Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Ngan v Yai [2016] PGNC 190; N6381 (12 August 2016)

N6381

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 162 OF 2013

BETWEEN
PETER NGAN
Appellant

AND

ANDREW YAI as substituted for KOLET SARUT
Respondent

Waigani: Makail, J
2016: 8^th & 12^th August

CIVIL APPEAL – Appeal against dismissal of District Court complaint – Land dispute – Title to land – Waste and vacant land – Eviction proceedings – Clear title – Summary Ejectment Act – Section 6 – District Courts Act – Section 22

Cases cited:

Herman Gawi v. PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74

Legislations:
District Court ACT

Summary Ejectment Act

Counsel:

Mr. S. Keteng, for the Appellant
Mr. P. Feareka, for the Respondent

JUDGMENT

12^th August, 2016

1. MAKAIL, J: This is an appeal against the decision of the Port Moresby District Court dated 15^th November, 2013. In District Court proceedings No. 230 of 2012, which dismissed a complaint by the Appellant on the ground that it was an abuse of process, in that, the true nature of the complaint was a claim to title to land and not a claim for equitable relief. A claim to title to land is available to the Appellant and should have been claimed under section 6 of the Summary Ejectment Act and not under section 22 of the District Courts Act.

2. Section 6 of the Summary Ejectment Act provides for eviction where a complainant has clear title to land and section 22 of the -District Courts Act provides for, amongst other things, equitable relief. The learned magistrate dismissed the complaint after finding that the Appellant had no title to the land in dispute, it being an “unregistered” or “waste and vacant land” and the Respondent late Kolet Sarut and her husband Bin Kome had moved onto and developed it since the early 90s.

3. The land is situated at Wild Life Sanctuary in the Erima suburb of Port Moresby. They cleared it, built a three bedroom house, made a garden, planted fruit and nut trees and connected water to the house and garden. They lived there until a marital conflict developed between the two of them. The conflict extended to the subject land, each claiming it.

4. A District Court proceeding was commenced by late Kolet to restrain her husband from interfering and harassing her and have him evicted from the house. An order to that effect was granted on 17^th December 1997. The protection she received from the Court was short lived because the harassment and intimidation persisted and she was back in Court in 1998.

5. By October 1999, the District Court issued a new set of orders against Mr. Kome to vacate the house and police to assist her to take possession of the house. These orders were issued in proceedings DC. No. 2906 of 1998 between late Kolet and Mr. Kome. The Appellant being educated and a relative assisted late Kolet to pursue these proceedings against Mr. Kome.

6. In 2002, one of the Appellant’s wives named Umbu Peter moved in with late Kolet. There is some dispute as to the living arrangement, the Appellant alleging that he had by this time purchased the house from the Respondent for K2,800.00 while the latter alleging that the sum was payment for outstanding rentals by the Appellant for accommodating his wife.

7. It was also around that time that Mr. Kome learnt of the alleged sale and instituted proceedings in the District Court styled DC. No. 1193 of 2002 and sought orders to evict the Appellant from the property but on 20^th June 2002 the “case was struck out” and in its stead the Court ordered Mr. Kome to vacate the “property”.

8. The different positions led to a conflict, although it was alleged that attempts were made to mediate it before community leaders and village court officials on two separate occasions but, failed and this resulted in the District Court proceedings being commenced by the Appellant to claim ownership of the “property”.

9. After the dismissal of the proceeding and while this appeal was pending, Kolet died. She was substituted by Andrew Yai by an order of the National Court on 16^th March 2016. Mr. Yai is late Kolet’s nephew, being the son of her elder sister. He also sought to have the Appellant evicted from the property.

10. These facts are not disputed by parties.

11. As to the last point, Mr. Yai objected to the competency of the appeal on the ground that he has not been named as a Respondent in place of late Kolet following his aunt’s death. I do not think this objection has any merit because there is an order substituting the deceased with Mr. Yai and is sufficient for the purpose of identifying the Respondent and to whom any judgment can be directed at.

12. As to the substitution not being reflected in the title of the appeal, this can be over-come by simply amending it as is shown in this judgment. The objection is dismissed.

13. As to the merits of the appeal, this case is somewhat confusing because while both parties conceded that they have no title to the subject land and it was on this basis that the Appellant contended that there was no basis to commence proceedings under section 6 of the Summary Ejectment Act and have the Respondent evicted from the land, he contended that he has an equitable interest in the “property”.

14. His interest is based on the purported sale of the “property”, having purchased it from late Kolet, he being the present owner and that the claim of ownership is further being confirmed by the decision of the District Court of 20^th June 2002. The only way his interest can and could be protected is by making a complaint to the District Court under section 22 of the District Courts Act. The learned magistrate mistook his complaint as being one of eviction and erroneously dismissed it.

15. There is a serious misapprehension of the law by the Appellant. Land tenure law in Papua New Guinea recognises two types of land. One is State land and the other customary land. Land is owned by the State or customarily owned. An interest in land can be either legal or equitable.

16. If the parties in this case conceded that they have no title to the subject land, then they do not own it. They cannot claim it as lease holders or customary owners. They are illegal squatters. They have no right to be on it in the first place, no matter how long they may have lived there. Given this, neither has good title to pass to the other. Secondly, neither can seek an order to have the other vacate it.

17. An order for eviction under section 6 of the Summary Ejectment Act is a quick remedy to an owner who has clear title to land or premises: see Herman Gawi v. PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74. The learned magistrate was correct in refusing the order sought by the Appellant under section 22 of the District Courts Act because the complaint was one of eviction and the Appellant had no clear title.

18. Even the Court order of 20^th June 2002 which he asserted affirmed his claim of ownership falls short of proving title. The appeal should be and will be dismissed for this reason alone.

19. If the true nature of the Appellant’s complaint is the ownership of the house and not the land, he does not make that distinction. This lack of clarity is compounded by the fact that the house is seated on the land. The question is whether the house is part of the land and can be described as a fixture.

20. The Osborn’s Concise Law Dictionary, 9^th ed at page 172 defines fixtures as;

“Any chattel that has been annexed to land or a building so as to become part of it. As a general rule anything so annexed becomes part of the realty and belongs to the owner of the soil........ Whether a chattel has become a fixture which the tenant has no right to remove depends primarily upon the object and purposes of the annexation of the chattel to the property.”

21. It has not been suggested by the Appellant that the house was separate from the land, though the Appellant asserted that the payment of K2, 800.00 was for the house. From the facts as they appeared, it is quite clear that late Kolet had settled on the land for the purpose of building a house. The house was for none other than residential purpose. That was the purpose of building the house.

22. In the circumstances, I conclude the house is a fixture and is part and partial of the land. I should add that the Appellant has used the generic term “property” to assert his claim to an equitable interest in the “property”. This is further evidence that the property comprised of the land and house. It follows a dispute as to ownership of the house includes land.

23. The Appellant has failed to establish an equitable interest. On the other hand, the complaint was one of ownership of land where the Appellant held no title and disentitled to an order under section 6 of the Summary Ejectment Act. The learned magistrate correctly dismissed the complaint.

24. Given these findings, it is not necessary to consider the other submissions of counsel in relation to the sufficiency of pleadings and objection to introduction of a Valuation Report from the National Housing Corporation.

25. Appeal is dismissed with costs.

________________________________________________________________
Kandawalyn Lawyers : Lawyer for Appellant
Director–Legal Training Institute: Lawyers for Respondent