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Simon v Marcus [2021] PGDC 223; DC7084 (7 December 2021)

DC7084

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]
DCC NO: 192146 /2021.

IN THE MATTER BETWEEN:

RUSSEL SIMON.
Complainant.
.
AND.
SIL MARCUS
Defendant.

Popondetta: Michael W. Apie’e

2021: December 03^rd,07^th.

CIVIL PROCEEDINGS. Action seeking Summary Ejectment of Defendant and his Family from Titled Lands the Complainant has Indefeasible Title over.
CIVIL PROCEEDINGS. Claim for Ejectment under Section 6 of Summary Ejectment Act.

Cases Cited:

Mudge and Mudge v. Secretary of Lands and others [1985] PNGLR 387
Emmas Estate Development Pty Ltd v. John Mea & Ors [1993] PNGLR 215
Hi Lift Pty Ltd v Setae [2000] PGNC 71; N2004
Gawi v. PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 72

References:

District Court Act.
Land Act
Land Registration Act
Summary Ejectment Act

Representation:
Complainant Russel Simon in Person.
Defendant by Next of Friend Benson Kegana

JUDGMENT.

Michael W. Apie’e-a/Principal Magistrate.

1. The Complainant filed suit on the 10/09/21 seeking the Summary Ejectment of the Defendant from Titled Land at Portion 1824, Milinch of Sangara Fourmil of Buna at Sanagara, Higature LLG Sohe in the Northern Province.
   
2. The Complainant claims to hold Indefeasible title to that Property which title was issued to him on the 13/07/17 by the Acting Deputy Registrar of Titles, after interacting and agreeing with one Sinai Sil Nipil (Mr.) the Surviving son of the Blocks erstwhile owner Late Ludwig Nipil and brother of late Frederick Nipil.
   
3. The Defendant was a Care-taker brought in to the Northern Province from Lae in the Morobe Province in 1986 by Late Ludwig Nipil to work and live on Block 1824 and also his other Block 0311.
   
4. The Block Owner Ludwig Nipil had effectively taken over Block Portion 1824 from one Taiu Nek Thomas from Menyama in the Morobe Province when the latter had to vacate in the mid to late 1980’s when the Oro for Oro Sentiment was proposed by former Governor Siembo and non-Northern Province Block holders self-vacated and left the Northern Province in their masses.
   
5. After taking over Portion 1824 the Defendant was engaged by Late Ludwig Nipil and his Wife Late Eva Nipil to take care of the blocks.
   
6. Despite the allusion cast back and forth, it is apparent that the Defendant is a relative of the Late Ludwig Nipil and the Witness Sinai Sil Nipil is for all intents and purposes a Legal Son of the Late Eva and Ludwig Nipil therefore entitled by virtue of Filial Legacy to claim and deal with the estate of his Late Parents.
   
7. It seems in this instance, he dealt with Portion 1824 with the full knowledge and acquiescence of his sisters, one of which came to this court and gave evidence to that effect namely Ms. Ludwina Sipo Nipil.
   
8. After acquiring Portion 1824, the Defendant was living and working on the Block while the Late Ludwig Nipil and his wife Eva Nipil lived and worked outside with their Children.
   
9. Eva Nipil passed in 2012, her first son Frederick who was then appointed next of kin died in 2014 and, Ludwig Nipil who had Left for Kimbe ultimately died in 2017.
   
10. It seems after the death of Frederick, the title to 1824 was left with Cathy Nipil to control whilst the Defendant was the care taker.
    
11. It is apparent to this court that due to the need to find support for School fees Sinai Sylvester Nipil then took control of Portion 1824 in 2018 and agreed with the Defendant for him to manage, harvest and sell Palm Fruits so long as he saves money to help with Sinai’s school fee’s.
    
12. However, the Defendant did not comply with their agreement and save money from the harvests and so Sinai Sylvester with the support of his sisters sold and transferred Portion 1824 to the Complainant.
    
13. The Title is actually Transferred on 13/07/17, whilst the Payment of 30%/K9000.00 is detailed in the Statutory declarations dated 11/04/18 with the balance of K21,000.00 yet to be paid.
    
14. It is uncanny to note that the Ludwig Nipil died in an accident in Kimbe on the 22/07/17, 9 days after the Title to Portion 1824 is transferred to Russel Simon by Sinai Sil Nipil.
    
15. When title is transferred to the Complainant on the 13/07/17 the processes adopted by the Complainant and Sinai Sylvester Nipil bypassed the Provincial Branch of the Lands Department and also the Oil Palm Industry Corporation (OPIC).
    
16. Regarding the Public Curators Office, the Defendant raises the issue of Potential foul-play in dealing with the Property without Public Curators knowledge given that he was aware of the file being left at the Public Curators Office, however Sinai Nipil said in his oral Evidence to court that the Public Curators officer David Nohoro told him to go ahead and process the Transfer as all was in Order, so he did.
    

Observations.

17. The Complainant claims to have clear title to Portion 1824 no matter how dubious the title might seem to be given the processes employed according to Defense witnesses namely Mr. Bito Mula, Sorovi Division Manager for OPIC, Mr. Namson Kevonu, Block Committee member for Sorovi and Ms. Rhoda Tumbari, Alienated Lands officer with the Lands Departments Branch in the Northern Province.
    
18. Indefeasibility of Title dictates that a ‘Title on Face Value/Prima Facie cannot be question and must be given full recognition and effect according to Law.
    
19. In the case of Mudge and Mudge v. Secretary of Lands and others [1985] PNGLR 387, the Supreme Court of Papua New Guinea upheld the principle that Indefeasible title is Protected under Section 33 of the Land Registration Act.
    
20. Other Subsequent case in Both the Supreme and National Courts such as Emmas Estate Development Pty Ltd v. John Mea & Ors [1993] PNGLR 215, and the case of Hi Lift Pty Ltd v Setae [2000] PGNC 71; N2004 (17 November 2000) by Late Sevua J, to list only a few, all reiterate and establish the same Principle of Indefeasibility of Title being protected under Section 33 of the Land registration Act except in prescribe circumstance where fraud is involve in the Processing of and issuance of Title.
    
21. Section 33 of the Land Registration Act Reads;
    

33. PROTECTION OF REGISTERED PROPRIETOR.

(1) The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except–

(a) in the case of fraud;

(b) the encumbrances notified by entry or memorial on the relevant folio of the Register; and

(c) the estate or interest of a proprietor claiming the same land under a prior instrument of title; and

(d) in case of the omission or miss-description of any right-of-way or other easement created in or existing on the same land; and

(e) in case of the wrong description of the land or of its boundaries; and

(f) as to a tenancy from year to year or for a term not exceeding three years created either before or after the issue of the instrument of title of the registered proprietor; and

(g) as provided in Section 28; and

(h) a lease, license or other authority granted by the Head of State or a Minister and in respect of which no provision for registration is made; and

(i) any unpaid rates, taxes, or other money which, without reference to registration under this Act, are expressly declared by a law to be a charge on land in favour of the State or of a Department or officer of the State or of a public corporate body.

(2) The operation of Subsection (1) is not affected by the existence in any other person of an estate or interest, whether derived by grant from the State or otherwise, which, but for this Act, might be held to be paramount or to have priority.

22. Witnesses for the Defendant Mr. Bito Mula, Sorovi Division Manager for OPIC, Mr. Namson Kevonu, Block Committee member for Sorovi and Ms. Rhoda Tumbari, Alienated Lands officer with the Lands Departments Branch in the Northern Province raised issues regarding the Transfer of the Title to the Complainant but all fall short of Claiming fraud on the part of the Complainant and Sinai Nipil.
    
23. In the case of Hi Lift Pty Ltd v Setae [2000] PGNC 71; N2004 (17 November 2000) by Late Sevua J, the Learned Late Judge outline the various factors to be considered in considering challenges to Claims of Indefeasibility of title and he listed the bypassing or evading of set Titling or Transfer processes as the grounds on which Titles can be nullified.
    
24. However, such Processes can only be had in the National Court which has inherent Jurisdiction, but such can be the subject of a separate proceeding in the National Court if the Defendant so wishes.
    
25. That being so, this Court therefore has no basis to rule that the Complainants title to Portion 1824 is Bona Fide in dispute by other persons including the Defendant as per the Dictates of Section 33 of the Land Registration Act and also Section 21 (4) (f) of the District Court Act.
    
26. Following on, the Complainant brings his action and Seeks orders according to Section 6 of the Summary Ejectment Act which also carries with it similar requirements.
    
27. Section 6 of the Summary Ejectment Act reads; Section 6 of the Summary Ejectment Act reads;
    

6. RECOVERY OF PREMISES HELD WITHOUT RIGHT, ETC.

(1) Where a person without right, title or license 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.

28. The reasoning of Late Kapi DCJ as he then was in the case of Gawi v. PNG Ready Mixed Concrete PTY Ltd [1984] PNGLR 74 is on point here wherein the Late Deputy Chief Justice in discussing Section 6 of the Summary Ejectment Act held that ‘If the one Claiming Ejection of someone else has clear title then this Provision should be invoked, but if such persons Title or Claim to the Alienated Land is ‘Bone Fide’ in Dispute, then Section 6 cannot be invoked’
    
    1. What this simply means for this case is that ‘If the Defendant and his relatives can lawfully claim an interest over this Property either legal or Equitable either by custom or Law’ then the Court should not invoke Section 6 against them in this instance but rather resort to other processes or avenue to resolve the matter.
       
    2. It also means that ‘If the Complainant does not have clear title and even if he had purchased the Land but title was still not granted to him, then Section 6 could not be invoked in his favour as his claim of title would still be ‘Bona Fide’ in dispute.
       
29. However, in this case the following is apparent and that is;
    
    1. Apart from being the Care-taker, the Defendant has not established let alone claim any interest or rights over Portion 1824 to counter the Complainants Claim of Indefeasible Title to Portion 1824.
       
    2. The Complainant has established Title to the Property, and such Title is Indefeasible insofar as the District Court is Concerned unless it is established by the one claiming it that such title is bona Fide in Dispute.
       
30. The Other Factors are that by virtue of his affiliation to Ludwig Nipil the Defendant was more or less in control of 2 Portions of Land namely, Portion 1824 and also Portion 0311.
    
31. Now that Portion 1824 had been taken away from his ambit due to Transfer of ownership, his interests as long time Care-taker should afford him primacy in respect of Portion 0311 even ahead of the surviving children of Ludwig Nipil, as only he could possibly make this Portion of Land Work in terms of Palm Oil Activities.
    
32. The Sentiments expressed by Mr. Bito Mula, Sorovi Division Manager for OPIC, Mr. Namson Kevonu, Block Committee member for Sorovi and Ms. Rhoda Tumbari, Alienated Lands officer with the Lands Departments Branch in the Northern Province, about the Defendant being a person with interest in the Lands can be better implemented in Portion 0311.
    
33. In the final Analysis, the Court finds and Rules as follows that;
    
    1. The Complainant has established any existence of rights or interest over Portion 1824 sufficient to compel the Summary Ejectment of the Defendant from Portion 1824.
       
    2. The Defendant has not established an interest in Portion1824 sufficient to offset the Complainants claim of Indefeasible Title to this land.
       
34. Accordingly, the Court Adjudges and will Order as follows;
    
    1. The Complainants Claim(s) is Approved in its entirety and The Defendant and his family friends and relatives are hereby Order to evict and remove themselves from Portion 1824 forthwith.
       
    2. The Defendants Request for an Allocation of a Grace period to move out from Portion 1824 is refused.
       
    3. The Ludwig Nipil Family including Sinai Sylvester Nipil and his Sisters Cathy and Ludwina and other Extended family members are hereby restrained from dealing in any manner whatsoever with the remaining Portion 0311 without the Consent and approval of the Defendant from hereon.
       
    4. No orders as to cost.

Complainant Russel Simon in Person.
Defendant by Next of Friend Benson Kegana