PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CIA 323 OF 2000

BETWEEN:

KOROWA EROA
Appellant

AND:

MORATA CHILD PROJECT
First Respondent

AND:

SECRETARY FOR LANDS
Second Respondent

Waigani: Hartshorn, J.
2007: 21 March, 31 May

Counsel: 
P. Kingal, for the Appellant 
Respondent in Person by its Chairman Mr. J. Bit

31 May, 2007 

1.	HARTSHORN, J.: The Appellant, Korowa Eroa appeals the decision of the District Court at Port Moresby that he vacate the land situated at Allotment 48 Section 283 Hohola, William Street, Morata (the Land). 

2.	Mr. Eroa says that he has lived on the Land since about 1984 and disputes that the First Respondent, the Morata Child Project (MCP) should not be able to have him evicted from the Land. MCP says that it has had title to the Land since 1994, that Mr. Eroa has no right to the Land and that he should be evicted. 

3.	The Secretary for Lands is named as Second Respondent. There has not been any appearance by the Second Respondent in the District Court proceedings or this appeal. 

4.	The issue to be determined is whether the District Court was correct in ordering that Mr. Eroa vacate the land. 

5.	There are four grounds of appeal but Mr. Eroa, through his counsel Mr. Kingal, proceeded with only the first two grounds which are in essence that there was no evidence that MCP has any title to the Land. Mr. Eroa applied to introduce fresh evidence pursuant to s.229 District Court Act. This evidence concerned the issuing of the title for the Land. MCP did not consent to Mr. Eroa’s application and in my view the fresh evidence proposed to be introduced could have been discovered previously and introduced into evidence at the hearing before the District Court. Accordingly I refused Mr. Eroa’s application to introduce fresh evidence. As a consequence of my ruling Mr. Eroa did not proceed with the remaining two grounds of appeal that concerned whether the title to the Land had been validly issued.

6.	The hearing of an appeal from the District Court is a rehearing of the evidence that was before the Presiding Magistrate. 

7.	MCP through its Chairman Mr. Jonah Bit submitted to the Court that the Presiding Magistrate was correct in making the decision that he did. Mr. Bit said that MCP was entitled to the Land and that Mr. Eroa was occupying the Land illegally. 

8.	The State lease issued for the Land, State Lease Volume 12 Folio 171, issued on 31 July 1994 that was in the evidence that was submitted before the Presiding Magistrate by MCP, has "Christian Brethren Churches of Papua New Guinea Property Trust Pty Limited" (Christian Brethren) described as the registered lessee of the Land. There is no reference to the MCP. Mr. Bit in his submissions, conceded that there was no relationship between the Christian Brethren and MCP. 

9.	Mr. Kingal for Mr. Eroa submitted that the Magistrate could not properly have made the decision that he did on the evidence before him as there was no evidence that MCP had any title to the Land or had any authority to act on behalf of, or occupy the Land with the consent of the Christian Brethren. 

10.	I am satisfied on the documents before me that there was no evidence before the Presiding Magistrate that MCP is entitled to the Land or has any authority to act on behalf of the registered lessee, the Christian Brethren. Consequently the relief sought under the Summary Ejectment Act was not available to MCP and the Presiding Magistrate was in error in making the orders that he did. I am of the view that there has been a substantial miscarriage of justice and I uphold the appeal.

11.	It is to be understood that the Court is not making any determination concerning who is entitled to the Land. It is merely determining that the Presiding Magistrate was unable to make the orders that he did on the evidence before him. 

12.	 Accordingly I uphold the appeal and quash the orders made by the District Court on 17 October 2000. I order costs to Mr. Eroa.

Pius Kingal & Associates: Lawyers for the Appellant 
First Respondent In Person