Mondia v Kapo [2015] PGSC 37; SC1442 (10 July 2015)

SC1442

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 22 of 2013

BETWEEN:

THEODORE MONDIA
Appellant

AND:

JOHN KAPO
Respondent

Waigani: Injia CJ, Batari and Hartshorn JJ
2015: July 2nd, 10th

SUPREME COURT APPEAL - Appeal from dismissal of National Court Appeal from District Court decision – whether District Court may grant declaratory relief

Counsel:

Mr. M. Karu, for the Appellant
Ms. M. David, for the Respondent

10th July, 2015

1. BY THE COURT: This is a decision on an appeal against a National Court decision that dismissed an appeal against a District Court decision.

Background

2. The National Housing Corporation (NHC) owns the property described as Allotment 12 Section 36, City of Lae (Property). The respondent Mr. John Kapo entered into a tenancy agreement for the Property with NHC on 9th May 2011 (2011 Tenancy Agreement). The appellant Mr. Theodore Mondia and others remain in the property. Mr. Mondia claims that he is entitled to remain in the Property as his late mother, Agnes Mondia, had a tenancy agreement with NHC for the Property. Mr. Kapo successfully sought amongst others declaratory relief in the District Court that he is the legal tenant of the Property. Mr. Mondia unsuccessfully appealed the decision of the District Court in the National Court and now appeals the National Court decision.

Grounds of appeal

3. The grounds of appeal are in essence that the District Court does not have the power to make declaratory orders or to make other orders that have not been sought and that only the registered title holder of a property can apply for an eviction order under s. 6 Summary Ejectment Act.

Consideration

4. It was correctly conceded by counsel for Mr. Mondia that the validity of the 2011 Tenancy Agreement was not in issue in the District Court proceeding. It was further conceded that given this, any interest that Mr. Mondia may have in the Property is merely equitable.

5. As to the power of the District Court to make a declaratory order, s. 22 District Courts Act provides:

"22. General ancillary jurisdiction.

Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall, in proceedings before it—

(a) grant such relief, redress or remedy, or combination of remedies, whether absolute or conditional; and

(b) give the same effect to every ground of defence or counterclaim, whether equitable or legal,

as ought to be granted or given in a similar case by the National Court and in as full and ample a manner."

6. We are satisfied that the wording of s. 22 is sufficiently wide to permit a declaratory order to be made. Section 21 (4) District Courts Act provides that the District Court does not have jurisdiction to deal with certain matters. The District Court proceeding was not concerned with any of those matters.

7. In the District Court proceeding, Mr. Kapo sought principally that he is the legal tenant of the Property. Given amongst others that the validity of the 2011 Tenancy Agreement was not in issue, we are satisfied that the District Court was entitled to order the declaratory relief in the terms that it did.

8. As to the other relief that was granted by the District Court, it is consequential relief following on from the recognition that Mr. Kapo is the legal tenant and as a consequence is entitled to exclusive possession of the Property.

9. As to whether the consequential relief should have been specifically sought, even if there were merit in this argument, and we make no comment on this issue, we are satisfied that the appeal Judge did not err in not allowing the appeal. As Mr. Kapo is the legal tenant by virtue of the 2011 Tenancy Agreement, he has a legal interest to the Property. This interest is superior to any equitable interest that Mr. Mondia may have and entitles Mr. Kapo to exclusive possession of the Property.

10. Section 230 (2) District Courts Act provides that:

"(2) An appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice."

11. We are satisfied that the District Court decision was not a substantial miscarriage of justice and the appeal Judge did not err in dismissing the appeal to the National Court. Consequently this appeal should be dismissed. Given this it is not necessary to consider the other submissions of counsel.

12. As to costs being sought on a solicitor client basis by Mr. Kapo, we are not satisfied that he has sufficiently made out a case for such an order.

Orders
13. The Orders of the Court are:

a) This appeal is dismissed;

b) The appellant shall pay the respondent's costs of and incidental to this appeal.

__________________________________________________________
Daniels & Associates Lawyers: Lawyers for the Appellant
Niugini Lawyers: Lawyers for the First Defendant