Marcus v Dambali [2015] PGNC 314; N8348 (28 July 2015)

N8348

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 609 OF 2010

BETWEEN:
JOHN MARCUS, EMMANUEL MUNGU, REX WELIN
& 101 other Plaintiffs whose names are set out in schedule
One (A) & (B) to the amended Writ of Summons
Plaintiffs

AND:
DAVID DAMBALI –
Acting Managing Director – National Housing Corporation
First Defendant

AND:
FRANCIS TANGA –
The Chairman National Housing Board
Second Defendant

AND:
ANDREW KUMBAKOR MP –
Minister for Housing
Third Defendant

AND:
NATIONAL HOUSING ESTATES LIMITED
Fourth Defendant

AND:
NATIONAL HOUSING CORPORATION
Fifth Defendant

AND:
THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Sixth Defendant

Waigani: Hartshorn J
2014: 8^th September,
2015: 28^th July

LANDLORD AND TENANT – plaintiffs seek declaratory orders nullifying Notice of cessation of tenancy by defendants – plaintiffs also seek damages for breach of tenancy agreements – Trial – defendants contend notices were validly issued and plaintiffs are not entitled to damages – no submissions made by plaintiffs’ on the issue of validity of the notice of cessation of tenancy - all of the relief sought by the plaintiffs in their amended statement of claim is refused

Counsel:

Mr. R. Uware, for the Plaintiffs
Mr. M. Philip, for the Defendants

28^th July, 2015

1. HARTSHORN J: The plaintiffs were all tenants of the National Housing Corporation (NHC) at a property known as the Waigani North Hostel. They were issued with a notice to vacate and then a notice of cessation of tenancy. The plaintiffs sue NHC and other related defendants for amongst others, a declaration that these notices are defective and null and void, and for damages for breach of their tenancy agreements.

2. The defendants contend that the notices were validly issued and that the plaintiffs are not entitled to damages or any of the other relief that they seek.

3. It is accepted that the plaintiffs no longer reside at the Waigani North Hostel, that it has been sold and is in the possession of its new owners. As a consequence, counsel for the plaintiffs submitted that the court should only consider:

a) whether the notice of 6^th April 2010 (6 April Notice) is in breach of the respective tenancy agreements the plaintiffs have individually entered into with the NHC and hence are wrongful and invalid;

b) whether the notice issued by the Waigani North Hostel manager on or dated 16^th April 2010 (16 April Notice) is legally valid. If not then is it in breach of the tenancy agreement the tenants/plaintiffs have with the NHC;

c) if by reason of the two notices, the respective tenancy agreements have been breached, can the plaintiffs be entitled to the relief that they are seeking in the Amended Writ of Summons and Statement of Claim.

The 6 April Notice

4. In their amended statement of claim, the plaintiffs claim that the 6 April Notice was in breach of their respective tenancy agreements as:

a) the 6 April Notice is not written on the official NHC letterhead and is not fixed with the corporate seal of NHC;

b) the 6 April Notice was not based on any relevant clause of the standard tenancy agreement;

c) renovation and maintenance is not a ground for an eviction of the plaintiffs nor is it a ground for termination of the standard tenancy agreement;

d) the 6 April Notice does not guarantee the plaintiffs’ return to the Hostel after the renovations are completed, and neither does it guarantee alternative and/or temporary accommodation to the plaintiffs;

e) the 6 April Notice was not issued to each and every plaintiff individually pursuant to the individual and respective tenancy agreement.

5. As to the 6 April Notice not being on the official NHC letterhead and not being affixed with the corporate seal of NHC, no submissions were made on behalf of the plaintiffs on this point and so I will not consider it.

6. As to the 6 April Notice not being based on any relevant clause of the standard tenancy agreement, copies of which are annexed to various affidavits filed on behalf of the plaintiffs, if what is meant is that a clause number of the tenancy agreement is not specified in the 6 April Notice, then that is correct. However, it is not provided for in the tenancy agreement that the number of the clause of the tenancy agreement upon which a notice to vacate is based, has to be included in the notice to vacate, and no statutory or case authority was relied upon to support such a submission. Consequently, in the absence of it being stated in the tenancy agreement that the specific clause number of the tenancy agreement upon which a notice to vacate is based has to be included in a notice to vacate, I am not satisfied that such a requirement exists.

7. As to renovation and maintenance not being a ground for eviction of the plaintiffs or a ground for termination of the tenancy agreement, from a perusal of the tenancy agreement, there is no requirement that NHC has to give a reason for the determination of a tenancy. In the absence of it being stated in the tenancy agreement that such a reason must be given and any authority being relied upon to the effect that a reason for the determination of a tenancy must be given, I am satisfied that NHC is not required to give a reason for the determination of a tenancy.

8. As to the 6 April Notice not guaranteeing the plaintiffs’ return to the Hostel or an entitlement to alternative or temporary accommodation, again there is no requirement in the tenancy agreement that the NHC has to provide such a guarantee or to provide alternate accommodation.

9. As to the 6 April Notice not being issued individually to each and every plaintiff, the tenancy agreement does not specify how a notice to a tenant is to be given. Counsel for the plaintiffs did not refer this court to any authority to the effect that a notice in these circumstances has to be to each tenant individually. As submitted by the defendants, if notice was to be given to numerous tenants who each had sole tenancy of detached houses, then it would be necessary to give one notice to each tenant individually - the object being to ensure that each tenant was notified.

10. In this instance however, the Waigani North Hostel was one property consisting of numerous rented rooms (as pleaded in the Amended Statement of Claim para 10). There was a noticeboard used by the tenants upon which notices were placed to notify all tenants. It was upon this noticeboard that the 6 April Notice was placed. In the absence of any specific requirements in the tenancy agreement as to how a notice to a tenant is to be given and of any authority relied upon by the plaintiffs that notice in these circumstances was required to be given individually, I am satisfied that the plaintiffs have not made out their case that the tenancy agreement was breached by the method in which the 6 April Notice was given to the tenants.

11. For the above reasons the submissions of the plaintiffs’ on this question are rejected.

The 16 April Notice

12. As to whether the 16 April Notice is legally valid or in breach of the tenancy agreement, although the plaintiffs seek declaratory relief that the 6 April Notice and the 16 April Notice are “... legally defective and null and void ab initio”, it is not evident in the Amended Statement of Claim as to why, and no submissions were made as to why specifically the 16 April Notice is not “legally valid” and is in breach of the tenancy agreement.

13. Although, from a perusal of the 16 April Notice, the statements contained therein are by no means clear, in the statement of agreed facts, it is agreed between the parties that the 16 April Notice “... advised of the cessation of all tenancies the tenants (now plaintiffs in this proceeding) had with the NHC, amongst other things.” I would not have interpreted the 16 April Notice as meaning that. Even if the 16 April Notice did mean what the parties agree that it means, it is not clear at all, when the tenancies are to cease.

14. As to whether the 16 April Notice is legally valid, counsel for the plaintiffs has not made it clear what is meant by that phrase and as I have said, has not made submissions as to why the 16 April Notice is not “legally valid”. Further, no submissions were made as to why the 16 April Notice is in breach of the Tenancy Agreement. Given that the 6 April Notice had already given notice to vacate, I am unable to understand what if anything, the 16 April Notice contributes to the scenario. Given this, the plaintiffs have not made out a case that the 16 April Notice is not “legally valid” or is in breach of the Tenancy Agreement.

Whether the plaintiffs are entitled to the relief claimed in the Amended Writ of Summons and Statement of Claim

15. As I have found that the plaintiffs have not proved that the 6 April Notice and the 16 April Notice were in breach of the tenancy agreement or were not “legally valid”, the plaintiffs are not entitled to the declaration to that effect that they seek and they are not entitled to any damages.

16. As to the other relief that is sought by the plaintiffs, it has been overtaken by events and so is refused.

17. As to the cross claim by NHC, its counsel proceeded on the basis that the plaintiffs have not filed a defence to the cross claim when in fact they have. Further, counsel for the plaintiffs did not make any submissions on the cross claim. Given this, I require to hear further submissions of counsel as to the merits or otherwise of the cross claim.

Orders

18. It is ordered that:

a) all of the relief sought by the plaintiffs in their amended statement of claim is refused;

b) the costs of the defendants of and incidental to the plaintiffs’ claim are to be paid by the plaintiffs;

c) counsel for the parties are to make further submissions as to the merits or otherwise of the cross claim on a date to be allocated;

d) time is abridged.

____________________________________________________________
Office of the Public Solicitor: Lawyers for the Plaintiffs
Korerua & Associates Lawyers: Lawyers for the Defendants