National Housing Corporation v Yohang [2017] PGDC 4; DC3049 (21 November 2017)

DC3049

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]

DCCi14OF 2017

BETWEEN

NATIONAL HOUSING CORPORATION

Complainant

AND

MATILDA YOHANG

First Defendant

AND

MILLIE FEKA

Second Defendant

AND

STEVEN KIMAS

Third Defendant

Coram: P Kaumba, Magistrate

2017: November 16, 21

CIVIL:

Cases Cited:

Nil

References:

Nil

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Counsels:

Lawyer for the Complainant,Mr Hanson Simon of AvRoss& Co. Lawyers

Lawyer for the First Defendant, In Person

Lawyer for the Second Defendant, Ms.Vibbie Move of Public Solicitors Office

Lawyer for the Third Defendant, In person

21^st November, 2017

DECISION

P KAUMBA, Magistrate: The Second Defendantthrough the Public Solicitors office filed a notice of motion in this proceeding on the 26^th of October 2017 seeking the following orders:

1. The Ex parte Court order of entered on the 9^th of October 2017 be set aside and the matter be listed for full hearing and trial
2. Costs of this proceeding to be in the cause.
3. Any other orders the court deems fit.

2. The second defendant filed her affidavit in support of her motion on the 7^th of November 2017 and 26^th of October 2017 and the motion was set for hearing on the 31^st of October 2017. The motion was mentioned on the 31^st of October 2017 but the complainants were not served and did not appear in court so the motion was adjourned to the 9^th of November 2017. On the 9^th of November 2017 the second defendant lawyer did not appear to prosecute her motion so the motion was adjourned to the 14^th of November 2017. On the 14^th of November 2017 the second defendants lawyer was not in court and the complainants lawyer filed submission and appeared in court and moved that the motion be dismissed for inter alia lack of locus standiof the second defendant to institute proceedings against the complainant and to file notice of motion and I adjourned the motion to today for decision.

Law.

District Court Act.

21.CIVIL JURISDICTION.

3. (1) Subject to this Act, in addition to any jurisdiction conferred by any other law, a court has jurisdiction in all personal actions at law and equity where the amount of the claim or amount or value of the subject matter of the claim does not exceed-

(a) where the court consists of one or more Principal Magistrates-K10,000 and

(b) where the court consists of one or more magistrates-K8000.00...

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22 GENERAL ANCILLARY JURISDICTION.

4. Subject to this Act, a court as regards a cause of action for the time being within its jurisdiction, shall, in proceedings before it-

(a) Grant such relief, redress or remedy, or combination of remedies, whether absolute or conditional; and
(b) Give the same effect to every ground of defence or counterclaim, whether equitable or legal.

5. As ought to be granted or given in a similar case by the National Court and in as full and ample a manner’.

25 EX PARTE ORDER MAY BE SET ASIDE.

6. A conviction or order made when one party does not appear may be set aside on application to the court on such terms as to costs or otherwise as the court thinks just and the court, on service on the other party of such reasonable notice as the court directs may-

(a) Proceed to hear and determine the information or complaint in respect of which the conviction or order was made; or
(b) Adjourn the hearing and determination of the hearing to such time and place as it thinks fit and direct such notice of the adjourned hearing as it thinks fit to be given to a party.

7. Locus standi- The right to be heard in a court of law or other proceedings. A person issuing proceedings must have an interest in the subject of the case or must be a party to agreement or subject in dispute. The interest can legal or equitable or given by a statute or custom/ tradition recognised by law.

ISSUES.

8. Does the District Court have jurisdiction to hear complaints for restraining orders per se?

Whether the second defendant has standing to issue proceedings and file notice of motion?

9. FACTS AND FINDINGS.

1. The complainant/Respondent and the first defendant have a tenancy agreement in relation to the property described as Section 38, Allotment 16 Goroka Eastern Highlands Province.
2. The Second Defendant/Applicant is a relative of the first Defendant by marriage and has lived on the property with the permission of the first defendant.
3. The Second defendant has been paying rentals under her own name and the complainant has accepted that fact and at one time the complainants manager proposed or recommended that the complainant sell the property to the second defendant and that was accepted by the First Defendant and the second defendant may have acquired an equitable interest in the property.
   

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4. In her complaint No 09 of 2016 the second defendant claimed that she has equitable interest in the property and claimed restraining orders against the complainant but she did not convert her equitable interest into monetary terms to give jurisdiction to this court to hear her claim pursuant to section 21 of the District Court Act and seek restraining orders as an ancillary or incidental relief under section 22 of the District Court Act and the complainant complaint in my considered view is misconceived and this court lacks jurisdiction to hear it.
5. The second defendant is now seeking to set aside the court order dated 9^th of October 2017 but I am of the view that if her original complaint is defective and without legal basis then this motion cannot succeed.
6. Furthermore the second defendants lacks locus standi to file a notice of motion or complaint that is she cannot claim a legal right under a tenancy agreement she was not party to, two she has no defence under the Summary Ejectment Act. She may have a equitable interest but equity follows the law and since her complaint is not properly before the court, the court cannot recognise her via this case and thirdly her notice of motion is defective because she did not plead the jurisdiction of the court under which the court can deal with her motion.
7. I thought, I struck out a motion in this case involving the same parties previously so I checked the clerks in the registry last week and I am told there is no other file involving the same parties except this file and I am surprised. Anyway I have to make a decision and equity requires me to do so and I am doing so here.
8. Due to the foregoing reasons I find that the second complainant’s complaint and notice of motion is without jurisdiction, misconceived and defective and I order accordingly.

ANSWER TO ISSUES

10. My answers to the issues before the court are:

1. No jurisdiction to issues restraining orders per se.
2. No locus standi(standing) to file complaint/notice of motion and be heard in court.

COSTS

11. Cost is a discretionary matter for the judge. Cost should follow the event

ORDER

12. My formal orders are:

1. The first Defendants notice of motion is dismissed in its entirety.
2. The complainants Costs of defending the motion to be paid by the First Defendant to be taxed if not agreed.

Counsels:
Lawyer for the Complainant , Mr Hanson Simon of AvRoss& Co. Lawyers

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Lawyer for the First Defendant, In Person

Lawyer for the Second Defendant, Ms.Vibbie Move of Public Solicitors Office

Lawyer for the Third Defendant, In person