Allan v Yanda [2008] PGDC 133; DC858 (19 December 2008)

DC858

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

DCCi 206 of 2007

BETWEEN

LIM ALLAN
(Plaintiff)

AND

JAMES YANDA
(Respondent)

GOROKA: G VETUNAWA
2008: July 15, 29
August 18
September 2, 29
October 14, 21
December 19

Cases Cited:

(1) Herman Gawi –v- PNG Ready Mix Concrete Pty Ltd [1984] PNGLR 74
(2) Tony Yandu –v- Peter Waiyu (2000) N2894

Reference:

(1) Section 6 Summary Ejectment Act 1952

Counsel:

Plaintiff: G. Gendua of Gendua Lawyers
Respondent: In Person

JUDGEMENT

G Vetunawa Magistrate: This is an application for ejectment of the respondent from the property comprising of a house and land described as Section 61, Allotment 33 at Lopi in the town of Goroka in the Eastern Highlands Province. The application is made under Section 6, Summary Ejectment Act.

2. Facts:

The said property comprising of a house and land was originally owned by the National Housing Commission. The legal tenant was the late Johnson Waalui.

3. On the 11th January 2008, the eldest daughter of late Johnson Waalui, Mrs. Jessy Tamgoi entered into an agreement to sell the property to Mr. Lim Allan for K10, 000.00. The buyer Mr. Lim Allan increased the sale price to K15, 000.00 which he paid. After paying the K15, 000.00 cash Mrs. Jessy Tamgoi did not let him possess the property for different false excuses. At the same time Mrs. Tamgoi was looking for a second buyer secretly using her associate Mr. Edward Titie to lure a second buyer. Mr. Titie then found the second buyer Mr. James Yanda a helicopter pilot with Pacific Helicopters. The sale price quoted to the second buyer was K45, 000.00 which he paid by cheque. Clearly Mr. Tamisai and possibly Mr. Titie had fraudulent intent when dealing with the second buyer. This needs to be investigated by the police. Mr. Titie facilitated the sale to the second buyer which indicates he must have known about the fraudulent intent.

4. After receiving the cheque of K45, 000.00 from the second buyer she let him possess the property. Then the first buyer found out and confronted the seller and the second buyer. Mrs. Tamgoi refunded K9, 000.00 to the first buyer leaving the balance of K6, 000.00 remaining. After that Mrs. Tamgai took off to Rabaul without solving the problem she created by her criminal fraudulent intent.

5. Issue:

The issue is whether the plaintiff Mr. Lim Allen has clear title to the property which would qualify him to seek remedy under section 6, Summary Ejectment Act?

6. The Law:

Section 6 Summary Ejectment Act reads as follows;

Recovering of premises held without right etc.

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

(2) Where the person summoned under subsection (1) –

(a) does not appear before the District Court at the time named in the summons or 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 complainant issue a Warrant directed to a member of the police force requiring him on or before a day specified in the warrant

(b) to enter by force and with assistance if necessary into the premises and

(c) to give possession of the premises to the complainant.

7. This section 6 Summary Ejectment Act is empowering the District Court to issue the order sought if the complainant is proven. The evidence needed to prove the complainant is the tendering to the court a document of clear title to the property.

8. According to the case of Herman Gawi –v- Png Ready Mixed Concrete Pty Ltd [1984] PNGLR 74, Section 6 Summary Ejectment Act is only available to the complainant who possess clear title to his property and not to cases where the title is in dispute. In this case the court defined the owner as one who has clear title and can sue under Section 6 Summary Ejectment Act to get quick remedy. Also in the case of Tony Yandu –v- Peter Waiyu (2000) N2894 it was held that:-

“In circumstance where a person has a registered proprietor of a state lease and no formal steps had been taken to disturb that title and no bona side dispute the District Court could make order under section 6 Summary Ejectment Act.”

9. Application of Facts to the Law.

It is clear under these two cases cited above that a plaintiff seeking remedy under Section 6 Summary Ejectment Act, must have a clear title to his property. In this case both parties do not have clear title to the said property. Both have paid money to the seller under fraudulent circumstance created by the seller.

10. Therefore the remedy under Section 6 Summary Ejectment Act is not available to the plaintiff as well as the respondent. They can not sue each other under Section 6 Summary Ejectment Act. There has to be other cause of action to solve the problem created by the seller to both parties.

11. Accordingly case is dismissed and the respondent be discharged.

________________

Counsel:
Plaintiff: G. Gendua of Gendua Lawyers
Respondent: In Person