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Pependo v Jimu [2006] PGDC 7; DC282 (9 January 2006)

DC282

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 2725 OF 2005

BETWEEN

Peter Pependo
Complainant

V

Alphonse Jimu
Defendant

Counsel
For the Complainant: Mr. Justine Haiara
For the Defendant: In Person

Port Moresby: Gauli, Apm
2005: November 21st, 29th

REASONS FOR DECISION

GAULI, APM: The Complainant sued the Defendant in that the Defendant has encroached onto the Complainant’s premises namely Section 95 Allotment 2 Hohola, (Gordons), National Capital District, by erecting a fence structure and plants on the Complainants side of the boundary.

And the Complainant seeks orders to remove the fence structure and the plants pursuant to Section 6 of the Summary Ejectment Act. That provision states and I quote:

"6 Recovery of premises held without right, etc.

(1) Where a person without right, title or licence is in possession of premises, the owner may make complaint to a magistrate of a District Court, to recover possession of the premises, and the magistrate may issue summons in the prescribed form to the person in illegal possession.

(2) Where the person summoned under subsection (1)-

(a) does not appear before the District Court at the time named in the summons

(b) appears and does not show reasonable excuse why possession of the premises should not be given,

the court may, on proof of the matter of the complaint, issue a warrant directed to a member of the Police Force requiring him, on or before a day specified in the warrant-

(c) to enter by force and with assistants if necessary, into the premises; and

(d) to give possession of the premises to the complainant."

The Complainant in this proceeding has sought orders to repossess part of his premises the Defendant occupies.

Brief Facts:

The Complainant has a legal lease of the State lease property described as Section 95 Allotment 2 Hohola (Gordons) National Capital District. The Defendant has a State lease on property described as Section 95 Allotment 3, Hohola (Gordons). Both properties share a common boundary. In about 1998, the Dependant encroached on to the Complainant’s property by erecting steel fence posts and planted plants onto the Complainant’s side of the premises.

On 15th December 1998 the Complainant engaged the surveyors from the Lands Department to survey the property to ascertain the extent of the encroachment by the Dependant. The result of the survey as released by the Lands Department on 12th April 1999.

The Dependant admits putting up the steel posts for the fence but he has not pulled the fence as yet. The Defendant is prepared to resolve the matter out of Court with the complainant and the Lands Department.

The Evidence:

The parties gave evidence. Neither of the parties called witnesses. The Complainant’s evidence is that the Defendant, when he installed his steel posts for the fence, he moved some five (5) metres into the complainant’s property.

The Defendant does not admit nor deny moving his, fence 5 metres into the complainant’s property. He said that he put up the fence on their common boundary in line with where he sighted the concrete survey peg.

I have considered the evidence from both parties and the submissions from the complainant’s council. The issue is whether the Defendant has installed his fence 5 metres into the complainant’s premises.

The complainant has engaged the surveyors from the Lands Department and have identified that the defendant has moved 5 metres into the complainant’s premises. The defendant was not present when that survey was done.

The defendant intends to resolve this matter with the complainant with the presence of the surveyors from the Lands Department. I am of the view that this dispute can be resolved out of Court between the parties with the involvement of the surveyors from the Lands Department or with any private surveyors. It is simply the matter of identifying the exact location of the concrete survey pegs by following the surveyed map of the two properties.

The Court does not have the surveyors’ equipment such as the compass and the tape measure. The Court does not have experience in conducting surveys. On that basis it is not safe for the Court to rely on the survey report done on behalf of the complainant when the defendant was not present when that survey was done.

The Court considered that it is more appropriate that both parties must be present when the surveyor re-surveys the two premises to identify and confirm the exact locations of the concrete survey pegs.

For the reasons given above I made order restraining both parties from putting up their fences along disputed common boundary of the two premises until both parties engaged a surveyor to identify the exact location of the surveyed pegs.

Dated: 09th January 2006

.............
M. Gauli
Magistrate