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Tewa v Barnes [2021] PGSC 93; SC2166 (30 November 2021)

SC2166

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 48 OF 2018

THOMAS WARUA TEWA
Appellant

V

WILLIAM PUIYO BARNES
Respondent

Waigani: Cannings J, Murray J, Narokobi J
2021: 24^th, 30^th November

DISTRICT COURTS – jurisdiction – District Courts Act, s 21(4)(f): District Court has no jurisdiction when title to land is bona fide in dispute – whether land is bona fide in dispute in case of two titles over one piece of land – whether National Court erred in not upholding appeal against a District Court order under Summary Ejectment Act in a case involving two titles over one piece of land.

This was an appeal against the dismissal by the National Court of an appeal against a decision of the District Court to order eviction from a property of the appellant in a case in which there were competing titles (State Leases) over that property. The appellant argued before the District Court, and the National Court, that the District Court had no jurisdiction and could not lawfully order his eviction due to s 21(4)(f) of the District Courts Act, which provides that a District Court has no jurisdiction “when the title to land is bona fide in dispute”. Neither the District Court nor the National Court was persuaded by that argument. The National Court, in dismissing the appeal, found after noting that one of the grounds of appeal was that the District Court erred in assuming jurisdiction, that the respondent had a clear and indefeasible title and that the title relied on by the appellant was fake and fraudulent. The primary issue before the Supreme Court was whether the National Court erred in law in not upholding the argument that the District Court had no jurisdiction.

Held:

(1) The circumstances in which title to land is bona fide in dispute for the purposes of s 21(4)(f) of the District Courts Act include where, in proceedings under the Summary Ejectment Act, the party against whom proceedings are commenced produces a competing title to that relied on by the party who commenced the proceedings, provided that that competing title is not obviously fake.

(2) Here the appellant produced to the District Court a competing title that was not obviously fake. That gave rise to a bona fide dispute as to title. The District Court had no jurisdiction.

(3) The alleged lack of jurisdiction of the District Court was included as a ground of appeal before the National Court. It ought to have been upheld and the appeal should have been allowed. The National Court erred by inquiring into the question of whether the respondent’s title was fake.

(4) The appeal to the Supreme Court was allowed and the decision of the National Court was quashed, as was the decision of the District Court.

Cases Cited

The following cases are cited in the judgment:

Tony Yandu & Eddie Guken v Peter Waiyu & Jita Guken (2005) N2894
Yomi Siwi v Lincy Mathew (2006) N3048

Counsel

W Hagahuno, for the Appellant
K Makeu, for the Respondent

30^th November, 2021

1. BY THE COURT: The appellant, Thomas Warua Tewa, appeals against the dismissal by the National Court of his appeal against a decision of Port Moresby District Court to order his eviction from a property at Tokarara, National Capital District, Section 147, Lot 3.

2. The complainant in the District Court was the respondent, William Puiyo Barnes, who had a registered State Lease over the property. The appellant also had a registered State Lease. The District Court, however, considered that the appellant’s title (the State Lease) was not genuine and ordered eviction of the appellant on the respondent’s complaint pursuant to the Summary Ejectment Act.

3. The appellant had argued before the District Court, and also argued on appeal to the National Court, that the District Court had no jurisdiction and could not lawfully order his eviction due to s 21(4)(f) of the District Courts Act, which provides that a District Court has no jurisdiction “when the title to land is bona fide in dispute”. Neither the District Court nor the National Court was persuaded by that argument.

4. The National Court, in dismissing the appeal, found, after noting that one of the grounds of appeal was that the District Court erred in assuming jurisdiction, that the respondent had a clear and indefeasible title and that the title relied on by the appellant was fake and fraudulent. The primary judge did not specifically address the issue of whether the District Court lacked jurisdiction.

5. The primary issue before the Supreme Court is whether the National Court erred in law in not upholding the argument that the District Court had no jurisdiction. To determine that issue we must decide whether the Port Moresby District Court had jurisdiction.

DID PORT MORESBY DISTRICT COURT HAVE JURISDICTION?

6. Section 21(4)(f) of the District Courts Act states:

A [District] Court has no jurisdiction in the following cases: ...

when the title to land is bona fide in dispute.

7. Mr Makeu, for the respondent, submitted, relying on two decisions of Cannings J, Tony Yandu & Eddie Guken v Peter Waiyu & Jita Guken (2005) N2894 and Yomi Siwi v Lincy Mathew (2006) N3048, that if a person commences proceedings in the District Court to enforce their interest in land and is the registered proprietor of a State Lease, there is no bona fide dispute about title to the land unless some other person demonstrates that they have taken some distinct, formal, legal step to disturb that title. Mr Makeu submitted – without contradiction from Mr Hagahuno, for the appellant – that though the appellant had commenced proceedings in the National Court to challenge the respondent’s title, those proceedings had been discontinued by the time that the District Court made its decision to order the appellant’s eviction. So at the critical time, ie when the District Court made its decision on 18 December 2015 to order the appellant’s eviction, there were no legal proceedings on foot challenging the respondent’s title, and therefore no bona fide dispute as to title.

8. We find merit in that argument in so far as it is confined to the circumstances prevailing in both the cases relied on by Mr Makeu. In both Yandu and Siwi, which were appeals to the National Court against decisions of the District Court ordering eviction of the appellants under the Summary Ejectment Act, no formal steps had been taken by the appellants to challenge the title of the registered proprietor, and there was no competing title. Here, though it is a relevant fact that the National Court proceedings challenging the respondent’s title had been discontinued, there was a competing title.

9. If there is a competing title, and that title is not obviously false or fraudulent, it can hardly be said that there is no bona fide dispute as to title.

10. We consider that the circumstances in which title to land is bona fide in dispute for the purposes of s 21(4)(f) of the District Courts Act include where, in proceedings under the Summary Ejectment Act, the party against whom the proceedings are commenced produces a competing title to that relied on by the party who commenced the proceedings, provided that that competing title is not obviously fake.

11. Here the appellant produced to the District Court a competing title that was not obviously fake. That gave rise to a bona fide dispute as to title. The District Court had no jurisdiction.

DID THE NATIONAL COURT ERR IN NOT UPHOLDING THE ARGUMENT THAT THE DISTRICT COURT LACKED JURISDICTION?

12. The alleged lack of jurisdiction of the District Court was included as a ground of appeal in the appeal to the National Court. It was argued that the District Court had no jurisdiction and erred in law in determining the case. The learned primary Judge noted that ground of appeal but did not consider it. Instead his Honour embarked on an inquiry into the merits of the competing titles. His Honour considered the evidence as to how the appellant and respondent acquired each of the State Leases they were relying on and concluded that the respondent’s title was valid and indefeasible and that the appellant’s was fake. His Honour gave reasons for drawing that conclusion, and that led to dismissal of the appeal. His Honour did not make any determination of the jurisdictional argument.

13. We find with respect that the learned primary Judge erred in law by not determining the argument that the District Court lacked jurisdiction. His Honour ought to have upheld that argument as this was a case in which there was a bona fide dispute as to title and the District Court lacked jurisdiction. The appeal before the National Court ought to have been allowed.

CONCLUSION

14. The appeal will be allowed and the decision of the National Court quashed. The decision of the District Court will also be quashed. We appreciate that this is unlikely to resolve the long-running dispute between the parties as to ownership of the property. It seems that the only way to resolve it is for one of the parties to commence proceedings in the National Court and seek appropriate interim relief if there is any issue as to who is entitled to occupy the property. Costs of the appeal will follow the event.

ORDER

(1) The appeal is allowed.

(2) The order of the National Court of 18 April 2018 in CIA No 148 of 2015 is quashed.

(3) Appeal CIA No 148 of 2015 is allowed.

(4) The order of the Port Moresby District Court of 18 December 2015 in DCC No 365 of 2015 is quashed.

(5) The respondent shall pay the appellant’s costs of the appeal on a party-party basis, which shall if not agreed be taxed.

__________________________________________________________________
Williams Attorneys: Lawyers for the Appellant
Niuage Lawyers: Lawyers for the Respondent