Herman Gawi as Representative of a Class of Persons v png Ready Mixed Concrete Pty Ltd [1984] PNGLR 74

• Jurisdiction: Papua New Guinea
• Judge: McDermott J:
• Judgment Date: 27 April 1984
• Court: Supreme Court
• Citation: [1984] PNGLR 74
• Year: 1984
• Judgement Number: SC267

Full Title: Herman Gawi as Representative of a Class of Persons v png Ready Mixed Concrete Pty Ltd [1984] PNGLR 74

Supreme Court: Kidu CJ, Kapi DCJ, McDermott J

Judgment Delivered: 27 April 1984

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

HERMAN GAWI AS REPRESENTATIVE OF A CLASS OF PERSONS

V

PNG READY MIXED CONCRETE PTY LTD

Waigani

Kidu CJ Kapi DCJ McDermott J

27 March 1984

27 April 1984

LANDLORD AND TENANT — Recovery of possession — Summary ejectment proceedings — Available only where clear title in landlord — Judicial assumption of landlord's rights for purposes of determining occupier's rights not declaratory of landlord's rights — Summary Ejectment Act (Ch. No. 202) — District Courts Act 1963, s. 29 (4).

JUDGMENTS AND ORDERS — Assumption of legal rights for purposes of hearing — Not declaratory of rights — Not evidence of legal title.

Held

(1) Proceedings for recovery of possession of land under the Summary Ejectment Act (Ch. No. 202) are intended to provide a quick remedy to people who have a clear title to land or premises: they are not intended to be available where title to land is in dispute or unclear.

(2) A judicial assumption for the purpose of a hearing to determine occupier's rights that a party "had a legal estate in the leasehold ... but without making a positive decision to that effect" is not declaratory of the party's rights and is not evidence of clear title sufficient to found proceedings for recovery of possession of land under the Summary Ejectment Act (Ch. No. 202).

Cases Cited

Adelstein Investments Pty Ltd v. Morgan [1968] 2 N.S.W.R. 170.

Freeman v. Hambrook [1947] V.L.R. 70.

png Ready Mixed Concrete Pty Ltd v. P.N.G. and Ors. [1981] P.N.G.L.R. 396.

Appeal

This was an appeal from a decision of Gajewicz J. allowing an appeal from a magistrate's refusal to deal with a complaint under the Summary Ejectment Act (Ch. No. 202) on the ground that the title to land being in issue he had no jurisdiction pursuant to s. 29 (4) of the District Courts Act 1963 to hear the matter.

Counsel

B. Narokobi and T. Doherty, for the appellant.

B. Avery, for the respondent.

Cur. adv. vult.

27 April 1984

KIDU CJ: I agree with the reasons and conclusions of the Deputy Chief Justice and McDermott J. I have nothing to add.

KAPI DCJ: This is an appeal from a decision of the National Court. The decision of the National Court arose out of an appeal from the District Court.

In order to appreciate the precise nature of the issues before this court, it is necessary to analyse the decision of Miles J. png Ready Mixed Concrete Pty Ltd v. P.N.G. and Ors [1981] P.N.G.L.R. 396, the decision of the District Court dated 2 July 1982 and the grounds of appeal argued before Gajewicz J., from which this appeal is brought.

The background to these proceedings is as follows.

The land which forms the subject matter of these proceedings is part of the Lae Town Purchase, Book vol. 31, at p. 153. This land is subdivided into lots 25, 26, 27 and 28 of s. 42. This land was apparently required by the respondent. The land was advertised in accordance with the Land Act (Ch. No. 185) and the respondent applied. On 19 February 1981 it was notified of the success of its application. Notice was given under s. 37a of the Land Act (Ch. No. 185) and the respondent complied with all the requirements. Apart from this no formal lease had issued under the Land Act (Ch. No. 185) and no interest was registered under s. 17 of the Land Registration Act 1981.

In the meantime, the respondent took out an originating summons dated 8 July 1981 seeking the following declaratory orders:

" (1) THAT the applicant is possessed of an estate in leasehold pursuant to the provisions of s. 31 (1) of the Land Act 1963 as amended to date in respect of each of allotments 25, 26, 27 and 28 of s. 42 in the City of Lae, Morobe Province.

(2) THAT the applicant is entitled to immediate vacant possession of each of allotments 25, 26, 27 and 28 of s. 42 City of Lae, Morobe Province.

(3) THAT the various persons occupying dwelling houses, shanties and other constructions on parts of Allotments 25, 26, 27 and 28 of s. 42 in the City of Lae, Morobe Province, have no right to be in possession or occupation of part or all of Allotments 25, 26, 27 and 28 of s. 42, City of Lae, Morobe Province.

(4) THAT the applicant is entitled to have a warrant issued by the District Court at Lae under s. 9 (2) of the Summary Ejectment Act 1952 as amended to date, directing a member of the police force to enter into the premises and give possession of the premises to the applicant.

(5) THAT the second respondent has acted unlawfully in advising that persons occupying parts of Allotments 25, 26, 27 and 28 of s. 42, City of Lae, Morobe Province, not to leave their dwelling houses, shanties, or other constructions until the National Government has provided alternative land for them.

(6) THAT there is a covenant, express or implied, in the lease from the first respondent as lessor to the applicant as lessee in each of the leases in respect of each of Allotments 25, 26, 27 and 28 of s. 42, City of Lae, Morobe Province, that the lessor will ensure that at the time the lease is granted to the lessee, the land is capable of immediate occupation and possession by the lessee to enable it to comply with all improvement covenants thereon and generally to utilise the land for the purposes designated therefor.

(7) THAT by virtue of the provisions of s. 134 of the Lands Registration Act 1924 as amended to date the first respondent as lessor is obliged to take all necessary steps to ensure that the applicant, as lessee in respect of each of Allotments 25, 26, 27 and 28 of s. 42, City of Lae, is able to exercise its right to immediate vacant possession of each of those allotments.

(8) AND for such further and other declarations or orders as to this Honourable Court shall seem meet."

These proceedings were taken out because people had been squatting on the land. The matter came before Miles J. He handed down his decision on 13 October 1981, png Ready Mixed Concrete Pty Ltd v. P.N.G. and Ors [1981] P.N.G.L.R. 396. It is apparent from his judgment that orders 6 and 7 were not pursued. However, his Honour, at 410 of the report, declined to make the orders sought in Nos. 1 to 5. He went on and made the following orders at 411:

" (1) Order that Samson Kiamba be added as a third respondent to the application.

(2) Declare that the applicant png Ready Mixed Concrete Pty Ltd as lessee of the land described in the schedule from the Independent State of Papua New Guinea as lessor is entitled to possession of the said land subject to the following:

(a) the applicant's right to possession of the said land is not enforceable against Samson Kiamba nor Andrew Poli nor any person who was on 30th June 1981 residing with the said Samson Kiamba or Andrew Poli in the house occupied by him on the said land until one year from today;

(b) subject to (a) the applicant's right to possession of the said land is not enforceable against any other person who was on 30th June 1981 residing on the said land until six months from today."

It is significant to examine closely what his Honour decided. It would appear, on the face of order No. 2 that his Honour decided that the respondent, png Ready Mixed Concrete Pty Ltd had a legal lease under the Land Act (Ch. No. 185). However this is not so. His Honour, at 399, 400, stated:

"... It was assumed I think for the purpose of hearing that...