Geroai v Maliha [2000] PGDC 4; DC69 (12 April 2000)

Unreported District Court Decisions

[2000] PNGDC 10 - RONALD GEROAI V LUDWIG MALIHA

[2000] PNGDC 10

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

CASE NO. DCC. 3414/99

BETWEEN

RONALD GEROAI

COMPLAINANT/RESPONDENT

AND

LUDWIG MALIHA-MANAGING DIRECTOR

NATIONAL HOUSING CORPORATION

DEFENDANT/APPLICANT

Port Moresby

Geita SM

12 December 1999

16 December 1999

31 January 2000

31 March 2000

5 April 2000

12 April 2000

LANDLORD AND TENANT – Recovery of possession – Summary Ejectment proceedings – Tenancy Agreement – Determinable by giving one week’s notice.

Case Cited

Shirley v  Newman [1795] 1. Esp. 266

REASONS FOR DECISION

GEITA M:  The Complainant has come to this Court by way of an application to restrain the Defendant  and his agents from evicting him and his family from the Defendant’s property at Section 21, Allotment 28, Boroko until the matter is properly determined.

The brief facts  are these:  Upon learning that the Defendant was about to evict him and his family from its property the Complainant filed  an  urgent application on 16th December 1999 to prevent the Defendant from  carrying out the eviction exercise.

Interim Restraining  Orders were obtained with directions that a formal complaint be filed and properly served upon the Defendant.  The Defendant, upon being  served filed another Notice of Motion to dismiss the original application together with the Complainant, hence this proceedings.

The Complainant is asserting that the Defendant’s actions is in breach of the tenancy agreement the Complainant entered into with the Defendant in that:

N2>a)       the Defendant has not terminated the tenancy agreement prior to issuing the eviction notice;

N2>b)       the Complainant has not breached any terms and conditions of the tenancy agreement or any significant terms and conditions so as to warrant a termination of the tenancy agreement by the Defendant and or to evict the Complainant;

N2>c)       that the Defendant has  lawful title and ownership of the said premises or house and has the legal right to continue the tenancy with the Complainant;

N2>d)       that Sir Mekere Morauta does not have any legal or equitable right to the property or house but if such right does exist, it was obtained by fraud or otherwise does not serve a lawful basis for eviction of the Complainant or termination of the tenancy agreement between the Complainant and Defendant.

The Complainant is therefore claiming:

N2>1.       An order permanently restraining the Defendant, agents, servants of the Defendant and that of the National Housing Corporation and whosoever acting on their behalf from evicting the Complainant and his family from the said premises or house a Section 21, Allotment 28, Boroko until the tenancy agreement between the Complainant and the Defendant is lawfully terminated;

N2>2.       An Order for specific performance of the tenancy agreement in that the Complainant is allowed to rent the said premises until the lawful termination of the said agreement.

The Complainant and his family were only given 24 hours to vacate the premises contrary to the tenancy agreement.  He should have been  given seven (7) days.  He says that the National Housing Commission does not have any good reason to terminate the Tenancy Agreement.

In a supporting affidavit the Defendant/Applicant disposed that the property was listed under the then Morgan Scheme in which Mekere Morauta now Sir Mekere was identified as a purchaser pursuant to a ministerial direction of 27th May 1992.  The Minister for Housing & Urban Development at the time was Mr Goasa G. Damena who gave the approval.  Purchase details were  worked out in a way that Sir Morauta would purchase the property through fortnightly installments of K23.00 until the purchase was  fully settled. According to the Defendant/Applicant Sir Mekere still remains the approved  purchaser  as no revocations were made.

During 1997/98 the Complainant/Respondent gained entry into the property by some means and formalised a tenancy agreement with the National Housing Corporation.

In August 1999, Sir Mekere Morauta notified the Defendant/Applicant and indicated his willingness to settle all outstanding  monies for the property and have the title transferred to him.  It is not known how much rental was outstanding at the time.  This Court has not been assisted.

On 20th September 1999, the Complainant/Respondent was advised by the Acting Managing Director Mr Monovi Amani to vacate the property as Sir Mekere Morauta was now ready to purchase the property.  Saying that the contract for sale of land and transfer instruments have been prepared and are awaiting execution.

Around December 1999 the Tenancy Agreement with the Corporation was determined and the Complainant/Respondent notified in writing to vacate the said property.  The letter dated 8th December 1999 only gave the Complainant/Respondent 24 hours to vacate and not “ample opportunity to vacate” as disposed by the Managing Director.  There appears to be some element of falsehood in that  deposition.

The issue here is who has the leasehold interest in the land?

A lease in its simplest possible form is the grant of a leasehold interest in land.  But in practice leases are almost invariably bilateral contracts, in which the tenant is not only given an estate in the land but also himself given covenants.  In this case to pay rental and execute repairs.

It is of essence of a lease that the tenant shall be given the right to exclusive possession, that is, the right to exclude all other persons from the premises.

Given the facts of this case Sir Mekere Morauta cannot legally be said to be a  party to this lease.  Furthermore the Ministerial direction of May 1982 by Mr G. G. Damena giving approval for Mr Morauta to purchase the property is neither binding nor legal to the parties in this contract ie. National Housing Corporation and the Complainant/Respondent by virtue of the Tenancy Agreement signed on 15.2.98.  Hence very little weight is given to that line of argument.

I agree with the Complainant/Respondent that  Sir Mekere Morauta does not have any legal or equitable right to that property or lease.  There is no evidence before me to ascertain the current status of Sir Mekere’s fortnightly payments on the property. This piece of evidence is within easy reach of the Defendant/Applicant and I am at a loss as to why it was not brought to the attention of this Court.

All they are saying is that Sir Mekere has not failed to settle his arrears and yet he is here agreeing to settle the arrears and any outstanding payments to have the property transferred to him.

The questions here is what arrears remain outstanding when I am told that they have all been paid up to date.  Again the Court has not been assisted.  Some element of falsehood is also present in that deposition.

The conditions of Tenancy are clear and to the point:

N2>1.       The Tenancy shall commence on the 15.2.98 and shall be from week to week ending at 12 midnight on any Saturday and determinable by at least one week’s notice in writing by the Commission or by the tenant, so that such Tenancy shall be determined not before the end of the next completed week of tenancy.  If the tenant vacates the house without giving proper notice, one week’s rent will be payable in those of;

N2>2.       The rent is at a rate of K200.00 per fortnight and shall be paid monthly in advance to Saturday to the National Housing Corporation or to the agent or officers of the Commission.

I am satisfied that the lease now before the Court was created in a proper way in that it was done in writing and signed by a party creating it.  S.4 Statute of Frauds & Limitation Act Ch. No. 330.  As such a legal lease has been validly granted no matter how short the term.

Next is the frequency of rent days.  How often is rent paid?  In this case the rent shall be paid at fortnightly intervals.  The payment of rent at more frequent intervals than a year will not prevent a yearly tenancy from arising by implication.  (Shirley V. Newman) (1795) 1. Esp.266.  The test is the period by reference to which the parties calculated the rent.  In this case there is an agreement for K4,800.00 per annum payable monthly at K400.00, prime facie creating a yearly tenancy.

However, both parties have created a tenancy from week to week and have also agreed from an express provision that the tenancy is to be determinable by some specific period of notice. This is contained in Clause 1 of the Tenancy Agreement I quote:

“The tenancy shall commence on 15th February 1998 and shall be from week to week ending at 12 midnight on any Saturday and determinable by at least one week’s notice in writing by the Commission.” (emphasis mine)

The position of the parties under such tenancy with regards to termination is for a full period, expiring at the end of a complete period or in this case a week ending at 12 midnight on any Saturday.

The end result is that the tenancy entered into by the Complainant and Defendant is a weekly tenancy and is thus governed by the conditions contained therein.  The landlord has breached the terms of the agreement by giving notice to vacate within 24 hrs as at 8th December 1999.  Nevertheless that notice to determine the tenancy has been issued and must be complied with.

The tenant likewise has breached the conditions of the same said agreement by overstaying as at the 8th December 1999 up to and including 16 December 1999 when the Complainant/Respondent came to this Court seeking relief.  Almost four (4) months will have lapsed since.  I consider that to be more that ample time for the Complainant/Respondent to be in a position to vacate should the inevitable happen.

In this case the decision going against him.  I consider that to be ample time for him to make plans for alternative accommodation.  I do not think that the Defendant/Applicant is responsible for securing alternative housing for the Complainant/Respondent.  That was not contained in the Tenancy Agreement.

In the end result I make orders in the following terms:

N2>1.       The Complainant/Respondent is ordered to vacate the property at Section 21, Allotment 28, Vaivai Avenue, Boroko and give up possession to the Defendant/Applicant  by 26th April 2000;

N2>2.       The Complaint is dismissed in its entirety;

N2>3.       Costs be in the cause.

Lawyers for the Complainant:  Mitige

Lawyers for the Defendant:  Harry Kapal