Jopam Ltd v Taptel [2009] PGDC 67; DC890 (1 September 2009)

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

CIVIL LAW: Claim for recovery of possession on determination of lease and recovery of premises when rent in arrears pursuant sections 3 and 4 of Summary Ejectment Act.

PRACTISE AND PROCEDURE- Credibility and weight- evidence by affidavit- assessment of credibility- necessary to determine which of the witnesses and their evidence are credible before making a finding of the relevant facts- Logic and common sense play important role in addition to serious and irreconcilable inconsistencies.

PRACTISE AND PROCEDURE- Belated challenge to document tendered as evidence- no objection raised by defendant pursuant to section 35.2 of Evidence Act ch.No.48 –All available issues must be raised when the opportunity is first available – Failure to do so
- Effect of defendant precluded from raising &re-agitating the issue.

PRACTISE AND PROCEDURE-submission from bar table by counsel amounting to giving evidence cannot be accepted as evidence at all.

PRACTISE AND PROCEDURE- he who asserts must prove. Failure to do so is to his own peril.

Brown vs. Dunn[1893] 6R 67(HL)
Douglas & Co (Insurance) Pty Ltd vs. Economic Insurance [1951] 68WN (NSW) 225
Shaw vs. The C’Wealth of Australia [1963] PNGLR 119
Supreme Court Ref.No.4 of 1980 (No 2) [1982] PNGLR 65
State vs. Nae [1996] N1474
Ombudsman Commission vs. Justice Sakora, Messrs Manuhu & Karapo & Paul Pora [1996] N1720
Lufa Open Electorate; Wasege vs. Karani[1998] N1679
Bank of Hawaii (PNG) Limited vs. Papua New Guinea Banking Corporation & Ors [2001] N2095
Igiseng Investment Ltd vs. Star West Const [2003] N2498
In the matter of Andrew Kumbakor[2003] N2383
State vs. Saku (No 2) N3283(05th /12/06)
Balbal vs. State [2007] Sup. Ct
Kolta Development Pty Ltd& Ors vs. The State & Ors N1470

The following abbreviations appear in the judgment.
AG/MT .......... Agreement
COMPLT ....... Complainant
COY ............. Company
DEFT ........... Defendant
PARA .......... Paragraph
N ............... National Court
SC .............. Supreme Court
RESP .......... Respondent
PNGLR ....... Papua New Guinea Law Reports
MD ............ Managing Director
D/TOR ....... Director

2. The complainant is seeking to recover the possession of its property known as Unit 2, Section 17, Allotment 5, Madang.

3. The complainant’s action is pursuant to sections 3 and 4 of the Summary Ejectment Act. Chapter No. 202.

You continue to occupy the complainant’s property without paying monthly rental of K2625-00 with current outstanding rentals owing at K26, 250.00 and after notices verbal and written were given to you in December 2007 and September of 2008 after determination of the verbal Lease Agreement of November 2004.

5. This complaint was registered with the Madang District Court Registry on 12th June 2009.

6. This matter was originally instituted on the 11th March 2009 and it has gone through various stages of deliberations from then until today, a period of close to six (6) months.

- Original Summons to Person Upon Complaint Dec – filed on the 11th March 2009 together with a notice of Motion and supporting affidavit of May Poe Pitpit.

- The Notice of Motion of the complainant was dealt with on the 26th March 2009 by his Worship, Mr. Wilmot who issued ex parte orders in favor of the complt retraining the defendant.

- On the 02/04/09 the deft filed a Notice of Motion seeking to set aside the Court’s orders of the 26th/ 03/09 and set down the hearing of the substantive matter to the 30/004/09 at 9:30am.

- NB When the substantive matter was filed on the 11th March 2009 it was set for mention on the 21/04/09.

- On 21/04/09 – both parties appeared before Mr. Wilmot with Akuani Lawyers appearing for the Complt. Mr. Akuani requested that the trial be brought forward. The Court ordered that the matter be adjourned to the 23/04/09 for mention at 9:30 am before Mr. Sareng.

- On 23/04/09 both parties appeared before Mr. Wilmot. Mr. Akuani was absent on a trip to Port Moresby. Both parties consented to adjournment to 06/05/09. Mr. Wilmot ordered the matter adjourned to 06/05/09 at 9:30 am before Mr. Sareng.

- On 06/05/09 Mr. Wilmot presided over the matter, Mr. Akuani appeared for the complt and Mr. Bob Waipek of Kunai Lawyers appeared for the defendant. The court ordered both parties to attempt to resolve the matter out of court. Further that if this failed then matter to be returned for hearing. Matter adjourned to 18/05/09 for mention for both parties to inform Court of progress of settlement.

- At this juncture of proceedings I was handed the court file and instructed by Mr. Sareng to preside over the matter.

- On 18/05/09 I presided over the matter and was informed by the deft that Mr. Waipek had resigned from Kunai Lawyers and he needed time to engage another lawyer.

Mr. Akuaini stressed that his client needed a speedy disposal of the matter .Court adjourned the matter to 27/05/09 for mention so defendant could inform the Court on his endeavors to engage a lawyer.

- On 27/05/09 I presided over the matter with Mr. Akuani appeared for the complt. Court received letter from Kunai Lawyer requesting a two week adjournment to have a replacement lawyer in their Madang office. Mr. Akuani objected and appealed for costs of the adjournment if it were to be granted. Court inquired about the matter about the orders of Mr. Wilmot for resolution out of court but was informed by both Mr. Akuani and deft of the failure of this. Court adjourned the matter to 09/06/09 at 9:30 am for trial and secondly costs of the adjournment awarded to the complt.

- On the 09/06/09 I preside over the matter and inquired with the deft about his lawyer and was informed by the same that he was supposed to have arrived from Mt. Hagen yesterday but had not. Court informed Mr. Akuani of new Practice Directions issued by the Senior Provincial Magistrate, Mr. Seneka and that he was required to file a new complaint and Summons to a person upon complaint and adjourned the matter to 16/06/09 at 9:00 am for trial as requested by Mr. Akuani to allow him time to comply with the new Practice Directions. Court informed Mr. Akuani that the matter.

- On 12/06/09 the complt through counsel, Mr. Akuani filed new complaint and summons and set to 10th June for mention.

- On 16/06/09 I presided over the matter with Mr. Akuani appeared for the complt. Deft appeared without counsel. Deft informed that his lawyer was here from Mt. Hagen and he needed to discuss this new summons with his new lawyer. Court decided that because the new complaint and summons were short served, the summons was extended to Friday 19/06/09 for the substantive matter with to be dealt with.

- On 19/06/09 Mr. Akuani appeared for the complt, Mr. Nekents Tombe appeared for the deft and requested a two week adjournment as he had just arrived in Madang and had to attend to National Court matters and needed time to peruse the defendant’s file. Court adjourned the matter to 03/07/09 for mention with costs to the complt.

- On 19/06/09 Mr. Akuani filed an urgent ex parte application which set for hearing on 22nd June 2009

- On 22/06/09 because of the Senior Provincial Magistrate’s practice directions on all urgent applications and it was given to deal with and he set it aside adjourning the matter to 03/07/09 for substantive matter to be dealt with.

- On 30/06/09 Kunai Lawyers filed a notice of Motion seeking to have the complt’s statement for want of form, and alternatively for being frivolous and vexation.

- On03/02/09 I presided over the matter. Matter adjourned to 13/07/09 because of defendant’s notice of motion short served on the complt.

- On 15/07/09 I presided over the matter. Matter adjourned due to non availability of Mr. Tombe due to National Court duties. Matter adjourned to 16/07/09 for defts Notice of Motion.

- On 10/07/09 I presided over the matter. Court had just received complt’s submission but not defts. Matter adjourned to 20/07/09 for ruling.

- On 22/07/09 I presided over the matter the deft’s Notice of Motion was dismissed. Matter adjourned to 22/07/09 for substantive to proceed.

-.On 22/07/09 I presided over the matter. and Mr. Tombe for deft didn’t appear due to sickness. Court ordered that Kunai Lawyers file his medical certificate by this afternoon and matter set to 27/07/09 for substantive matter to proceed with or without Lawyer for deft.

- On 27/07/09 I presided over the matter. Both Messrs Akuani and Tombe present. Court noted that affidavit from both parties filed in support of the complaint and Notice of Motions. Court queried whether deft relied on the affidavits and Mr. Tombe replied that his client relied on these affidavits filed already. Court asked both counsels if any of the deponents of any of the affidavits were required for cross examination to which both counsels replied in the negative. Therefore Court asked further if both counsels were closing their respective cases to which they both replied in the affirmative.

- Court then ordered that written submissions be filed by both counsels by 06/08/09 oral submissions thereafter.

- On 06/08/09 I presided over the matter and noted that there was a written final submission for the complt on file but none from the deft. Court proceeded to hear oral submission from Mr. Akuani and followed by oral submission from Mr. Tombe. Matter adjourned to 20/08/09 for decision at 9:30 am.

No	Description	Contents
1	Affidavit of Mary Poe Pitpit 29/01/09	States that the deponent is the MD of the Complt/coy and her knowledge of the relationship between the Complt/coy and the Deft
2	Affidavit of Ninipe Taptel. Deft 2/04/09	States that he had a verbal Ag/mt with the Complt/coy to rent the latter’s property in November 2004 to operate a kaibar.
3	Affidavit of Ninipe Taptel. Deft 29/06/09	Repeats what he attested to in his 02/04/09 affidavit and adds new names.
4	Affidavit of N Tombe	States matters relating to Deft’s second Notice of Motion

8. The evidence adduced for the complt in this trial composed basically at the affidavit of Mary Poe Pitpit of the 27/01/09.

She was the present Managing Director of Jopam Limited who is the registered properties of the property described as unit 2- section 17 Lot 5, Madang.

٠The complt is a family company in which she is a share holder/Director and was appointed as the Managing Director in 2004.

٠In 2006 they held a company resolution and agreed to the removal of Peter Poe deceased (brother) and John Baptist Poe (father) due to his disability, as Directors.

٠She was aware that the complt and deft did enter a verbal periodic lease agreement on one monthly basis and / or at a rate of K2625-00 per month with the complainant reserving the right to terminate and /or have the lease determined at its will or option.

٠She was also aware that pursuant to the Agreement the deft has been occupying and using the property as kwik kai shop and fast food outlet and made money or profit(s).

٠She confirmed from her file that on 01/09/08 she caused a letter to be sent to the deft giving him a four (4) months notice to vacate the property and/or by the 31/12/08.

٠She aware that the deft owed the complt outstanding rentals for the months of September, October, November and December 2008 including January 2009 totaling K13,125-00.

She was aware that the complt reminded the deft to vacate the property by a letter sent in or about September 2008.

٠She was aware that the deft did not take note of the Eviction notice and has refused or neglected to vacate the same despite the termination of the lease and the complt has suffered and continues to suffer the loss of possession, use and benefit of the property. Rageau Manua and Kikira lawyers are to make the necessary application in court pursuant to the SEA.

٠That the defendant/his servants and/or agents are currently in occupation and or possession of the property without having the right, title, license or approval of the complaint.

٠She was aware that the deft is in Wabag, Enga Province and he has persistently and aggressively refused to voluntarily vacate the premises and that this Court proceedings may irritate him to cause damage or destruction to the property or harm family members.

٠He was a male adult of about 52 years of age and owner of the above company and the Deft/Applicant in the proceedings.

٠That on or about 22nd November 2004 we entered into a verbal agreement between the M/D of the Resp/Complt company namely Peter John Poe and John B Poe regarding the above property for a period of six (6) years as of 23/11/04 to 30/11/10.

٠Upon that I paid the sum of ten thousand (K10,000) to the of theResp/Complt coy and both Directors promised to draw up the Lease Ag/mt and return as soon as they complete the Lease Ag/mt.

٠All this time the resp/complt did not come back with the lease ag/mt as stated and start asking for monthly rentals which in actual fact I did not refuse but pay promptly and trust that they will come back with the lease agreement as promised but instead they served a notice of motion and the summons to vacate the premises on my shop assistant when I was at Lae. At that time I could not attend the court because I was at Lae and they obtained the Ex parte Order without my attendance.

٠Annexure hereto and marked with letter A is the true copy of the said Ex parte Order dated 26/03/09.

٠That I cannot see any reason why the resp /Complt obtained an Ex parte Order restraining me from carrying out Business at Unit Two(2) Section 17 Lot 5 Madang. I am still waiting for the Resp/ Complt to come back with the lease agreement as agreed and my term of six years has not lapse. I do not have any outstanding rental fees with the respondent/Complt.

٠I have a business to operate and generate income and if I am restrained from conducting business then I might make a loss and close my business.

٠The terms of the verbal ag/mt was that I will operate my kaibar until 30/11/10 and that has to be in black and white and I am still waiting.

٠It is the responsibility of the resp/Complt to draw up the Lease ag/mt for both parties to sign but that has mentioned by themselves but did not eventuate as promised and I am still waiting and keep on paying monthly rental.

11. The defendant’s second affidavit sworn on the 01st July 2009 stated the following:-

٠That on 22/11/04 he entered into a verbal agreement between the M/D of the Complt coy in the presence of the following people namely Peter john Poe, John Rovera, Mrs. Elis John Rovera, Mrs. Ruth Ninipe and Mr. Wanis Mugumba.

٠That the only terms we agreed to was that I would rent and operate the subject kaibar for six (6) years.

٠That was to become effective upon my paying the bond fee and the first month’s rental.

٠It was also agreed that the Managing Director of the complt coy agreed to draw up the details of the Ag/mt and furnish them for my consideration and consent at a later date.

٠I note to date a written Ag/mt specifying and or containing particulars associated with such agreements has yet to be furnished to me.

٠As agreed I paid the sum of K7,500-00 as bond fee and K2,500 as first month’s rent, a total sum of K10,000 in the presence of the above named people.

٠Upon receiving the cash the complt coy D/tor promised that he would draw up the ag/mt as discussed and came back as soon as possible but did not eventuate and the complainant came back for the rental due. Before giving the rental fees I enquired about the lease agreement but the same was repeated.

٠At all material time the complt did not come back with the lease ag/mt as agreed and started asking for monthly rentals which in actual fact I did not refuse but paid them promptly and trust that they will come back with the lease agreement.

٠I cannot see any reason why the complt is seeking restraining orders against me because the fault lies with the complt.

٠It is the Landlord’s responsibility to draw up the lease ag/mt for both parties to go through and once agreed they sign and that is logic.

12. Nekent Tombe’s affidavit sworn 26/06/09 basically attested to matters relevant to the deft’s second notice of motion filed 30/06/09.

13. Balbal v State [1] stated the way to receiving and determining whether or not to accept a witness and his testimony is well trodden one. Rules of evidence have much to see and do with the reception and rejection of evidence. Logic and common sense do play an important role in that, or have been noted and applied in many decisions of both this and National Court. This is an addition to any serious inconsistencies that might exist in the testimonies of the witness called by a party which makes any acceptance of the evidence difficult.

14. Igiseng Investment Ltd v Star West Const [2] stated that inconsistencies and illegal accounts indicates lack of credibility

15. In the matter of Andrew Kumbakor [3] it was held that the question of credibility does not arise in relation to the undisputed fact or admitted facts.

16. In this case, both parties have given evidence by affidavits. Both parties have not exercised their right to cross examination so this Court will have to assess their credibility as witnesses of truth. It has to assess inter alia the believability of their stories, examine the degree of consistency in their evidence (both its internal consistency and its consistency with the evidence of other witnesses) to determine which version of events is the correct one.

17. As I intimated earlier in this paragraph this Court has not had the benefit of assessing the deponents of the filed affidavits as they were not subject to cross examination as the assessment of a witness is an intuitive process.

It is therefore necessary to determine which of their evidence are credible before making a finding of the relevant fact.

18. That the complt is registered proprietor at the property described as Unit 2 Section 17 Lot 5 Madang.

19. That the deft pays a monthly rental for occupation and use of the said Property as a kaibar.

20. These can be put into two categories. Firstly, "facts that relate to the credibility of the various witnesses" and secondly, facts that are directly pertinent to the substantive issue.

21. Facts that relate to the credibility of the witnesses. A number of contested facts have a bearing on the credibility of the witnesses. They are as follows:-

(a) Was there any ag/mt between the parties on 24th November 2004 for the complt to draw up a tenancy ag/mt?

22. This is a question of fact which can be only answered by the evidences adduced to Court in this matter.

24. Firstly, for the complt Mary Poe Pitpit in her affidavit at paragraph 5 states that the complt and deft did enter into verbal periodic lease agreement on a monthly basis and and/or at a rate of K2625-00 per month with the complt reserving the right to terminate and/or to have the lease determined at its will or option.

24. Counsel for the deft submits that her assertion here is hearsay in nature and her affidavit in its entirety is hearsay.

25. On the face of this submission, this proposition would appear to be valid but I am not entirely persuaded.

26. I am not persuaded that Mary Poe Pitpit’s affidavit is entirely of a hearsay nature.

27. The deft’s counsel had a right to test Mary P Pitpit attestation in Para5 of her affidavit in cross examination and apply the ‘Brown vs. Dunn’[4] rule if indeed these were his instructions.

28. This is an important rule of evidence in the trial process if for two reasons, firstly, it gives the party ‘asserting ‘certain facts the opportunity to test the opposition and secondly, it is fair to the opposition to be given equal opportunity to answer any rebuttals to their evidence.

29. And the above two can only be achieved through the evidentiary process of cross examination or adducing evidence.

30. The law is on ‘he who asserts’ to prove See Shaw vs. the Commonwealth of Australia [5], Supreme court Ref. No.4 of 1980 (No 2)[6], Kolta Development Pty Ltd + others vs. The State + Ors [7] and Bank of Hawaii (PNG) Limited vs. Papua New Guinea Banking Corporation + others [8]

31. The deft has failed to cross examined Mary P. Pitpit about her attestation in Paragraph 5 and has, by choice left a huge dent in his assertions. His failure was to his own peril.

32. After conceding to the tendering of Mary P.Pitpit affidavit without cross examination, he cannot now turn around and challenge that evidence- see Brown vs. Dunn [9]

33. All the court has before it is Mary P. Pitpit attestation in Para 5 which has not been challenged by way of cross examination.

34. Submissions made by counsels or parties must be based on evidence adduced in court through the normal way.

35. It is trite law that submissions from the bar table amounting to giving evidence can not be accepted as evidence at all.

36. I therefore can not accept this submission by defence counsel from the bar table in relation to the issue of hearsay evidence.*

38. There is ample case law on this point-Election petition for the Lufa Open Electorate; Wasege vs. Karani [10], Ombudsman Commission vs. Justice Sakora, Messrs Manuhu & Karapo & Paul Pora [11], State vs. John Peril [12], State vs Nae [13], State vs. Saku ( No.2) [14]

39. Furthermore the defendant has failed to call persons he named in Pargraph 4 of his affidavit sworn on 01/07/09, particularly, Mrs. Ruth Ninipe, Mr. Wanis Mugumbe, Mrs. Elis John Rovera to substantiate his assertion as to who the participants of the 22/11/04 meeting were.

40. The calling of the above persons would no doubt have assisted the court on this issue. 41. It is and was the defendant’s constitutional right to cross examined or call evidence but he has chosen to remain silent to his peril. See Constitution s.59. (2)

41. Counsel for the deft has attempted to give evidence from the bar table about what he saw in Mary P Pitpit’s affidavit.

42. I cannot accept this and indeed he has not discharged the onus placed upon him for his assertions.

43. The court answers the first question in the negative and this conclusion clearly has an effect on the defendant’s credibility as a witness and the court has to ask itself how the defendant failed to challenge Mary P Pitpit’s attestations and call substantiating evidence on this issue .

44. I conclude that the defendant’s credibility has a witness was severely depleted.
Question (b)

45. To answer this question this court again looks at the evidence adduced before it in this trial.

46. Firstly Mary P. Pitpit’s entire affidavit attests to verbal ag/mt that was reached between the parties in 2005.

47. Secondly the deft in his affidavit sworn on 02/04/09 at paragraph 3 attests to a verbal ag/mt reached between him and the complt.

48. Thirdly the deft in his second affidavit sworn on 01/07/09 attests at paragraph 4 of a verbal agreement reached between himself and the complt.

b. There was only a verbal ag/mt consequently I am not in a position to determine the rights and duties of parties under such a tenancy.

c. Furthermore I am unable to determine the existence of any covenants either expressed or implied except that the deft was to pay monthly rental for occupation and use of the property.

50. The deft failed to call the persons who he says were present on the 22/11/04 to substantiate his assertions in his two affidavits that the agreed duration of the lease was for six years and to end in November 2010.Again here, it was incumbent on the deft as the person asserting the duration of six years to substantiate this.

51. In other words the onus was on the deft to establish his assertions on the balance of probabilities.

52. This assertion in both his affidavits necessitated the proper calling of evidence to substantiate, establish and discharge the onus.

54. For these reasons I do not accept the evidence by the deft in relation to this issue.

55. This court finds that the deft has embellished his evidence specially in his second affidavit of 02/07/09 at para 4 where he introduces the names of John Rovera, Mrs. Elis John Rovera, Mrs. Ruth Ninipe and Mr. Wanis Mugumbe, persons he makes no mention of in his earlier affidavit of 02/04/09.

56. At this juncture it is important o note section 4 subsections 1 & 3 of the Summary Ejectment Act .

"Where there is a tenancy and no ag/mt as to its duration, the leasee shall. For the purpose of this section, be deemed to hold the premises b the month."

Sect 4 subs 1(b) provides subject to this section, where the rent payable by a leasee holding premises by the week, month, or quarter or a longer term not exceeding three years, is in arrears for

the leasor may, without a formal demand, or re-entry make a complaint to a magistrate of a District Court who may issue a summons in the prescribed form directed to the leasee, and he service of the summons stands in place of a demand or re-entry.

57. On the basis of sect 4 subsections 1(b) and 3 this court finds that the nature of the relationship between the complt and the deft in relation to the property, an interest at law akin to a tenancy at will.

58. Secondly that a consequence s.4.3 is applicable in the circumstances and that the defendant was holding the premises by the month.

59. Having answered question b in the said manner this court answers question ( c) in the affirmative.

60. The basis for this answer are the two letters sent by the complt to the deft in September and November 2008 and secondly and more importantly the outstanding rental owed by the defendant to the complainant.( I will elaborate on this matter later)

61. Again here for the reasons I gave in relation on the credibility of the deft in answer to Question (a) I answer this question in the affirmative.

63. The court has considered evidence adduced before it, and notes that despite the denial of liability the deft has not provided an iota of evidence either by way of testimony or documentation to substantiate his denial.

64. His denial is bare and with no substantiating evidence holds no water with this court.

65. The deft’s denial of the complt’s claim went to the crux of the matter and as a result was necessary for him to adduce substantiating evidence.

66. His failure to do so means by and large that the compt’s complaint stands unchallenged and consequently proven the balance of probability.

67. The court finds the defendant’s submission on rental arrears confusing. He suggests at outset there was an agreement but then through the cause of his submission intimates that there was no agreement.

68. What this court finds is that the deft does not deny owing outstanding rental to the complt but submits that his non payment was due to the non- drafting of a tenancy agreement.

70. Firstly, the issue of non drafting of the tenancy ag/mt purportedly by the complainant is irrelevant to the substantive issue in this matter.

71. Its outcome would not impinge on the substantive issue this court has to answer in any way.

72. The substantive issue before the court is whether or not the complt should be granted possession of its property. It is not an inquiry into the drafting of a tenancy ag/m and this is only peripheral to the substantive issue this court has to address.

73. Secondly the deft can not be allowed to approbate and reprobate the tenancy in this matter.

74. The court finds that the deft has been quick to make use of the verbal ag/mt reached in November 2004 and occupy and use the property to operate a kaibar business but very slow to vacate the premises when the tenancy was terminated and continues to operate without paying any rental.

75. The rental arrears he owes is now in the vicinity of K27, 000. One cannot be allowed to take advantage of the beneficial parts of a deed or lease or a tenancy and reject the rest. In layman’s language;" You cannot have your cake and eat it too." See Douglas & Co (Insurance) Pty Ltd vs. Economic Insurance [15]

78. The court also finds that the submission by the deft that he would pay up his arrears if an order was made in his favor, a submission made in bad taste.

79. What this submission is tantamount to is a classical case of "Dangling the carrot before the horse", this court is a court of justice and certainly no body’s horse.

80. The deft can not come to this court "with dirty hands and make such a submission.

81. He should have paid up his rental arrears in full, and thereby availing himself to the provisions of sect 4 subs 4 but he has not made use of this provision.

82. Certainly it can not be said that the deft is legally in possession of the property after accumulating such a huge rental arrears.

83. This court will not address the issue raised by the defence counsel as to the frivolous and vexatious nature of the complaint as this issue is Res Judicata.

84. Having answered the contested facts in this manner this court concludes first the complt’s evidence, credible by reason of no clear and irreconcilable inconsistencies, no evasion, nothing illogical and out of common sense and no reason for her to give false evidence. I regard her as witness of truth.

86. The findings on the issues that relate to the credibility of witnesses mean that I can not accept the evidence of the deft on the substantive issue.

a. That the Defendant together with his servants and/or agents are hereby ordered to give possession of the premises to the complt within two weeks from today in reasonable condition.

b. And where necessary a warrant be issued on the Fourteenth (14th) day to the Madang Police Station Commander and his delegate to enter and use reasonable force if necessary and give possession of the said premises to the complt.

Papua New Guinea District Court

Jopam Ltd v Taptel [2009] PGDC 67; DC890 (1 September 2009)