Gena v Henry [2020] PGDC 63; DC5057 (13 November 2020)

DC5057

PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE

HELD AT

PORT MORESBY DISTRICT COURT

In the Matter of APPEAL OF VILLAGE COURT ORDERS

VCA NO. 28 of 2020

Between:

LEO GENA

Complainant

And:

JOYCE HENRY

PORT MORESBY DISTRICT (FAMILY) COURT:

His Worship Mr. E. Komia

13^th November 2020

Appeal against Village Court Order – appellant claims interest as a relative of deceased husband – appellant claims equitable interest – no interest can be established where one is invited to live on a land which the invitee is only a tenant – landlord disallows appellants presence on the land – respondent has an interest recognised by the landlord – appeal dismissed – appellant ordered to give free and vacant possession to the respondent, who is authorised by the Landlord.

Papua New Guinea cases cited

Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC5 SC906 (28 March 2008)

Papua and New Guinea v Doriga Guba [1973] PNGLR 603)

O’Neill v Eliakim (2016) SC1539

Herman Gawi v PNG Ready Concrete (1983)

Yama v PNGBC Ltd (2008) SC922 at [24]

Nema v Rural Development Bank Ltd (2012) N5317 at [6]

Mahuru v. Hon Lucas Dekena (2013) N5305 at [12]

Emmanuel v. Iga [2003] PNGLR 20 (14 July 2013)
Jeffrey v Yapo [1999] PGNC 137; [1999] PNGLR 89 (23 April 1999)

Legislations

Lukautim Pikinini Act 2015

Lukautim Pikinini Regulation 2016

District Courts Act

His Worship Mr. E. Komia

13^th November 2020

Counsels for the Complainant: in person

Counsels for the Defendants: in person

Legislations Cited

Village Courts Act

Case Laws

1. INTRODUCTION
   

1. The Appellant is a relative of the respondent’s late husband, one Henry whose surname is not disclosed, hence; I will all him Mr. Henry . Mr. Henry demised and the appellant and the respondent continued to reside on the land. After some time of living together, the appellant had an argument with the respondent. The respondent instituted village court proceedings against the appellant at Gerehu Village Court seeking restraining orders to restraining the the appellant from residing within the area where she was living in. The Gerehu Village Court made orders for the appellant to move out of the property within the next seven days, and stopped the appellant from going near the premises. Village Court also made orders for the respondent to pay K500 to the appellant as a sign of goodbye.
   

2. FACTS.
   

2. The facts of the cases are summarized as follows:
   
   • 2.1 The appellant is a relative of the late husband of the respondent, one Mr. Henry, and had resided with the respondent and her late husband after he was invited to stay with them.
     
   • 2.2 The respondent and her late husband do not have title over the portion of land they are living in. The landlords is Mr. Sariman, and Mr. Sariman confirmed in Court that the respondent and her husband had been allowed to stay on the land which is just behind their house, as Mr. Henry and the Appellant maintained and worked around the Landlord’s house.
     
   • 2.3 The appellant has no legal or equitable interest over the property. He was invited by the respondent and her late husband, who is his relative.
     
   • 2.4 The respondent and the appellant argued over who should occupy the land in which the respondent and her husband Mr. Henry had resided on, and which the respondent continues to reside on.
     
   • 2.5 The landlords continue to allow the respondent on the land and maintain that the respondent and her late husband were allowed to live on the land, and the land was and is now occupied by the respondent to the exclusion of any third partner as the landlord has not in any manner whether express or implied allowed the respondent to sublease or sublet to any third party.
     
   • 2.6 The Gerehu Village Court made orders evicting the appellant on 11^th October 2020, and gave free and vacant possession to the respondent.
     
   • 2.7 The appellant is aggrieved by the decision of Gerehu Village Court.
     

100. ISSUE
     

3. The appellants seek to quash the decision of the Gerehu Village Court
   

4. EVIDENCE
   

4. The appellant and the respondents filed their affidavits respectively. The appellant relies on his statement filed with the Notice of Appeal.
   
5. The respondents gave oral evidence in Court.
   • -

5. DISCUSSIONS ON FACTS AND LAW
   

6. The appellant claims that he was not given an opportunity to be heard and that the manner in which the village court dealt with the complaint at the village court was really improper and unfair. He submits that the hearing was never done at a formal court hearing, but was done within the respondent’s premises, the subject of the dispute.
   
7. The respondent in her reply submitted that the appellant was made known of the village court hearing date on three different times and the appellant deliberately ignored the hearing dates and never attended, thus; the village court decided to move in and hear the matter in the area where the dispute arose.
   
8. I now look at the appellants argument on his first ground of appeal stating that the village court did not properly sit at its given location.
   
9. In order for this court to consider this ground of appeal, I look to section 9 of the Village Courts Act for clarification. S. 9 states:
   
   19. 9. Place of sittings.

A Village Court may sit at any place in the area for which it is established and may adjourn from time to time and from place to place.

10. S.9 therefore expresses in no ambiguous terms, the jurisdictional locality, and also when and where it can hear cases from time to time.
    
11. What the provision simply dictates is that the village court can move from location to location and from time to time. There is no strict location and timing when the village courts can sit.
    
12. The appellant therefore cannot raise that issue as a ground of appeal because, it was properly determined with respect to that issue. This to my mind, also negates the second ground of appeal, on the improper constitution of the Courts.
    
13. The respondent also in her oral testimony and submission replied that the land was never her land, nor did it belong to the appellant or her late husband, Mr. Henry for that matter. The appellant is only a third party whom they (respondent and her late husband) had invited to stay with them for a while since he had no place to stay. The land belongs to one Mr. Sariman and he is the landlord.
    
14. During the hearing Mr. Sariman appeared and indicated to the Court that he had the title to the property, which was sighted by the Court. Mr. Sariman was the landlord and, he recognized the first respondent as the one he had allowed to live at his backyard to work around the house and maintain his place, to the exclusion of others.
    
15. This effectively means that the appellant has no legal right, neither does he have an equitable right to argue or appeal against the decision. He must leave because he has no right to argue that matter. Although the appellant may argue that he has interest, his interest would be far remote to either neutralize or extinguish the argument of the landlord Mr. Sariman, as he (the appellant) was never allowed to live on the land. The appellants purported interest cannot have bearing and so, this argument must be dismissed.
    

My analysis of the arrangement between Mr. Sariman and the respondent and her deceased husband is that of a tenant and landlord relationship. So essentially, the tenants allowed the appellant to live with them. The tenants (in this instance, the respondent) alone have the exclusive right of way and residence in the land that they have been demarcated to live on by the landlord to the exclusion of the appellant. The appellant is merely an invitee, and cannot assume any interest over the land, unless it was expressly provided for the appellant to be a tenant alongside the respondent, and if that express permission had been granted by the landlord, Mr. Sariman.

To my mind, the appellants interest is described as a tenant at will because of the want of a lease agreement with the landlord, Mr. Sariman, Mo that he could rely on to assert a legal right to occupy the property. In Mai Corp Ltd v National Airports Corporation [2015] PGNC 226; N6031 (24 July 2015), His Honor Justice Makail stated;

“Unfortunately, the law puts a tenant at will's interest in the same category as a squatter settler. As in the case of a squatter, it has been held that a tenant at will has no right or interest over and above the rights and or interest of the landlord. This legal principle has been adopted and applied in this jurisdiction in past cases such as Koitaki Farm Limited v. Kemogo Kenge (2001) N2143; Koang No. 47 Limited v. Mondo Merchants Limited (2001) SC675; PNG Ready Mixed Concrete Pty Ltd v. The State [1981] PNGLR 396; John Jivetuo v. The State [1984] PNGLR 174 and Amos Bai v. Morobe Provincial Government [1992] PNGLR 150.

9. As a tenant at will, there is no real prospect of success for the Plaintiff to obtain an order for permanent injunction to restrain the Defendant from evicting it from the property. As correctly pointed out by the Defendant, the relief open to the Plaintiff is an order for further time to vacate the property and it would be open to the Court to grant it if it is sought by the Plaintiff. Such a relief, if granted, will be consistent with past decided cases some of which are cited above. In those cases, the Court gave time to occupants of land to vacate. However, the Plaintiff has not sought an order to that effect. Its case is built on the premise that it has a right to occupy the property and its interest must be protected. This is fatal to the Plaintiff's case. For the Court will be restricted to the relief sought by the Plaintiff in the Originating Summons. In a tenancy dispute, the Court will not protect a tenant who does not have a lease.”

16. In considering the above discussion, the Court is minded, not to consider the appeal because, I am of the view that a new tenure of residence cannot be created, or put simply, the respondent has no right to sublet the land or collect rentals or allow for another interest to be created out of the small area she has been allowed to live in. that in essence would be entirely wrong.
    
17. The landlord never acquiesced for the appellant to live on the land. The appellants appeal is based on a completely unknown area of law. This appeal must not stand.
    
18. In the light of the above, I do not need to consider the other aspects of the appeal.

THE COURT THEREFORE ORDERS THAT:

1. The Orders of 11^th October 2020, made by the Gerehu Village Court is upheld, and the appeal is quashed.
2. The respondent is awarded cost at K150.00 to be paid by the appellant.
3. Time is abridged.

By The Court.