Mirmirio v Palaulo [2018] PGDC 38; DC4028 (19 June 2018)

DC4028

PAPUA NEW GUINEA

In the District Court of Justice at Kimbe
(sitting is its civil jurisdiction)

DC NO: 70 OF 2018

BETWEEN

DANIEL MIRMIRIO
Complainant

AND

CONRAD PALAULO
Defendant

KIMBE : J. AMANU

2018: 26 April, 10, 31 May, 16, 19 June

CIVIL – Summary Ejectment Act, s.6 – Clear Title – no dispute over title – no distinct, formal legal step taken to disturb the title –

COMMON LAW – Memorandum of Understanding entered – Breach of terms of MOU – no review – equitable interest ceased to operate – eviction order must be granted.

Legislations:
Summary Ejectment Act
District Courts Act

Cases cited:
Herman Gawi vs. PNG Ready Mix Pty Ltd [1984] PNGLR 74
Tony Yandu & Anor vs. Peter Waiyu & Anor (2005) N2894
John Kameku vs. Patilius Gamato & others (2004) N2512

Counsels:
Complainant : Mr. F. Kua
Defendant: In Person

1.J. AMANU; The Complainant instituted this proceeding against the Defendant seeking the following orders:

1. An Order pursuant to Section 6 of the Summary Ejectment Act.

2. Payment of the outstanding rental totaling K170, 600.00 within one (1) month.

3. Any other orders the Court sees fit.

2. The Defendant denied liability thus the matter proceeded to trial by Affidavits and submissions. Order 2 was abounded by consent.

Brief Facts

3. The Complainant and the Defendant entered into a Memorandum of Understanding that the Defendant will rent the Complainants property described as Allotment/Portion 2607C Section/Milinch Megigi Town/Fourmil Talasea in West New Britain Province and pay rental until total of K1.1million and the property be transferred to the Defendant.

4. After some months the Defendants allegedly failed to pay the rentals as agreed upon. The outstanding have accumulated to almost K170, 600.00.

5. The Defendant whist in the property did numerous maintenances and refurbishment to the building. Although he has not fully comply with the MOU, he has paid some monies to the Complainant as he was facing financial difficulties and at the same time have spent so funds in maintenance and refurbishments.

6. The complainant then filed this proceeding seeking to evict the Defendant out for not paying rentals

Law

7. This proceeding was filed under Section 6 of the Summary Ejectment Act. It provides that:

RECOVERY OF PREMISES HELD WITHOUT RIGHT, ETC.

(1) Where a person without right, title or licence is in possession of premises, the owner may make a complaint to a magistrate of a District Court to recover possession of the premises, and the magistrate may issue a summons in the prescribed form to the person in illegal occupation.

(2) Where the person summoned under Subsection (1)–

(a) does not appear before the District Court at the time named in the summons; or

(b) appears and does not show reasonable cause why possession of the premises should not be given,

the Court may, on proof of the matter of the complaint, issue a warrant directed to a member of the Police Force requiring him, on or before a day specified in the warrant–

(c) to enter, by force and with assistants if necessary, into the premises; and

(d) to give possession of the premises to the complainant.

Issue:

8. The Issue is whether the Defendant can be evicted out from the said property?

Analysis

9. Ejectment proceeding are well settled in this jurisdiction by the Supreme Court case of Herman Gawi vs. PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74 comprised of then late Kidu, CJ; Kapi DCJ and McDermott, J. It was discussed that:

“Proceedings for recovery of land under Summary Ejectment Act are intended to provide a quick remedy to people who have a clear title to land or premises: they are not intended to be available where title to land is dispute or unclear.”
10. In this case there is no issue that the Title is unclear or disputed. Although according to evidences before the Court that certain landowners have raised concerned as to how the title was obtained, there is no distinct, formal legal steps taken to disturb the title. The District Court’s jurisdiction can be taken away if the title is in dispute pursuant to section 21 (4) (f) of the District Courts Act. This section provides that “ A Court has no jurisdiction where a title is bona fide in dispute”. However, in the case of Tony Yandu & Anor vs. Peter Waiyu & Anor (2005) N2894 His Honour Justice Cannings said that in order for the District Courts jurisdiction to be taken away under Section 21(4)(f) of the Act, the Defendant must show to the court that he has taken some distinct formal legal steps to disturb the title such as commencing a proceeding in the National Court challenging the legality of the title.

11. Applying the principle above, there is no evidence that the Defendant or some other persons have disturbed the title thus I find that there is no bona fide dispute over the title.

12. According to the evidence before the Court both parties have entered into a Memorandum of Understanding dated 1^st October 2016 that the Defendant will pay rental to the Complainant until the total sum of K1.1 Million is paid then the title can be transferred to the Defendant.

13. Bullet point 13 of the MOU provides that an amount of K10, 000.00 shall be paid monthly beginning December 2016 to May 2017.

14. The Complainant alleged that the Defendant failed to comply with this term of the MOU.

15. According to the Defendant’s evidence, he has paid over K239, 000.00 which includes K115, 000.00 paid to the complainant and K111, 000.00 spent on maintenance of the property. Over K12, 000.00 spent on Administration. However, I do not find sufficient evidence to corroborate the assertions. He only annexed record of payments, maintenance and operation cost without receipts and proper legal documents to confirm same. A mere typing down figures, to my mind, is not good enough in today’s modern world of business.

16. I therefore find that there is a breach of agreement. I also find that there is no evidence that both parties have comply with the final bullet point of the MOU. That is the review clause. There is contradictory evidence in respect to this. The Complainant is saying that he is not allowed to go and both parties will conduct review and the Defendant is saying otherwise. I cannot accept both parties’ arguments on this. But for sure there was no review.

17. In respect to maintenance and related costs I am of the view that The Defendant may take recourse in appropriate forum to address the issue of costs thus this argument alone cannot be the ground of dismissal of this proceedings.

18. The Title is clear and undisputed in law; and further the Defendant have breached the MOU therefore I would grant the Orders sought in the Complaint and Summon to A Person Upon Complaint.
19. I have also considered that the Defendant have done maintenances on the property and have also leased the property to tenants who are currently residing on the property thus I consider their equitable rights. However, in the case of John Kameku vs. Patilius Gamato & others (2004) N2512 it was discussed that equitable interest illegally acquired cannot be recognized in law. The Defendant’s rights ceased to be recognized in law when he started defaulting in his payments thus from the date of default till now, I find that the Defendant’s rights whether equitable or otherwise ceased to be recognized and enforced.

20. Nevertheless the Defendant, his agents, associates and including tenants may need enough and reasonable time to move out of the property. I consider one (1) month appropriate and fair.

21. The formal orders of the Courts are as follows:

1. The Defendant, his servants/agents are hereby ordered to vacate the property described as Allotment/Portion 2607C Milinch, Megigi, Talasea, West New Britain Province within 30 days from today and give peaceful possession to the Complainant.
2. In default, warrant be issued to the Police to assist evict the Defendants, with reasonable force, if necessary, and give possession of the property to the Complainant.
3. Each party bear their own costs.
4. Parties may appeal to the National Court if aggrieved within 30 days from today.

Orders Accordingly.

__________________________________________________________________

Complainant: Felix Kua Lawyers

Defendant: In Person