Auro v Yowe [2000] PGDC 13; DC123 (12 September 2000)

DC123

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 2347 OF 2000

BETWEEN

ALICE AURO
Complainant

AND

EDWARD YOWE
Defendant

Mr Iova S. Geita - Magistrate
1, 12 September 2000

Practise and Procedure - Summary Ejectment Procedures - genuine equitable interest established in defence- equity proven- recovery of possession stayed- defendants equity protected.

Practise and Procedure - s. 6 Summary Ejectment Act.

Cases Cited
Juan Jeffrey v Siapo Yapo N1843:
SIC v Garamut Enterprises Ltd. Blomley v Ryan [1956] HCA 81; (1955-56) 99 CLR 362.
Morrison v Coast Finance Ltd [1965] 55 DLR 710
K v K 1976 2 NZLR 31.
Hart v O'Connor [1985] UKPC 1; [1985] AC 1000
PC. Wine v Gig/man [1990] PNGLR 462.

Counsels
Complainant, In Person
Defendant in Person

REASONS FOR DECISION

GEITA I.S. - The complainant has come to this court by way of an information to have the defendant evicted from her property at Section 23 Allotment 2 Gerehu Stage 2. Usually proceedings are best commenced by way of complaints and or information before District Courts. However due to funding problems experienced by courts throughout the country including this court, it is not unusual for court summons to be filed on information instead of the normal complaint forms. In any event the intention of the complainant is clear in that the matter is civil in nature. Furthermore court clerks are forced to use both forms interchangeably depending on what is available at the time. In the case of Juan Jeffrey v Siapo Yapo N.1843 Kapi DCJ had this to say: - " Since this an error of form only. The question is whether the use of the wrong form nullified the rest of the proceedings. In so far as this is an error of want of form, it does not necessarily render the whole proceedings incompetent.

Hence I have accepted the civil matter even though it was commenced by way of an information. The complainant is relying on 5.6 Summary Ejectment Act Ch No. 202 to have the defendant evicted, saying he is illegally occupying the premises without the complainant's consent.

Complainant's Case

The complainant is being represented by her daughter Shirley Aura. She begins in her affidavit of 30th August 2000 alleging that the defendant is an unlawful tenant currently occupying their family home at Gerehu by fraudulent means. She claims the property was registered in her late father's name since 6 December 1987. A photocopy of statement of accounts dealing with the property was annexed to her affidavit purporting to show that the late father still had legal title to the property The National Housing Corporation computer print out dated 22nd August 2000 bears the name of Late Auro as the owner of the property on Account No. H18613. The type of house is marked low cost although no section and lot number is shown of the form Nevertheless I take these to mean that the house referred too in the complaint as Section 23, Allotment 2 Gerehu.

Mrs. Shirley Auro asserts that upon the death of her father the family all left property to her sister Matilda and her husband as caretakers When they returnee 10 Port Moresby after burial they found out that the defendant had taken possession of the property and had fenced it without their consent or the National Housing Corporation who is the proprietor of the property Furthermore she alleged that the National Housing Corporation allowed the defendant to take up possession without properly inquiring into the status of the property. She pleaded that the National Housing Corporation records show that her late father to be the legally authorised owner of the property hence his equity of first in time must be protected.

Defendant's Case

Opposing the complaint the defendant contended that criminals illegally occupied the property at the time he took possession in 1999. His tenancy was legalised by National Housing Corporation as landlord on 10 June 1999. According to him he has made improvements to the property valued at about K7500. He says he formally moved into the house on 6 March 1999 after having removed the criminals whom he said were in occupation of the property at the time. However the complainant takes issue on this point and says that there were no criminals save her people who were put on the property as caretakers in their absence. No evidence has been adduced to explain those assertions.

The defendant produced into court a Tenancy Agreement entered into by him and the National Housing Corporation on 10 June 1999. On the face of it, it is good for all purposes and intent.

Issues

Section O. Summary Ejectment Act reads: -

"(1) Where a person without right, title or licence 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.

(2) Where the person summoned... appears and does not show reasonable cause why possession of the premises should not be given... issue a warrant directed to a member of Police Force... to enter, by force into the premises and to give possession of the premises to the complainant".

Unless the person summonsed appears and shows reasonable cause why possession of the premises should not be given. The defendant must show reasonable cause why the property should not be taken from him if in fact no reasonable cause is shown then the Court will have jurisdiction to make eviction order. To establish claims via the provisions of the Summary Ejectment Act Ch No. 202. Woods J, as he was then, in the case of Gawi v PNG Readymix PNGLR 1984 at p.79 said -

"The remedy it IS designed to give is a Quick and efficient means of obtaining possession of premises, (and this on the authorities extends to land) from person without any rights to possession. The whole procedure is designed to facilitate this. It is a matter for the claimant to show title, simply by producing a registered Certificate of Title or a registered lease and of producing evidence of adverse possession. If title is disputed, use of this Act is inappropriate."

The complainant has neither produced a Certificate of Title, a registered lease of a tenancy agreement. She however produced some evidence of adverse possession and asks that her equity of first in time be protected.

In an attempt to protect her equity I am indebted to Sheen J in the case of STC V Garamut Enterprises Ltd where he said and I quote:- -

"Where fraud is relied on as a cause of action then there must be actual fraud pleaded and strictly proved. But in equity that is not necessary so. In Blomley v Ryan [1956] HCA 81; (1955-56) 99 CLR 362 the High Court of Australia refers to the rule that equity may presume fraud equitable constructive fraud, from circumstance, in contrast to the common law requirement of strict proof. The principle has also been followed elsewhere in the Commonwealth. Morrison v Coast Finance Ltd [1965J 55 DLR 710 and K v K 1976 2 NZLR 31 and Hart v O'Connor [1985J AC 1000PC.

The essential duty for an authority entrusted with the implementation of statutory duties for the benefit of the public (particularly when such duties include the exercise of discretionary powers) is to act only within and according to the object and purposes of the statute. It cannot evade this duty.

Thus where the land Act clearly has the purpose. as a matter of National interest to provide a transparent procedure for the alienation of State, land, the authorities entrusted with the supervision of those procedures may be said to be acting fraudulently - and it is fraud whether there is dishonesty or otherwise - when it acts with the intention of achieving an object directly opposed to the purposes of the statute." (Emphasis mine)

The complainant is asserting that the defendant fraudulently obtained the tenancy agreement from National Housing Corporation. Unfortunately National Housing Corporation has not been called to give evidence. This is probably due to the fact that the complainant is not conversant with what was required of her and the implications thereof that do not mean that her rights must not be protected by this Court. To do so would in my opinion amount to grave injustice caused to the complainant.

In the case before me the authority is the National Housing Corporation and it is entrusted with the implementation of a statutory duty for the benefit of the public. That duty is to provide reasonably prized accommodation to Papua New Guineans. This IS contained in Section 28 National Housing Corporation Act 1990. The Act has a purpose as a matter of National interest to provide a transparent procedure for providing accommodation to Papua New Guineans, the authorities entrusted with the supervision of these procedures may be said to be acting fraudulently - and it is fraud whether there is dishonesty or otherwise - when it acts with the intention of achieving an object directly opposed to the purpose of the statute. There is evidence that the complainant asserted fraud in her statement. She asserts unreasonableness, which includes bad, faith, and equitable and or constructive fraud.

I am satisfied that the complainant's equity is genuine and must be protected. Some of the issues raised are of public importance and she has established the facts of her complaint beyond question. Furthermore equity is basically justice and it will come to the aid of those pleading equity if the "adherence to common law will cause injustice to the complainants as has happened in this instant case. Notwithstanding the existence of a valid tenancy agreement I am satisfied that it was fraudulently obtained. I say this because the complainant was not given an opportunity to be heard or given an opportunity to show cause as is required by the Act.

The complainant now claims that she has a genuine equitable interest in the property and as such the defendant must be evicted and return possession of the property to her under the Summary Ejectment Act provisions.

In the case of Wine v Gig/man [1990] PNGLR 462 at 471 Brunton AJ said

"The law of equity was always used by the courts to ameliorate the injustices of the harshness of common law or statute. It is therefore available to develop the underlying law and to ease those pressures on litigants that arise from the inefficiencies of centralist and unreformed statute law. In the case of land administration there are good grounds for developing the law of equity to ensure justice is done In particular cases."

In this case injustice has been done and equity must be employed to restore fairness.

I am mindful of the fact that the defendant has spent almost K7500 on improvements on the property. While it can be said that the defendant took advantage of the property in the complainant's temporary absence he must have known that his act of moving in on the property on 6 March 1999 was illegal and not proper. There is no evidence to suggest it otherwise contributed to the gross breaches of the Statute that occurred. The defendant has strongly argued that his tenancy argument IS good and valid for all purposes and must be enforced. But: am more Inclined to think that- that argument must be balanced with the public interest In good administration as well as the interest of the complainant.

To refuse the complainant a summons for ejectment of the defendant of the said property at Section 320, Allotment 03 at Gogosi Street. Gerehu Stage 6 would be to give Court approval to gross mal administration and to publicly condone fraud. I am therefore satisfied the complainant is the original purchaser under contract with National Housing Corporation and as such is the equitable owner subject to the terms of the contract. Since the complainant is the original purchaser as is evidenced by her husband's name still current on National Housing Corporation books, it can clearly be seen that he is in equity the owner. The end result is that the relief sought by the complainant is granted in the following terms. Having said that the defendant is not left without a remedy. He may institute proceedings for damages from the National Housing Corporation for misleading him into entering into a tenancy agreement fraudulently

Court Order:

That a Warrant for possession under Section 6 of Summary Ejectment Act in favour of the Complainant shall issue forthwith. Such warrant shall not be executed for a period of one month.