the Title Deed to the property, the Court was satisfied that the Respondents were registered owners of the property, and he granted the eviction orders under Section 6 of the Summary Ejectment Act.

20.	Section 6 of the Summary Ejectment Act provides.

”(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.”

21.  	The affidavits provided by the Appellant, and other witnesses including some of the customary landowners was to establish they were permitted by the principal and other customary landowners to reside on the land.
Grounds of Appeal

9.	There are eleven grounds of appeal.  They are categorised into the following.
	
1)	Lack of Jurisdiction
2)	Breach of Constitutional rights
3)	Procedural errors

Lack of Jurisdiction: Grounds 1, 2 and 3.

10.	Firstly, it is alleged the learned Magistrate did not have jurisdiction to deal with customary land. It is trite law that both the district and National Courts have no jurisdiction to deal with disputes over customary land. Such disputes can be dealt with in the first instance by following the procedures and processes in the Land Dispute Settlement Act. Where a title is issued over customary land as in the present case a disputing party can mount a case with the Land Titles Commission pursuant to Land Titles Commission Act. The Supreme Court in Kimas v Oala (2015) PGSC69, SC1475 said at paragraphs 6 and 7 and I quote:

“6. 	It is settled law that the National Court has no jurisdiction to hear and determine disputes concerning ownership by custom of any land, including a dispute as to whether any land is or is not customary land. Such disputes fall within the exclusive) jurisdiction of the Land Titles Commission under section 15(determination of Disputes) of the Land Titles Commission Act, which states:
	
	The Commission has, subject to this Act, exclusive jurisdiction to hear and determine all disputes concerning and claims to the ownership by custom of, or the right by custom to use, any land, water or reef, including a dispute as to whether any land is or is not customary land and may make all such preliminary inquiries and investigations as it deems necessary for the purpose of hearing and determining the disputes and claims.

7.	Section 15 has been given full effect by the courts over many years. As soon as it becomes apparent that a case involves a dispute about whether a land is or is not a customary land, the court should divest itself of jurisdiction. Such disputes fall within the exclusive domain of the Land Titles Commission.”

11.	In the present case, the issue before His Worship, was whether to grant an eviction order under the Summary Ejectment Act. His worship was not dealing with the issue of customary ownership of the land in question.  Neither was His Worship determining the issue of whether the land was or was not a customary land.  I am of the view that His Worship had jurisdiction to hear and grant the orders under the Summary Ejectment Act. The issues of customary ownership were and could not be properly raised before His Worship as he would lack jurisdiction. For this reason, ground 1 of the appeal is refused.

12.	The second ground is the Learned Magistrate lacked jurisdiction because there was a bona fide dispute on the title obtained and relied on by the Respondents. The Appellant submitted that the Respondents’ title to the property was obtained improperly, and the Magistrate erred in not taking that into account. The Appellant alleges that the Land was a customary land and the principal customary landowner, one Omba Kamdring, has allowed them to settle on the land many years back. The Appellant and other settlers were supported by other family members of late Omba Kamdring by filing several affidavits in support of the defence. The Appellant submitted that they brought sufficient evidence before the court to establish that the title to the land was bona fide in dispute.

13.	The Respondents submitted the Learned Magistrate made no error in his decision.  The Respondents produced a clear title to the land. Under Section 33 of the Land Registration Act the Respondents had an indefeasible title to the land. His Worship was satisfied with that and granted the orders.

14.	I find the Learned Magistrates decision is consistent with the authority of the case Gawi and Ready Mixed Concrete Ltd (1984) PNGLR 74 where it was held “that an eviction proceeding under the Summary Ejectment Act are for a quick remedy for recovery of a property or premises when there is a clear Title of the Property.  It is not intended for recovery when there is no clear title or is unclear.”

15.	I note a good number of affidavits were filed by the Appellant and other customary landowners supporting the Appellants.  They go to show how the parties have been wrestling with each other over the possession of the land.  They have raised issues of irregularity on the grant of title to the Respondents.  These are important and genuine issues that can be raised challenging the title.

16.	However, I find, at the time of hearing, the Appellant and the other customary landowners have not commenced any proceedings challenging the title obtained by the Respondents.  The title was issued many years back.  The Appellant and the other customary landowners may have been aware then. The validity of the title was not challenged so far, in a Court of Competent Jurisdiction or the Land Titles Commission. 

17.	The issues of challenging a title are not matters for his Worship to deal with.  His Worship has no jurisdiction to deal with disputes over title, based on allegations of fraud and irregularities.

18.	I am guided by a National Court decision in Yandu v Waiyu (2005) N2894; where the Court (Cannings J) held that:

“2. 	If the registered proprietor of a State Lease commences proceedings in the District Court to enforce their interest in the 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 steps to disturb that title.”

19.	In the present case, the Appellants have not demonstrated to the Learned Magistrate that they have taken formal or legal steps to disturb the Respondents’ title.  Therefore, there was no bona fide dispute about title, and the Magistrate was entitled to make the orders as he did under the Summary Ejectment Act.

20.  The third ground relating to issue of jurisdiction is the allegation that the  Learned Magistrate lacked jurisdiction to deal with as the monetary value of land and property was in excess of K10,000.00. The Appellant alleges, the Magistrate did not have jurisdiction, as the improvements done on the subject land have monetary value in excess of K10,000.00.  I consider the complaint was for evictions under Section 6 of the Summary Ejectment Act.  It was not for a claim of money or property.  His Worship did not make any identifiable error in his ruling. This ground is misconceived.

Breach of Constitutional Rights. Grounds 5 and 6.

21.    Ground 5 alleges the Learned Magistrate’s decision violated sections 53 and 54 of the Constitution which provide protection against unlawful and unjust deprivation of property. I find this ground misconceived. The Respondents instituted proceedings for eviction and delivery of possession of property they had a legitimate title over. His Worship made no error in his decision.

22.	Ground 6 alleges there was a breach of section 37 of the Constitution in that there was no proper trial. It is alleged that the matter was to be heard by a magistrate (Bino) other than the His Worship (Tapil). This ground is misconceived. The file is the property of the District Court and any Magistrate can deal with it unless a Magistrate is seized of jurisdiction. Besides, there is no evidence of objections being raised against the Learned Magistrate from hearing the case.  In the circumstances this ground should fail.

        Procedural Errors. Grounds 7, 8, 9, 10 and 11. 

23.  	Ground 7 alleges the Learned Magistrate erred in not allowing the customary landowners especially the Omba family to give evidence or become a party to the proceedings. I note some of the Omba family filed affidavits on behalf of the Appellants. Their evidence was before the court and His worship did consider their evidence as clearly shown at page 14 of the appeal book. His Worship was satisfied with the production of the Title Deed by the Respondents. Again, His Worship was not hearing a case of dispute over ownership. Secondly, there is no evidence that an application of joinder of parties was made and refused. This ground therefore fails.

24.    	Ground 8 alleges the Learned Magistrate failed to give due consideration to more than 3000 people who settled on the land for more than 50 years and who have substantial improvements on the land. Again, His Worship gave orders for eviction as sought by the Respondents who had a legal right to the relief. The named Appellants, all settlers and the other customary landowners were only defending the proceedings brought by the Respondents. They did not file any proceedings or take any steps to protect their own interests, when they became aware that the Respondents had a Title over the land they were occupying.  This ground therefore fails.

25.  	Grounds 9 and 10 alleges His Worship failed to consider his decision would affect unnamed parties who were not given an opportunity to defend themselves. I note the Complaint named Moses Kobale and others as defendants in the eviction proceedings. It has become clear in the various affidavits filed by both parties in the proceedings that the word “others” meant and understood to mean, all those unnamed persons and settlers living on the subject land. For example, Moses Kobale in paragraphs 2 and 3 of his affidavit, stated and I quote:

“2.	I, on behalf of the entire settlers at Kamkumung Gravel of Ward15, Ahi Local Level Government, Lae.
	
3. 	We are the true settlers of the said land and have been living here for the last 49 years upon the agreement between the Lutheran Church and the principal landowner Mr.Omba Kambring ANNEXED THE COPY OF AGREEMENT.”

26.  	Whilst all the people living on the land were not named, the proceedings appear to include all settlers who occupy the land are made parties and subjected them to the eviction orders. In my view the decision by the Magistrate is not unreasonable or amounted to an error of law. These grounds should fail.

27.	In conclusion, I find no error manifested in the decision by the Magistrate.  I therefore, dismiss the entire appeal.  I note the time given for vacating and giving up possession by His Worship has lapsed on 27th May 2020.  As the Appellant and all settlers have been staying on the subject land for many years, the Court can vary term two of the orders, and allow for a further 6 months to move out.

28.	I also at this juncture make an observation from evidence provided that a woman cannot or should not own land in a patrilineal community setting is quiet disturbing.  We are in the 21st century.  Male or female all made in image of God have equal rights and standing before God. Our National Constitution provides protection against any form of discrimination.  I hope we respect each other irrespective of our cultural and social standing. 

Orders:

29.	The Court orders:

(a)	The appeal be dismissed.
(b)	The Appellant and all settlers on land described as Portion 577, Milinch of Malahang, Fourmil Kamkumung, Lae, give up possession and vacate the property by 31st December 2020.
(c)	The Appellants pay the Respondents cost of the proceedings
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