Yomi Siwi v Lincy Mathew (2006) N3048

• Jurisdiction: Papua New Guinea
• Judge: CANNINGS J
• Judgment Date: 20 April 2006
• Citation: (2006) N3048
• Docket Number: CIA NO 336 0F 2005
• Court: National Court
• Year: 2006
• Judgement Number: N3048

Full Title: CIA NO 336 0F 2005; Yomi Siwi v Lincy Mathew (2006) N3048

National Court: CANNINGS J

Judgment Delivered: 20 April 2006

N3048

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 336 0F 2005

YOMI SIWI

Appellant

V

LINCY MATHEW

Respondent

KIMBE : CANNINGS J

20 DECEMBER 2005, 20 APRIL 2006

APPEAL

Courts – District Court – jurisdiction of District Court in land matters – District Courts Act, Section 21(4) – District Court has no jurisdiction in cases where title to land is bona fide in dispute – identification of bona fide dispute – effect of registration of interest in land.

Land – indefeasibility of title – transfer of interest in land – Land Registration Act, Sections 33, 42, 55.

Land – Summary Ejectment Act – whether title to land is clear.

The appellant and the respondent were living in different houses on a portion of land near Kimbe. They are former employees of a businessperson who was thought to have purchased the land from an incorporated land group. However, the respondent was registered on the certificate of title as the transferee and he instituted ejectment proceedings against the appellant in the District Court. The respondent succeeded in the District Court, which ordered that the appellant be evicted from the land. The appellant appealed against that order, arguing that the District Court had no jurisdiction under the District Courts Act as there was a bona fide dispute about title to the land, which was customary land, and which should have been determined under the Land Disputes Settlement Act.

Held:

(1) The District Court has no jurisdiction in cases where title to land is bona fide in dispute.

(2) However, if a registered proprietor of land commences proceedings in the District Court to enforce his interest in land there is no bona fide dispute about title unless some other person demonstrates that they have taken some distinct, formal, legal step to disturb that title. Tony Yandu and Eddie Guken v Peter Waiyu and Jita Guken (2005) N2894 applied.

(3) Proceedings under the Summary Ejectment Act are intended to provide a quick remedy to people who have a clear title to premises. Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74 applied.

(4) In circumstances where a person was the registered proprietor of freehold land and no formal steps had been taken to disturb that title, there was no bona fide dispute and the District Court could make orders under the Summary Ejectment Act.

(5) The appellant failed to establish any error of law by the District Court in the manner in which it dealt with the matter on the basis of the evidence before it.

(6) An application by the appellant for the National Court to receive new evidence was granted; however, the new evidence failed to demonstrate any bona fide dispute about title and had no effect on the outcome of the appeal.

(7) The appeal was therefore substantively dismissed though the orders of the District Court were varied to allow the appellant more time to negotiate a settlement with the respondent or leave peacefully.

Cases cited

The following cases are cited in the judgment:

Busina Tabe v The State [1983] PNGLR 10

Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74

John Peng v The State [1982] PNGLR 331

Mai Kuri v The State (No 2) [1991] PNGLR 311

Mudge v Secretary for Lands and Others [1985] PNGLR 387

Ted Abiari v The State (No 2) [1990] PNGLR 432

Tony Yandu and Eddie Guken v Peter Waiyu and Jita Guken (2005) N2894

Abbreviations

The following abbreviations appear in the judgment:

CJ – Chief Justice

DCJ – Deputy Chief Justice

eg – for example

ie – that is; by which is meant

J – Justice

N – National Court judgment

No – number

PNG – Papua New Guinea

PNGLR – Papua New Guinea Law Reports

SC – Supreme Court judgment

Tables

The following tables appear in the judgment:

1 – Documentary evidence before the District Court.

2 – New evidence the appellant wants the National Court to receive.

APPEAL

This was an appeal from a decision of the District Court ordering the vacation of property under the Summary Ejectment Act.

Counsel

O Oiveka for the appellant

G Linge for the respondent

CANNINGS J:

INTRODUCTION

This is an appeal against a decision of the District Court at Kimbe, constituted by Mrs G R Coppard, in which her Worship upheld a claim to evict the appellant from a block of land.

BACKGROUND

The appellant, Yomi Siwi, and the respondent, Lincy Mathew, have been living, in different houses, on the same block of land at Morokea, near Kimbe, for some years. The land is officially described as “Portion 2336, Milinch Megigi, Fourmil Talasea; Volume 33, Folio 2”. It is also known as “Huviki”.

The land used to be customary land but in 1995 a certificate of title was issued to Morokea Land Group Inc, a body recognised under the Land Group Act Chapter No 147, pursuant to the Land (Tenure Conversion) Act 1963.

For some years a non-citizen, Jerry Pan, was running businesses in Kimbe called Kimbe Marine Products and Kimbe Constructions. Some years ago he acquired the land from Morokea Land Group Inc. Whether he actually purchased the land is a moot point in view of the evidence that was before the District Court. However, the appellant and the respondent were Jerry Pan’s employees and Jerry Pan provided staff accommodation for them and another employee on the land.

At some time in the last couple of years – it is not clear when and it is not important for the purposes of this appeal – Jerry Pan left Kimbe. Some of the evidence suggests he might have fled the country, leaving his staff and creditors unpaid. That is not a fact that has to be determined for this appeal.

In 2005 the respondent took the view that the land was his – not Jerry Pan’s or anybody else’s. The appellant was living on the land, and the respondent asked him to leave. The appellant did not accede to that request and the respondent brought the matter to the District Court.

DISTRICT COURT PROCEEDINGS

On 4 March 2005 Complaint No 183 of 2005 was filed in the District Court at Kimbe. The complainant was Lincy Mathew (the respondent in the present appeal). The defendant was Yomi Siwi (the appellant in the present appeal).

The complaint was that the appellant was illegally residing on Portion 2336, Morokea. The respondent claimed that the land had been transferred to him by Jerry Pan, who had converted it to freehold. He sought an order for eviction under the Summary Ejectment Act.

On 18 May 2005 her Worship Ms J Valvona made an ex parte order that the appellant be evicted. But that order was set aside and the matter came before Mrs Coppard on 16 June 2005. Both parties were present. The respondent argued that the land was his and he wanted the appellant to leave. The appellant argued that the land belonged to Jerry Pan. He could not pay his employees but allowed them to stay on the land.

The documentary evidence before the District Court is summarised in table 1. Column 1 gives the document number, column 2 describes the author and/or nature of the document and column 3 summarises the contents.

TABLE 1: DOCUMENTARY EVIDENCE

BEFORE THE DISTRICT COURT

No Description Content

1 Affidavit, States that the defendant Yomi Siwi is illegally residing on his
Lincy Mathew, property, which was transferred to the complainant by Jerry Pan –
complainant, annexes the certificate of title.
08.03.05

2 Statutory States that he bought Portion 2336 from the customary
declaration, landowners of Morokea village and transferred it to Lincy
Jerry Pan, Mathew. [He gives no dates nor provides any documents in
03.09.04 support of these claims.]

3 Certificate of title, States that Morokea Land Group Inc was:
Portion 2336
“the proprietor of an estate in fee simple subject to the
encumbrances noted hereunder in all that piece of land … known
as Huviki being Portion 2336, Milinch of Megigi, Fourmil of
Talasea, in Deposited Plan No 146”; then states:

“No I8245 transfer to Lincy Mathew of Kimbe. Produced
12/08/2003 at 10.06 am entered 16/08/2004”, signed: Deputy
Registrar of Titles.

4 Affidavit, States that he was employed by Jerry Pan as operations manager
Joel Ade, for ten years – Jerry Pan acquired Portion 2336 for a staff
Former operations residential compound – three houses were built and occupied by
manager, Kimbe the appellant, the respondent and another employee, Thomas, –
Marine Products, he has no knowledge of any arrangement that the land was
purchased for the respondent – Jerry Pan fled the country leaving
17.05.05 his workforce unpaid – he sees no reason for the respondent being
favoured ahead of other ex-employees – if Jerry Pan transferred
the land to the respondent then Jerry Pan was lying to the other
staff who had no knowledge of the arrangement.

5 Affidavit, States that the title to the land remains with Morokea Land Group
Yomi Siwi, – it has not been transferred by Morokea Land Group or Jerry Pan
20.05.05 to the respondent.

Her Worship Mrs Coppard considered that evidence and the submissions made by the parties and decided in the...