Jack Amu and Joe Simbu v Kingiko Kokowa (2008) N3703

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 15 October 2008
• Citation: (2008) N3703
• Docket Number: CIA NO. 161 OF 2007
• Court: National Court
• Year: 2008
• Judgement Number: N3703

Full Title: CIA NO. 161 OF 2007; Jack Amu and Joe Simbu v Kingiko Kokowa (2008) N3703

National Court: David, J

Judgment Delivered: 15 October 2008

N3703

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 161 OF 2007

BETWEEN:

JACK AMU

First Appellant

AND:

JOE SIMBU

Second Appellant

AND:

KINGIKO KOKOWA

Respondent

Mt. Hagen: David, J

2008: 6 & 15 October

Cases Cited:

Papua New Guinea Cases

Herman Gawi v. png Ready Mixed Concrete Pty Ltd [1984] PNGLR 74

Mudge v. Secretary for Lands & Ors [1985] PNGLR 387

Emas Estate Development Pty Ltd v. John Mea [1993] PNGLR 215

William Maki v. Michael Pundia [1993] PNGLR 337

MVIT v. James Pupune [1993] PNGLR 370

Tony Yandu v. Peter Waiyu (2005) N2894

Overseas case cited:

Bowler v. Mollem Co. Ltd [1954] 3 All ER 556

Treatise cited:

Cheshire and Fifoots, Law of Contract, 1966 Australian Edition

Counsel:

M.P. Tamutai, for the Appellants

K. Sino, for the Respondent

JUDGMENT

15 October 2008

1. DAVID, J: INTRODUCTION: This is an appeal against a decision of the District Court sitting at Mt. Hagen. By that decision, the Appellants were ordered to vacate all that piece or parcel of land described as Allotment 17 Section 48 Warakum in Mt. Hagen (the property).

BACKGROUND AND FACTS

Complaint in the District Court, Minj

2. On 21 February 2007, the Respondent commenced ejectment proceedings against the Appellants at the District Court sitting at Minj by Complaint No.31 of 2007. In the title of the complaint, the Respondent claims that he acts for and on behalf of David Kingiko, an infant and pleads his claim in the following terms:-

“Both Defendants without right, title, or license have moved onto Section 48, Lot 17 Mt. Hagen, a State land to which the Complainant has title and have remained there illegally.

Complainant therefore prays to Court for orders under section 6 of the Summary Ejected Act that Defendants be ejected and that possession be given to the Complaint.” (sic)

Transfer of proceedings to Mt. Hagen

3. On or about 23 May 2007, the matter was transferred to Mt. Hagen for listing on 12 June 2007 on the grounds that the parties were residents of Mt. Hagen and the property was also located in Mt. Hagen.

The hearing at Mt. Hagen District Court

4. The hearing of the case took place on 14 and 21 August 2007 and then it was adjourned for decision on 24 August 2007.

The Respondent’s evidence

5. The Respondent’s evidence consisted of oral and documentary evidence.

6. The documentary evidence consists of the Affidavit in Support of David Kingiko sworn on 14 August 2006 and a copy of a Notice of Exemption from Advertisement dated 10 April 2000 which was issued by Dr. Fabian Pok, the then Minister for Lands. By the Notice of Exemption from Advertisement, the property was exempted from the advertisement procedures under the Land Act.

7. The Respondent was the only witness called to give oral evidence in support of his case.

8. The Respondent’s evidence basically is that his son David Kingiko, an infant, is the holder of the title over the property. The infant was attending school in Lae and therefore he was standing in for him. Prior to the issue of the title, the property was a vacant State land.

9. The infant started communicating with the Department of Lands about getting a permit/licence over the property by a letter he wrote on 9 September 1999. On or about 13 October 1999, permission was granted to enter the property by Licence No. 29/99. He then built a fence and planted bananas and kaukau there. On 16 March 2000, he then applied by tender to the Department of Lands to be granted the property. On 11 April 2003, the PNG Land Board approved his application. A title dated 29 March 2003 was subsequently issued to the infant and released to him on 18 July 2005.

10. Sometime later, his daughter became sick and he had to take her to the Port Moresby General Hospital for treatment. He was away for 2 ½ years. In his absence in 2005, the Appellants entered the property and made gardens and a small house.

The Appellants’ evidence

11. The Appellants’ evidence consisted of oral and documentary evidence as well.

12. The documentary evidence consists of the Affidavit of Jack Amu sworn on 20 March 2007 and the Affidavit of Joe Simbu sworn on 11 April 2007.

13. The Appellants called 4 witnesses to give oral evidence in support of their case. They are Jack Amu, Joe Simbu, Andrew Kiap and Chris Hoper.

14. The Appellants’ evidence basically is that:

· the property was a vacant State land which was used as a playing field before;

· the parties are neighbours and reside around the property, Jack Amu at Allotment 34, Joe Simbu at Allotment 18 and the Respondent at Allotments 16 and 19;

· they moved onto the property at different times between 1988 and 1994 and made gardens and also built a chicken house there;

· the Respondent moved in around 1995 or 1996, but neither resided there nor did he make any garden or a fence;

· in 2005 they became aware that a title had been obtained in respect of the property and it was in the name of the infant; the title holder was not an infant as they had not seen him, but an adult;

· in 2005 they were told to vacate the property;

· the Appellants did not vacate so the Respondent instituted 2 separate ejectment proceedings in 2007, the first one was dismissed in January 2007 because the Respondent did not produce the infant or a written authorisation for him to act on behalf of the infant and the second one has resulted in this appeal;

· they did not know how the infant acquired title to the property;

· if the infant did exist, he did not authorise the Respondent to act on his behalf.

District Court decision

15. On 24 August 2007, the District Court found in favour of the Respondent. I set out below the Reasons for Decision of His Worship Patrick Baiwan and his formal order.

“Reasons for Decision

There is overwhelming evidence supported by land Title documents that David Kingiko is the legal owner of the said Land, identified as Section 48 Lot 17, Warakum, Mt Hagen, Western Highlands Province. Accordingly, the Defendant enter and illegally trespassing. I would rule in favour of the Complainant and allow eviction accordingly the Defendants here are illegally trespassing. I will rule in favour of the Complainant and make evictions accordingly.

Order:

1. Adjudged that David Kingiko is the legal Titleholder of Section 48 Lot 17, Warakum.

2. That the Defendants here are illegally trespassing and are hereby ordered to cease making any gardens and going onto the Land Section 48 Lot 17 as of the date of this Order.

3. That if they have moved on to that land, they must move back to their boundaries within 30 days.” (sic)

GROUNDS OF APPEAL

16. The grounds of appeal are set out in the Notice of Appeal filed on 25 September 2007 and they are as follows:-

1. The Honourable Court acted ultra vires the District Courts Act when it entertained the complaint of the Complainant when the title was bona fide in dispute.

2. The Honourable Court acted ultra vires the District Courts Act when it entertained the complaint of the Complainant when there was no evidence before the Court authorising the father under the law to act on behalf of the infant, David Kingiko who had the title to the property in dispute.

3. Further or in the alternative, the decision of the Honourable Court was harsh and oppressive.

17. At the hearing, the Appellants abandoned the third ground.

GROUND ONE

The Honourable Court acted ultra vires the District Courts Act when it entertained the complaint of the Complainant when the title was bona fide in dispute.

Appellants’ submissions

18. Mr. Tamutai of counsel for the Appellants submitted that the learned Magistrate did not have jurisdiction under s.21 (4)(f) of the District Courts Act. For convenience, I set out the relevant provision below.

“21. Civil jurisdiction.

(4) A Court has no jurisdiction in the following cases:—

(a) where the validity or effect of a devise or bequest or a limitation under a will or settlement, or under a document in the nature of a settlement, is in dispute; or

(b) the infringement of trade names; or

(c) an action for or in the nature of slander of title; or

(d) an action for illegal arrest, false imprisonment or malicious prosecution; or

(e) for seduction or breach of promise to marry; or

(f) when the title to land is bona fide in dispute.” (my emphasis)

22. In support of this ground, learned counsel also relied upon the decision of the Supreme Court in the case of Herman Gawi v. png Ready Mixed Concrete Pty Ltd [1984] PNGLR 74; William Maki v. Michael Pundia [1993] PNGLR 337 and Tony Yandu v. Peter Waiyu (2005) N2894.

23. In Herman Gawi, the Supreme Court held (from the headnotes) that:-

“Proceedings for the recovery of land under the Summary Ejectment Act (Ch. 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.”

24. Learned counsel argued that in the present case, the title to the property was bona fide in dispute for the following reasons:-

1. the existence of the infant title holder as a person was disputed, but if he in fact were an infant, his capacity to hold land in his name was raised;

2....