Hape v Auka [2004] PGDC 28; DC237 (6 June 2004)

DC237

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 5173 OF 2004

BETWEEN

Mary Hape
Complainant

V

Mark Auka
Defendant

Port Moresby: Gauli, Magistrate
2004: 2nd, 9th, 19th May, 6th June.

DECISION OF THE COURT

Nature of the Complaint

That the defendant is illegally occupying the complainant’s residential property at Morata No. 2 near Morata Baptist Church. And the complainant seeks order from this Court to evict the defendant.

The Law Applicable

The law applicable is the Summary Ejectment Act in particular Section 6. These provisions states as follows:-

"6. Recovery of premises held without right, etc.

(1) Where a person without right, title or licence is in possession, the owner may make a complaint to a magistrate of a District Court to recover possession of the premises, and the magistrate may issue summons in the prescribed form to the person in illegal occupation.

(2) Where the person summoned under Subjection (1)-

(a) does not appear before the District Court at the time named in the Summons; or

(b) appears and does not show reasonable cause why possession of the premises should not be given,

the Court may, on proof of the matter of the complaint, issue a Warrant directed to a member of the Police Force requiring him, on or before a day specified in the Warrant-

(c) to enter, by force and with assistance if necessary, into the premises; and

(d) to give possession of the premises to the complainant."

The Brief Facts

The property in question was on sale for K3,000.00 by the owner Mathias Kawage of Chimbu province. The complainant and the defendant were living in a boy/girl friend relationship. The complainant claims she gave K3,000.00 cash to the defendant and purchased the property. The money came from her own savings. She is a nursing sister by profession. There was no contributions from the defendant Mark Auka.

Facts Disputed

The payment of the K3,000.00 and the contributions by the defendant.

The Issues

1. Who contributed the K3,000.00 to purchase the property.

2. Did the defendant contributed anything towards the maintenance of the house.

3. Is the defendant illegally occupying the property at Morata 2.

Evidence

The complainant and her witnesses namely Grace Hanapa, Paul Hape and Benny Yani gave sworn evidence. The defendant has only himself who gave evidence, he has no witnesses. I will discuss the evidence as I discuss the Issues.

Issue No. 1 Who contributed the K3,000.00 to purchase the property.

There is no dispute that the former owner Mr. Mathias Kawage sold his residential house at Morata 2 for K3,000.00 in the year 2001. The complainant and the defendant have a relationship with a hope of getting married. They were renting separate rooms at Yumi Yet Trading at the rate of K110.00 fortnightly. The complainant moved out of her flat in about September 2001 and went to live with her relatives at Gerehu. She was desirous of buying a home which she discussed with the defendant. Few weeks later the defendant identified and negotiated the house Mathias Kawage was selling. He informed the complainant and she withdrew K3,000.00 from her savings. She gave the money to the defendant who went and purchased the house. The complainant claims that the defendant never contributed cash towards the purchase of the property.

The witness Grace Hanape gave evidence that on the 13th November 2001 she accompanied the complainant to BSP Bank at Waigani and witnessed the complainant withdrew K3,000.00 from her account. And she witnessed the complainant gave the money to the defendant to buy the house from Mathias Kawage. The withdrawal of the money and the handing over the money to the defendant was done during lunch hour. During cross-examination the defendant never questioned the witness of her presence with the complainant when the money wad withdrawn and given to the defendant.

The defendant in his affidavit sworn on the 13th March 2005 denied that the complainant had contributed K3,000.00 to purchase the property. HE said he negotiated the price and he paid the price out of his own money and contributions from his father. He did not state the price the house was sold to him. He did not call his father who is the policeman to confirm his contributions together the purchase of the house.

The defendant was employed by the Yumi Yet Shop from 1997 to 2000 with a fortnightly salary of K150.00. Later from 2001 to 2002 he was employed by the Toba Motors as a Sales Representative with a fortnightly salary of K150.00.

He now works with the National Rice Distribution as a Sales Representative for about 6-7 months. With his unsteady employment and the kind of salary he was getting at the time of the purchase of the property, I had doubts whether he had the money to buy that property.

I find the complainant’s evidence to be more convincing than the defendant’s evidence. I find that the property was purchased by the complainant who provided the sum of K3,000.00. There were no contributions by the defendant towards the purchase of the property. His only contribution was the negotiation of the price. The person who made or provided the finance available to purchase the property would, in all circumstances, be the owner of the property.

Issue No. 2 Did the defendant contributed anything towards the maintenance of the house?

The complainant’s evidence is that the renovation and the maintenance of the house were done at her own expenses. The only contributions the defendant made were for the five (5) iron posts and some gravel which were provided by the defendant’s friend Tenny Taleka. The witness Benny Yiami in support of the complainant’s evidence said that the materials for maintenance and renovation were purchased by the complainant. And Benny was doing all the maintenance on the house. It took him seven months from January to July 2001.

The defendant’s evidence is that he denied the complainant carried out the maintenance work at her own expense. The defendant was living in the house while the maintenance and repairs were carried out. At his own expense he engaged a carpenter. The nine (9) iron posts were contributed by Tenny Taleka. The defendant attached to his affidavit the correspondences from number of people who stated that they have assisted the defendant with some building materials for the house. They includes Mr. Dickson Lamah the General Manager of Yumi Yet shop Lt, Mr. Harris Lombu from the Department of Education Division of PNG and Mr. Tenny Taleka from the Goodman Fielders International (PNG) Ltd. They assisted the defendant by providing materials such as timber, gravel and iron posts respectively. These person have not filed affidavits evidence nor have they been called to give oral evidence in Court.

I find that Tenny Taleka did provided the iron posts while Harris Lombu provided the gravel. The complainant did not dispute these supplies. As for the five (5) loads of timber by Mr. Dickson Lamah the complainant disputed this claim. I could not be satisfied that the timbers were provided by him. From the evidence as it is I find that the defendant did contributed materials for maintenance and repairs through friends.

Issue No. 3. Is the defendant illegally occupying the property at Morata 2.

The Court has found that the property was purchased by the complainant. The parties have a defactor relationship and the property was purchased during the time of that relationship. However that relationship failed to continue when the defendant failed to pay the bride price. And the defendant is now in possession of the property.

From these circumstances, there can be no doubt that the defendant was in occupation of the property during the time of their defector relationship. When that relationship ceased to exist, the defendant’s occupation of the property would be unlawful or illegal. And I do find that the defendant is illegally residing on the property in Morata 2.

And this Court orders that the defendant to vacate possession of the property to the complainant within fourteen (14) days. And if the defendant fails to give vacant possession of the property voluntarily with the given period, the Court to issue a Warrant directing a member of the Police Force to enter by force if necessary, into the premises and give possession to the complainant.

Rules accordingly