Maki v University of Technology [2006] PGDC 19; DC591 (28 February 2006)

DC591

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

DCCi07 of 2006

BETWEEN

JOHN MAKI
Complainant

AND

THE UNIVERSITY OF TECHNOLOGY
1st Defendant

PAPUA NEW GUINEA UNIVERSITY OF TECHNOLOGY UNION BOARD
2nd Defendant

PAPUA NEW GUINEA UNIVERSITY OF TECHNOLOGY UNION BOARD
CHAIRMAN WILSON TOVIRIKA
3rd Defendant

Lae: C Inkisopo
24, 28 February 2006

CIVIL- National Constitution; Section 158 (2) & Schedule. District Courts Act Chapter 40; Section 22 (a) –general ancillary powers of the District Courts – tenant’s application seeking a restraining order against interference with items of value distrained by landlord for alleged unpaid rentals – termination of lease agreement for alleged defaults on rentals by tenant-

Application by tenant- to be granted permission to access his distained goods and equipment for purposes of stock take and subsequent clearance with the ultimate view to yielding up vacant possession of the rented property at the instance of the lease termination – defendant levying distress of the tenant’s goods and equipment as “unpaid landlord” - defendants’ rights to distain Complainant’s goods and equipment as unpaid land lord –

Cases Cited

Held

1: An order of restraint is to issue against each party to maintain the status quo pending the resolution of the fundamental issue of outstanding rental arrears

2: The parties shall jointly access the Kofi Haus and undertake a joint stock take of the Complainant’s goods and equipment.

3: There is found the central residual issue of “ unpaid outstanding rental arrears” to be resolved.

References

Counsel
Mr V Cullingan of Counsel of Yayabu Lawyers
Mr W Tovirica for Himself and Other Defendants

24, 28 February 2006

REASONS FOR RULING.

BACKGROUND

C.Inkisopo : The status of the parties in this case concerns a landlord/tenant relationship. The Complainant leased a certain property described as Portion 453, Fourmil Markham, Milinch Lae being the whole of the land contained in State Lease Vol.17, Folio 5 namely the building described more as the “Kofi Haus”. The parties had both subscribed to a Lease Agreement which governed the Complainant’s leasing of the Kofi Haus for the stated purpose of trading as a “General Trade Store” as specified under Item seven (7) of the Schedule to the Lease Agreement. The Lease Agreement was specified to run for a year commencing from the date of its execution on 01 May, 2005.

2. The provision for rental under the Agreement Item number five (#5) is stated to being one thousand two hundred kina (K1,200.00) per month payable in advance. The lease was normally in subsistence up until November 2005 when the Landlord served notice on the tenant via a letter dated 16 December 2005 terminating the lease due to its stated cause of unpaid outstanding rentals under Clause fourteen (14) et sequentes of the Lease Agreement. At the service on him of the lease termination notice, Complainant entered into several correspondences offering options to the Defendants with the view to settling the matter amicably and to allow him till the end of the lease period.

3. The Defendants however made it clear to the Complainant that he was continuing with his rental defaults and hence the Board’s decision was based on breaches by him of the terms of the Lease Agreement and that his lease of the Kofi Haus was but over. He was accordingly advised that he could use his then current stock to make partial settlement of the outstanding rental arrears he’d so far fallen into and to then return the keys to the Kofi Haus to the Union Board Chairman by close of business on 30 December 2005. It was by then that Complainant took out a restraining order against the Defendants from evicting him as yet until settlement dialogue has been exhausted. Then on 12 January 2006, the Defendants successfully obtained a set aside order of the restraint order dated 22 December 2005 which was entered in favour of the Complainant and also successfully having the proceeding itself dismissed altogether.

4. Defendants in a letter dated 13 January, 2006 extended to the Complainant a reprieve – a 20 day ‘grace period’ within which to organize his removal from the Kofi Haus. What this Court finds a little hard to fathom is the fact that the twenty (20) day reprieve was specifically stated to commence from 16 December 2005 – 12 January 2006 meaning that the Complainant has had his twenty (20) -day reprieve expired by the time the Defendants obtained their set aside order. If we are to go by what the Defendants are saying, the Complainant had effectively no time to exercise or enjoy this reprieve which I consider to be unreasonable. Rather, in order to render that reprieve workable, I would have thought that the twenty (20)-day period was to commence as of the date of the letter conveying that message of the 20-day grace period. Be that as it may, the Defendants’ letter conveying that message (twenty (20) day grace period) was quite clear and there can be no mistake on the Defendants’ intention in that matter in which case, and in my view it was quite unreasonable in the least. Its effect was as good as if there was no ‘grace’ period extended to the Complainant at all by the Defendants. Instead Complainant was simply locked out of the Kofi haus within a day thereafter by way of changes to the locks to the property with all his goods and equipment locked inside. It is against this background that he comes to this Court claiming several relieves.

5. The relieves he seeks are;-

1: The Defendants, their servants and agents be restrained from dealing with, interfering with or touching any of the Informant’s goods and equipment contained within the property described as Portion 453, Formil Markham, Milinch Lae being the whole of the land contained in State lease Vol. 71, Folio five (5) namely the building described as the ”Kofi Haus”

2: The Informant be given access to the Kofi Haus for the purpose of doing a stock-take and clearance of all his goods and equipment contained within the Kofi Haus

3: The Defendants, their servants or agents be restrained from dealing with, interfering or touching any of the Informant’s goods and equipment contained within the Kofi Haus forthwith

4: Costs be in the cause

5: Such further orders as this Honourable Court deems proper.

6. In considering and dealing with these relieves, the issue of jurisdiction of this Court must by necessity be addressed and for the Court to satisfy itself that it does indeed have the jurisdiction to deal with the matter before it before proceeding further. The Defendants have in their submission addressed the Court putting this aspect of the case to issue and in the process they have set out the relevant law and the principles applicable succinctly which have assisted this Court in determining this matter and it is much indebted to both parties for their invaluable assistance with their comprehensive written submissions. The yeast of the Defendants’ contention as I glean is that this Court lacks the jurisdiction to deal with this matter that seeks orders of an injunctive nature per se without any money claim or such other reasonable causes of action having been pleaded. This Court acknowledges this to being so but in giving effect to its duties to give ‘paramount consideration to the dispensation of justice’ under Section 158(2) of the national Constitution, it considers that it does have jurisdiction to entertain this matter and I so hold that view for what I am now about to say.

7. The dispute that gives rise to this proceeding is one of termination of a lease agreement of a certain described property for the stated cause of ‘unpaid rental arrears’. Now that the lease agreement is over, the Complainant seeks to recover his goods and equipment and move out but there is the un-settled issue of the outstanding rental arrears that he has had to settle and likewise, Defendants obviously want to have their rental arrears settled before the Complainant fades away from their sight. To an extent, this case is dual purposed. It serves the Defendants no justice to allow the Complainant to just walk away with his stuff without settling his outstanding accounts with the Defendants and likewise for the Complainant to have the Defendants deal with arbitrarily his goods and equipment by fixing their own values to the goods by a comparative valuation exercise without the Complainant’s input - at the same time bearing in mind the Defendants’ age-old common law right of levying distress on these goods [distrained)(self-help mechanism)] as unpaid land lords. There are pertinent in this case two equally counter-veiling interests of the parties that this Court must balance in order to do justice in the case as the Constitution imposes a duty on this Court under Section 158(2) to give paramount consideration to the dispensation of justice. Even though this Court is not in this instance dealing with interpreting provisions of a Statute, it is generally dealing with and interpreting the relevant law applicable in the controversy presently before it and that in dealing with this matter, this Court embraces the notion of ‘dispensation of justice’ as its central theme.

8. In my humble view under Section 22(a) of the District Courts Act Chapter 40, I consider that this Court does have jurisdiction to entertain this matter to grant the relieves it is requested of purposely to maintain the status quo until matters of substance central to the dispute (rental arrears) have been dealt with. That much and to that extent, I am satisfied that this Court does have the jurisdiction to entertain this matter.

9. The next issue I’d like to consider is whether or not the Complainant is entitled to the relief he seeks in his claim. Going by the facts as borne out from the various affidavit materials filed by both parties annexing copies of the various exchanges, there is this issue of unpaid outstanding rentals which all along in this matter, the Complainant has not disputed but expressed his willingness to settle. The bottom line is that the goods and equipment are his and ordinarily, he is entitled to them which then extends to the argument that he is entitled to what he seeks but for this nagging fact of his undisputed out standing rental arrears. On the other hand, whilst this issue of rental arrears remain outstanding, that fact per se does not automatically entitle the Defendants to deal with the distained goods by way of sale or whatever to recover their outstanding rental arrears especially when the Complainant has all along been expressing his willingness to pay the outstanding arrears as opposed to having have just defaulted and not caring to settle his arrears and just disappears. This Court acknowledges that the parties have exercised restraints and common sense in this matter so far particularly when the Defendants after their unilateral action of stock take and comparative valuations have not proceeded to exercise their common law rights of sale of the items to recover their outstanding rental arrears. That much on the Defendant’s side and on the other side of the equation is the Complainant’s willingness to settle the outstanding rental arrears which I consider to being in their best interests. Ultimately and in the interest of justice and fairness to both parties and whilst the Complainant ordinarily is entitled to the relieves he seeks, his such entitlement as of right must be balanced with the Defendants’ common law rights as unpaid land lords - a landlord and tenant principle of the English common law adopted as part of the underlying law of PNG under Schedule 2 of the Constitution.

10. In my task of dealing with this matter I have balanced both parties’ interests which I consider to be equally counter veiling and consider that in the interests of justice, both parties should be restrained from having anything to do with the goods and equipment contained within the Kofi Haus until the issue of the outstanding rental arrears have been resolved.

11. I note the Complainant’s willingness to settle the arrears whilst the Defendants have as at the date of hearing of this matter not dealt with by way of sale any of the Complainant’s stuff contained within the Kofi Haus in the exercise of their rights as unpaid landlords – hence the position remains the same and this Court is of the view that the status quo must remain maintained until the outstanding rental arrears issue has been dealt with at the parties’ own devices and to their mutual satisfactions each.

12. In the interest of justice and fair play for both parties, the Court orders that;-

1: Both parties each and severally are by themselves, their servants and agents restrained from dealing with by way of sale or removal or whatsoever, interfering with or touching any of the Complainant’s goods and equipment contained within the Kofi Haus conditioned upon negotiation for settlement of the ‘out standing rental arrears’ issue for the subject Kofi Haus.

2: The parties shall have joint access to the subject goods and equipment contained within the Kofi Haus for purposes of carrying out a joint stock take.

3: The parties are to enter into a compulsory conference/negotiation for settlement of the rental issue as it is central to the full resolution of this matter as all other processes from here on can be time-consuming and costly. (Also it is in their best interests to do so as quickly as it is practicable to doing so).

4: Each party bears his/their own costs of this proceeding.

Mr V Cullingan of Counsel of Yayabu Lawyers
Mr W Tovirika for Himself and Other Defendants