N10679

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 27 OF 2021

BETWEEN:
ANDREW KEWA
-Appellants-

AND:
JACK SAGALING
- Respondents -

Lae: Dowa J
2023: 11th December
2024:  21st February

APPEAL-Against District court orders decision of lower Court can only be set aside on appeal if there is obvious error showing substantial miscarriage of justice-there being an obvious error on the face of the record in granting orders for eviction where there is obvious bona fide dispute as to title contrary to section 6 of the Summary Ejectment Act- an order against the appellants resulting in substantial miscarriage of justice, Appeal allowed. 

Cases Cited:
Yanda v Apostolic Church Properties Association of PNG (2006) N3042
Tony Yandu v Peter Waiyu and Jita Guken (2005) N2894 
 Siwi v Mathew (2006) N3084

Counsel:
T. Berem, for the Appellant
E. Mambei, for the Respondents

RULING

21st February 2024

1.	DOWA J:	This is a decision on an appeal against the decision of the Lae District Court given on 20th April 2021 in proceedings – DC No.37 of 2019 – Jack Sagaling -v- Andrew Kewa.

Background Facts

2.	The Appellant, Andrew Kewa, is a resident of customary land situated at Busanim, 12 Mile, Lae, Morobe Province.  It is part of land known as Portion 438, currently registered in the name of the Respondent.  The Appellant purchased the piece of customary land from the customary landowners including the Respondent in 2003 with a purchase price of K8,000.00. The block of land is 79m in length and 39m wide containing an area of 3,081 square meters. The Appellant has been living on said land since.   In or around 2010, the Respondent made moves to sell the land to another person by the name of Naimar Daniel.  The Appellant commenced proceedings in the District Court in proceedings DC 1102 of 2010.  The Court ordered amongst others that the Appellant was the owner of the portion of land sold to him and that the Respondent and his agents were restrained from disturbing the Appellant or interfering with the use of the land.  On 28th May 2019, the Lae District Court made a further order against the Respondent restraining him from dealing with the Appellants piece of land failing which will result in imprisonment for contempt.

3.	Meanwhile, on 13th July 2013, unknown to the Appellant, the Respondent obtained a Certificate of Title over the land, which is described as Portion 438, Milinch Erap, Fourmil Lae. Portion 438 contains an area exceeding 2 hectares.   It appears the Appellants piece of land, the subject matter of this appeal, is inside and forms part of the Portion 438.

The District Court Orders

4.	In June 2019 the Respondent commenced proceedings in the District Court seeking summary ejectment against the Appellant.

5.	On 20th April 2021, the District Court made the following orders:

1. 	The complainant has an indefeasible title over property a Freehold Land Portion 438 Milinch Markham, Morobe province.

2.  	The Defendant his agents or relatives are to vacate the property and give vacant possession to the complainant within two (2) months after date of the Orders.

3.	In breach thereof police will be empowered by Warrant of Execution to forcefully evict any persons from the subject land.

	Grounds of Appeal

6.	The Appellant appeals the decision of the District Court on seven grounds.  Ground 3 is withdrawn. Grounds 1,2,4,5,6 & 7 are set out below:

1.	The learned magistrate erred in Law when he proceeds to make a ruling when the ruling was delayed for exactly one (1) year and six (6) months after both written and oral submissions were received.  The delay is in breach of the principals. “Natural Justice” as enshrined in the Constitution of the Independent State of Papua New Guinea. 
 
2.	The learned magistrate erred in Law when he proceeds to make a Ruling when the ruling was delayed for exactly one (1) year and six (6) months after both written and oral submissions were received.  The undue delay is a defeat of the purpose of the enactment of the Summary Ejectment Act and especially Section 6 of the Summary Eject Act.

3.	……(withdrawn and not pursued)

4.	The Learned Magistrate erred in fact and law when he reasoned that in the absence of a Contract of Sale the block of Land was not sold to the Defendant when in there was evidence in the likes of Court Orders and copies of cheque payments made by the Defendant/Appellant to the Complainant/Respondent indicating a binding transaction.

5.	The Learned Magistrate erred in Law when he reasoned that Permanent Restraining Orders restraining the Complainant/Respondent from dealing with the Land in any form or manner whatsoever against the Defendant/Appellant were of ‘PERSUASIVE VALUE” and is “NOT BINDING”, when it is settled law that any transfer to title or dealing with any land in breach of a restraining Orders in an act constituting, constructive fraud.

6.	The Learned Magistrate erred in Fact and Law when he reasoned that the Title was not bona fide in dispute when in fact there was evidence before him showing that the title was obtained under dubious circumstances or State Lease was issued over a Customary Land in secret.  That is that the Complainant/Respondent has a duty to inform any person who has an interest in any Customary Land to be registered to be present at the Land Titles Commission hearing and present their objections for the Commissioner’s deliberation.

7.	The Learned Magistrate erred in Fact and Law when he reasoned that the Title was not bona fide in dispute when in fact there was evidence before him showing that the title was obtained under dubious circumstances or State Lease was issued over a Customary Land in secret.  That is that the ILG Chairman had written to the Court indicating that they are not aware of the Complainant/Respondent’s title and that they requested for a boundary survey.

Grounds 1 & 2 – Delay in the Decision

7.	Grounds 1 and 2 of the Appeal can be dealt with together.  The Appellant alleges that the learned Magistrate erred in law when he delayed his decision for one year and six months. The two grounds do not manifest any error.  There is no legal requirement as to the period when a Magistrate is to deliver his decision from the date of hearing.  Grounds 1 and 2 are rejected.

Ground 3 – Withdrawn

8.	The Court notes Ground 3 is withdrawn, during submissions, as there is no evidence on the records to sustain the ground.

Ground 4 

9.	The Appellant alleges, the learned Magistrate erred when he reasoned that in the absence of a binding Contract of Sale, the block of land was not sold to the Appellant and the ownership remains with the Respondent.

10.	The Court notes the overarching submissions of the Respondent that any customary land deals or sale prior to the issue of Certificate of Title is of no consequence.  On production of the Certificate of Title, by the Respondent, the learned Magistrate was at liberty to grant the orders under Section 6 of the Summary Ejectment Act, as there was no clear or bona fide dispute as the title.
	
11.	The records of proceedings from pages 34 to 41 of the Appeal Book show, there is evidence of the sale of the subject customary land transacted between the Appellant and the Respondent in June 2003.  The land was sold for K8,000.00.  The area of land is 3,081 square metres or 0.3081 hectares.  It is acknowledged by Bob Sagaling, the brother of the Respondent and Chairman of the Waril Land Group Inc., who confirms that the Appellant has genuinely purchased a small portion of their customary land and they are willing to assist the Appellant to get a Certificate of Title through the tenure conversion process. 

12.	The Appellant’s ownership of the subject land is also confirmed by an order of the District Court given on 16th June 2011 in proceedings DC No 1102 of 2010 - Andrew Kewa v Jack Sagaling and reinforced in a subsequent order of the District Court made on 28th May 2019.  

13.	Clearly, there is no doubt that the subject customary land was sold by the Respondent to the Appellant.   Under Section 132 of the Land Act, customary land in PNG can be sold and transferred between citizens, and therefore the sale is valid and effective for all intent and purpose.  The transaction does not have to be formalised in a formal contract of sale.  To this end, the learned Magistrate fell in error in requiring evidence of a formal contract for sale.

14.   It seems the learned Magistrate failed to consider the Appellant’s interest in the land as provided for by section 6 (1) of the Summary Ejectment Act when he exercised his discretion. Section 6 (1) reads: 

    	  “6.	 RECOVERY OF PREMISES HELD WITHOUT RIGHT, ETC.
(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.’’
15. In Yanda v Apostolic Church Properties Association of PNG (2006) N3042, Cannings J discusses the application of section 6 of the Summary Ejectment Act and lists the preconditions of the issue of warrant of possession at paragraph 49 of the judgment:

“For a warrant of possession to be issued under this law, the following pre-conditions must be satisfied:

1.	a person (the defendant) must be in possession of premises;
2.	the defendant has no right, title or licence to be in possession;
3.	a complaint to recover possession is made by the owner;
4.	to a magistrate of a District Court;
5.	the magistrate issues a summons to the defendant;
6.	the defendant does not appear before the District Court at the time named in the summons OR appears and does not show reasonable cause why possession of the premises should not be given;
7.	there is proof of the matter of the complaint (ie sufficient evidence).”

16. 	In the present case, condition 2 is not met because the Appellant has a substantial interest and legitimate right to be on the subject land which the learned Magistrate failed to recognise and fell in error. The Court finds this ground is sustained and will uphold same.

Ground 5

17.  In Ground 5, the Appellant submits that the learned Magistrate erred when he reasoned that the existing Permanent Restraining Orders of 11th June 2011, restraining the Respondent from dealing with the Appellant’s portion of land were of persuasive value only and not binding, when it is settled law that any transfer of title or dealing with land in breach of a Restraining Order is an act constituting constructive fraud.

18.	In response, counsel for the Respondent submits that the Respondent has a Certificate of Title over the subject land and is protected by virtue of section 33 (1) of the Land Registration Act, and the Appellant has not challenged the title in any tangible action of his own and therefore there is no bona fide dispute as to title. The Respondent relies on the authority of various National Court decisions including Tony Yandu v Peter Waiyu and Jita Guken (2005) N2894 and Siwi v Mathew (2006) N3084.

19.   The evidence shows that District Court made a permanent restraining order against the Respondent on 16th June 2011.  The orders are clear.  The Respondent is restrained from any adverse dealing with the Appellant’s portion of land.  The orders are effective and binding. Despite the restraining orders, the Respondent proceeded to convert the customary land including the Appellants land and obtained a Certificate of Title in Portion 384. There is no evidence that the Appellant was consulted.  It is arguable that the actions of the Respondent are contemptuous.  It is also arguable that the actions of the Respondents are tantamount to or constitutes constructive fraud.

20.  Whilst the Appellant has not taken any action to dispute the Respondent’s Certificate of title on grounds of constructive fraud, it is not an act of submission or surrender. It does not extinguish or dimmish the Appellant’s rights and interest in the land. It appears the Appellant’s interest in the subject land is strengthened and protected by the District Court order of 16th June 2011. On the other hand, there appears to be a clear defiance of the District Court orders of 16th June 2011.  In my view, the orders of 16th June 2011 were not just of “persuasive value”.  Rather they are binding orders, made by a Court of competent jurisdiction, which are effective and alive, so to speak. The orders clearly put a dent on the validity of the title and manifests a bona fide dispute as to title. The Court will therefore uphold Ground (5) of the Appeal.

Grounds 6 and 7 -Bona fide Dispute as to Title.

21.	Grounds 6 and 7 can be dealt with together.  The Appellant alleges the learned Magistrate erred when he held there was no bona fide dispute as to title when in fact there was evidence before his Worship that the title was obtained in secrecy and under dubious circumstances.

22.	For the same reasons given under Ground 5 above, the Court will uphold Grounds 6 and 7 of the Appeal.  There is no dispute that part of the land in the Certificate of Title is the Appellant’s subject land. He paid for that portion of land and remains the owner.  If the Respondent’s application for conversion of the customary land into an estate in fee simple under the Land (Tenure Conversion) Act 1963, the Appellant must be notified of such an application. The conversion procedures under Division 2 (sections 7-15) of the Act must be complied with. The Appellant contended in the lower Court that he was not made aware of the proceedings for the conversion of the customary land into a Certificate of Title by the Respondent which included his portion of land. Whist the issue is not before this Court, and in the absence of evidence to the contrary, it is arguable that the conversion procedures have not been followed. If the Lands Department and the Lands Title Commission were made aware of the Appellant’s interest, it is arguable that the conversion orders would not have been made for the issuance of the Certificate of Title. This is because it is unlikely for the grant of a Certificate of Title to the Respondent without the Appellant’s consent.  In the circumstances, it is clear there is a bona fide dispute as to the title held by the Respondent.  The Court is of the view that the learned Magistrate fell in error when he granted the eviction orders without considering the Appellant’s interest in the subject land and the dispute over the Respondent’s Title.

       Observation

23.	The Respondent obtained a Certificate of Title that seems to have encumbrances in the form of the Appellants interest on the property. The parties can resolve this by agreement. If not, one of the parities can take the matter up in a different forum like the National Court or the Land Titles Commission for a ruling.

Conclusion

24. In conclusion, the Court notes, the Learned Magistrate exercised his discretion in the decision he made as allowed by law. For this Court to set aside the orders of the lower Court there must be an error that manifests miscarriage of justice pursuant to section 230 (2) of the District Court Act. I find there are obvious errors in the decision. The Court upholds Grounds 4,5,6, and 7 of Appeal and will therefore allow the appeal and quash the decision of the District Court made on 22nd April 2021.

Orders

25.     The Court orders that:

1.	The Appeal is upheld.
2.	The orders of the District Court made on 21st April 2021 is quashed.
3.	The Respondent shall pay the Appellant’s cost to be taxed if not agreed.
4.	Time be abridged.
________________________________________________________________
Berem Lawyers:	Lawyers for the Appellant
Solwai Lawyers:	Lawyers for the Respondent