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Belden Memi & Associates v Vune [2007] PGDC 37; DC533 (25 May 2007)

DC533

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS GRADE FIVE CIVIL JURISDICTION]

GFCi 11 of 2007

BETWEEN

BELDEN MEMI & ASSOCIATES
Complainant

AND

JANET VUNE
Defendant

Goroka: M Gauli, PM
2007: May 25

CIVIL - Seeks order for eviction – Summary Ejectment Act (s.6) – Claims damages – Notice of Motion by defendant to dismiss the Complainant – Title to land is bona fide in dispute – Complainant not a right to sue.

Cases Cited
1. Herman Gawi –v- PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74

References
1. District Courts Act, s. 21 (4) (f)
2. Summary Ejectment Act, s. 6

Counsel
For the Complainant - In Person
For the Defendant - Mr. B. Koningi of Koningi Lawyers

25 May 2007

RULING ON A NOTICE OF MOTION

M Gauli, PM: The Complainant Mr. Belden Memi sues the defendant Mrs. Janet Vune and seeks orders for eviction and damages in the sum of K9, 000.00. The defendant Mrs. Vune filed a notice of Motion against Mr. Belden Memi and sought orders to dismiss the substantive complaint on the basis that Mr. Belden Memi does not have a clear title to the property to issue the proceedings under Section 6 of the Summary Ejectment Act.

2. The brief facts are these. The complainant Mr. B. Memi is a Real Estate Agent for one Mr. Wildbird Aize. Mr. W. Aize appeared to have purchased a property known as Section 16 Allotment 30, Lopi street in Goroka town from one Mr. Ben Yegigori. And it appears that Mr. B. Yegigori has bought of the said property from the National Housing Commission through salary deductions some years back. The title has not been transferred to Mr. B. Yegigori by the NHC since then. It appears that the title is still held by the NHC.

3. The defendant Mrs. Janet Vune is currently the tenant of the said property on rent from the NHC. She was asked to vacate the property but refused to move. She claims that the complainant Mr. B. Memi does not have a clear title to the property. The defendant is not doubt disputing the title. Mr. B. Koningi, the counsel for the defendant asked the Court to consider the defendants application to determine whether the complainant has a clear title to the subject property before the Court could proceed to determine the Complainant’s substantive complaint. This I do.

4. The defendant Janet Vune in her affidavit in support of her application to dismiss the complaint gave evidence that Mr. Belden Memi, Mr. Ben Yegigori and Mr. Wildbird Aize do not have a title to Section 16 Allotment 30. They made illegal deals between themselves over this property. And Mr. Paul Asukusa, the Managing Director of the NHC has confirmed Janet Vune as a legal tenant to the property.

5. The complainant Mr. Belden Memi in response gave evidence that the proof of title is not an issue because the said property was bought off by Mr. Ben Yegigori from the NHC through pay deductions. Mr. Yegigori is only awaiting the title to be transferred to him by the NHC and he in turn will transfer it to Mr. Wildbird Aize who has bought the house from Mr. B. Yegigori from K15, 000.00. It is a matter of paper work to transfer the title as all payments were completed. He admitted that the title has not been transferred to Mr. B. Yegigori by the NHC as yet.

6. From the evidence and the submissions by both parties made before this Court, I find that Mr. B. Yegigori may have made the full payment of the purchase price of the property but the title has not been transferred to him by the NHC. He has not been issued with the certificate of a transfer of the title to him. The letter from the Managing Director of the NHC, Mr. Paul Asukusa dated 22 March 2006 addressed to the Senior Magistrate and marked Annexure ‘A’ to the defendant’s affidavit, stated that the contract of sale by Mr. B. Yegigori to Mr. Wildbird Aize was done in breach of the NHC Act of 1990 therefore was void and of no effect. And Mr. Asukusa declared the defendant Janet Vune the current tenant has having the right of occupancy.

7. From these arguments I am satisfied that the title to the property Section 16 Lot 30 is bona fide in dispute. Section 21 (4) (f) of the District Courts Act states that “A court has no jurisdiction - - - when the title to land is bona fide in dispute.” By this provision I find that this Court, the District Court lacks jurisdiction to determine the Complainant’s substantive claim.

8. The proceeding under Section 6 of the Summary Ejectment Act for eviction is applicable to those who have a clear title to land or a premises. A clear title, in my view refers to a person who has a certificate of title over the land. It does not refer to the payments been made. In an appeal in the case of Herman Gawi –v- PNG Ready Mixed Concrete Pty Ltd [1084] PNGLR 74, His Honour Kapi DCJ, as then he was said:

“Proceedings for recovery of possession of land under the Summary Ejectment Act ch. 202 are intended to provide a quick remedy to people who have a clear title to land or premises, they are not intended to be available where title to land is in dispute or unclear.

In the present proceeding now before this Court, there is no evidence of the complainant Mr. B. Memi having a clear title to the subject property. And also the defendant is disputing the title. Based on these findings I am satisfied that the District Court does not have the jurisdiction to proceed on to the substantive cause of action, namely the action of eviction.

9. Further to this Court having no jurisdiction in the matter, there is one other thing I need to make mention of. And that is whether Mr. B. Memi, the complainant, is the right person to bring this proceedings to Court. Mr. B. Memi is only a Real Estate Agent acting for Mr. Wildbird Aize as a purchaser of the property from Mr. Ben Yegigori. In both the Complaint and the Summons Upon the Complaint, Mr. B. Memi did not indicate that he was acting for and on behalf of Mr. W. Aize. Instead he claimed himself as the complainant. I find that Mr. B. Memi cannot bring this action under his own name as the complainant personally. He is not the right person to bring this action in Court under his own name.

10. From the reasons I have alluded above I find that the title to the property in land is in dispute. This Court therefore has no jurisdiction over the matter. Secondly I find that the Complainant is not the right person to bring this action to Court. On those basis I must grant the defendant’s application. I consider that the substantive complaint be struck out rather than be dismissed. There be costs for the defendant.

For the Complainant – In Person
For the Defendant – Mr. B. Koningi of Koningi Lawyers