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Amu v Kokowa [2008] PGNC 232; N3703 (15 October 2008)

N3703

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 161 OF 2007

BETWEEN:

JACK AMU
First Appellant

AND:

JOE SIMBU
Second Appellant

AND:

KINGIKO KOKOWA
Respondent

Mt. Hagen: David, J
2008: 6 & 15 October

Cases Cited:
Papua New Guinea Cases

Herman Gawi v. png Ready Mixed Concrete Pty Ltd [1984] PNGLR 74
Mudge v. Secretary for Lands & Ors [1985] PNGLR 387
Emas Estate Development Pty Ltd v. John Mea [1993] PNGLR 215
William Maki v. Michael Pundia [1993] PNGLR 337
MVIT v. James Pupune [1993] PNGLR 370
Tony Yandu v. Peter Waiyu (2005) N2894

Overseas case cited:
Bowler v. Mollem Co. Ltd [1954] 3 All ER 556

Treatise cited:
Cheshire and Fifoots, Law of Contract, 1966 Australian Edition

Counsel:

M.P. Tamutai, for the Appellants
K. Sino, for the Respondent

JUDGMENT

15 October 2008

1. DAVID, J: INTRODUCTION: This is an appeal against a decision of the District Court sitting at Mt. Hagen. By that decision, the Appellants were ordered to vacate all that piece or parcel of land described as Allotment 17 Section 48 Warakum in Mt. Hagen (the property).

BACKGROUND AND FACTS

Complaint in the District Court, Minj

2. On 21 February 2007, the Respondent commenced ejectment proceedings against the Appellants at the District Court sitting at Minj by Complaint No.31 of 2007. In the title of the complaint, the Respondent claims that he acts for and on behalf of David Kingiko, an infant and pleads his claim in the following terms:-

"Both Defendants without right, title, or license have moved onto Section 48, Lot 17 Mt. Hagen, a State land to which the Complainant has title and have remained there illegally.

Complainant therefore prays to Court for orders under section 6 of the Summary Ejected Act that Defendants be ejected and that possession be given to the Complaint." (sic)

Transfer of proceedings to Mt. Hagen

3. On or about 23 May 2007, the matter was transferred to Mt. Hagen for listing on 12 June 2007 on the grounds that the parties were residents of Mt. Hagen and the property was also located in Mt. Hagen.

The hearing at Mt. Hagen District Court

4. The hearing of the case took place on 14 and 21 August 2007 and then it was adjourned for decision on 24 August 2007.

The Respondent’s evidence

5. The Respondent’s evidence consisted of oral and documentary evidence.

6. The documentary evidence consists of the Affidavit in Support of David Kingiko sworn on 14 August 2006 and a copy of a Notice of Exemption from Advertisement dated 10 April 2000 which was issued by Dr. Fabian Pok, the then Minister for Lands. By the Notice of Exemption from Advertisement, the property was exempted from the advertisement procedures under the Land Act.

7. The Respondent was the only witness called to give oral evidence in support of his case.

8. The Respondent’s evidence basically is that his son David Kingiko, an infant, is the holder of the title over the property. The infant was attending school in Lae and therefore he was standing in for him. Prior to the issue of the title, the property was a vacant State land.

9. The infant started communicating with the Department of Lands about getting a permit/licence over the property by a letter he wrote on 9 September 1999. On or about 13 October 1999, permission was granted to enter the property by Licence No. 29/99. He then built a fence and planted bananas and kaukau there. On 16 March 2000, he then applied by tender to the Department of Lands to be granted the property. On 11 April 2003, the PNG Land Board approved his application. A title dated 29 March 2003 was subsequently issued to the infant and released to him on 18 July 2005.

10. Sometime later, his daughter became sick and he had to take her to the Port Moresby General Hospital for treatment. He was away for 2 ½ years. In his absence in 2005, the Appellants entered the property and made gardens and a small house.

The Appellants’ evidence

11. The Appellants’ evidence consisted of oral and documentary evidence as well.

12. The documentary evidence consists of the Affidavit of Jack Amu sworn on 20 March 2007 and the Affidavit of Joe Simbu sworn on 11 April 2007.

13. The Appellants called 4 witnesses to give oral evidence in support of their case. They are Jack Amu, Joe Simbu, Andrew Kiap and Chris Hoper.

14. The Appellants’ evidence basically is that:

- the property was a vacant State land which was used as a playing field before;

- the parties are neighbours and reside around the property, Jack Amu at Allotment 34, Joe Simbu at Allotment 18 and the Respondent at Allotments 16 and 19;

- they moved onto the property at different times between 1988 and 1994 and made gardens and also built a chicken house there;

- the Respondent moved in around 1995 or 1996, but neither resided there nor did he make any garden or a fence;

- in 2005 they became aware that a title had been obtained in respect of the property and it was in the name of the infant; the title holder was not an infant as they had not seen him, but an adult;

- in 2005 they were told to vacate the property;

- the Appellants did not vacate so the Respondent instituted 2 separate ejectment proceedings in 2007, the first one was dismissed in January 2007 because the Respondent did not produce the infant or a written authorisation for him to act on behalf of the infant and the second one has resulted in this appeal;

- they did not know how the infant acquired title to the property;

- if the infant did exist, he did not authorise the Respondent to act on his behalf.

District Court decision

15. On 24 August 2007, the District Court found in favour of the Respondent. I set out below the Reasons for Decision of His Worship Patrick Baiwan and his formal order.

"Reasons for Decision

There is overwhelming evidence supported by land Title documents that David Kingiko is the legal owner of the said Land, identified as Section 48 Lot 17, Warakum, Mt Hagen, Western Highlands Province. Accordingly, the Defendant enter and illegally trespassing. I would rule in favour of the Complainant and allow eviction accordingly the Defendants here are illegally trespassing. I will rule in favour of the Complainant and make evictions accordingly.

Order:

1. Adjudged that David Kingiko is the legal Titleholder of Section 48 Lot 17, Warakum.

2. That the Defendants here are illegally trespassing and are hereby ordered to cease making any gardens and going onto the Land Section 48 Lot 17 as of the date of this Order.

3. That if they have moved on to that land, they must move back to their boundaries within 30 days." (sic)

GROUNDS OF APPEAL

16. The grounds of appeal are set out in the Notice of Appeal filed on 25 September 2007 and they are as follows:-

1. The Honourable Court acted ultra vires the District Courts Act when it entertained the complaint of the Complainant when the title was bona fide in dispute.

2. The Honourable Court acted ultra vires the District Courts Act when it entertained the complaint of the Complainant when there was no evidence before the Court authorising the father under the law to act on behalf of the infant, David Kingiko who had the title to the property in dispute.

3. Further or in the alternative, the decision of the Honourable Court was harsh and oppressive.

17. At the hearing, the Appellants abandoned the third ground.

GROUND ONE

The Honourable Court acted ultra vires the District Courts Act when it entertained the complaint of the Complainant when the title was bona fide in dispute.

Appellants’ submissions

18. Mr. Tamutai of counsel for the Appellants submitted that the learned Magistrate did not have jurisdiction under s.21 (4)(f) of the District Courts Act. For convenience, I set out the relevant provision below.

"21. Civil jurisdiction.

(4) A Court has no jurisdiction in the following cases:—

(a) where the validity or effect of a devise or bequest or a limitation under a will or settlement, or under a document in the nature of a settlement, is in dispute; or

(b) the infringement of trade names; or

(c) an action for or in the nature of slander of title; or

(d) an action for illegal arrest, false imprisonment or malicious prosecution; or

(e) for seduction or breach of promise to marry; or

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

22. In support of this ground, learned counsel also relied upon the decision of the Supreme Court in the case of Herman Gawi v. png Ready Mixed Concrete Pty Ltd [1984] PNGLR 74; William Maki v. Michael Pundia [1993] PNGLR 337 and Tony Yandu v. Peter Waiyu (2005) N2894.

23. In Herman Gawi, the Supreme Court held (from the headnotes) that:-

"Proceedings for the recovery of land under the Summary Ejectment Act (Ch. 202) are intended to provide a quick remedy to people who have a clear title to land or premises: they are not intended to be available where title to land is in dispute or unclear."

24. Learned counsel argued that in the present case, the title to the property was bona fide in dispute for the following reasons:-

1. the existence of the infant title holder as a person was disputed, but if he in fact were an infant, his capacity to hold land in his name was raised;

2. the case was instituted by the Respondent who was the father of the infant acting without written authority;

3. the way the title was obtained was questionable because the Respondent’s evidence in cross-examination that title was acquired by tender process conflicted with the Notice of Exemption from Advertisement which counsel submitted was issued contrary to the conditions enumerated under s.69 (2) of the Land Act;

4. there was evidence before the Court that the First Appellant said he wanted to challenge the validity of the title in the National Court.

Respondent’s submissions

25. Mr. Sino of counsel for the Respondent agreed with Mr. Tamutai that proceedings for recovery of possession of land under s.6 of the Summary Ejectment Act was intended to be a quick remedy to people who have a clear legal title he also relying on Herman Gawi, William Maki and Tony Yandu.

26. He also relied on Mudge v. Secretary for Lands & Ors [1985] PNGLR 387 where the Supreme Court held (from the headnotes) that:-

"Registration of leases under the provisions of the Land Registration Act (Chapter 191) is effective to vest an indefeasible title in the registered proprietor subject only to the exceptions enumerated in s.33."

27. Learned counsel further submitted that the Appellants were mere busy bodies who had no interest in the property whatsoever either as licensees, leaseholders, etc. He argued that if they had some interest, they would have enquired with the relevant authorities and applied for a grant of the title over the property (which they referred to as waste and vacant State land) to be registered in their names, but they failed.

28. Counsel also contended that the title to the property was issued to the infant on 20 July 2005 before ejectment proceedings were commenced in 2007. He said the infant therefore had an indefeasible title which could not be set aside or nullified in the District Court or on appeal to the National Court. He said that that showed that there was no bona fide dispute about the title to the property and therefore the District Court had jurisdiction.

29. Counsel relied on Tony Yandu where His Honour Cannings, J stated (from the headnote) that:-

"If the registered proprietor of a State Lease commences proceedings in the District Court to enforce their interest in 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 step to disturb that title."

30. Counsel further argued that if the Appellants were minded to challenge the validity of the title, the proper forum to deal with that issue was the National Court and it was up to them to file originating proceedings in the National Court alleging fraud and incapacity of the titleholder to hold property either as an infant or otherwise.

Discussion of issue

31. The issue here is whether the title to the property was bona fide in dispute?

32. His Worship Mr. Baiwan found that there was overwhelming evidence supported by land title documents that David Kingiko was the legal owner of the property and therefore proceeded to grant the orders he made. From the depositions, it appears that the evidence before the District Court comprised of the Affidavit supposedly of David Kingiko, the Notice of Exemption from Advertisement and the oral evidence of the Respondent. On close examination of the Affidavit, it could not truly have been sworn by an infant, but by inference by an adult when, for example, the deponent deposes at paragraph 6 that he took his sick daughter to Port Moresby for treatment at the Port Moresby General Hospital. The Appellants raised that issue as well as the capacity of David Kingiko to hold the title as an infant during cross-examination of the Respondent and in their evidence. While counsel have not raised this issue, it is imperative that the evidence relied on by the District Court was properly before it. The Affidavit in my view is defective and the evidence contained in it is tainted and therefore the learned Magistrate should not have accepted it into evidence.

33. What were the land title documents before the District Court? I have not come across any copy of the State Lease or a reference to its volume and folio number in the depositions contained in the Appeal Book to confirm that the infant was actually registered as the proprietor of the property when the District Court heard and determined the proceedings under the Summary Ejectment Act. By the Notice of Exemption from Advertisement, the property was exempted from advertisement, a pre-requisite under s.69 (1) of the Land Act before granting a State Lease under the provisions of the Land Act. But once a grant is formalised and pre-requisites are met by a successful applicant, a title deed is actually registered under the provisions of the Land Registration Act by the Registrar of Titles. The Notice of Exemption from Advertisement is not conclusive evidence of an actual grant of a State Lease registered in the name of the infant. Had the Respondent produced a copy of the State Lease in favour of the infant or even better the original in the District Court, it would have been conclusive evidence of title.

34. However, it is clear from the evidence that the State Lease was actually issued. The Appellants admit that, but only question its validity. The principle of indefeasibility of title would therefore apply to protect the infant subject to the exceptions in law: see s.33 of the Land Registration Act; Mudge and Emas Estate Development Pty Ltd v. John Mea [1993] PNGLR 215. I agree with Mr. Sino’s submission that if the Appellants want to challenge the validity of the title, then they should file originating proceedings in the National Court.

35. The learned Magistrate did not fall into error. I will dismiss this ground.

GROUND 2

The Honourable Court acted ultra vires the District Courts Act when it entertained the complaint of the Complainant when there was no evidence before the Court authorising the father under the law to act on behalf of the infant, David Kingiko who had the title to the property in dispute.

Appellants’ submissions

36. Mr. Tamutai basically submitted that because David Kingiko was an infant, the District Court should not have entertained the complaint when the Respondent did not have any authority to act for the infant. In support of this proposition, counsel referred to s.17 (2) of the Infants Act, s.21 (a) of the Frauds and Limitation Act and s.179 (1)(4) and (5) of the Land Registration Act as examples where legislation allows for infants to be represented by guardians or representatives.

37. Counsel argued that the first ejectment proceedings filed involving the same parties and subject matter were dismissed for this reason.

Respondent’s submissions

38. Mr. Sino argued that this issue was not raised in the District Court understandably because both parties were not represented by counsel and the depositions did not indicate that a ruling was made in respect of that. It would seem that the Appellants were content with the Respondent representing the infant he argued. He therefore submitted that the Appellants were now precluded from raising the issue consistent with the principle in the Supreme Court case of MVIT v. James Pupune [1993] PNGLR 370 where it held that a matter not raised or objected to in the court below cannot be raised on appeal.

39. Counsel also contended that if the Court were to find in favour of the Appellants, then it should direct that the Appellants file proceedings in the National Court challenging the validity of the title.

Discussion of issue

40. The issue here is whether it was necessary and proper for the Respondent to have commenced ejectment proceedings in the District Court under his own name purportedly acting for and on behalf of the infant?

41. I will firstly deal with the Respondent’s contention that no objection was raised in the court below therefore the issue cannot be raised now. There is evidence that the first ejectment proceedings were dismissed because infancy was raised. There is also evidence that infancy was raised in cross-examination of the Respondent and in the evidence adduced by the Appellants. I therefore reject the Respondent’s contention.

42. On the question of the capacity and standing of the Respondent to act for the infant, I say this. The Respondent is the father of the infant. The non existence of the infant was raised, but I think this is an issue that can be properly raised at another time if and when the Appellants decide to mount a challenge on the validity of the title and so it would be premature for me to deal with the issue now. I will deal with the instant issue as if the infant were in existence.

43. The law has always recognised the need for protection of infants because by their very nature they are of immature intelligence and capacity and are therefore vulnerable. The statutory provisions referred to by Mr. Tamutai indicate the recognition by the legislature of that fact. The common law, for example, also recognises an infant’s incapacity by the principle that an infant’s contract is generally voidable at his option although it is binding on the other party: see Cheshire and Fifoots, Law of Contract, 1966 Australian Edition at p.495.

44. Unlike the Supreme and National Courts, the District Court which is a creature of statute can only exercise jurisdiction vested in it under the District Courts Act and other legislation that give it specific jurisdiction. Section 39 of the District Courts Act makes provision for an infant; to sue if under the age of 21 under subsection (1); and can be sued if over the age of 16 years under subsection (2) as if he or she had attained majority. That provision reads:-

"39. Infant may sue.

(1) A person under the age of 21 years may sue in a Court in all respects as if he were of full age.

(2) A person of or over the age of 16 years may be sued in a Court in all respects as if he were of full age.

(3) Notwithstanding Subsections (1) and (2), where it is necessary or desirable in the interests of justice to do so, a Court before which a person under the age of 21 years sues or is sued may appoint or require the appointment of a next friend or guardian ad litem of that person."

45. In the instant case, there is no evidence about the actual age of the infant, but there is no doubt that he has the capacity to institute ejectment proceedings against the Appellants made possible by the above provision.

46. Under s.39 (3), the District Court is given a considerable discretion when dealing with cases involving infants as litigants in deciding whether or not it is necessary or desirable in the interest of justice to appoint a next friend or a guardian ad litem. As I have remarked already, in the instant case, there is no evidence about the actual age of the infant, an important factor which would normally be considered in exercising the discretion. There is however nothing in the depositions to suggest whether the District Court considered the matter. If the learned Magistrate allowed the ejectment proceedings to be conducted by the Respondent in the manner that he did, did the learned Magistrate err when he did not raise the issue with the parties?

47. The complaint does not have in it a statement of the capacity in which the Respondent was suing although the title does. It is a trite principle of law that a statement as to representative capacity is crucial and not the title which is a mere description. This principle, in my view, should be applied with some flexibility in civil proceedings commenced in the District Court depending on the nature of a particular case. In Bowler v. Mollem Co. Ltd [1954] 3 All ER 556 at p.558, Lord Denning stated the effect of non-compliance in this way:-

"The thing which cannot be cured is the bringing of an action in a representative capacity when that capacity does not exist."

48. Section 6 of the Summary Ejectment Act requires an owner to initiate a complaint and not anyone else. This was no ordinary action because the law demanded that the action be brought by the owner. Given the Respondent is a layperson who might have had no idea about the principle of law adverted to above, it was therefore most appropriate that the District Court should have raised it and either invoked s.39 (3) of the District Courts Act and satisfied itself about the representative capacity of the Respondent before proceeding to entertain the complaint or it should have simply struck out the proceedings and let the Respondent or the infant to institute fresh proceedings. I think the learned Magistrate fell into error. I will uphold this ground.

CONCLUSION AND ORDER

49. There has been a substantial miscarriage of justice. I will therefore order that the appeal is upheld; the judgment of the District Court is quashed; and costs of these proceedings are to be paid by the Respondent.

___________________________________________

Tamutai Lawyers: Lawyers for the Appellants
Sino & Company: Lawyers for the Respondent