N8312
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 46 OF 2019

BETWEEN:
TIMOTHY APAE
Appellant

AND:
PETER AKIS, TARI AKIS AND JENNY AKIS
Respondents

Lae: Dowa AJ
2020:17th March &13th May

APPEAL – appeal from district court orders on eviction granted under the Summary Ejectment Act – respondent is registered proprietor of leasehold title to property – grounds of appeal is that title was fraudulently obtained by respondents and therefore title to the property granted to the respondents were bona fide in dispute – appellant failed to show that title is bona fide in dispute - Appellant has not demonstrated to the Learned Magistrate that he has taken formal or legal steps to disturb the Respondents’ title -  there was no bona fide dispute - Magistrate was entitled to make the orders as he did under the Summary Ejectment Act – appeal dismissed

Cases Cited:

Gawi and Ready Mixed Concrete Ltd (1984) PNGLR 74
PNG Bible Church v Carol Mandi (2018) SC 1724
Yandu v Waiyu (2005) PNGLR N2894

Counsel:

K. Kevere, for the Appellant
P. Yama, for the Respondents

DECISION

13th May 2020

1.	DOWA AJ:	This is an appeal against the decision of the District Court, Lae, made on 13th June 2019 in which his Worship T. Dawai, made an order for eviction, against the Appellant.

2.	Counsel for parties provided both written and oral submissions.

Background

3.	The Respondents are registered proprietors of land described as Allotment 04 Section 60, Lae.  The Appellant is currently residing on the said property. The Respondents come from Buang, Morobe Province.  They have been residents of Lae city since childhood.

4.	The Respondents late father Mongok Akis was a former employee of the Department of Civil Aviation since the 1960’s.  The Department of Civil Aviation (‘DCA’ known then), gave away the above property to the Respondents late father, as a recognition of his long and loyal service.  It was effected under the giveaway scheme of low cost houses. The Department of Civil Aviation made arrangements with the Lands Department to transfer the title to the late Mongok Akis (deceased). The Respondents, lived and grew up in the property over more than 40 years. 

5.	In 2008, the Appellant and his parents from the Southern Highlands Province, sought assistance for accommodation due to an ethnic clash, between the Southern Highlanders and the Bukawa people of Morobe.  The Appellant wanted to rent the Respondents house.

6.	The Respondents leased the house to the Appellant for K750 per month. The Appellant paid K12,000 upfront and moved into the property.  I note this arrangement is not really clear from the information on the appeal book.

7.	The Respondents allege that the Appellant ceased to make further rental payments.  They requested the Appellant to move out but he refused. The Respondents, allege that to their surprise, the Appellant entered into a separate Tenancy Agreement with the National Housing Corporation as a tenant, in 2013.

8.	The Respondents disputed the arrangement by the Appellant with National Housing Corporation.  The National Housing Corporation and National Airports Corporation issued various correspondences to their respective Head Offices, reaffirming the Respondents interest in the property. The Respondents say that with the support of senior management of National Housing Corporation, the Civil Aviation Department and the Lands Department, a state lease title to the property was granted to them in September 2015, in a properly constituted Land Board meeting.

9.	Since 2016, attempts were made to evict the Appellant from the premises.  Eventually the Court granted the eviction orders on 13th June 2019.  

Appellant’s Case

11.	The Appellant, stated that in 2007, he was informed that the Respondents were selling this property for K95,000.00.  After entering into an initial agreement, he paid moneys by instalment until he reached K12,000.00. Meanwhile, he made enquiries with the National Housing Corporation, and was told, the property was owned by National Housing Corporation, and was advised to pay a small amount to the respondents.

12.	In 2008, the Appellant said, he paid K12,000.00 for the property and moved in. The Appellant signed an agreement with the Respondents.  A copy of Agreement is at page 84 of the Appeal Book, which I set out below:

	“TENANCY AGREEMENT LETTER

	On Thursday, the 18th of December, 2008, a sum of PGK2,000 was given to recipients Tari-ted Akes (next of kin), Jenny Akes and Peter Akes as an additional payment (deposit) on a property titled Lot 4 Section 60 at Bowerbird St, Chinatown, Lae, Morobe Province.  This brings the total deposit to a sum of PGK12,000.

This document binds the agreement that was reached between Tari-ted Akes (Vendor) and Timonty T. Apae and Jessie Soukili (joint tenants-purchasers) and witnessed by Brian Irafa of Department of Lands Morobe.

The property is on sale for a total sum of PGK90,000 and hence the remaining balance of PGK78 000 will be faithfully paid upon receiving of the Land Title at a later date.”

13.	The Appellant said he spent four (4) years trying to assist the Respondents to obtain a title to the property.  In the course of his various attendances at the National Housing Corporation, it was suggested to him, if he wanted the property he could get it direct from National Housing Corporation, and not to buy it from the Respondents. The Appellant, as a result, entered into a Tenancy Agreement directly with the National Housing Corporation in January 2013.

Affidavit by Paul Anis

14.	In Support of the Appellant, one Paul Anis, an officer from National Housing Corporation filed an affidavit, supporting the Appellant’s claim. Briefly, what Mr Anis said is secondary and hearsay evidence.  The relevant parts relate to his assertion that National Housing Corporation was the custodian of the subject property.  He also confirmed that the National Housing Corporation entered into a tenancy agreement in the first place with the Respondents in 2007.  The National Housing Corporation then entered into a second tenancy agreement with the Appellant in 2013.

15.	Mr Anis said, when the Respondents were gazetted by the Lands Department in September 2015, as being successful applicants they tried to stop it but were unsuccessful. The Respondents were granted the State lease to the property to commence from 3rdSeptember 2015.  Mr Anis said, the title was improperly granted to the Respondents by the Lands Department.

Decision of the District Court

16.	The Respondents filed a complaint and was issued a Summons for Summary Ejectment under Section 6 of the Summary Ejectment Act on 21st February 2019.On 19th March 2019, the Respondents filed their Affidavit in Support.  Attached to Peter Akis’ Affidavit was a copy of the Title Deed, marked as annexure “A”.

17.	On 9th April 2019, one Paul Anis, on behalf of National Housing Corporation filed an Affidavit, along with a Notice of Motion to be joined as a party to the proceedings. On 7th May 2019, the National Housing Corporation’s application to be joined as a party was refused.

18.	After about eight (8) Court appearances, the Magistrate finally issued the Summary Ejectment orders on 13th June 2019. 

Magistrates Decision

19.	The learned Magistrate did not put in writing any detailed reasons for his decision.  However, from the grounds of Appeal it is apparent, that upon presentation of the Title Deed to the property, the Court was satisfied that the Respondents were registered owners of the property, and he granted the eviction orders under Section 6 of the Summary Ejectment Act.

20.	Section 6 of the Summary Ejectment Act provides: 

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

21.	The affidavits provided by the Appellant, and Paul Anis of National Housing Corporation was to establish there was improper issue of title by the Lands Department to the Respondents.

Grounds of Appeal

22.	There are two main grounds of appeal.  They are:

“1.  The lease title presented to the District Court was fraudulently obtained and the Court did not take that into account.

2.	The case was initially dismissed by the same Court under his Worship T. Dawai but the decision was overturned this time around.”

Ground No. 1 – Fraudulent Title

23.	The Appellant submitted that the Respondents title to the property was obtained by fraud, and the Magistrate erred in not taking that into account. The Appellant alleged that the Land was in the custody and control of National Housing Corporation, and not the Lands Department.  The grant of title to the Respondents by the Lands Department was irregular.  The Counsel for the Appellant relied on the recent decision of the Supreme Court, PNG Bible Church v Carol Mandi & Minister for Lands (2018) SC 1724, in support of his submissions.

24.	The Appellant submitted that they brought sufficient information before the court to prove that the title to the land was bona fide in dispute.

25.	The Counsel for the Respondents submitted, the Learned Magistrate made no error in his decision.  The Respondents produced a clear title to the land.  His Worship was satisfied with that. Counsel for Respondents relied on the authority of the case Gawi and Ready Mixed Concrete Ltd (1984) PNGLR 74 where it was held “that an eviction proceeding under the Summary Ejectment Act are for a quick remedy for recovery of a property or premises when there is a clear Title of the Property.  It is not intended for recovery when there is no clear title, or is unclear.”

26.	I find a lot of documents and affidavits were filed by the Appellant.  They go to show how the parties have been wrestling with each other over the possession of the land.  They have raised issues of fraud and irregularity on the grant of title to the Respondents.  These are important and genuine issues that can be raised challenging the title.

27.	However, I find, at the time of hearing, the Appellant has not commenced any proceedings challenging the title obtained by the Respondents.  The title was issued on 3rd September 2015 and signed 22nd April 2016.  The Appellant and the National Housing Corporation were well aware of the title as early as May 2016.  The validity of the title was not challenged so far, in a Court of Competent Jurisdiction.

28.	The issues of fraud are not matters for his Worship to deal with.  His Worship has no jurisdiction to deal with disputes over title, based on allegations of fraud and irregularities.

29.	I am guided by a National Court decision in Yandu v Waiyu (2005) PNGLR N2894; where the Court (Cannings J) held that:

“2. 	If the registered proprietor of a State Lease commences proceedings in the District Court to enforce their interest in the land there is no bona fide dispute about title to the Land unless some other person demonstrates that they have taken some distinct, formal, legal steps to disturb that title.”

30.	In the present case, the Appellant has not demonstrated to the Learned Magistrate that he has taken formal or legal steps to disturb the Respondents’ title.  Therefore there was no bona fide dispute, and the Magistrate was entitled to make the orders as he did under the Summary Ejectment Act.

31.	For this reason I dismiss ground 1 of the Appeal.

Ground No.2:  Res Judicata

32.	The Appellant submitted that a previous complaint for summary ejectment by the Respondents was dismissed by the same Magistrate, in Complaint No. 583/2016.  This time, the Magistrate made a ruling in the Respondents favour.

33.	The reasons for decision in complaint No.583/2016 is not clear.  The order of dismissal was not attached to the Affidavits. Counsel for the Appellant, in his written submission stated that the proceedings in Complaint No. 583/2016 was dismissed for “Want of Prosecution and abuse of process.”  If those were the reasons, then the merits of the case was not dealt with, and so the Respondents were at liberty to file fresh proceedings.

34.	Secondly, in my view, the principle of res judicata is not applicable in the present case.  The Respondents are still (and remain) the registered proprietors since September 2015.  The Appellant has been in possession of the property on continuous basis.  The issue over possessory rights has not been legally put to rest.

35.	During the hearing, I enquired with Counsel for Appellant whether objections were raised with his Worship presiding over the matter because of the previous orders being made by him.  Counsel for Appellant in response stated the Appellant made no objections to the Magistrate hearing the matter. If no objections were raised then, it is not open to raise these issues now in this appeal.  For this reason I also dismiss this ground of appeal.
36.	At this juncture, I have observed from the Appeal Book, that the Learned Magistrate did not record his reasons.  Whilst I appreciate much of the hearing and reasons given were oral, it is also important for a judicial officer to briefly record his reasons for decision. This is important as the District Court does not have an electronic recording system. A brief written reasons would become useful especially when there is an appeal as in the present case.

Conclusion

38.	Finally, for this court to disturb his Worship’s decision, there has to be a substantial miscarriage of justice under Section 30 of the District Court Act.  Having found none, I am not inclined to uphold the grounds of appeal for reasons given.

39.	The formal orders of the Court are:

1.	The Appeal is dismissed.

2.	The Orders of the District Court given 13th June 2019 are affirmed.

3.	The Appellant vacate the property described as Allotment 4, Section 60, Lae within 21 days.

4.	The Appellant pay the costs of the proceedings.

5.	Time be abridged.

________________________________________________________________
Public Solicitor:	 Lawyer for the Appellant
Kusip Lawyers:	Lawyer for Respondents