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

Pema v Konido [2019] PGNC 21; N7702 (22 February 2019)

N7702
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 41 OF 2018

BETWEEN
MARK PEMA
Appellant

AND
MATHEW KONIDO
Respondent

Lae : Murray, J
2019 : 22^nd February

INFERIOR COURTS – Appeal – Appeal to the National Court –
District Court – Jurisdiction – Indefeasibility of title – Section 6 of the Summary Ejectment Act - where title to land is bona fide in dispute – Section 21 (4) (f) of the District Court Act – what is bona fide in dispute.

Case(s) Cited:

Andma v Morasa (2013) N5224
Yandu v Waiyu (2005) N2894

Counsel:

Mr. T. Berem, for the Appellant

Mr. M. Konido, appeared in person as the Respondent

DECISION

22^nd, February 2019

1. MURRAY, J: This is an appeal by Mark Pema the appellant against an order of the District Court, per His Worship Mr. Pious Tapil made on 15^th May 2018, that ordered him and his family to give vacant possession of a property described as Section 35, Lot 54, Parer Street, Eriku, Lae, Morobe Province (property) to Mathew Konido, the Respondent.
   

2. The Appellant was the Defendant in the District Court proceedings, DC 105/18 instituted by the Respondent on 5^th March 2018. In his Complaint and Summons, the Respondent claimed he had title to the said property which the appellant and his family were occupying without his permission, and asked the Court for an order to have them evicted. The District Court found in favour of the Respondent. Aggrieved by that decision the appellant filed his appeal on 01^st June 2018.

3. There are 5 grounds of appeal. They are set out in paragraph 1 (a), (b), (c), (d) & (e) of the Notice of Appeal. Ground 1 (c) was abandoned at the hearing. The remaining grounds of appeal can be summarized as follows:

1. (a) Failure to consider the Defence and supporting affidavits,
   

1 (b) Misapplication of the law in that the Magistrate gave weight to evidence that was never pleaded in law,

1 (d) Failure to determine the case on “balance of probabilities”, and

1 (e) Failure to give due consideration to the Defendant’s documentary evidence that negated the Complainant’s claim.

Appeal Ground 1(a): Failure to consider the Defence and Supporting Affidavits

4. Mr. Berem for the Appellant submitted that Mr. Tapil failed to consider the affidavits filed by the appellant and National Housing Corporation which raised a defence that challenged the manner or process in which the respondent acquired title to the property. Had the learned Magistrate considered all those evidence by way of affidavits before him, he would have found that there was a bona fide dispute over the title to the subject property which would then result in the learned Magistrate having no jurisdiction to deal with the matter. In the present case, the learned Magistrate failed to consider those evidence before him and proceeded to deal with the matter, contrary to Section 21 (4) (f) of the District Court Act.

5. This argument is misleading and I would dismiss it on that basis. The appeal ground 1 (a) is straight forward. It states:

“The learned Magistrate erred in fact and law in not considering the defence of the appellant with the supporting evidence.” (emphasis mine).

6. It is not correct to say that Mr. Tapil did not consider the matters set out in the affidavits by the appellant and National Housing Corporation. Mr. Tapil did consider them. That can be seen in his hand written notes of his decision which is at p. 42 of the Appeal Book. In his brief reasons, Mr. Tapil said, the complainant who sought eviction orders pursuant to Section 6 of the Summary Ejectment Act provided a copy of a title to the subject property which was issued on 23^rd January 2018. He went on further to state that, although there was consultation between the appellant and National Housing Corporation, they did not provide documentation to show that title was fraudulently obtained and therefore in the process of cancellation as per the recommendations by National Housing Corporation as stated in the affidavits tendered. On those basis, Mr. Tapil reached the conclusion that there was no bona fide issue to the title and that the allegations as to fraudulent transfer made by the defendants could be dealt with in the National Court.

7. As to the argument by Mr. Berem that the District Court did not have jurisdiction to deal with the matter because of Section 21 (4) (f) of the District Court Act, I find that argument is misconceived on the basis that the appeal ground as it is set out, is not about excess jurisdiction but rather simply that, the District Court did not give consideration to the evidence before it. Mr. Berem cannot raise an argument on an issue or matter that is not a ground of appeal. But in the event that I am wrong to make this finding, I would still dismiss the argument by Mr. Berem on the basis that what Mr. Berem considers to be a “bona fide dispute” in this case under Section 21 (4) (f) is really not. The cases (Andma v Morasa (2013) N5224 and Yandu v Waiyu (2005) N2894) referred to and relied upon by Mr. Berem stand for the proposition that: For there be a bona fide dispute as to title as stipulated in Section 21 (4) (f) of the District Court Act, one of the parties to the District Court proceedings or some other person with an interest in the land must have taken some distinct, formal, legal step to challenge the registered proprietor’s title and that challenge must be unresolved at the time that the District Court exercises jurisdiction. (emphasis mine).

8. When that is applied to the present case, it is of no assistance to the Appellant. Instead those two (2) cases reinforces the District Court’s decision that, there is no bona fide issue over the title. What is bona fide issue/dispute by application of the two (2) cases, in my view means, there must be evidence of a separate Court proceeding in existence challenging the validity of title at the same time the District Court is being asked to exercise its jurisdiction pursuant to Section 6 of the Summary Ejectment Act. Mere allegations or statements raised in a defence or affidavits are not sufficient.

9. In this case, what was before the District Court were statements or allegations only. If National Housing Corporation which is an interested party was serious about the allegations it made about the respondent obtaining title by fraud, it ought to have issued proceedings in the National Court challenging the title on that basis and produce the evidence of that in the District Court. That would then give rise to a bona fide dispute. In this case, that did not happen. I therefore find the Magistrate did not make an error when he found that there was no bona fide issue as to title, which I say again is not a ground in this appeal. I would dismiss appeal ground 1 (a) on this basis as well.

Ground 1 (b): Misapplication of Law to the facts by giving weight to documentary evidence that was never pleaded in law.

10. Mr. Berem submitted that this ground of appeal is similar to appeal ground 1 (a), in that it raises the jurisdictional issues of the District Court that granted orders to the respondent when the appellant and National Housing Corporation challenged the title to the said property.

11. For the same reasons in dismissing appeal ground 1 (a), I would dismiss this ground as well. This ground of appeal must also fail for the reason that, it is incompetent in that, it does not set out sufficient particulars as to how the learned Magistrate misapplied the law and what it is that the Magistrate considered and relied on that was never pleaded in law.

Ground 1 (d): Failure to determine the case on the balance of probabilities.

12. Mr. Berem submitted this ground is also similar to grounds 1 (a) & 1 (b) and so adopted his submissions he made with respect to appeal ground 1 (a). In essence he re-emphasized his argument by saying that, had the learned Magistrate carefully considered the affidavits of the appellant and National Housing Corporation and applied Section 21 (4) (f) of the District Court Act, the Magistrate would have concluded that the appellant and National Housing Corporation had taken some formal, distinct and legal steps to disturb the title to the property that was acquired by the respondent. Accordingly the appeal should be upheld.

13. For the same reasons as set out above, this ground of appeal is also misconceived and must be dismissed. The learned Magistrate did give considerations to the evidence by both the appellant and National Housing Corporation. Before making a finding that there was no bona fide issue as to title, he acknowledged the allegations by National Housing Corporation of fraud but he stated that, that is a matter to be appropriately dealt with by the National Court. As for the proceeding before him, he needed to be satisfied that the respondent had title, which he found given there was evidence of the title before him.

14. By giving considerations to evidence that were before him, the learned Magistrate did determine the case on the balance of probabilities. Thus he made no error of law.

Ground 1 (e): Failure to give due consideration to the appellant’s documentary evidence.

This is a further alternative ground to ground 1 (a) & (b).

15. Mr. Berem’s submission is the same to what he submitted earlier. Accordingly, for the same reasons as set out above, with respect to Appeal Ground 1 (a), this ground is also dismissed.

Conclusion

16. As I have dismissed all the grounds of appeal, it follows that the order of the District Court remain intact. Costs will follow the event.

17. The Orders of the Court are:

(1) The appeal is dismissed;
(2) The order of the District Court is confirmed;
(3) The appellant shall pay the respondent’s costs of the appeal on a party/party basis.

Berem Lawyers: Lawyer for the Appellant
Respondent appeared in person