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Don v Comfort Tours and Travel Ltd [2014] PGNC 272; N5730 (15 September 2014)

N5730

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 38 OF 2011

RUTH DON, JEFFREY DON, JACOB JOHN, NAUNAU, MICHAEL BAU, NICHOLA BAU, PAUL GLADYS, KLINKI, CECILIA ASA, DAVID ASA, TUFE WOMU AND ALEX BENJAMIN WERNER,
BY THEIR EXTENDED FAMILIES AND ASSOCIATES
Appellants

V

COMFORT TOURS AND TRAVEL LIMITED
Respondent

Madang: Cannings J
2014: 21 July, 15 September

LAND – Summary Ejectment Act – whether District Court erred in law when making order for eviction of numerous persons from land covered by a State Lease – whether necessary to serve court process on all persons who would be subject to the order – District Courts Act, Section 21(4)(f): whether title to land was bona fide in dispute.

Several months after becoming the registered proprietor of a State Lease over a residential property the respondent applied to the District Court under the Summary Ejectment Act for an order of eviction against persons whom the respondent argued were unlawfully occupying the property. The District Court granted the application and an eviction order was directed at one named person (the principal appellant) and "the occupiers" of the property. The principal appellant, and others who named themselves as occupiers, appealed to the National Court against the District Court order, on two grounds: (1) procedural unfairness arising from the rushed manner in which the District Court dealt with the matter; and (2) there was a dispute over title to the property, which had been obtained by fraud.

Held:

(1) Ground 1 was based on allegations about how the trial Magistrate conducted the proceedings but the allegations were not substantiated either by the record of the District Court or by evidence presented by the appellants. Ground 1 was dismissed.

(2) There was no bona fide dispute as to title. The District Court did not err by granting the order. Ground 2 was dismissed.

(3) There was no substantial miscarriage of justice so the appeal was dismissed, the order of the District Court was generally affirmed subject to the appellants being given a further month to vacate the property.

Cases cited

The following cases are cited in the judgment:

Bungo v Robin (2011) N4195
Tony Yandu v Peter Waiyu (2005) N2894

APPEAL

This was an appeal against a decision of the District Court granting an application for eviction orders under the Summary Ejectment Act.

Counsel

S Toggo, for the appellants
L Bari, for the respondent

15th September, 2014

1. CANNINGS J: On 25 October 2010 the respondent, Comfort Tours and Travel Ltd, became the registered proprietor of a State Lease over a residential property in Madang. The property is Section 26, Allotment 20, in Bougainvillea Drive. In January 2011 the respondent applied to the District Court under the Summary Ejectment Act for an order of eviction against persons whom the respondent argued were unlawfully occupying the property. The District Court granted the application and on 10 February 2011 an eviction order was directed at one named person (the principal appellant, Ruth Don) and "the occupiers" of the property.

2. The principal appellant, and others who named themselves as occupiers, appealed to the National Court against the District Court order, and this is the judgment of the National Court on the appeal. Two grounds of appeal are raised:

(1) procedural unfairness arising from the rushed manner in which the District Court dealt with the matter; and

(2) there was a dispute over title to the property, which had been obtained by fraud.

GROUND 1: PROCEDURAL UNFAIRNESS

3. The appellants argue that the matter had only been set down for mention, the principal appellant was the only defendant present in court, her argument that she had a reason not to vacate the property was not considered, her application for adjournment was unreasonably refused and other defendants had not been served the complaint and summons when the District Court order was made.

4. I find none of these arguments convincing. An appellant alleging procedural error in a court (such as the District Court) which is not a court "of record", in the sense that not all of its proceedings are recorded, must be careful to establish the factual basis of an alleged error of law. The appellant must show, by reference to the record of the court or by presenting evidence, what actually happened in the District Court (Bungo v Robin (2011) N4195).

5. If there is a dispute or uncertainty about what actually happened in the District Court and it is necessary for the National Court to make a finding as to what, in fact, happened, the starting point is to apply the presumption of regularity regarding judicial proceedings, omnia praesumuntor rite essa acta: unless the contrary is proven, court proceedings are presumed to have been conducted properly and the court's records are presumed to be accurate. Ground 1 was based on allegations about how the trial Magistrate conducted the proceedings but the allegations are not substantiated either by the record of the District Court or by evidence presented by the appellants. Ground 1 is dismissed.

GROUND 2: BONA FIDE DISPUTE AS TO TITLE

6. The appellants argue that the respondent's title is defective as fraud was involved in the transfer of the State Lease to it by Alex Benjamin Werner. The appellants argue that Mr A B Werner, the son of the previous registered proprietor, Jan Werner, (who died intestate in 1996), obtained title in dubious circumstances in 2010, by virtue of prior transmission of title to the Public Curator. They argue that there are proceedings in the National Court in Waigani, WPA No 171 of 2008, which concern the estate of the late Mr J Werner, which are still pending. The appellants therefore appear to be submitting that there is a bona fide dispute as to title to the property, and that the District Court erred by dealing with the matter in light of Section 21(4)(f) of the District Courts Act, which provides that a District Court has no jurisdiction "when the title to land is bona fide in dispute".

7. I reject these arguments as the appellants did not demonstrate before the District Court, and they have not proven to the National Court, that there is any bona fide dispute as to title. As I ruled in Tony Yandu v Peter Waiyu (2005) N2894 if the registered proprietor of a State Lease commences proceedings in the District Court under the Summary Ejectment Act to enforce their interest in land there is no bona fide dispute about title to the land (and the District Court is not deprived of jurisdiction) unless another person has taken some distinct, formal, legal step to disturb that title.

8. The District Court was entitled to be satisfied that the respondent was the registered proprietor of the property and was vested with indefeasible title to the land subject only to the exceptions prescribed by Section 33 (protection of registered proprietor) of the Land Registration Act.

9. There was no bona fide dispute as to title and the District Court did not err in law in continuing to deal with the matter. Ground 2 is dismissed.

WHAT ORDERS SHOULD BE MADE?

10. Both grounds of appeal have been dismissed. There was no miscarriage of justice so the appeal will be dismissed. I will under Section 230(1)(c) (power of National Court on appeal) of the District Courts Act generally affirm the order appealed from.

11. Section 230 (power of National Court on appeal) states:

(1) On the hearing of an appeal, the National Court shall inquire into the matter, and may—

(a) adjourn the hearing from time to time; and

(b) mitigate or increase a penalty or fine; and

(c) affirm, quash or vary the conviction, order or adjudication appealed from, or substitute or make a conviction, order or adjudication which ought, on the evidence before the National Court, to have been made by a District Court; and

(d) remit the case for hearing or for further hearing before the Court which made the conviction, order or adjudication or any other competent court; and

(e) exercise a power that the Court that made the conviction, order or adjudication might have exercised; and

(f) make such further or other order as to costs or otherwise as the case requires.

(2) An appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice.

12. The appeal has taken a long time to be dealt with. However, the outcome of the appeal will have a direct impact on the lives of the appellants and their family members, so I will order an immediate refund of the substantial recognisance, allow the parties to bear their own costs and give the appellants a reasonable time to vacate the property. These orders are made in the interests of justice under Sections 230(1)(e) and (f) of the District Courts Act.

ORDER

(1) The appeal is dismissed.

(2) The order of the Madang District Court of 10 February 2011 in DCC No 3 of 2011 is affirmed, subject to the following orders.

(3) The appellants and all other persons in occupation of the respondent's property at Section 20, Allotment 26, Madang are ordered to vacate the property by 12 noon on 17 October 2014, failing which the respondent and members of the Police Force are authorised to use reasonable force to eject such persons and their personal effects from the property.

(4) The appellants' recognisance shall, upon presentation of an authorised receipt, be refunded in full, forthwith.

(5) The parties will bear their own costs of the appeal.

___________________________________________________________
Daniels & Associates Lawyers: Lawyers for the Appellants
Fairfax Legal: Lawyers for the Respondent