N4151

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 367 0F 2005

ROSLYN WAIMEL AND NINE OTHERS
Appellants

V

JOHN KAL
Respondent

Kimbe: Cannings J
2006: 20 April, 7 July

APPEAL

APPEAL – District Court decision as to right of possession of land – eviction order. 

Land – title – whether District Court decisions as to title consistent with land title document – whether title to land bona fide in dispute – whether District Court had jurisdiction. 

The respondent took action against the appellants in the District Court on two occasions and obtained orders that he was entitled to live on a block of land. He was not the owner or lessee. By the second order the appellants were evicted. The appellants appealed against the second order on the ground that the respondent had no title to the land; and therefore the District Court had no jurisdiction under Section 21(4)(f) of the District Courts Act as there was a bona fide dispute about title. 

Held:

1.	There was no bona fide dispute about title to the land. Therefore the District Court properly exercised jurisdiction.

2.	The fact that a person is not the owner or lessee of land does not prevent the District Court from making an order for possession in favour of such a person.

3.	Title to the land was clear: it was vested in a child and the District Court had properly made orders as to possession and control of the land calculated to protect the interests of the child.

4.	The District Court was seized of the matter over a long period and made two distinct orders; the second being entirely consistent with the first one. 

5.	The District Court made no errors of law: there was no miscarriage of justice and the appeal was dismissed. 

Cases cited:
The following cases are cited in the judgment:
Philip Soon Kiat Yap v Tin Siew Tan, B & T Engineering Pty Ltd, Robert L Wong, William Baptiste and David F Tau [1987] PNGLR 227
Peter Abel v Hargy Oil Palms Ltd, CIA No 376 of 2000, 08.06.06, unreported

Abbreviations:
The following abbreviations appear in the judgment:

CIA – Civil Appeal
DC – District Court
J – Justice
Ltd – Limited
N – National Court judgment
No – number 
PNGLR – Papua New Guinea Law Reports
Pty – proprietary
v – versus

APPEAL

This was an appeal from a decision of the District Court ordering ten named persons to vacate a block of land on which they were living. 

Counsel:
O Oiveka, for the appellants
S Lupalrea, for the respondent

INTRODUCTION

1. CANNINGS J: This is an appeal against a decision of the District Court at Bialla, constituted by Mr J Pake, in which his Worship ordered ten people (the appellants) to vacate a block of land on which they had been living and harvesting oil palm. 

BACKGROUND

2. The block of land is near Barema in the Bialla District of West New Britain Province. It is known as Portion No 1414, Milinch Ulawun, Fourmil Talasea. It is an area of 6.76 hectares (about 16.9 acres). It is the subject of an agricultural lease granted under the Land Act. It forms part of the Barema oil palm settlement. 

3. The lease over the block was originally granted to Kome Maginsa, a man from Tambul, Western Highlands Province, in 1979. He transferred the lease to Samson Pora, a boy from Western Highlands Province, in 2003. Samson Pora is still the lessee or 'registered proprietor' of the block. He is still a boy, aged about 13. He is related to the parties to the appeal.

4. The parties are:

-	The appellants – Roslyn Waimel and nine others. They were living on and working the block for some years before being ordered by the District Court to leave. They come originally from Wabag, Enga Province. Roslyn Waimel is Samson Pora's mother. 

-	The respondent, John Kal. He was the complainant in two separate District Court cases. He is now living on and working the block. He comes from Tambul, Western Highlands Province. He is Roslyn's brother-in-law. He is Samson Pora's uncle.

5. Roslyn used to live on the block with her husband John Pora, who was the respondent, John Kal's brother and the lessee Samson Pora's father. John Pora died in 2001.

6. After John Pora died, his widow Roslyn continued to live on the block. Her wantoks (the other appellants, from Enga) moved on to the block and worked the block, earning their livelihood from harvesting and selling oil palm. In 2003 a dispute erupted between Roslyn and her brother-in-law, John Kal, who thought that he and his wantoks (from Western Highlands) should live on and work the block.

7. The dispute was dealt with by the District Court on two separate occasions, in December 2003 and July 2005.

DISTRICT COURT PROCEEDINGS

8. In December 2003 the dispute came before Magistrate Mr C Koi, in DC No 73 of 2003. The complainant was 'Samson Pora, by his friend John Kal'. The defendant was Roslyn Waimel. Mr Koi made an order on 10 December 2003, which he said was in the best interests of the children of the deceased, John Pora. The order stated:

1.	The only persons who shall live on the block and to look after the children of the deceased and to be generally responsible for control and movement of the block are John Kal and the defendant Roslyn Waimel.

2.	Any other relatives or friends are permitted to enter the block for the purpose of helping to harvest or for maintenance etc of the block but that is a matter of understanding between John Kal and Roslyn Waimel.

3.	There shall be opened an account bearing the names of the children of the deceased to be held and controlled in trust for the children, by the above-named persons (John & Roslyn). For clarity, a portion of proceeds from each harvest of 1/4 to 1/3 of the total payment to go to the children of the deceased.

4.	Should Roslyn Waimel get married again she shall leave the block to live with her new husband elsewhere and shall leave the block to the care and control of it by John Kal who shall then look after it for the children until the eldest son of the deceased, Samson Pora, attains age of majority.

5.	No persons whatsoever, including John Kal and Roselyn Waimel, but subject to proper procedures under the Land Act, has any authority to transfer the lease or to further sub-lease or to deal with the lease in such a way as to jeopardize the interest of the trust beneficiaries, except by blessing of a Magistrate of the District Court or National Court.

6.	Wabags and Tambuls should shake hands and now work with understanding in the best interest of all.

9. In November 2004 Roslyn Waimel re-married. Under the terms of Mr Koi's order, she had to leave the block. However, she did not do so. Mr Koi became aware of these things in January 2005 and wrote to the Community Development Officer at Bialla Local-level Government to express his concern that his orders were being ignored. 

10. However, Roslyn and her wantoks, including her new husband, continued to live on the block. She evidently sent her son, Samson Pora (the lessee) to Enga, to live with her relatives there. The dispute between Roslyn and John Kal, and their various wantoks, continued.

11. In July 2005 John Kal commenced fresh proceedings in the District Court, in DC No 410 of 2005. He was again the complainant. Roslyn Waimel was again a defendant, but on this occasion there were also nine others named alongside her. The complaint was that the defendants were residing on the block illegally as Roslyn had re-married and under Mr Koi's order of December 2003 she and her wantoks had to move out; but they had not done so.

12. The matter came before Magistrate Mr J Pake on 22 July 2005 who dealt with it as a claim for ejectment under the Summary Ejectment Act. He upheld the claim and made an order in the following terms:

Defendants are to vacate the block within three months as from today, in default 12 months imprisonment in hard labour.

13. The appellants have complied with that order, but are appealing against it. They want to move back on to the block.

APPEAL TO NATIONAL COURT

14. The notice of appeal raises two (2) grounds:

1.	The learned Magistrate erred in law and fact when there was no evidence or insufficient evidence to show that the respondent had a proper legal title to the block.

2.	The learned Magistrate erred in law when he did not afford the appellants the opportunity to defend themselves and give or produce evidence on their behalf.

MAJOR ISSUES

15. They follow on from the grounds of appeal:

-	Did the District Court err by making an order in favour of the respondent, John Kal, when he had no legal title to the block?

-	Did the District Court err by not giving the appellants the opportunity to defend themselves and produce evidence? 

-	Has there been a substantial miscarriage of justice? (This is a prerequisite to allowing the appeal under Section 230(2) of the District Courts Act.)

-	What remedies, if any, should be granted by the National Court? (The National Court's remedial powers are prescribed by Section 230(1) of the District Courts Act.)

APPELLANTS' SUBMISSIONS

16. Mr Oiveka argued that there was no evidence in the District Court to show that John Kal was the title-holder of the block. He had no greater right to be on the block than Roslyn Waimel. In any event the evidence showed that there was an ongoing dispute about title to the land and therefore the District Court had no jurisdiction in view of Section 21(4)(f) of the District Courts Act, which states:

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

(f) when the title to land is bona fide in dispute.

17. Section 21 is the provision that sets out the nature and extent of the jurisdiction of the District Court in civil matters. It complements Section 20, which sets out the Court's criminal jurisdiction.

18. Mr Oiveka did not press the second ground of appeal strongly.

RESPONDENT'S SUBMISSIONS

19. Mr Lupalrea submitted that Magistrate Mr Pake had made no errors in his decision of 22 July 2005. There was a dispute about possession of the block but not about title so the District Court had jurisdiction. There was no evidence that the appellants had been denied a fair hearing in the District Court. 

FIRST ISSUE: DID THE DISTRICT COURT ERR BY MAKING AN ORDER IN FAVOUR OF THE RESPONDENT, JOHN KAL, WHEN HE HAD NO LEGAL TITLE TO THE BLOCK?

20. It is clear that the respondent has no legal title to the block. Title in the block is held by his nephew Samson Pora. Samson is the lessee and registered proprietor. The fact that the respondent has no title did not, however, prevent the District Court from making orders in his favour as to possession and control (not ownership or legal title) of the block. This was not a case where there was a bona fide dispute about title. There was a dispute about possession and control of the block and who could live on and work it. The District Court's jurisdiction was not removed by Section 21(4)(f) of the District Courts Act.

21. Mr Koi's order of 10 December 2003 was evidently made after hearing all parties. It bears the hallmarks of a carefully considered judicial decision calculated to protect the interests of the children of the deceased, John Pora, and in particular his son, Samson. It is significant that Mr Koi's order was not appealed against or reviewed in any way. Even in the current appeal no attempt was made to challenge Mr Koi's order. It was the appellants' obligation to obey it unless and until it was discharged, even if they did not agree with or thought that it was invalid or irregular. As long as it existed it had to be obeyed (Philip Soon Kiat Yap v Tin Siew Tan, B & T Engineering Pty Ltd, Robert L Wong, William Baptiste and David F Tau [1987] PNGLR 227, National Court, Hinchliffe J). 

22. When the matter came before Magistrate Mr Pake in July 2005, Mr Koi's order of December 2003 was still operating. All the evidence suggested that Mr Koi's order had not been obeyed. Roslyn had re-married but had not left the block, as she was required to do by the order.

23. All that Mr Pake was doing was enforcing Mr Koi's order. Mr Pake's order was entirely consistent with Mr Koi's order. 

24. I conclude that no, the District Court did not err by making an order in favour of the respondent, John Kal. The first ground of appeal is dismissed. 

SECOND ISSUE: DID THE DISTRICT COURT ERR BY NOT GIVING THE APPELLANTS THE OPPORTUNITY TO DEFEND THEMSELVES AND PRODUCE EVIDENCE?

25. I recently held, when upholding an appeal against a District Court decision at Kimbe, that the District Court is obliged to comply with the principles of natural justice and must give parties the opportunity to address any proposed findings of fact that are material or prejudicial to a party. The District Court must have evidence before it to support those findings, and must record the evidence carefully. I found in that case that those duties had not been discharged by the District Court and set aside its decision (which was to dismiss a claim for damages for wrongful dismissal) as being made in breach of the principles of natural justice and in excess of jurisdiction (Peter Abel v Hargy Oil Palms Ltd, CIA No 376 of 2000, 08.06.06, unreported.) That case, and the principles of law it reinforces, is relevant to the second ground of appeal in the present case: that the appellants were denied their right to be heard. 

26. However, there is no evidence in support of this ground of appeal. There is no evidence that Magistrate Mr Pake did, in fact, not give the appellants the opportunity to defend themselves or that Mr Pake denied them their right to produce evidence on their behalf. Also, the appellant's counsel, Mr Oiveka, did not strongly pursue this ground of review at the hearing of the appeal. 

27. I conclude that no, the District Court did not err by not giving the appellants the opportunity to defend themselves. I therefore dismiss the second ground of appeal.

THIRD ISSUE: HAS THERE BEEN ANY SUBSTANTIAL MISCARRIAGE OF JUSTICE?

28. As both grounds of appeal have been dismissed I can see no good reason to set aside or vary the orders of the District Court. There has been no miscarriage of justice. 

FOURTH ISSUE: WHAT REMEDIES, IF ANY, SHOULD BE GRANTED BY THE NATIONAL COURT?

29. Upholding an appeal is not a precondition to the National Court making orders or granting other remedies calculated to advance the interests of justice.

30. Section 230(1) of the District Courts Act states:

On the hearing of an appeal, the National Court shall inquire into the matter, and may—

(a)	adjourn the hearing from time to time; and
(b)	mitigate or increase a penalty or fine; and
(c)	affirm, quash or vary the conviction, order or adjudication appealed from, or substitute or make a conviction, order or adjudication which ought, on the evidence before the National Court, to have been made by a District Court; and
(d)	remit the case for hearing or for further hearing before the Court which made the conviction, order or adjudication or any other competent court; and
(e)	exercise a power that the Court that made the conviction, order or adjudication might have exercised; and
(f)	make such further or other order as to costs or otherwise as the case requires.

31. Given the history of this matter I will dismiss the appeal but make a further order under Section 230(1)(e). I will order that the Community Development Officer of the West New Britain Provincial Government prepare a report on this matter for the National Court's consideration.

32. I am concerned that all of Mr Koi's December 2003 orders might still not be complied with. The boy, Samson Pora, has been dispatched to Enga, and I need to be satisfied that his interests are being treated as paramount, over and above those of the parties to this appeal. 

COSTS

33. Normally the side that loses a case such as this will get an order from the court saying that they must pay the other side's legal costs. This is a matter for the discretion of the court. In this case the unsuccessful appellants were represented by the Public Solicitor and the respondent represented himself. In these circumstances I think it is best that the parties bear their own costs of the appeal. 

REMARKS

34. Land is always a contentious issue. People should be encouraged to bring these sorts of matters to the courts to be resolved peacefully. The court recognises that the appellants have complied with the District Court's most recent orders and brought this matter to the National Court to resolve the dispute. 

35. However, this recent court action would not have been necessary if the appellants had complied with the District Court's original orders. 

36. In cases like this, the courts have a duty to protect the interests of children. The District Court's original orders were designed to protect the rights of a deceased man's children. It is imperative that those orders be enforced. All parties to the dispute have a duty to comply with them, and that includes John Kal, the person who has won this appeal. All parties must remember that the disputed land belongs to a child, who has rights under the Land Act and Section 53 (protection from unjust deprivation of property) of the Constitution, that must be protected. 

JUDGMENT

37. I will direct entry of judgment in the following terms:

1)	The appeal is substantively dismissed.

2)	The issue of whether the District Court's orders of 3 December 2003 are being complied with is referred to the Community Development Officer, West New Britain Provincial Government, who is required to file a report for the National Court's consideration within two months after the handing down of this order.

Appeal dismissed; matter referred to Community Development Officer. 
_______________________________________________

Public Solicitor: Lawyer for the appellant
Lupalrea Lawyers: Lawyers for the respondent