Ray v Nala [2000] PGDC 11; DC76 (9 June 2000)

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GEITA SM: The complainant is seeking to recover possession of his property known as Section 23 Allotment 46 at East Boroko under S.6 Summary Ejectment Act Chapter No.202. The nature of the Summons Upon Complaint being:

“You are illegally occupying the complainants property namely Section 23, Lot 46, East Boroko. NCD. Attempt several times by the complainant and his agents but refuse to vacate the said property.”

On 18th August 1996 the Complainant and L. J. Hooker entered into a management agreement. The property it appears was leased out to the Defendant. Neither the Complainant nor the Real Estate Agent produced any documents to show that such lease agreement existed. It is unclear as to the terms of such an agreement. For reasons only known to the Complainant, its Real Estate Agent has not been called upon to give evidence in support. It is also not clear as to whether a lease agreement was entered into by the Real Estate Agent and the Defendant. The only evidence before the Court is from the Defendant who deposed in his affidavit sworn on 2nd day of January 2000 that he entered into an agreement with L. J. Hooker to lease the property for K400.00 per month. The house at the time needed some repairs and he paid K2,600.00 as advance rental for necessary maintenance to be carried out.

According to the Defendant no maintenance work was carried out on the property, which resulted in him, holding back rent which accumulated to K4,656.00 hence this proceedings.

The Complainant it appears has taken it upon himself to recover outstanding rent from the Defendant and has gone to the extent of attempting to remove the Defendant from the property. The role played by its management agents is unclear, as no evidence is forthcoming from them. L. J. Hooker has deliberately kept its nose out of this problem. Several attempts have been made to get police to intervene and persuade the Defendant to pay its rent debts. These attempts have proved unsuccessful.

Since there is no lease agreement produced into Court I am not in a position to determine the rights and duties of parties under the lease. Further I am unable to determine the existence of any covenants both expressed or implied in the lease. For instance covenants to repair etc. However I will refrain from making any findings with regards to the question of any breaches which may have occurred.

Next is the question of forfeiture for non-payment of rent. A landlord who according to the lease has the right to re-enter for non-payment of rent must sometimes nevertheless make a formal demand for the rent before he may re-enter, and on complying with certain conditions the tenant may be able to have the proceedings for forfeiture terminated or obtain relief against the forfeiture.

To make a formal demand, the landlord or his authorised agent must demand the exact sum due on the day when it falls due at such convenient hour.

In order to avoid the technicalities of a formal demand, every well-drawn lease provides that the lease may be forfeited if the rent is a specified number of days in arrears, whether formally demanded or not. The Complainant has not shown to this Court if a lease agreement was entered into or if there ever was one drawn accommodating this requirement.

In the absence of one, the job of this Court has been made very difficult. There is however evidence that some form of notice and police assistance was sought to evict the Defendant for non-payment of rent.

It must be remembered that the tenant has a statutory right to have this action terminated by himself paying all arrears of rent and costs at any time before trial. In this case the tenant has held back rent in protest over maintenance demanded of the property as such his claim of relief cannot be entertained.

I am inclined to believe that the next best person to produce the lease document is the defendant as he was a party to the lease agreement and therefore has an interest in the case. To this end the Defendant has not done that. The Court is left on its own devices to find out if indeed a lease agreement existed. I have not been successful in this regard. In other words there is insufficient evidence to hold that one existed.

This Court has been invited to rely on the defendant’s evidence to ascertain the nature and or existence of a lease agreement between the complainant and himself. This I will refuse, as it is self-serving and not a “lease agreement”. As I mentioned above the production of such a document is within the power of the defendant however he has decided not to come good with that lease agreement for reasons only known to him.

Next is the question of whether the Defendant is illegally occupying the said property. The Defendant maintains that he is not illegally occupying the Complainants property as alleged by him in his complaint. The Complaint or Summons Upon Complaint reads:

“You are illegally occupying the Complainant’s property namely Section 23, Lot 46, Hohola. NCD. Attempt (sic) several times by the Complainant and his agents (sic) but refuse to vacate the said property.”

The Defendant maintains that he entered the property on authorisation by the Complainant through its agent, L. J. Hooker. Saying that the possessor’s right had passed on to the Defendant from the time he paid his fees to move in on the property. The property was rented with an option to purchase hence claiming a right of possession in his occupancy of the property.

The issue of purchasing the property by the Defendant is considered a non-issue, as it is not substantiated with evidence.

I will now dwell on the issue of illegal occupation. I agree with the defense contention that they entered the property on authorisation by the Complainant through its agent, L. J. Hooker.

However the legality of such occupation came to an end once rent obligation is not honoured. At the time of going to trial the Defendant is said to have owed the Complainant a total of K2,356.00 for 1998 – 1999 periods.

The tenant is under an obligation to pay all rates and taxes except those for which the landlord is liable. Likewise on the part of the landlord a covenant for quiet enjoyment in the usual qualified form. These are usual covenants included in standard lease agreements.

It cannot now be said that the Defendant is legally in possession of the property after accumulating huge rent arrears.

The Defendant has submitted that he is willing to pay the outstanding rent as he has an interest in buying the property. However much he may be willing and ready to pay up the outstanding rent but the crux of the matter is that the rent arrears still remain unpaid to his detriment.

It is quite obvious that the Defendant withheld rent as a result of nil maintenance on the property of which K2,600.00 was given to L.J. Hooker. Whether that money has been accounted to the landlord/ complainant is unclear. I would hold that it has not been accounted to the landlord. I say this because had it been paid to the landlord he would not be jumping up and down about unpaid rent etc or the amount claimed would be reduced.

Again in the absence of a covenant for either parties to effect repairs and maintenance on the property I cannot say who is liable for repairs.

One thing is clear in that L. J. Hooker received the first K2,600.00 as such they must be made accountable to its return to the owners.

In general a landlord is not liable on his covenant to repair until he has notice of the need to repair. Usually the tenant will give him notice. It is not disputed that the tenant gave notice to the agent and paid the sum of K2,600.00 towards maintenance. Specific performance may therefore be decreed against the landlord. If, after giving notice of the default to the landlord, the tenant does the repairs himself, he may deduct his expenditure from his payments of rent exercising his right of set-off at common law. (Lee – Parker Vs. Izzet [1971] 1 W.L.R. 1688).

Unfortunately this Court cannot give assistance, as there is no lease agreement, in particular no evidence of a repair covenant to subject both parties too. The Defendants assertion that one existed is as good as nothing.

I now turn to the relevant legislation governing this dispute and like matters. Section 4(1)(d), 2 & 3 Summary Ejectment Act Chapter No.202.

N2>“Section 4(1)(d) Subject to this Section, where the rent payable by a lease holding premises by the week, month or quarter after longer term not exceeding three years, is in arrears for 42 days in the case of a tenancy for a longer term, the lessor may, without formal demand or re-entry, make a complaint to a Magistrate of a District Court who may issue a summons in the prescribed form directed to the lessee, and the service of the summons stands in place of a demand or re-entry.

N2>Section 3 Where there is a tenancy and no agreement as to its duration, the lessee shall for the purposes of this section is deemed to hold the premises by the month.”

In the absence of a lease agreement and the type of tenancy entered into I hold this relationship to come within the ambit of Section 3 & 4 of Summary Ejectment Act.

The Complainant has come to this Court seeking redress for non-payment of rent by the Defendant. The Defendant has not paid rent in retaliation of lack of maintenance on the property. The means used to achieve its aim is not considered legitimate and civil under the circumstance. Courts should not encourage such actions. In fact such actions must be condoned.

Although the complainant has relied on S. 6 Summary Ejectment Act in this complaint his intention is clear in that he wanted to remove the Defendant from his property for non-payment of rent. Hence this complaint cannot simply be struck out because he applied the wrong section. His intention is clear in that he was relying on the provisions of S.4 Summary Ejectment Act.

In the case before me there is ample evidence to show that the Defendant is in arrears for more than 42 days. He has been given sufficient time to make the payments and has not shown reasonable cause why the premises should not be recovered. It is noted that some improvements and repairs were made on the premises. I take those to be part and parcel of ordinary cause and maintenance of premises to make it habitable and convenient for one’s living and comfort.

I have been asked to grant adequate compensation to the defendant for damages and breach. As I mentioned earlier since no lease agreement was produced into Court I am not in a position to determine what breaches if any were occasioned, or formed part of that agreement.

In regards to the K2,600.00 said to be paid to L. J. Hooker by the Defendant I refrain from making any orders. However the Defendant is not left without a remedy. He can sue the Real Estate Agent concerned for the return of his price as money paid in advance rentals for maintenance, as there is no evidence to show that the money was accounted to the landlord.

N1>1. That the defendant together with his servants and or agents are hereby ordered to give possession of the premises to the complainant within three (3) weeks from today in reasonable condition.

N1>2. That the defendant, his servants and or agents are ordered to repay K2,356.00 in rent arrears to the complainant forthwith together with any outstanding rent due and payable from the time rent payable was ceased.

N1>3. After three (3) weeks from today the complainant will continue to collect rent and interest thereafter for any prolonged stay.

N1>4. After three (3) weeks from today a Warrant directed to members of the Police Force will issue to enter, by force if necessary into the premises, and to give possession of the premises to the complainant.

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Papua New Guinea District Court

Ray v Nala [2000] PGDC 11; DC76 (9 June 2000)

Unreported District Court Decisions