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Damu v Northbuild Construction (PNG) Ltd [2022] PGNC 205; N9630 (4 May 2022)

N9630

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 25 OF 2021

BETWEEN:

ANI DAMU, LORRAINE DAMU, MAXY EKA, JOE AISI AND THOMAS POHANGAT

Appellants

AND:

NORTHBUILD CONSTRUCTION (PNG) LTD

Respondent

Waigani: Tamade AJ

2022: 30^th March & 04^th May

APPEAL – set aside the decision of the District Court – District Court granted eviction orders against the Appellant – Appellant to give vacant possession of the property.

APPEAL – whether there was an error made by the District Court – Appellant never challenged the title to the subject property held by the Respondent in previous National Court proceedings – District Court was satisfied the Complainant/Respondent’s title is the most recent title to the subject land – thus Appellant has shown no error by the District Court.

Cases Cited:

Mudge and Mudge v Secretary for Lands, The State and Delta Developments Pty Ltd [1985] PNGLR 387

Counsel:

Mr Glen Jerry, for the Appellants

Mr Clifford Zazeng, for the Respondent

04^th May, 2022

1. TAMADE AJ: This is a decision on an appeal from decisions of the District Court to the National Court concerning eviction proceedings.

2. On 14 December 2021, this Court heard an application by the Respondent as to the decision of the District Court granted on 1 April 2021 as pleaded in the Notice of Appeal. The Court ruled that the decision of the District Court made on 1 April 2021 was out of time and therefore the grounds of appeal as to the decision of 1 April 2021 were dismissed.

3. The decision of the District Court on 1 April 2021 is in the following term:

“The Appellants are ordered to vacate the property described as Section 322, Allotment 30, Hohola, NCD, Volume 92, Folio 32, and give vacant possession of same within 60 days from the date of the order.”

4. The Appeal hearing on this matter proceeded on the decision of the District Court made on 18 June 2021. The decision of the District Court on 18 June 2021 refused an application by the Appellants (Defendants in the District Court) to set aside the decision of the District Court made on 1 April 2021 granting eviction orders as against the Appellants.

5. Also on 18 June 2021, the District Court granted a Warrant of Possession directing the Police to enter the subject land and give vacant possession to the Respondent in addition to orders for the Appellants to exit the subject land.

6. Mr Glen Jerry who is representing the Appellants in this matter did not appear quite prepared for the hearing of this matter. As the matter was adjourned for some time, the Respondents sought for the hearing to proceed as Mr Jerry was given sufficient notice of the hearing date and the Court ruled that the hearing would proceed.

7. Mr. Jerry was not helpful in his submissions to the Court as to whether there was an error by the District Court in its decision of 18 June 2021. Mr Jerry made submissions that there were three different titles in existence over the subject land and that the Appellants had a claim in equity having resided on the subject land over a long period of time and having a customary right to remain on the land.

8. Mr. Zazeng for the Respondent refers the Court to the decision of the District Court made on 18 June 2021 and the District Court’s notations by the Magistrate Mr Cliveson Philip as annexed to the Affidavit of Search of Simon Koala sworn 16 February 2022 and filed on 17 February 2022. In the notations by the Magistrate, the District Court was satisfied that:

a) two previous National Court proceedings namely OS 408 of 2021 and OS 572 of 2020 were concluded proceedings and that the Defendants (Appellants) had not filed any fresh proceedings to challenge the title held by the Complainant (Respondent).

2. In relation to the three titles over the same subject land, the District Court was satisfied that the Complainant’s Title is the most recent title issued by Gazettal instrument after the surrender of the title held by NCDC and the registration to the Complainant (Respondent).
   

9. Mr. Jerry of the Appellant did little to persuade the Court and or make out a case for the Appellant that there was an error by the District Court as to its decision on 18 June 2021.

10. Mr. Jerry’s submissions as to the dismissal of the case OS 408 of 2019 in the National Court in which the National Court dismissed a claim by the Respondent in seeking vacant possession over the subject land to insinuate that the dismissal of the National Court matter for want of prosecution gave rise to some form of right and or legitimacy to his clients the Appellants to remain on the land in the absence of a valid title is misconceived and misleading to the Court. Such an argument by a lay person unlearned in the principles of law perhaps can be understood however from a qualified legal practitioner, it is misleading to the Court. A claim in the National Court that is dismissed for want of prosecution can not give rise to a right that was never present.

11. I am less inclined to delve into the matter any further as the Appellant has shown no error by the District Court in its decision of 18 June 2021. The Appellant seems to ventilate the same arguments and or issues raised in the District Court without stating where the District Court erred in its decision.

12. The Appellants do not have a valid and or legitimate title to the subject land to allow them to remain on the subject land and their arguments on this appeal has been poorly prosecuted. A registered title holder to a State Lease has indefeasible title to the land subject only to the exceptions in section 33 of the Land Registration Act as set down in the case of Mudge and Mudge v Secretary for Lands, The State and Delta Developments Pty Ltd [1985] PNGLR 387 and resounded in many other Supreme Court cases.

13. This appeal shall be dismissed for being vexatious and futile.

14. I, therefore, make the following orders:

1. This District Court appeal is dismissed.
2. The Appellants shall meet the costs of the Respondent to be taxed if not agreed.
   

Orders accordingly.
_________________________________________
Stran Legal Services Limited: Lawyers for the Appellants
Lakakit & Associate Lawyers: Lawyers for the Respondent