Dowal v Dege [2014] PGNC 270; N5728 (15 September 2014)

N5728

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 806 OF 2013

BETWEEN

MAKUSIA DOWAL
Plaintiff

V

JOHN DEGE, MANAGING DIRETOR,
NATIONAL HOUSING CORPORATION
First Defendant

NATIONAL HOUSING CORPORATION
Second Defendant

Madang: Cannings J
2014: 11, 18 July, 15 September

PRACTICE AND PROCEDURE – whether proceedings commenced by originating summons ought to be dismissed for disclosing no reasonable cause of action – National Court Rules, Order 12, Rule 40 (frivolity etc).

LANDLORD AND TENANT – whether eviction of tenant from National Housing Corporation property was illegal, harsh or oppressive.

The plaintiff, a long-term tenant of a National Housing Corporation residential property, sought, by originating summons, a declaration that his eviction from the property by the Corporation was illegal, harsh and oppressive and orders that would require the Corporation to accept a cheque for K16, 549.00 for rental arrears and allow the plaintiff to remain on the property.

Held:

(1) The originating summons failed to disclose any cause of action: no legal basis for the orders being sought was revealed. This was sufficient reason to dismiss the proceedings.

(2) If the plaintiff's claims were considered on their merits, the proceedings would still be dismissed as the plaintiff failed to prove that the Corporation's actions were illegal, harsh or oppressive.

(3) All claims for relief were refused, the proceedings were dismissed and the plaintiff was ordered to vacate the property.

Cases cited

The following cases are cited in the judgment:

Bernbert Toa v Ly Cuong-Long (2008) N3471
Gerard Pain v The State (2012) N4708
Kiee Toap v The State and Others (2004) N2766
Petrus and Gawi v Telikom PNG Ltd (2008) N3373
Tigam Malewo & Ors v Keith Faulkner, Ok Tedi Mining Ltd & 3 Ors (2009) SC960

ORIGINATING SUMMONS

This was a trial in which the plaintiff sought a declaration that his eviction from a residential property was illegal, harsh and oppressive and consequential orders that would allow him to remain on the property.

Counsel

B Tabai, for the plaintiff
P Pera, for the defendants

15 September, 2014

1. CANNINGS J: The plaintiff, Makusia Dowal, has since 1988 lived as a tenant in a National Housing Corporation property in Madang town. The property is Section 60, Allotment 4, Maclay Drive, Newtown. On 15 November 2013 the Corporation took steps to evict him from the property. On 13 December 2013 he commenced proceedings by originating summons against the Corporation (the second defendant) and its Managing Director John Dege (the first defendant) seeking a declaration that his eviction was illegal, harsh and oppressive and orders that would require the Corporation to accept a cheque for K16, 549.00 for rental arrears and allow him to remain on the property. On 14 December 2013 this Court granted an interim injunction allowing the plaintiff to occupy the property and restraining the defendants from evicting him until further order of the Court.

2. At the trial of the proceedings the defendant opposed all relief sought by the plaintiff, arguing that no reasonable cause of action was disclosed and that the proceedings should be dismissed for that reason alone. If the Court allowed the plaintiff's claims to be considered on their merits the proceedings should still be dismissed, the defendants argued, as they had not acted illegally, harshly or oppressively.

3. The issues are:

1. Are the proceedings defective due to a failure to disclose a reasonable cause of action?
   
2. Do the plaintiff's claims have merit?
   
3. What orders or declarations should the Court make?
   
1. ARE THE PROCEEDINGS DEFECTIVE DUE TO A FAILURE TO DISCLOSE A REASONABLE CAUSE OF ACTION?
   

4. Whenever a person brings a case to court, the originating document must demonstrate that the plaintiff has a cause of action. The document must clearly set out the legal ingredients or the elements of the claim and the facts that support each element of the claim. If the plaintiff's originating document does that, there is a reasonable cause of action. If not, it does not disclose a reasonable cause of action (Tigam Malewo & Ors v Keith Faulkner, Ok Tedi Mining Ltd & 3 Ors (2009) SC960; Kiee Toap v The State (2004) N2766).

5. I uphold the defendants' argument that the originating summons fails to disclose any cause of action. No legal basis for the orders being sought has been revealed. It has not been made clear on what grounds the defendants' actions to evict the plaintiff should be declared "illegal".

6. As to the claim that the actions should be declared "harsh" and "oppressive", a cause of action might have been disclosed if the proceedings had been commenced as an application for enforcement of human rights under Section 57 of the Constitution and in accordance with the Human Rights Rules (Order 23 of the National Court Rules). I have in a number of cases held that the protection against harsh, oppressive or otherwise proscribed acts, which is afforded to all persons by Section 41 of the Constitution, is a human right, the breach of which gives rise to a cause of action (Petrus and Gawi v Telikom PNG Ltd (2008) N3373, Bernbert Toa v Ly Cuong-Long (2008) N3471, Gerard Pain v The State (2012) N4708). However, the plaintiff's case has not been framed as an application for breach of human rights. There is no mention of Sections 41 or 57 in the originating summons, the evidence or in submissions. The declaration that the defendants' actions were harsh and oppressive is being sought in a legal vacuum. It is a vague claim, incontestably bad and deserves to be struck out.

7. I will exercise the discretion of the Court to wholly dismiss the proceedings under Order 12, Rule 40(1)(a) of the National Court Rules: the proceedings fail to disclose a reasonable cause of action.

2. DO THE PLAINTIFF'S CLAIMS HAVE MERIT?
   

8. Two issues arise here: Were the actions of the defendants illegal? Were their actions harsh or oppressive?

9. The defendants' eviction of the plaintiff was certainly not illegal. The Corporation is the landlord and the plaintiff is the tenant. The most recent tenancy agreement entered into was in January 2006. Clause 5 provides that if the rent (K200.00 per fortnight) is unpaid for seven days after becoming due "it shall be lawful for the Corporation at any time to re-enter upon the premises in which event the tenancy shall absolutely determine". The defendants have presented un-contradicted evidence, and I find as a fact, that the plaintiff's rent was consistently unpaid, or under-paid, in various amounts, since 27 March 2006. As at 26 October 2013 the amount of unpaid rent was K16, 349.00. The Corporation clearly had a right to re-enter the property and terminate the tenancy, ie to evict the plaintiff. Mr Tabai for the plaintiff was unable to point the Court to any particular law that the Corporation had breached, to justify the assertion that the Corporation has acted illegally.

10. Did the Corporation acted harshly or oppressively? Mr Tabai submitted that the plaintiff had been living in the property since 1988, a period of 25 years, when the Corporation acted suddenly by giving him 48 hours notice to pay K16,349.00 or be evicted. He had raised his children at the house. He is a former Department of Agriculture and Livestock officer. He had been a good tenant. The Corporation had not maintained the property. The plaintiff had used his own money to make repairs. The plaintiff had consistently expressed his desire to purchase the property, in accordance with a 1992 National Executive Council decision under which it was Government policy to sell the Corporation's institutional houses to existing tenants. His requests were never properly dealt with. Recent public statements by the Prime Minister and by the first defendant to the effect that the Corporation was not involved in an eviction exercise were being ignored by the Corporation's Provincial Manager. When the plaintiff's daughter, who has also been living in the property, provided sufficient funds in the form of a bank cheque for K16, 349.00 to discharge the rental arrears, the Corporation refused to accept the cheque. When the plaintiff's daughter offered to, in addition, replace her father as the tenant, the Corporation unreasonably refused that offer, preferring to evict the plaintiff and his family.

11. I uphold the submission of Mr Pera for the defendants that the answer to all these allegations of harsh and oppressive conduct lies in three facts:

• the plaintiff was behind in his rent for more than six years when the Corporation took steps to evict him;
  
• the amount of unpaid rent was huge (K16,349.00 represents 81 fortnights or 3 years, 1 month in arrears);
  
• the Corporation issued 15 rental arrears notices to the plaintiff over the period from 2006 to 2013, including five in 2013.
  

12. It was reasonable in these circumstances for the Corporation to label the plaintiff as an unreliable and defaulting tenant and to take the view that he was not a person who deserved to be given the chance to purchase the property from the Corporation. None of the government policies alluded to by Mr Tabai obliged the Corporation to take any action other than what it did. As to the Corporation's decision to refuse to accept the cheque for K16,349.00 and to refuse the plaintiff's daughter's offer to substitute her father as the tenant, these were considered business decisions that were made without malice or ill intent. Frankly the Corporation was overly tolerant of the plaintiff's recalcitrance. It should have acted sooner than it did. The plaintiff should consider himself lucky to have stayed in the property, rent-free, for so long. The plaintiff's claims of illegality and harsh and oppressive conduct by the defendants are without merit.

3 WHAT ORDERS OR DECLARATIONS SHOULD THE COURT MAKE?

13. The entire proceedings are misconceived and without merit and require dismissal in their entirety. I will allow the parties to pay their own costs due to the difficult financial position that the plaintiff appears to be in. I will allow him a short period to fully vacate the property.

ORDER

(1) All relief sought in the originating summons is refused.

(2) The order of 14 December 2013 is dissolved.

(3) The proceedings are dismissed.

(4) All persons who occupy the property at Section 60, Allotment 4, Madang without the approval and consent of the defendants shall vacate the property by 12 noon on 25 September 2014, failing which the defendants and members of the Police Force are authorised to use reasonable force to eject such persons and their personal effects from the property.

(5) The parties will bear their own costs.

____________________________________________________________
Tabai Lawyers: Lawyers for the Plaintiff
NHC Counsel: Lawyer for the Defendants