Gand v Kepson [2008] PGDC 74; DC760 (9 January 2008)

DC760

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE]

DCCi NO 2008 OF 2007

BETWEEN

JOHN GAND
COMPLAINANT

AND

BEN KEPSON
DEFENDANT

Port Moresby: S GORA
2008: 09 JANUARY

Cases Cited

Statutes Cited

Counsel

DECISION

GORA. S This is an application by complainant way of a Complaint and Summons Upon Complaint for eviction of the Defendant from property described as section 353 Allotment 186 Hohola (Morata).

2. The application is made under s6 of the Summary Ejectment Act ch 202. I have heard submissions from both parties in relation to the application on the 18 December 2007. I have also perused all affidavits and supporting material filed by both parties.

3. It is apparent from the outset that complainant has clear title to the property. All documentary material filed by the complainant shows he had legitimately acquired the property and that the title has been registered under his name on the 27 February 2004.

4. By law he is therefore entitled to invoke the provisions of s6 of the Summary Ejectment Act. Meaning that defendant and his associates are residing in the property illegally.

5. The defendant, however, has raised issues on the validity of the title alleging it may have been acquired fraudulently. He submits he is disputing the complainants title.

6. He further, argued that his interest in the land dates back to 1986 when it was purchased by one MONICA KOS who subsequently allowed him (defendant) to care-take the property.

7. He stated that the land is in the settlement and covered under the Governments Self Help Housing Scheme for Urban settlements under the administration of the National Housing Corporation. (NHC).

8. However the complainant has re-possessed the vehicle and has no intention of returning same to the defendants. In fact both parties have on the 9 August 2006, signed Statutory Declarations to the effect that the complainant was to take back his vehicle and repay back to the defendants what has been paid towards purchase of the vehicle.

9. I view these Statutory Declarations as having cancelled the Memorandum of Agreement. That is the agreement for sale and purchase of the complainants vehicle. The parties have expressed their intentions to call off the transaction. In other words the parties have by mutual consent as per the Statutory Declaration terminated the Agreement meaning that the Agreement has come to an end.

10. Thus in giving effect to the termination of the Agreement the complainant has repaid seven hundred kina (K700.00) back to the defendants with further nine hundred kina (K900.00) yet to be repaid.

11. As the Agreement as already been terminated, the parties by law have now been discharged from any further obligations, past and future arising from the Agreement.

12. I therefore cannot see any reason why this matter has come to this court. In fact records show that this matter had already been previously dismissed by Central District Court, a court of competent jurisdiction, I therefore cannot make a contrary order under the same process.

13. Accordingly I must dismiss this case with costs.

14. Order

1. Case dismissed with costs.