Niugini Express Development Consultant Ltd v Mason [2008] PGDC 30; DC696 (26 May 2008)

DC696

PAPUA NEW GUINEA
IN THE DISTRICT COURT AT VANIMO

CI NO: 48/2008

BETWEEN:

NIUGINI EXPRESS DEVELOPMENTCONSULTANT LIMITED
Complainant)

AND:

EKO MASON
(Defendant)

DECISION

26, May, 2008.

ARUA. This matter came about by way of Summary Ejectment Act instituted by the complainant seeking orders against the defendant to recover possession of the property described as Section 19, Allotment 5, township of Vanimo, West Sepik Province.

The facts are as follows.

The complainant is a company duly incorporated under the laws of Papua New Guinea and can sue or be sued in its name, style and capacity.

The defendant is an adult natural person and can also sue and be sued.

On 13 December, 2007, the complainant company purchased from Becil Holdings Ltd (In liquidation) property described as Section 19, Allotment 5, town of Vanimo for an amount of K285, 000.00. In consideration of the purchase price being paid Becil Holdings Ltd executed a transfer document transferring the title to the property to the complainant.

Since the payment of the purchase price and obtaining the title, the complainant’s officers had been trying to gain entry and have access to the property but had been prevented by the defendant from doing so. Several verbal notices and personal approaches by the management of the complainant company and even a letter from the Clerk of Vanimo District Court had been unsuccessful. As a result of the defendant's refusal to vacate the property, the complainant filed for orders from the Court under section 6 of the summary Ejectment Act chapter No. 202.

During the hearing the defendant raised the following reasons for his continued occupancy.

Firstly, he had been occupying the property for the past six years without any objection from anyone let alone the complainant for that matter.

Secondly, he stated that the former owner, Becil Holdings Ltd was their landowner company and he had been put in there to take care of the property.

Lastly, when the property was sold by the liquidator the local landowners and shareholders of Becil Holdings Ltd were never informed. The liquidator never called a meeting with them to decide which assets and properties were to be sold and which were to be retained.

Basing his argument on the above grounds he had asked the court to allow him to remain in the property and have this case adjourned to give him time to engage a lawyer to defend the building.

Upon consideration of the evidence and the grounds put forward by both parties in support of their claims I make the following observations.

In this type of cases a complainant need only establish that he has a valid title over the property concerned. Once such a title has been produced and established a complainant is entitled to be granted the orders he is seeking. Whether such title was lawfully obtained or through some improper and illegal means such as fraud, that is a matter not for this court to dwell into. He who alleges that a title to a property was obtained through illegal means or fraud must file separate proceedings in the appropriate forums such as the National Court to establish his allegations and nullify a particular title.

As it relates to this matter, I am satisfied that the complainant company has a valid title over the property and therefore the ownership of it. Consequently, it is entitled to gain entry and have access to the property to conduct its business without any interference from anyone including the defendant.

The defendant’s claim that he had been occupying the property for the last six years and therefore he may have acquired some right over it has no basis in law.

In fact his initial occupancy or the circumstances that put him in the property must be considered to ascertain his claim.

Having considered the defendant’s evidence it has become clear that either he decided to move into the property on his own accord in his capacity as a member of the local landowner group or, he was authorized to occupy the property by the management of the former owner, Becil Holdings Ltd to look after the property.

If he moved into the property on his own accord then, it is clear that his continued occupancy had been illegal from the beginning and he must vacate it. If he was put in there by the management of Becil Holding’s Ltd in their capacity as former owners their authority Over the property ceased at time of sale of it to the complainant. Consequently, the authority given to the defendant if ever he was put in there by them ceased to have effect and therefore he must vacate the property now.

If the defendant is basing his argument for his continued occupancy on lack of consultation by the liquidator before the property was sold it is my view that he take that up with the liquidator if he wishes. I also think that a liquidator normally has the authority to deal with a company’s assets where a company or a business is being liquidated or closed down and its properties or assets sold and the proceeds divided up and used to pay its debts. The liquidator in such circumstances is not obliged to consult the shareholders every time to get their permission to decide which assets should be disposed off.

Having considered the above, I am satisfied that the defendant has being in occupancy of the property at Section 19, Allotment 5, Vanimo, West Sepik Province without any right, title or licence, Even if he had any excuse to occupy the property under the authority of the former owner, Becil Holding Ltd, the authority ceased to have effect when the property was sold on 13 December, 2007, unless the management of the complainant as the new owner had agreed for him to continue staying in there.

In conclusion, the complainant as the owner of the property in question is entitled to take possession of it and use it free from any interference from anyone including the defendant. The continued possession and occupancy by the defendant, his servants or agents is clearly contrary to law and therefore illegal.

Accordingly, the defendant his servants or agents or anyone residing in the property under his permission or authority is hereby ordered to vacate the property described as Section 19, Allotment 5, town of Vanimo, West Sepik Province and give vacant possession of the same to the complainant within two weeks as of today.

Orders accordingly,

Complainant: Represented by Mr. Tjong
Defendant: In person