Rumbia v Uru [2006] PGDC 2; DC227 (6 January 2006)

DC227

PAPUA NEW GUINEA
[In the District Court of Justice]

CASE NO 379 OF 2004

BETWEEN

Leonard Rumbia
Complainant

V

Nina Uru
Defendant

Counsel
For The Complainant: Mr. Andrew Kongri
For The Defendant: Ms. Dademo

Port Moresby: Gauli, Apm
2005: June 08th, September 13th; December 06th
2006: January 06th

DECISION OF THE COURT

GAULI, APM: In this action the Complainant sued the Defendant to evict her out of the property described as section 231, Allotment 48 Tokarara (Hohola), National Capital District for illegally in possession pursuant to section 6 of the Summary Ejectment Act. That provision states and I quote:

"6 Recovery of premises held without right, etc

(1) Where a person without right title or licence is in possession of a 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 possession.

(2) Where the person summoned under subsection (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 the proof of the matter of the complainant issue a Warrant directed to a member of the Police Force requiring him, on or before a day specified in the warrant-

- to enter by force with assistants if necessary, into the premises
- to give possession to the Complainant."

The Brief Facts

The Defendant Mrs. Nina Uru currently resides at the subject property, Section 231 Allotment 48, Tokarara, N.C.D. since 1977 for 28 years. The said property was owned by the National Housing Corporation (NHC). Mr. Gini Uru was the tenant then. In early 1970s the N.H.C. put up the property for sale through their home give-away scheme at a price of $A 4, 788.00 Mr. Gini Uru applied to buy and his application was approved. The property was transferred to him (Mr. G. Uru) on 10th May 19777. He was paying A$39.94 every month to the NHC.

In mid 1976 the Defendant and her late husband Bumu Toea, asked Mr. G. Uru if they could move into the property as they were facing accommodation problems. Mr. G. Uru being a nephew to late Bumu Toea allowed them to move in as Mr. G. Uru was given the accommodation at Gordons by the Government because of his seniority in the government. Mr. Uru left public service in 1986 and vacated his Government provided accommodation and went to settle at his wife’s village at Hanuabada. Mr. Uru could not remove the defendant and his family out of the subject property due to his close family ties with the defendant’s late husband Bumu Toea.

In 1977 the property was registered in Mr. Gini Uru’s name. He has an indefeasible title to the property since then.

In August 2004, Mr. Uru sold the property to the complainant Mr. Leonard Rumbia at the price of K65, 000.00. Mr. L. Rumbia purchased the property by obtaining a bank loan of K65, 000.00 from the Bank of South Pacific on a Housing Loan Account No. 10010003148 on 18th August 2004. The title was transferred to Mr. L. Rumbia on 19th November 2004 and mortgaged to the BSP on the same day. Currently the property is on mortgage to the BSP and the defendant is still in possession of the property.

These facts as stated above are not disputed. Basically the above facts are the evidence for the complainant. The Complainant holds the title to the subject property and that is not disputed.

The defendant’s contention is that when the defendant moved into the said property in 1977 the defendant was paying the rental purchase payment until the payments were completed in 1992. these payments, were acknowledged by the National Housing Corporation (NHC) but the N.H.C failed to change the name of the tenant despite numerous request by the defendant.

Mr. Gini Uru gave evidence that when he allowed the defendant and her husband to move into the property the defendant and or her late husband Bumu Toea have agreed to pay the rental purchase payments on behalf of Mr. Gini Uru to the N.H.C instead to directly paying rent to Mr. Gini Uru.

I find the evidence of Mr. Gini Uru as a satisfactory explanation. The fact that the defendant and her husband were paying the rental purchase payments direct to the N.H.C did not give them the right of ownership to the property. They were merely paying the rental purchase payment on behalf of the owner Mr. G. Uru as they were been allowed by the owner to reside on the property.

The owner Mr. Gini Uru had sold the property to the complainant Mr. L. Rumbia and the title had been effectively transferred to him, I find that the defendants continuous occupation of the property to be unlawful or without right, title or license. The Complainant has the right to exercise his rights under the section 6 of the Summary Ejectment Act.

Accordingly this court orders that the defendant to vacate the said property namely Section 231 Allotment 48 Tokarara, NCD within 14 days from the date of this order, and the complainant to take possession from there on.

The court further ordered the defendant to be restrained from causing any damage to the property.

That there be costs for the complainant.

...............
M. GAULI
Magistrate