DC275

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 2330 OF 2005

BETWEEN

Paula Vuvu
Complainant

V

Renagi Api
Defendant

Port Moresby: Gauli, Sm
2005: October 26th

Counsel
Mr. J. Koi For The Complainant
Mr. D. Awaita For The Defendant.

DECISION OF THE COURT

GAULI, APM: The complainant in this action claims that the Defendant is in possession of a property illegally and she is seeking orders to evict the defendant under section 6 of Summary Ejectment Act. The property in question is section 148 Allotment 9, Tokarara National Capital District.

Section 6 of Summary Ejectment Act states that:

"6. Recovery of premises held without right, etc

(1) Where a person without right, title or license is in possession of the 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 (i)

(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 possession of the premises to the Complainant".

For the Complainant to enforce this provision, the Complainant must also satisfy the Court that she has the title to the subject property. And it must be proven by evidence.

Both parties gave sworn evidences and were cross-examined. Both parties also indicated that they have no witnesses.

The Complainant gave evidence quite briefly. She said she filed her Affidavit on 16th June 2005 in Court with all the Annexures ‘A", ‘B", "C", "D" and "E". She went on and said that the Defendant was living with her (Complainant’s) Late husband, Elia Vuvu and she had no contributions regarding that property. The Complainant did not tender her affidavit nor the Annexures to this court and she closed her evidence.

During cross-examination the complainant asked for the following questions:

Q1. You have mentioned of the Annexures A B C D and E. How valid are those documents

A. They are legal documents

Q2. Have you anyone to verify that the transfer went to the proper process?

A. I have no witnesses to verify those documents

Q3. Did your late husband say anything saying the property is going to you?

A. No

No further questions

On Re-examination it was clearly stated that there was no WILL made on the property and the property was still under the National Housing Corporation.

From the evidence as it is for the complainant, there is no evidence to prove that the Complainant has a title to the subject property. In equity, he who alleges must prove. It is not for the defendant to prove the complainants ease.

The complainant did file in court her affidavit on 16th June 2005 with the Annexures. However she did not tender her affidavit and Annexures to the court as her evidence. The filing of affidavits or documents in court is one thing. These do not automatically become evidence before the court unless they are tendered to the court as evidence. The council for the complainant did not even informed the court that he was tendering the complainants affidavit as evidence.

The council for the complainant submitted that the complainant had an indefeasible title to the property. And he refers to the cases of WILLIAM MAKI –V- MICHAEL PUNDA [1993] PNGLR 37 and GAWI –V- READYMIX [1984] PNGLR 74 and RONDA E. TIMANO –V- LESLIE TIMANO N1142. These cases refer to in defeasibility of title. I do not intend to consider these cases for a reason that the complainant failed to provide evidence that she holds a title to the subject property.

The defendant’s evidence is that she was customarily married to late Elias Vuvu in 1987 under the customary marriage. Since then she had been living on the said property to this very day. She admitted that she does not have the title to the property.

The only issue for this court to consider is whether the complainant has the title over section 148 Allotment 09 Tokarara to invoke an action under Section 6 of the Summary Ejectment Act. Is she the owner of the property or holder of the title to the property. That being the case the complainant could not bring an action against the defendant for eviction proceeding. I find there was insufficient evidence presented before the court for the complainant to evict the defendant.

According I order that the case be dismissed with costs for the Defendant.