Haera v Damlap [2021] PGDC 198; DC7056 (31 August 2021)

DC7056

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]
DCC NO: 56 /2021.

IN THE MATTER BETWEEN:

JESSICA HAERA.
Complainant.
.
AND.
NELSON DAMLAP
Defendant.

Popondetta: Michael W. Apie’e

2021: August 31^st.

CIVIL PROCEEDINGS. Claim for summary Ejectment of Defendants from Property. Claim of ownership over deceased Estate due to District Court orders previously issued in relation to said Estate. Claim of purchase of Said Deceased Estate through a deceased sibling of the Complainant. Issue of Privity of Contract.
CIVIL PROCEEDINGS. Previous rulings and Adjudications by other Magistrates relating to the case at hand. District Court not bound by Decisions of other District Court Magistrates.

Cases Cited:
-PNGBC v. Barra Amevo and Bari Investments t/a Kainantu Pharmacy, Lennie Aparima and Orito Aparima N1726,
-Christian Life Center v. associated Mission Church of Papua New Guinea (2007) N22
-Gawi v. PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 72

References:
District Court Act.
Summary Ejectment Act

Representation:
Complainant in person with her spokesman Mr. Cyril Ombi.
Defendant in person with his spokesman Mr. Septimus Atoripa.

JUDGMENT ON TRIAL.

Background.

1. The Complainant filed suit and claimed in her complaint that on the 14^th of April 2021 as follows that;
   
   1. The Defendant without right unlawfully occupy and illegally reside on the Complainants Family Block Situated at Igora Road 6 Portion No. 111613.
      
   2. Further that, Despite and Order of the District Court dated the 12^th July 2012 by his Worship William Noki stating that the Defendant and his agents allow the Complainant and her family to harvest Oil Palm to recoup the money or the block be surrendered to the Complainant which did not eventuate

(The Money to be recouped being the K19,630.00 ordered and awarded by Mr. Noki in his order of 12/07/12.)

100. The Complainant therefore seeks to have the Defendants and his agents to be evicted from the said Portion 111613 and the said block to be surrendered to her.
     

4. Any other Orders the Court deems meet.
   

Trial:
Complainants case.

2. This matter came before me on the 06^th of July 2021 at 1.30pm and the Complainant and her husband, one Fred Jovereka both gave sworn evidence toward the claim.
   
3. The Essence of the Complainants claim is as follows that;
   
   1. The Complainants Father Late Napoleon Haera came in from Lae and wanted to settle and one Aaron Damlap who is the erstwhile deceased brother of the Defendant Nelson Damlap was acting as Late Napoleon Haera’s go between and after looking for block available for sale, they found none for sale.
      
   2. Aaron Damlap then came back to Napoleon later on with a Statutory Declaration, disclosed in court, for the sale of Portion 111613 and negotiated with Napoleon and offered it for sale to the Late Napoleon and Napoleon accepted and wanted to make some part payment but Aaron Damlap insisted on Full Payment so the total of K35,000.00 was paid into his Account.
      
   100. He (Aaron Damlap) took off, and later when the Complainants late father went to take over Portion 111613, he was told that the block was not for sale.
        
   4. They then put a stop on Aaron Damlap’s account and recoup a total of K20,000.00 from Aaron Damlap’s account with the balance of K15,000.00 being depleted/used.
      
   5. Because Aaron had escaped, the Complainants father took Nelson Damlap and one David Manam to Court and on the 12/07/12 his Worship Mr. William Noki issued the Orders for settlement of K19,600.00 or Harvesting of Oil Palm by the Complainant and so on and so forth.
      
   6. After these orders the Complainant waited for the Defendants to comply with the order and Late Napoleon Haera died, then Aaron Damlap died in Lae and even David Manam died, and after some more delay, in April of this year 2021, the Complainant Jessica Haera again filed suit this time against Nelson Damlap to seek the Orders noted above.
      

Defendants Case.

4. The Complainants case closed and on the 08/07/21 the Defendant through his spoke-person Mr. allowed under Section 59 of the District Court Act presented his case through witnesses called like Mrs. Edith Namus, William Maima on 15/07/21 and his own sworn oral testimony on 21/07/21.
   
5. The essence of Defense Evidence was that;
   
   1. The Defendant is the surviving son of Late Prang Fosingneo Damlap the Estate Owner under whose name the Block 111613 is still Registered.
      
   2. The Defendant indicated and adduced evidence revealing that indeed the Block is still registered under his late father’s name and that he is now working with the Banks and Oil Palm Industry Corporation (OPIC) to takeover and have the Block Registered under his name as the surviving son and Next of kin of the Late Prang Fosingneo Damlap.
      
   100. He insisted that whatever Deal there was that happened between Late Aaron Damlap and Late Napoleon Haera was misconceived and the Block was not at Late Aaron Damlap’s disposal to sell off as at the time of this deal in 2010, even though late Prang Damlap had died, his wife and Nelsons mother was still living and therefore she was the Next of Kin or surviving authority regarding the Block and not Aaron Damlap.
        
   4. This fact was emphasized by Ms. Edith Namus in her evidence in support of the Defendant stating that when the Complainants came around after dealing with Aaron, the old mother was blind but still on the block and therefore nothing had passed to Aaron to do as he wanted with the Block.
      
   5. Witness William Maima on the other hand, whilst being formerly employed with the Vudal University of Natural Resources and Environment Popondetta Campus (UNRE) had actually successfully acquired and taken over three blocks in Popondetta himself as well as other blocks in Kimbe West New Britain Province, and he testified on the proper process to follow before taking over a Block from his experience and he insisted that the deal between Aaron Damlap and Napoleon Haera was flawed and therefore not proper and null and void.
      
   6. He stated that in order to take over a block, first one must identify where the title is, then get permission from any and all persons that might have an interest in the block, then pay up outstanding Debts, then pay 10% of the sale price to IRC before transaction would happened and you take over the title.
      
   7. This is the process he followed to takeover three Blocks so far in Poponetta, but the deal between Late Napoleon Haera and Late Aaron Damlap does not even come close to this process.
      
   8. According to the Defense, Late Aaron Damlap made a deal with Late Napoleon Haera without being in possession of the title to the Property, without being the recognized Next of Kin as their mother was still living and most importantly, without the permission of the rest of the Damlap Family.
      
   9. Therefore, this deal was null and void according to the Defense!
      
6. The Trial concluded thus, submissions were called for the 27/07/21, but after some delay submissions were received by the Court finally on 12/08/21.
   

Observations /Assessments.

7. Having heard the evidence in this trial and the Submissions of 12/08/21, I make the following observations and assessments of the Evidence and contentions from the parties;
   
   1. The Total amount supposedly misused by Aaron Damlap from the monies paid him by Napoleon Damlap is K15,000.00 and this court notes that the K19,600.00 orders from his worship William Noki as he then was on the 12/07/12 is based on that.
      
   2. Regarding the Agreement between Late Aaron Damlap and Late Napoleon Haera and Court Orders of 12/07/12 by his Worship William Noki as he then was;
      
   1. As far as case precedents go, I can only Rule on the Evidence presented before me and I am not obligated nor am I bound by previous magistrates Adjudications on any particular matter, and I intend to adjudicate on the current matter accordingly.
      
   2. The Defendant Nelson Damlap was never a party to the Deal in 2010 between Late Napoleon Haera and Late Aaron Damlap therefore he could not be lawfully made to take on obligations he never agreed to as the Common Law Doctrine of Privity of Contract which forms part of Papua New Guinean Underlying Law and therefore applicable in this case would prohibit this court from imposing obligations on him that he never contracted for.
      
   3. As has being amply espoused in cases like PNGBC v. Barra Amevo and Bari Investments t/a Kainantu Pharmacy, Lennie Aparima and Orito Aparima N1726, and Christian Life Center v. associated Mission Church of Papua New Guinea (2007) N22, the Defendant cannot be made to take on obligations he did not agreed to.
      
   4. In the PNGBC v. Barra Amevo case above, Sevua J (Late), as he then was, stated,
      

‘The Doctrine of Privity of Contract is that, as a general rule, a contract cannot confer rights or imposed obligations arising under it on any person except the parties to it. The scope of the doctrine means only that a person cannot acquire rights, or be subjected to liabilities arising under a contract to which he is not a party.’

5. In the Christian Life Center v. associated Mission Church of Papua New Guinea (2007) N22, Lenalia J (Late) as he then was also echoed this sentiment and said
   

‘In the Law of Contract, a contract creates rights and obligations between the parties to it...’

6. This Principle simply stated means a ‘Contract’ only applies to those who entered into it, and no-one else.
   
7. So in this Regard whatever claim the Complainant might have regarding the monies paid to Late Aaron Damlap and partially recovered from his Account, such cannot be over-extended to cover his brother the Defendant or for that matter anyone else.
   
8. No evidence has been adduced by the Complainant to enable this court to embark on a journey to tie in the Defendant and others including the deceased David Manam as being parties to the deal between Napoleon Haera and Aaron Damlap.
   
9. To that point, it is the humble opinion of this Court that
   
   1. Mr. William Noki’s presumptions in issuing orders for Refund of K19,600.00 on the 12/07/12 as claimed from the Defendant to the Complainants can be deemed as ultra-vires and therefore Null and Void and accordingly unenforceable in that the Magistrate issue orders over and above his Jurisdiction of K10,000.00.
      
   2. Whether he gave orders for payment of the K15,000.00 misused by Aaron Damlap or the K19,600.00 he adjudged in his orders, it would still be ultra-vires and beyond his jurisdiction.
      
   3. FURTHER also, he could not rightly in common law bind Nelson Damlap to his late brother Aaron Damlap’s unconscionable and secret deals with Late Napoleon Haera, whilst his mother was still living on the said block.
      
   4. This Court is therefore not lawfully bound to consider any order or adjudications by any court that is clearly Ultra-Vires and therefore not Legally sound.
      
100. Aaron Damlap was not the next of kin nor was he the person with the ability to dispose of Portion 111613 at Igora Road 6 at the time of him entering into this deal with the Late Napoleon Haera given that his old mother was still living on the block, therefore she was the one with authority over the block.
     

4. The normal processes applicable for Block Acquisition and Takeover as disclosed by witness William Maima were not followed as all that was done was the presentation of a Statutory Declaration by Aaron Damlap and the deposit of K35,000.00 into his account without further vetting or processes being employed, such as the 10% payment to IRC and or OPIC!
   
5. Late Aaron Damlap, unconscionably and fraudulently tried selling off Portion 111613 from under his family, especially his old and blind mother who was still living on the block at the relevant time in 2010. Now he is dead!
   
6. The Purport Written Statement from David Manus tendered by the Complainant is rejected as not only was an unsigned copy first tendered to the Court, but also, David Manam is dead, there is no way to verify the reliability let alone the truth of the Statements on that paper. This court will not rely on this paper.
   
7. There was a payment of K900.00 or so made on the 25/03/2010 for Land Rental arrears for Portion 111613 in the name of Napoleon Haera, but according to Witness William Maima, that money can be refunded as OPIC and IRC will only accept payments made in the name of the Title holder. And So should be so ordered.
   
8. The assumption that the Portion 111613 should be levied to repay the K19,600.00 or whatever amount the Late Aaron Damlap might still owe the Complainant is flaw in Law and common sense as the said Late Aaron Damlap did not have title, was not a next of kin, nor did he have permission to pledge the block to anyone.
   
9. Privity of Contract as earlier stated will not allow this court to Over-extend the void agreement between Aaron Damlap and Late Napoleon well after their deaths to include persons like Nelson Damlap who is a Stranger, as far as this purported deal is concerned.
   
10. Regarding the Orders sought to Evict the Defendants from Portion 111613 under Section 6 of the Summary Ejectment Act, this Application is misconceived as Section 6 and for that Act as a whole only Applies to Persons with actual Title or Undisputed Ownership Rights over Properties seeking to regain control and possession over their properties from others encroaching or occupying it.
    
11. In this case, the registered owner of Portion 111613 is Late Prang Damlap and the recognized Next of Kin now according to OPIC is the Defendant Nelson Damlap and not Jessica Haera, she therefore has no recourse even under the Summary Ejectment Act.
    

50. This Application by the Complainant cannot be sustained under the Summary Ejectment Act nor can it be support on case law like the Adjudication of Late Kapi DCJ as he then was in the Gawi v. PNG Ready Mix Case [1984] PNGLR 72
    

8. In the final Analysis, the Court finds and Rules as follows that;
   
   1. The Deal between the Late Napoleon Haera and Late Aaron Damlap was invalid in that Aaron Did not have Title, Control or permission to dispose of the said Portion 111613 to anyone including the Complainant.
      
   2. The District Court Order by Mr. William Noki issued on the 12/07/12 is not considered by this court as binding on it, as it is Ultra-Vires, and also contrary to the Concept of Privity of Contract in its effect, and further that this court is only bound to adhere to the Evidence presented before it or lack thereof and not necessarily on other District Court Adjudications or Orders.
      
   3. On the basis of the Evidence presented the Defendant is found to have no obligations to repay anything to the Complainant.
      
   4. The Complainant is also found to have no rights or recourse over Portion 111613 in respect of its operations or harvesting of Oil Palm Fruits or other such Activities to recoup her late Fathers monies.
      
   5. Unless Aaron Damlap has savings or an Estate somewhere this outstanding monies can be levied against, this is a case akin to ‘Bad Debt’s’ and this court therefore cannot offer a solution to the Complainant.
      
9. Accordingly, the Court will order as follows;
   
   1. The Complaint is refused in its entirety.
      
   2. The K900.00 Land Rental Arrears payment made in the name of Late Napoleon Haera on the 25/03/2010 be refunded to the Complainant Jessica Haera.
      
   3. Costs be in the course.

Complainant in person with her spokesman Mr. Cyril Ombi.
Defendant in person with his spokesman Mr. Septimus Atoripa.