Deki v Rake [2009] PGDC 32; DC879 (15 May 2009)

DC879

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL (GRADE FIVE) JURISDICTION]

GFCi 27 of 2009

BETWEEN:

MALAGEN KOTA DEKI
First Complainant

AND:

PRICILLLA DEKI
Second Complaint

AND:

AMOS RAKE
First Defendant

AND:

NATIONAL HOUSING CORPORATION
Second Defendant

Goroka: G Madu
2009: April 21, 22
May 4, 11, 15

Civil Law - Claim equitable right to continue occupation – seeking order to restrain eviction – Informants not given adequate opportunity to explain - eviction exercise carried out Prematurely – action inhuman and deprivation of right to shelter - longer possession Creates equitable interest – Defendants restrained from evicting the Informants - Informants given possession of the property.

Cases Cited:

Ready Mix Concrete Pty Ltd –v-The State, Samana and Kamba [1981] PNGLR 396
Yogan –v- NOWRA No59 Ltd [1981] PGNC 82, N3375 (16 May)

References:

District Court ACT, S.22 (5)

Counsel:

For the Complainant: In person
For the Defendant: In Person

15 JULY 2009

DECISION OF THE COURT

G.Madu,PM: The Informants instituted this proceeding by taking a Summons Upon Information against the Defendants from evicting them from the property describe as Allotment 31 Section 15 West Goroka

2. The Complainants are the occupants of the house on Allotment 31 Section 15 West Goroka whilst the First Defendant is an employee of the Second Defendant.

3. The facts that are not disputed are that the informants took residency in 1996 and did not sign such document as Tenancy Agreement and Salary Deduction Authority. The Informants have been living for twelve years

4. The facts that are in disputes are that the Informants have not paid their rentals since 1996 and these have accumulated to arrears of K5798.00. However the Informant claims that during his employment with Civil Aviation Authority (CAA ) in 2006, his pay slip showed that deductions were being made for Housing Rentals.

The Informants also stated that they did visited the National Housing Corporation Office to see the officer regarding the property which is the subject of this proceeding but there was no officer available to see. This made it difficult to formalise the Tenancy.

5. The Informants submitted that the action taken by the defendant was without authority as no prior notice was ever given before fourteen days final notice. Although the meeting was held with the First Defendant when relevant documents in Informants possession were given pertaining to the House in question for their acknowledgement, defendants still pesued to issue fourteen days final notice. The Informant submit that they have documents in their possession to prove to the court that they did make payment to the National Housing Corporation but are disadvantaged by being locked out of the house with all their personal properties.

6. The Defendants claim that the Informants were all this time illegally living in the house and did not legalised the tenancy. No rental of K23.00 was received from the Informants and this accumulated to K5,798.00. On 10th February 2009, 14 days notice was issued but they failed to respond. The First Defendant made three (3) phone calls to remind the Informants and further six (6) days were given again. When they failed to respond positively action was taken to lock up the property.

7. The Informants are seeking orders to restrain the Defendants from evicting them from the house under Section 22 (5) the District Courts Act. It states “Subject to this section, a court has jurisdiction when

(a)........

(b) The cause of action wholly or partly arose; or

(c)..........

8. The issue is whether the Defendants had acted properly to evict the Informants from the premises?

9. I accept the argument advanced by the Defendants that the Informant took up residency of the property Allotment 31 Section 15 without formalising Tenancy Agreement in 1996. It is true that the National Housing Corporation has the title to the property.

The Informants stated that they had made some attempt to sort out this problem but all their attempts failed because either the office was closed or the officer was not been appointed and this delayed the Informants to get the documents in order.

10. In situation that the Informant is in, the defendant has failed to consider their situation when they have lived in the house for twelve years and all of a sudden National Housing Commission decides to evict them .The action by the defendants to lock the informants out is inhuman and deprive them right to proper shelter. The court is satisfied that the Informants having lived in the property for twelve years have established equitable interest in the property. The Informants therefore have equitable right to right to possession as held in Ready Mix Concrete Pty Ltd -v- The State, Samana and Kiamba [ 1981 ]PNGLR 396. Again in the case of Yagon –v- Nowra No.59 Ltd [2008] PGNC 82, N3375 (16 May 2008), It was held that long possession create equitable interest.

Accordingly the Defendants are restrained from evicting the Informants or alternatively if the Defendants have evicted the Informants from the premises Allotment31 Section 15, the Defendants to allow the Informants to take possession of the property forthwith and to be given opportunity to finalise purchase and transfer.

___________________

Lawyer for the Complainant - In Person
Lawyer for the Defendant - In Person