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Nangdang v Mote [2006] PGDC 31; DC888 (29 November 2006)

DC888

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

DCPP No. 476 of 2006

BETWEEN:

JOHN NANGDANG
Informant

AND

BANI MOTE & 4 ORS
Defendants

Lae: C Inkisopo
2006: 29th November

District Courts Act Chapter No 40: Civil Claim- Civil Jurisdiction of District Courts – Court of Limited Jurisdictions – Section 21(4)(f) excludes District Court from dealing with matters where title is bona fide in dispute –

Land Tenure (Conversion) Act 1963 – Effect of Title to portion of Customary land that is alienated under the Act – Land registered and title issued under the Land Registration Act not disputed by Defendants but process followed under the Land Tenure (Conversion) Act 1963 is – whether appropriate case for referral under s.24 of District Courts Act for determination by National Court –

Cases cited:

Herman Gawi -vs- png Ready Mixed Concrete PNG) Pty Ltd [1984] PNGLR 74

Legislations referred;

District Courts Act 1963 Chapter No 40
Land Registration Act 1981
Land (Tenure Conversion) Act 1963
Summary Ejectment Act 1952 Chapter No 202

Counsel:

Mr R Mugarenang: for Informant
Mr S Toggo: for Defendants

REASONS FOR DECISION

C Inkisopo: Complainant filed eviction proceedings before the District Court seeking to evict the Defendants from a certain registered portion of land pursuant to Section 6 of the Summary Ejectment Act Chapter No 202. He filed these proceedings by way of an Information claiming that the Defendants; one Bani Mote, Muing Yung, Galang Wisam, Mathew Batara and Jacob Nari are each and severally without permission living on and continuing to live on his registered land without his permission or licence even after having been told to voluntarily vacate.

2: In support of his claim, Mr Nangdan filed an affidavit in which he annexes a true copy of the certificate of title which shows the subject land to being held by him as an estate in fee simple. He initiates this process on the strength of that title document which in my humble view is proper and in order in that, proceedings for eviction under the Summary Ejectment Act Chapter No 202 are available as a "quick remedy to people who have clear title to premises" {See Herman Gawi -vs- png Concrete Ready Mixed (PNG) Pty Ltd [1984] PNGLR 74 per Kapi, DCJ as he then was) at p.78}

3: In our present case, the Informant seemingly has shown a clear evidence of proof of title and the proceeding he has initiated on the face of it in my humble view would be proper and in order save the choice of the originating process which I thought was quite inappropriate as I thought the process should have been commenced by way of a Complaint under Section 6 of the Summary Ejectment Act. In any case, the Defendants have raised no issue as to the appropriateness of the originating process preferred so I do not consider it proper for me to delve into it but to deal with what is before me in its present form.

4: Be that as it may, the Defendants in advancing their Defence say that the existence of such a title document is not denied but seriously put to issue the propriety of the tenure conversion process involved and the subsequent issuance of that title document as they contend that the title was issued in contravention of certain mandatory provisions of the Land Tenure (Conversion) Act, 1963. They contend that the process involved in the issuance of the title was legally flawed in that they were never aware of the fact that the land they were all living on for years had then became a subject of a tenure conversion under the Land Tenure (Conversion) Act, 1963.

5: They claim that it was only during the course of these present proceedings that they had for the first time come to know that this portion of land has a title to it issued under the proprietorship of John Nangdang as an estate in fee simple. Previously, they knew the subject land to being a customary land and it was on that basis they had been living on since for years.

6: The matter first came before me for mention on 13th December, 2005 when it was further adjourned sine die on grounds that the matter was then before the National Court for some issue purportedly brought before it and the outcome of it being unclear either. Warner Shand lawyers seemed to be on record as acting for the Defendants during a number of subsequent mentions before the Court and they then ceased to act further in the matter.

7: The Defendants then engaged the services of Habuka Lawyers to act for them and Mr Toggo appeared on their behalves as counsel.

8: When the matter made several more rounds before the Court for mentions during which Mr Toggo for the Defendants made a preliminary application asking the Court to transfer the entire proceedings up to the National Court pursuant to Section 24 of the District Courts Act to be fully and adequately dealt with to full completion by that Court all and related issues pertinent to the case on hand whilst in the interim staying the current proceeding presently before this Court.

9: This Court must therefore determine that application as the Court was of the view that if the issue raised by the Defendants are to be enquired into, it would seem imperative that certain orders of declaratory nature are bound to be made that will consequently take the matter out of the jurisdictional bounds of this Court which is a court of limited jurisdiction.

10: Both Counsel were accordingly invited to fully address the matter before the Court and they did so. This Court has had the benefit of hearing full comprehensive arguments of both Counsel arguing for and against the Defendants’ preliminary applications.

11: In helping to address this issue, this Court must have to take into account certain facts that are peculiar to the instant case namely;-

1: The land the subject of these proceedings was originally a customary land which has undergone a tenure conversion process and registered as a freehold estate with a title to it issued pursuant to the Land Tenure (Conversion) Act, 1963.

2: There were and are a number of people from various parts of the Country living on the subject land apparently prior to its ‘conversion’.

3: Defendants’ denial as to their knowledge of the said tenure conversion process leading to the subsequent issuance of the certificate of title.

4: The claim that their (Defendants’) knowledge of the existence of the title to the subject land came about only as a result of this present case.

5: Defendants and others who have been living on the subject land have been doing so for very long periods of time when its tenure was under custom and have put up perennial crops and have carried out other physical developments and structures on the subject land.

12: From what the Defendants seem to be saying, I gather that they did not know anything about the conversion process nor were they aware of the fact that the land on which they were living was subject of a tenure conversion process. They give me an impression that if there was such a process and given the full implication of that tenure conversion process, they would have had their respective says and/or made representations before the process of registration under the provisions of the Land Tenure (Conversion) Act, 1963 and the Land Registration Act were completed leading to the subsequent issuance of the certificate of title in the name of John Nangdang. However, they seriously contend that they were never made aware nor were they told that such a thing was happening and the implication of their failure to have done something about it.

13: the law on this sort of cases and the process involved under the Land Tenure (Conversion) Act, 1963 seems to be settled and clear. Section 8 of the Act provides for the sort of steps to take in respect of applications of this nature to register customary land under the provisions of the Land Tenure (Conversion) Act, 1963.

14: It provides that when an application for the registration of customary land is made under this Act, there are certain mandatory requirements that need to be complied with such as the;-

(1) Publication of the Notice of the Application;

(2) Service of reasonable notices on persons or parties reasonably likely to be affected by such a conversion, hence affording them the opportunity or opportunities to have them make their representations before the conversion process is finalized;

15: These are mandatory requirements under the Act and if we are to go by what the Defendants are claiming, the registration and the subsequent issuance of the title to the subject land would seemingly have been flawed and so to enquire further into the propriety or otherwise of that process with the view to making declaratory orders and/or to taking remedial actions would seem to me to take it beyond the jurisdictional limits of this Court – a court of limited jurisdiction under Section 21 of the District Courts Act.

16: Furthermore, as the process involved in procuring the title to the subject land is put to serious issue by the Defendants, this matter would also in my humble view (at least to an extent) bring it to within the meaning of Section 21(4)(f) of the District Courts Act in rendering this Court devoid of its jurisdiction to continue to entertain this matter.

17: For these immediate above reasons I am of the humble view that it would not be proper for this Court to deal with to completion all issues pertaining to this matter and that part of that process could include the obvious need to make certain declarations as to the propriety or otherwise of the process involved given the mandatory requirements of the Land Tenure (Conversion) Act, 1963 which process is sure to take the matter beyond the jurisdictional limit of this Court.

18: Accordingly, it is my humble view that this is an appropriate case to invoke section 24 of the District Courts Act Chapter 40 as urged on by Mr Toggo to which proposition I find myself acceding.

19: Section 24(1) of the District Courts Act provides;-

"Transfer of proceedings

Where proceedings have been commenced in a Court (District Court), the Court may, at any time before judgment with or without an application from an interested person for that purpose, for reasons that shall be recorded, make an order staying the proceedings and, on such terms as it seems just transferring the proceedings for hearing and determination by some other District Court or, if the proceedings are such that they could have been instituted before the National Court in the first instance, by the National Court.

..."

20: Given the background and the nature of this case and given the particular stand point of the Defendants, I consider this case to be such that this entire proceeding should have to have been instituted at the National Court at first instance.

21: I therefore make the following orders;-

(1) These proceedings are stayed forthwith,

(2) The nature of the proceedings and the issues involved are such that it is considered necessary and appropriate for the National Court to deal with to completion all and related issues involved herein,

(3) Each party shall be at liberty to initiate this process before the National Court as soon as it is possible to doing so and/or the transfer documents are prepared and put in order by the Clerk of Court.

(4) Each party to bear own costs of proceedings.

_________________________

Lawyers:

(1) MUROMU Lawyers: for the Informant
(2) HABUKA Lawyers: for the Defendants