Kila v Kiare [2007] PGDC 161; DC834 (4 October 2007)

DC834

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
CIVIL JURISDICTION

PMDC NO: 1890 OF 2007

KALA KILA
Complainant

LIKOT KIARE
Defendant

Port Moresby: Pupaka, PM

2007:4th October

Civil proceedings – Eviction proceedings – Summary Ejectment Act – Complainant has apparent title – Eviction order under Ejectment Act otherwise permissible.

Eviction proceedings – Proceedings defended on equitable grounds – Eviction orders likely to prejudice an apparently arguable case based on a equitable right of first option to refuse that seems not to have been afforded to the defendant – National Court Review proceedings already afoot to challenge issue of title – Eviction orders if granted likely to prejudice National Court proceedings – Fairness and equity considerations – An adjournment of the proceedings to give a real opportunity to the defendant to at least obtain leave for Review in the National Court and or obtain stay of this eviction proceedings appropriate and proper in the circumstances – Three months adjournment is reasonable time.

Mr. R. Kuai for the Complainant
Mr. E. Andrew for the Defendant

4th October 2007

M. M.PUPAKA: For the record I wish to set out brief reasons for a ruling I delivered this morning. I need to do this, i.e., record the reasons, particularly considering the somewhat unconventional manner followed in reaching the decision to adjourn this proceeding, which actually equated with granting a temporary relief of sorts for the benefit of the defendant.

This matter is still pending and no conclusive findings of facts have been made as yet. Therefore it is undesirable to dwell too much on any ‘facts’ as such. What is on file are really only pleadings and mere assertions at this stage and so they will remain that way for the time being. Moreover I have been careful not to read the affidavit materials filed by both parties. I only perused the pleadings in the statement of claim and the extra information that I directed the complainant to disclose as part of her pleadings.

Nevertheless I must state what I now perceive to be the relative position of the parties and their rights over a certain property, the subject of this proceeding, on the bases of the parties’ pleadings:

The complainant commenced this suit to obtain eviction orders against the defendant. She is seeking to have him evicted from the premises described as Section 39 Allotment 47, Boroko, National Capital District. The complainant seems to have title over the property. She has pleaded the fact that she has title and has in fact filed a copy of that title.

The defendant seems to have been a long term tenant over the property. As I understand he has had a valid tenancy agreement with the National Housing Corporation (NHC) for a long time.

It is also apparent that the complainant obtained title over the property in 2000, after the execution of a contract of sale between herself and the NHC. In relation to properties such as the one now in question, as a matter of law and practice the NHC is usually vested with the original possessory title for and on behalf of the State.

The complainant’s initial interest over the property, prior to obtaining title, is uncertain. In fact I directed the complainant to disclose the pertinent facts, for the limited purposes of a preliminary ruling, but it has not been fully disclosed. For instance the complainant does not say whether she became interested in the property as a result of a advertisement for sale by the NHC or whether she negotiated purchase whilst participating in one of the schemes of the NHC, such as in its mortgage purchase scheme, or whether she was asked by the NHC to buy the property because she was a entitled person by reason of her being a serving public servant. No such information is provided or pleaded to indicate how or why the complainant had a better or overriding right to the property, particularly so as to entitle her to be the first person asked by the NHC to buy off the property. This sort of preliminary information was specifically directed to be disclosed up front by her but she has failed to do that.

More importantly the defendant seems to have been unaware of the negotiations to sell and buy between the NHC and the complainant. Equally important is the fact that the defendant was a lawful tenant of the NHC over the property during those negotiation periods. The place was sold without the knowledge of the defendant. I am led to believe the defendant was always entitled to be asked to purchase the property for himself by the NHC, both as the current tenant and perhaps as a person entitled to participate in one of the NHC’s housing schemes. I am further led to believe the defendant always had a solid first right of refusal, to buy the property, if the place was to be sold off. I am informed that he was never afforded the opportunity to exercise that right of option.

The defendant was formally informed that the property he occupied was no longer NHC property some years after the transfer of title to the complainant was complete; not by NHC who was his landlord, but by the complainant. After grant of title eviction orders were not sought for a relatively long time. I say that because under any circumstances a property owner would not just buy a house and allow free use of it by a stranger for years, not without rent or some other consideration. A reasonable person would have asserted his or her rights quickly. No convincing reasons are now pleaded as to why there were no definite moves to possess a valuable property for a long time. In the circumstances I am inclined to think the possibility that the complainant may not have wanted the defendant to move to void the grant of title by asserting his rights in the courts is one likely reason why eviction was not sought any earlier by the complainant.

The defendant has asserted that he has never defaulted in paying the rent. It is not conclusively clear at this stage but presumably there is rent still being paid by the defendant to the NHC on the strength of the tenancy agreement between him and the NHC, even as this proceeding is afoot, and more so even years after the property was sold off to the complainant.

For the record, no one has alleged fraud here and in my view, for the current purposes, it would not have been necessary to raise or plead fraud in defence of an eviction proceeding in this Court.

However an issue that stands out is the abject unfairness manifested against the defendant, particularly due to the secrecy involved in the dealings of the complainant and NHC. The apparent irregularities, particularly on the part of the NHC, must be a case for grave concern. Sadly though, the story unfolding here is just one of many in relation to NHC properties not only in Port Moresby but all over the country. This Court is continuing to deal with a relatively high number of cases like this instant one. Consequently one may be prompted to say that the pathetic behaviour of those who constitute the NHC top echelon is completely unacceptable in a vital government entity.

In saying that one must also be quick to add that, until title is voided one way or other, the complainant still has the benefit of apparent title and is fully entitled to vacant possession of her property on the bases of clear title.

However, in the circumstances of this case the defendant stands to be severely prejudiced if no opportunity is given to him to have the circumstances under which his equitable rights were disregarded, reviewed. He ought to be allowed a real opportunity, particularly by a relatively long adjournment of this proceeding, to have reviewed the circumstances under which his rights were denied and have reviewed the process by which title was granted to someone other than him.

It may yet be the case in the end that the defendant is informed that his rights would lie in damages only and not in the property. Then again he may be granted the orders he hopes for. As I said the defendant has an arguable case, which is sufficient for the moment. All that matters now, regardless of how things may fan out in the end, is that the defendant deserves an opportunity to be allowed to have an audience before the right forum. To not afford him that opportunity would be to deny him the justice that he is entitled to.

On the other hand an adjournment would not irreversibly prejudice the complainant. In any case it wound not be overly prejudicial to her, any more than to the extend she has already allowed herself to be, particularly by not asserting vacant possession sooner through eviction proceedings. Whereas the complainant wasted years to commence eviction proceedings, the defendant’s Review case in the National Court, which incidentally has been commenced as OS. 567 of 2007 would be determined more quickly.

As I said in court this morning, three months is reasonable time. Within that time the defendant would cause his Review proceeding to be listed for the relatively easy process of obtaining Leave. Chances are, if Leave to Review is granted, the Court granting Leave would be minded to grant a stay of this instant eviction proceeding. All the defendant need do is to ask the Court above for an order to that effect. Then again leave may not be granted, in which case the outcome of this current proceeding would be surer and hopefully there would be no need for a protracted hearing and eviction orders maybe granted as a matter of course.

For all the foregoing I order that this proceeding is adjourned to 7th January 2008 at 9.300AM for a general mention of it. Costs shall be, for the time being, costs in the cause.

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Posman Kua Aisi Lawyers for the Complainant
Eremas Andrew Lawyers for the Defendant