N10704

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 16 OF 2023

BETWEEN:
PETER MANGA for himself and 16 others
-Appellant-

AND:
BOINAMO ENTERPRISES LIMITED
-First Respondent-

AND
MARIO CUBUCCO
-Second Respondent-

Lae: Dowa J
2024:  2 1st & 28th March

APPEAL – Appellant appeals District Court orders granting summary ejectment under section 6 of Summary Ejectment Act- where Respondent produced title-indefeasibility of title under section 33 of Land Registration Act- grounds for appeal – consideration of -Whether the 16 appellants were properly served the complaint & summons- Whether appellant’s submissions considered-whether there was a breach of natural justice -failed to establish miscarriage of justice– appeal dismissed – decision of District Court affirmed.

Cases Cited:
Mudge -v- Secretary for Lands [1985] PNGLR 387 
Tiri –v- Eka (2011) N4507
Gawi and Ready Mixed Concrete Ltd [1984] PNGLR 74
Yandu v Waiyi [2005] PNGLR 594; N2894
Jure Investment v Conlife (2018) N7286
Paga Hill Development Company v Daure Kisu (2014) N5683
Laka v Nui (2013) SC1223
 Evangelical Lutheran Church of PNG v Jack David [2022] N10060

Counsel:
T Makale, for the Appellants 
No appearance, for the Respondent

DECISION

28th March 2024

1.	DOWA J:	This is an appeal from a District Court decision given on 3rd January 2023 granting eviction orders under section 6 of the Summary Ejectment Act.

	Background 

2.	The First Respondent is a company and is the registered owner of a Business (Light Industrial) Lease over land described as Allotment 4 Section 380, Lae, in the Morobe Province, State Lease, Volume  Folio.

3.  	The Appellants are occupants of the said land, Allotment 4 Section 380 Lae in the Morobe Province.

4.	It was alleged that the Appellants were illegal squatters, residing on the said land.  The Respondent filed proceedings in the District Court in Lae, seeking summary ejectment under section 6 of the Summary Ejectment Act.

District Court Decision

5.	On 3rd January 2023 the presiding Magistrate made the following eviction orders:	
1.	The Defendants, their relative, friends, and agents are to vacate the property located at Section 380, Allotment 04, Banana Block, Lae, Morobe Province, and give vacant possession to the Complainant within 4 months by the 3rd May, 2023.
2.	The parties are to meet their own costs.
3.	In breach thereof a warrant of execution will be granted authorizing police to forcefully evict anyone in the property.”

Grounds of Appeal

6.   The Appellants appeal the decision of the District Court. The grounds of appeal as stated in the Notice of Appeal filed 31st March 2023 are:

“1. Failed to administrate all the formed and required process of court and there was no proper trial.

2.	(a)    In fact, Respondents didn’t serve copies of the summons respectively and accordingly, to the other sixteen (16) defendants and they were not aware of the court action, and they did not appear in court.

(b)	Learnt Magistrate failed to find out and direct the respondents to serve copies of the summons and give notice for adjournment date to appear in the court and that conduct is an abuse of process in denying the justice and causing prejudices to the other 16 named defendants.

3.	(a)    Learnt Magistrate decision is bias when basing on the State Lease, the prescribed land at Section 380, Allotment 04 at Banana Block in Lae, Morobe Province.

(b)	The Respondents are not legally entitle to the above property the land as they do not have the land Title.  Under the Lands Act, under Chapter No:  45 Section, 145, respondents should possess the Land Title to carry out development or do other structural activities and developments.

(c)	Land Lease is only a lease given upon payment of all required monies for leasing purpose and the learnt Magistrate failed to look into this when the appellant Peter Manga raised up this issue in cross examination during the trial.

(d)	Respondents have no legal standing to develop the land or no legal standing to apply for Eviction order from courts only basing on the land lease.

4.	Learned Magistrate error into law and failed to take into account of the above issue raised during the trail, and failed to consider when Respondents was question how the land lease was granted when there was a suspicious for fraud involved to obtain the lease (furthermore details will be provided in trail of this appeal).

5.	The land lease was granted on the 9th, March 2022 and this order for eviction was filed in November 2022 only in six (6) months in the same year to evict out more than 2000 Papua New Guinean citizens are permanently settled on that land.

6.	In the event and exercise of this eviction, settlers are most likely to lose asserts and properties worth millions of kina.All these citizens came in and settled from 1989 to date is about thirty-four (34) years and the respondent obtain the lease just now and forcing them to leave.  On that basis, respondent is lawfully liable to pay cost for Repatriation, resettlement loose and damages for assets and properties.

7.	This land area that we are rising up issue is not fit for commercial or industrial use by any business arms or companies to develop, it is a left and cut off land along the riverbank of the Bubu River that the settlers paved ways to cater themselves and settled.  Appellant raised this question in court and asked the respondent, what he want to deo on that land and what his business plan is and how he applied for the lease, but the land magistrate failed to take into account and failed to consider.

8.	The learned magistrate error into law and failed and allow both parties to bring witness to give evidence in Court.

9.	Appellant Peter Manga is an illiterate and a layman so he verbally raised this issue during the trial, but the learnt magistrate failed to take into account and failed to award cost as claim.

10.	Refer to all above grounds learnt magistrate miserably failed and abused the whole process of court and based on malicious and harsh evidence in making decision.”

Hearing

7. 	The appeal was heard on 21st March 2024. One Mr Torope Makale appeared, with leave of Court, for the Appellants. He made oral submissions.  The lawyer for the Respondents appeared in Court but was barred from making submissions because he was not properly attired. The matter was then adjourned for decision. 

Issues

8.	The issues for consideration emanated from the grounds of Appeal are: 

a)	Whether the Learned Magistrate erred in law by conducting the hearing in a manner contrary to the principles of natural justice.

b)	Whether the Learned Magistrate erred in failing to consider the evidence and submissions of the Appellants showing a bona fide dispute as to title of the Respondents thereby causing a miscarriage of justice.

The Proceedings

9.	The depositions from the Appeal Book show the District Court proceeding was contested. The depositions contain more than 56 pages. It involves 16 family heads and individuals.  The Defendants come from all over Papua New Guinea, residing on the subject land along the Bumbu River, within the precincts of Lae city covering an area of 1.79 hectares.  The proceeding which commenced in November 2022 was concluded on 31st January 2023, over a three (3) months period.

10. I now turn to consider the issues raised by the grounds of appeal.
  
Issue 1. Whether the Learned Magistrate erred in law by conducting the hearing in a manner contrary to natural justice resulting in miscarriage of justice.

17.   The Appellants argue that the Learned Magistrate conducted the proceedings contrary to principles of natural justice in that the 16 Appellants named as Defendants in the District Court proceedings were not served with the District Complaint and Summons. Only the first Appellant was served the Complaint and Summons. 

18.  A breach of natural justice occurs where a party is not given a fair opportunity to present his case or respond to an allegation against him before a decision is made.

19. 	The Appellant Peter Manga and 16 others were named defendants listed in the schedule to the District Court Summons.  They are joint defendants.  As noted, the conduct of the proceedings took more than 3 months.  The Affidavit evidence filed by Peter Mangan on 21st November 2022 (page 39 of Appeal Book) shows the 16 Defendants were represented by Peter Manga. The records of proceedings show the Defendants were present in the Court hearings. There is no evidence of the Defendants raising the issue of lack of service of the Complaint and Summons by any of the Defendants then. The evidence shows the Appellant Peter Manga was served the Summons and the Complaint in time. The records also show that the Defendants, at least 8 of them, were served Notices of Eviction on 22nd June 2022. It is not as though they were completely taken by surprise. Besides the lead Defendant, Peter Manga, was effectively served and the eviction order itself sufficiently covers or extends to all others who are occupying the subject land along with Peter Manga.

20. The records show the Appellants were allowed to file their evidence. The lead Appellant was allowed amongst others to give evidence. He filed evidence disputing the title issued to the Respondents. From the reasons of decision the Court considered the evidence and submissions presented by the lead Appellant, Peter Manga, before he made his decision. There is nothing untoward in the manner the learned Magistrate dealt with the case. There is no evidence on the face of the records to show that the Appellants were denied the opportunity to present their evidence and submissions. I am not satisfied that the Appellants were denied natural justice in the manner the Magistrate conducted the proceedings. 

21. Secondly, the current appeal does not have the 16 appellants’ names. In order for the Court to consider their appeal, the 16 unnamed appellants must have their names subscribed in the notice of appeal. The absence of their names renders their arguments futile as they have no standing to mount these arguments.

22. This ground of appeal is therefore rejected. 

Issue 2. Whether the Learned Magistrate erred in failing to consider the Appellant’s submissions disputing the Respondents’ Title to the property. 

23.	The next ground of appeal is substantial. The Appellant, Peter Manga, alleges the Learned Magistrate erred by failing to consider their evidence and submissions disputing the Respondent’s Title to the property.  The appellants argued before the learned Magistrate and again before this Court that the Respondents did not have a legitimate Title to the property, Allotment 4 Section 380, Lae. 

24.  The Appellants attached correspondence from one Gibson Fefegau, the lands Surveyor from the Morobe Provincial Administration-Division of Lands, showing that the Title to the subject land was given without following due process. The Appellants argue that although the evidence was presented disputing liability, the trial Magistrate failed to consider the evidence and their submissions. They submit that the learned Magistrate failed to consider that the Appellants have been on the property for more than 30 years and become legitimate owners or entitled to become registered owners, and that they were not made aware of the application by the Respondent for the title which they would have raised objections had they been made aware. They submit that the title produced by the Respondent was obtained irregularly. 

25.	The Appeal documents show the Respondents produced a clear title to the land.  His Worship was satisfied with that.  His Worship acknowledged the submissions of the Appellants when he commented in his decision that the Appellants have to take some action of their own to challenge the Title currently held by the Respondents.

26. The law as held in Gawi and Ready Mixed Concrete Ltd (1984) PNGLR 74 is “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.” 

27.	I find the documents and affidavits filed by the Appellants go to show how the parties have been wrestling with each other over the possession of the land.  They have raised issues of fraud and irregularity on the grant of title to the Respondents.  These are important and genuine issues that can be raised challenging the title.

28.	But for now I agree with the learned Magistrate that at the time of hearing, the Appellants have not commenced any proceedings challenging the title obtained by the Respondents.  The title was issued on 9th March 2022.    The validity of the title was not challenged so far, in a Court of competent jurisdiction.

29.	The issues of bona fide dispute as to 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.

30.	I refer to the case Yandu v Waiyu (2005) PNGLR N2894; where the National 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.”

31.	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 as to title, so to speak, and the Magistrate was therefore entitled to make the orders as he did under the Summary Ejectment Act.”

       		 Summary Ejectment proceedings

32.  The District Court proceeding was a summary ejectment proceeding under section 6 of the Summary Ejectment Act. The Learned Magistrate has jurisdiction and was empowered to order eviction after being satisfied with the evidence brought by the Respondent as to its proprietorship. The Respondent produced a copy of the State Lease over Allotment 4 Section 380 Lae, Morobe Province.  Section 32 of the Land Registration Act provides that where an instrument of title describes a person as the proprietor of an estate or interest, that person is the registered proprietor of the estate or interest.  Section 33 of the Land Registration Act provides that a registered proprietor of an estate or interest holds it absolutely free from all encumbrances except for fraud and other exceptions set out in (1)(a) to (f). (Mudge -v- Secretary for Lands (1985) PNG LR 387). The Learned Magistrate being satisfied with the evidence of ownership was entitled to grant the orders under section 6 of the Summary Ejectment Act. I find no error in the decision of the District Court. 

33. 	Under section 230 of the District Court Act, the National Court can allow an appeal if it appears to the Court that there is a substantial miscarriage of justice. See Tiri –v- Eka (2011) N4507. In this case, there is no clear evidence of an error manifesting miscarriage of justice shown on the face of the records. I will dismiss this ground appeal.

34.	For the reasons given above, I will dismiss all the grounds of appeal and the entire Appeal.

Equitable Interests

35.  The Appellants are settlers, and they have been residing on the property for long periods, some up to 35 years. Unfortunately, they don’t have legal rights. Their interest is equitable only. Such persons are entitled to an equitable interest of being granted a reasonable time to remove their structures and vacate the property.  Refer: Jure Investment v Conlife (2018) N7286, Paga Hill Development Company v Daure Kisu (2014) N5683, Laka v Nui (2013) SC1223 and Evangelical Lutheran Church of PNG v Jack David (2022) N10060.	The learned Magistrate allowed them four months to vacate the property based on the Appellants’ equitable interest which is reasonable. 

36. The Appellants seem to have the support of the Lands Officers from the Morobe Provincial Administration, Division of Lands. It is in the interest of justice that the Appellants be given an opportunity to challenge the title issued to the Respondents. I will therefore allow them a further five months to pursue their interest if they wish. After the lapse of the five months, the eviction orders issued on can be executed.

Cost

37	It is settled law that cost follow the event, that is, a successful party is entitled to cost.  The Respondents however made no appearance at the hearing and therefore are not entitled to costs.

Orders

38.     The Court orders that:

1.	The appeal is dismissed.
2.	The decision of the District Court is affirmed.
3.	The enforcement or execution of the eviction orders issued by the District Court be stayed until 26th August 2024.
4.	The parties shall bear their own costs.
5.	Time be abridged	
______________________________________________________________
Peter Manga:  Appellant in person for himself and 16 others
Gamoga & Co Lawyers:	Lawyer for the Respondents