Sekenia v Katamapula [2015] PGDC 26; DC4087 (4 June 2015)

DC4087
IN THE DISTRICT COURT OF JUSTICE SITTING AT ALOTAU

CI 23 of 2014

IKU SIMEON SEKENIA

Complainant

v.

MILDRED KATAMAPULA

Defendant

2015 : 4^th June

DISTRICT COURTS - Jurisdiction - Summary ejectment proceedings - Summary Ejectment Act (Ch No 202), s 3(1)(a).

Cases Cited
Tony Yandu and Eddie Guken v Peter Waiyu and Jita Guken (2005) N2894
Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74

Legislation
Summary Ejectment Act

Counsel
Complainant in Person
Defendant represented by Ms Kambua (Pub Sol)

INTRODUCTION
1. L. MESMIN: This is a case for the repossession of a property by the title holder to that property under the Summary Ejectment Act.

FACTS
2. In 2003 the late Simeon Sekenia (Mr Sekenia) is said to have entered into an agreement to sell the property he lives in and possesses described as Section 4 Allotment 7, Garuboi Street, Alotau, Milne Bay Province, (the property) to the late Steven Katamapula (Mr Katamapula) for an amount of K15,000.00.

3. Statutory declaration forms were signed to reflect the terms of the agreement and the agreement itself by both parties. The defendant in this case and her late husband, Mr Katamapula, moved into the property soon after. Apparently all records of the copies of the statutory declarations and the records of the instalment payments were kept in the office of the late Mr Katamapula at the old Administration Block that burnt down on 14^th September 2008.

4. Mr Sekenia passed away on 11^th June 2008. In that year the complainant and her late husband issued notices on the defendant and Mr Katamapula to vacate the property.

5. This issue had gone before the District Court in 2010 and Mrs Kapigeno rightly struck out the applications based on the fact that the issue of ownership of the property was still not confirmed due to the fact that neither party had legal title to ownership over the subject property. The complainant sent 3 notices on 15/11/13, 2/12/13 and 2/1/14 for the defendant to vacate the property. In early 2014 Mr Katamapula passed away on 14^th January.

6. The defendant is still in occupation of the property subject of these proceedings and the complainant is here today seeking to repossess it on the basis according to a sale agreement conducted on 13^th December 2007 between the National Housing Corporation and Mrs Sekenia, she is now the legal title holder of that property.

ISSUE:
7. Is the complainant entitled to take possession under the Summary Ejectment Act of property described as Section 4 Allotment 7, Garuboi Street, Alotau, Milne Bay Province and use it free from any interference from anyone including the defendant?

LAW
8. Statute law

3. Proceedings for possession on determination of lease.
(1) Where –

(a) the term or interest of a lessee of premises held by him has ended or has been duly determined; and

(b) the lessee, or (if the lessee does not actually occupy the premises or occupies only part of the premises) a person by whom the whole or part of the premises is then actually occupied, neglects or refuses to quit and deliver up possession of the premises or of the part of the premises, as the case may be,

The lessor of the premises may make a complaint to a magistrate of a District Court against the person for the recovery of the premises, or of the part of the premises, and the magistrate may issue a summons in the prescribed for to that person.

(2) Where the person to whom the summons is directed under Subsection (1) –
(a) does not appear before the District Court at the time named in the summons; or

(b) appears and does not satisfy the Court that there is reasonable cause why he should not give possession of the premises or of the part of the premises of which he is then in possession, and still neglects or refuses to deliver up possession of the premises or of the part of the premises of which he is then in possession, then on proof of the matter of the complainant the Court may order him to deliver up possession of the premises or part of the premises to the complainant, either immediately or on or before a day named in order.

(3)............
(4).................
(5)....................

Case Law
9. The District Court has no jurisdiction in cases where title to land is bona fide in dispute under the Summary Ejectment Act.

10. The complainant must establish that the defendant is in possession of the premises illegally or without right, title or license.

11. However, if a registered proprietor of property commences proceedings in the District Court to enforce his interest in the property there is no bona fide dispute about title unless some other person demonstrates that they have taken some distinct, formal, legal step to disturb that title. Tony Yandu and Eddie Guken v Peter Waiyu and Jita Guken (2005) N2894 applied.

12. Proceedings under the Summary Ejectment Act are intended to provide a quick remedy to people who have a clear title to premises. Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74 applied.

13. The Summary Ejectment Act Ch No. 202. Woods J, as he was then, in the case of Gawi v PNG Readymix PNGLR 1984 at p.79 said -

"The remedy it is designed to give is a quick and efficient means of obtaining possession of premises, (and this on the authorities extends to land) from person without any rights to possession. The whole procedure is designed to facilitate this. It is a matter for the claimant to show title, simply by producing a registered Certificate of Title or a registered lease and of producing evidence of adverse possession. If title is disputed, use of this Act is inappropriate."

14. In circumstances where a person was the registered proprietor of freehold land and no formal steps had been taken to disturb that title, there is no bona fide dispute and the District Court can make orders under the Summary Ejectment Act.

EVIDENCE
15. I must state what I now perceive to be the relative position of the parties and their rights over this property, the subject of this proceeding, on the bases of the parties’ pleadings.

Complainants Case
16. The complainant commenced this suit to obtain eviction orders against the defendant. She is seeking to have the defendant evicted from the premises described as Section 4 Allotment 7, Garuboi Street, Alotau, Milne Bay Province. The complainant appears to have title over the property. She has pleaded the fact that she has the title by way of atransfer from NHC and has in fact filed a copy of that title in her affidavit.

Defendants Case
17. The Defendant provided evidence in the affidavit of Mrs Mildred Katamapula dated 11^th March 2015 –Annexure G that they expended their own funds and carried out renovations on the premises at a cost of K18, 500.00. She further stated that a total of K11,600.00 had also been paid to the Mr Simeon in instalments. She claims a total of K30,188.95 to be reimbursed to her for the improvement she and her husband had done to the property before she moves out.

18. Annexure G is a letter setting out the breakup of how much they had spent already on instalments and renovations showing a list of materials purchased. However, there are no receipts of the purchase of these items attached, nor is there evidence that the Defendant had engaged a contractor or carpenter or whoever it may have been, who carried out the renovations to verify the exact cost of the renovations done on the property.

19. The Defendant had expressed that in 2003 her husband, Mr Katamapula was approached by the complainants husband, Mr Sekenia, to sell the property to him for K15, 000.00. At that stage Mr Sekenia still did not have the title to the property but he made a representation that he would get the title transferred to himself and upon that happening.

20. The Defendant says, Mr Sekenia would then in turn transfer it to the defendant’s husband. She states that this agreement was reduced to writing on statutory declaration forms where the Mr Sekenia made an offer to sell the property for the consideration of K15, 000.00 and was in receipt of K1500.00 being the 10% deposit paid up front and the Defendants accepting the offer by making an initial deposit payment of K1500.00.

21. What was to be paid off in remaining instalments was K13, 500.00. The Defendant further states that it was on this basis that the complainant and her husband moved out of the property and in time she and Mr Katamapula had paid K11,600.00 in instalments.

22. Although the defendant did not provide strong evidence to support that they have actually spent close to K30,188.95 on maintenance of the property and payment in instalments, I am satisfied that whatever amount the defendant has expended would have increased the outlook of the property and its value. And I find that the defendant had expended its own funds on renovations of the property though the amount actually expended could not be proved by showing evidence of receipts showing actuals of what they claim.

REASONABLE CAUSE
23. The available evidence shows that the defendant continues to occupy the residential property without any property rights or title or licence. She does so despite demands to vacate and give up possession. Therefore it is argued by the complainant that her continued occupation is otherwise illegal and unlawful.

24. That however, does not mean that the defendant cannot be allowed to stay on for any determined length of time if she can show any "reasonable cause" under subsection 3(2) (b) of the provision cited above.

25. The defendant was aware that she needed to put a case to the complainant, and indeed the court, that there is reasonable cause for her to continue to stay on. Pleading a reasonable cause is an invitation to the complainant or this Court, now that the matter is before this Court, to assess the reasonableness of her request. She put forward a case explaining that she had made an agreement with Mr Sekenia at a time when he was not even the owner of the property and upon moving in during their occupation began making some renovations.

26. There is no evidence on record that they got permission to do so from the legitimate property owners nor to show whether it was even included as part of their agreement on the statutory declaration forms. She pleads to be reimbursed for the monies she and her late husband had used to renovate which she claims is over K30, 000.00. In claiming that she should be reimburse an amount which is clearly beyond the jurisdiction of this court to entertain which she states she expended on the property, is in effect an attempt to demand continuous occupation as a matter of right when she clearly has not shown the lawful bases for such a right.

IS THE DEFENDANT ENTITLED TO RE IMBURESEMENT
27. The Defendant argues that over the years that she and her husband have been residing on the property, they had incurred costs on renovation, and therefore she should be entitled to reimbursement of the amount they had expended. The question then is, is she entitled to reimbursement?

28. From the evidence as presented before this court and the findings I have so far made in discussions above, this court is satisfied on the balance of probabilities that the defendant had incurred costs in maintenance and renovation. However the exact amount expended could not be ascertained without the receipts of the purchases of the material listed in the ANNEXURE ‘G’ of Mildred Katamapula dated 11^th March 2015. This amount cannot be verified nor was there any corroboration of these amounts by other witnesses.

29. The EXIHIBIT ‘G’ shows the defendants total expenses on the purchase of the materials used for carrying out the repair work and labour, to a total sum of K18,588.95. From this total cost a sum of K11,958.95 was for the purchase of a good number of materials and K6,630.00 for labour hours. In view of these expenses I would have my reservations whether the Defendant should be entitled to some reimbursement, however that should be considered before the appropriate forum since the Defendants claim of expenses far exceed the jurisdiction of the District Court. This issue should be instituted as a cause of action in the court above, being the appropriate forum.

ARGUMENTS RAISED BY DEFENDANT RELATING TO FRAUD
30. The defendant also put forward a case that the title to the property may have been obtained fraudulently. In saying that, one must also be quick to add that, until title is voided one way or another, the complainant still has the benefit of apparent title and is fully entitled to vacant possession of her property on the bases of clear title.

31. It may yet be the case in the end that the defendant is informed that her rights would lie in damages only and not in the property. Then again she may be granted the orders she hopes for. As I said the defendant has an arguable case, which is sufficient for the moment. All that matters now, regardless of how things may fan out in the end, is that the defendant deserves an opportunity to be allowed to have an audience before the right forum. To not afford her that opportunity would be to deny her the justice that she is entitled to.

Is this the right forum that has the jurisdiction to deal with this?

32. In this type of case a complainant need only establish that she 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 she 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.

FINDINGS
33. I find that there was an actual written agreement captured on statutory declaration forms as the defendant states which were destroyed in a fire.

34. Though the court finds there was an actual written agreement reduced in writing, there is no evidence indicating what the terms of that agreement were. For the defendant to claim a right to occupy and continue to be in possession of the property, she would have had pleaded any contractual clause in that statutory declaration or statutory provision that bestows upon her the right of ‘entitlement’ to continuous occupation.

35. I am further not convinced that the statements in the defendant’s affidavit in her defence raise any assertion of a reasonable cause. She really seems to be raising a complete defence to the eviction suit. However the declarations raise no valid Defence to the eviction proceedings. The complainant’s eviction suit here is based on exclusive ownership which the Defendant cannot dispute.

36. The Defendant really ought to have made an effort to put together an argument for herself on the bases of the precedents and the principles of common law and equity.

37. I find that when the parties entered into a purported agreement, the Complainant and Mr Sekenia did not have clear title to the property as it had not been transferred over from NHC to them as yet. Even then the Defendant’s husband entered into an agreement to buy the subject property from Mr Sekenia who had no authority to even sell it in the first place.

38. They entered into the agreement to their own detriment. In evidence it shows that they knew Mr Sekenia was at the time of the agreement, not the owner/ title holder, as he was awaiting transfer documents for National Housing Corporation. Yet they made a decision to enter into it with knowledge of that risk.

39. If Mr and Mrs Katamapula moved into the property relying on an arrangement made between them that was instituted by the Complainants’ late husband in his capacity as the purported owner, his authority over the property ceased at time of sale of the subject property to the current Complainant who is now the legitimate owner. Consequently, the authority given to the Defendant by the purported title owner ceased to have effect on the sale of the property to the current new owner and therefore she must vacate the property.

40. Having considered the above, I am satisfied that the defendant has been in occupancy of the property at Section 4 Allotment 7, Garuboi Street, Alotau, Milne Bay Province without any right, title or licence. Even if she had any excuse to occupy the property under the authority of the purported former owner, Mr Sekenia, the authority ceased to have effect when the property was sold on 13 December, 2007, unless ofcourse where Mrs Sekenia, as the new owner having obtained title by a transfer from the National Housing Commission to her name, agreed for the defendant to continue staying on there.

41. As it relates to this matter, I am satisfied that the Complainant has a valid title over the property and therefore the ownership of it. Consequently, she has a clear right to gain entry and have access to the property to conduct her business without any interference from anyone including the defendant.

42. Therefore having considered all the evidence before me I find and am satisfied that the complainant as the owner of the property in question is entitled to take possession of it and the continued possession and occupancy by the Defendant, his servants or agents is clearly contrary to law and therefore illegal.

ORDER:
43. Accordingly, I Order that:

1. the Defendant, her servants or agents or anyone residing in the property under the defendants permission or authority are hereby ordered to vacate the property described as Section 4 Allotment 7, Garuboi Street, Alotau, Milne Bay Province; and
2. the Defendant, her servants or agents or anyone residing in the property give vacant possession of the same to the complainant within one month as of today.
   

Mrs Sekenia in person
Ms Kambua for the Defendant