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King Alexandra Vovoropa II v Wararu [2021] PGDC 214; DC7073 (11 November 2021)

DC7073

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]
DCC NO: 103 /2020.

IN THE MATTER BETWEEN:

KING ALEXANDRA VOVOROPA II.
Complainant.
.
AND.

1. VINCENT WARARU.
2. CHARLSE PAINE
3. MARTIN SAURA
4. MORRIS JAVOSA

Defendant.

Popondetta: Michael W. Apie’e

2021: November 11^th.

CIVIL PROCEEDINGS. Claim for summary Ejectment of Defendants from Property. Claim to Gain Possession of Property as Kit and Kin of the Deceased Estate Owner. Seeking to Restrain the Defendants from encroaching onto and dealing in any manner with the Property.

Cases Cited:
-Gawi v. PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 72

References:
District Court Act.
Summary Ejectment Act

Representation:
Complainant in person.
Mr. Emmanuel Yawisa of Public Solicitors for the Defendants.

RULING ON NOTICE OF MOTION.
Background.

1. The Complainant filed his action seeking to evict the Defendants from Abattoir Land near the turn off to Biru CS Goal.
   
2. The Complainant claims customary ownership the said Land which the Department of Agriculture and Livestock (DAL) seem to hold occupancy interests at this time, given various properties it had installed on the Property.
   
3. The First Defendant is an employee of the Department of Agriculture and Livestock and therefore lives on the property by virtue of his employment, whilst the other Defendants are private citizens named in the suit as well.
   
4. The Complainant filed suit before the District Court in DC 103 of 2020.
   
5. His Action Consisted of a ‘Complaint’ dated 13^th July 2020, and I note that there is no accompanying Summons filed in the accepted District Court Form 18, Rather he relies on a document titled ‘Writ of Summons’ dated 21/07/20 and filed on the 08/08/20. I will speak on this later.
   
6. The matter came before me and Since Section 5 notice had been served on the Solicitor General on the 13/05/20 and acknowledged by the responsible person this matter is allowed to proceed on the understanding/presumption that the District Court Clerks and other magistrates had allowed this matter to proceed thus far because the Filing was competent and the matter was rightly before this court.
   

NOTICE OF MOTION OF 13/07/21

7. The First Defendant Vincent Wararu through his Counsel Filed his Notice of Motion seeking certain Orders from the Court relating to this action on the 13/07/21 and these Orders sought are;
   
   1. The Action be struck out.
      
   2. Any other orders the court deems meet.
      
8. The arguments for the motion are contained in the affidavit in support by the Applicant dated same as the Notice of Motion.
   
9. In response to the Notice of Motion the Complainant made arguments relating to the Supposed Title the DAL holds over this Property and he argued that DAL no longer has title and for all intents and purposes this Land is now Traditional Land and that he, Complainant, has primacy in terms of interests over this Land.
   

OBSERVATIONS.

10. The Complaint filed by the Complainant seeks to evict the Defendants from the Abattoir Lands, claiming to have interests over this land as traditional Land owner.
    
11. DAL is claimed to hold a Lease over this same Land in letters submitted to this court by Lands Advisor Roger Irurapa Jr.
    
12. The Complainant and the Defendants all submitted various References and letters from Lands Officers and Provincial Administration Officers vouching for their various causes.
    
13. The Law on Evictions and Ejectments is clear and Section 6 of the Summary Ejectment Act reads;
    

6. RECOVERY OF PREMISES HELD WITHOUT RIGHT, ETC.

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

14. In this case I will observe the following;
    
    1. The case of Gawi v. PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 72 deals with the issue of Equitable and Legal Interest over Alienated Lands. In that case Kapi DCJ (Deceased) as he then was, elaborated that when title to a Property is Bona Fide in dispute, the claim of right by once claiming title cannot be enforced, but when title is clear and such claimants have clear and undeniable rights or title over the property in question, they can move for Vacant Possession under Section 6 of the Summary Ejectment Act.
       
    2. In this case the Complainants claims for Summary Ejectment or Eviction of the Defendants would be problematic at this time as the issue of Title over the Abattoir Lands is ‘Bona Fide’ in dispute as DAL Claims Indefeasible Legal Title while the Complainant claim’s Traditional Title over the same land by virtue of a claim that he Lease period has elapsed.
       
    100. According to the reasoning by Late DCJ Kapi in the case of Gawi v. PNG Ready Mix above, even if this case was to go to full hearing, the orders the Complainant is seeking against the Defendants might not or rather ought not to be granted given that his claim of Traditional Title over this same land is Bona Fide being Disputed by DAL.
         
15. That being established, I also note the following;
    
    1. I note from viewing the whole of the Court Depositions that the Complainant never filed a Summons under Form 18 of the District Courts Act.
       
    2. Instead he relies on a document titled ‘Writ of Summons’ to mount this case.
       
    100. Writ of Summons belong in the National Court, Summons under Form 18 is one of the ways to go in District Court.
         
    4. The Complainant has jumbled up the process and confused himself by mixing up the forms used to initiate action in the District Court.
       
    5. His Action under DCC105/2020 is therefore bad in form and therefore not properly before this court.
       
16. In the final Analysis, the Court finds and Rules as follows that;
    
    1. On the basis of the Evidence presented by both sides, the Complainants case suffers from the lack of adherence to accepted District Court Forms and so is not properly Registered.
       
    2. Even, if the matter would be allowed to proceed despite the bad form adopted, the Complainant still would not qualify to get the orders of Eviction/Ejectment against the Defendants as his Claim of Title/Interest over the Abattoir Land in Popondetta would be ‘Bona Fide’ in dispute from the current Occupant and title holder DAL.
       
    3. Even if DAL’s Lease is expired, Statutory Policy would dictate that DAL Still retains strong Equitable Interest over its former Lease thereby making any attempts to evict/eject its servants and agents on these grounds untenable in Law.
       
17. Accordingly, the Court will order as follows;
    
    1. The Defendant/Applicants Notice of Motion of 13/07/21 is upheld and the Complainants Action of DC No: 103 of 2020 is hereby struck out in its entirety.
       
    2. Reasonable Costs awarded to the Defendant(s).
       

Complainant in person.
Public Solicitors for the Defendants.