Ambura v Nanua [2008] PGDC 136; DC987 (19 December 2008)

DC987

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

DCC NO 239 of 2008

BETWEEN:

LEO AMBURA
Complainant

AND:

STANLEY NANUA
Defendant

Madang: E Wilmot

2008: 19 DECEMBER 2008

CIVIL - Summery Eviction Act: S 6 owner has right to evict tenant- Complainant has no title to the property – interest was maintained – evidence he is recognised tenant of property

CIVIL – Cross Claim – Defendant raises claim on cost incurred to maintain House – No evidence of actual expenditure on Property – Claim must fail

Cases Cited
No cases Cited

References
Summery Ejectment Act

Counsel
Complainant Appears In person
Defendant Appears in Person

FACTS

1. E Wilmot DCM: This matter comes before this Court by way of Section 6 of the Summery Ejectment Act. The Complainant is exercising his right as the owner of the property known as Section 50 Allotment 2 Nabasa Madang (hereafter referred to as the Property).
   
2. On the 29 of February 2008 his worship granted exparte orders in favour of the Complainant. The Orders granted were:
   
3. This order was then set aside by myself on 17 November 2008 and set the matter down for trial. Parties were directed to file further affidavits and evidentiary evidence. The matter was returnable on the 4th of December 2008.
   
4. On the 4th of December the matter came before Mr. Kuri who gave further directions to file more affidavits.
   
5. The matter came for mention of 17 December 2008. By consent the parties closed pleadings. They further consented to allow the presiding magistrate to hear the matter by way of affidavit materials.
   
6. There was no indication by parties that they wanted to cross examine any of the deponents that provided affidavit evidence.
   

ISSUE

Whether the Complainant has a right to exercise his right over the property?

THE LAW

7. Section 6 of the Summery Ejectment Act reads:
   

(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

(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 assistants if necessary, into the premises; and

(d) to give possession of the premises to the Complainant.

8. The Defendant claims is that the Complainant had left the property to him because he was he could not maintain the property. That when he moved in he started maintaining the property. The state of the property now is a result of his maintenance work.
   
9. This is supported by the one supporting affidavit of the Defendant’s sister. She claims that the property was left to the Defendant buy the Complainant when he moved to Bogia to take up a new position.
   
10. The court notes that this agreement was verbal and thus there is no written evidence of this.
    
11. The Defendant has claimed that he has spent a considerable amount of money amounting to K15400.00 there is no evidence of this before the court.
    
12. The Defendant’s Cross-Claim highlights this.
    
13. The cross claim made by the Defendant has an affidavit I support. The affidavits have actually receipts of how much the Defendant cross claimant is claiming.
    
14. I highlight that the Complainant has not brought a Defendant against the cross claim.
    
15. I highlight this fact because for the very reason that there is no evidence supporting his claim
    
16. On that basis the defence and cross claim must fail. This does not render the claim void it just means that he will need to file fresh claim.
    

THE PROPERTY

17. The Complainant has filed three affidavits annexing documents that show he has an interest in the Property.
    
18. The Complainant entered into an agreement with NHC dated 26 October 2000. It appears that the Complainant is the recognised custodian of the property in the eyes of the National Housing Corporation (NHC).
    
19. Further even if there was an agreement between the Complainant and the Defendant and for the later to take possession of the Property upon the former leaving for Bogia, this agreement would be void.
    
20. This is because NHC in most of its leases to let prohibit sub-leasing. Any sub leasing made by a tenant without the consent of NHC is void. There is usually a clause to that effect in NHC agreements.
    
21. If the property has not been purchased then it would revert back to NHC into its pool of houses for releasing to other public servants.
    
22. In closing I find that Complainant has shown that his interest in the property is still current. Although he is not the owner does not hold a title to the Property, his interest carries through. It is therefore within his right to apply to evict the Defendants under section 6 of the Summery Ejectment act.
    

COURTS FINDINGS

23. This court finds for the Complainant and orders :
    
    1. The Defendant’s Cross-Claim is struck out.
       
    2. The Defendant to vacate the said property by 20 January 2009
       
    100. The Defendant be refrained from removing any fixtures
         
    4. Further if by the 20 of January 2009 the Defendant fails to vacate the property this court empowers the members of the Royal Papua New Guinea Police Constabulary to enter the premises and take possession of the same for the Complainant.
       
    5. Parties pay their own cost
       

Dated this 17 December 2008

Ernest Wilmot
DCM

Counsel

Complainant Appears In person
Defendant Appears in Person