DC120

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 2512 OF 2005

BETWEEN

ALBERT ROIO
Complainant

AND

NATIONAL HOUSING CORPORATION
Defendant

PORT MORESBY

GAULI, APM
22 September 2005
28 November 2005
12 January 2006

For the Complainant, In Person
For the Defendant, Mr. Anton Waira

REASONS FOR DECISION

GAULI, APM: The Complainant sued the Defendant in that the Defendant, the National Housing Corporation, to restrain the NHC from evicting the Complainant.

Brief Facts

The Complainant at all material times is the legal tenant of the property knows as Section 237 Allotment 26 Gerehu Stage 2, National Capital District since 1986. The Complainant is the Vocational School Teacher at Maino Heduru Vocational Training Centre. The said property is owned by the State through the NHC.

In about March 2005, the Complainant was in rental arrears of K6, 552.50 by Invoice N.8390. On 30 June 2005, the NHC gave notice to the Complainant to provide his finance evidence to pay the rental arrears or he be evicted in seven (7) days.

On the 04th July 2005, the NHC gave the Complainant 48 hours to vacate the property for non payment of the rental arrears. On 25th July 2005, this court issued the interim restraining orders against the NHC pending the hearing of substantive matter. 

The above facts are not in dispute.

Evidence

The evidence for and on behalf of the Complainant are received from Albert Roio, Timex Kemoti, Joseph Sa'a, Charlie Avasuru and Boas Keu. The witness Albert Roio was examined while the affidavit evidence of the other witnesses were tendered by consent.

Apart from the facts as stated above the complainant Mr. A. Roio further gave evidence that following the notice by the NHC on 30th June 2005, he then applied for loans and financial assistance from Teachers Savings and Loans Society, the Bank of South Pacific and Kiunga Catering Company. The Kiunga Catering Company assisted with K1, 000.00, the Teachers Savings & Loans Society have approved K800.00 and the Bank of South Pacific approved K3, 450.00. The complainant's daughter also applied for a loan of K2, 000.00 to the ANZ Bank which was approved. The Complainant then advised the NHC of these loan applications and requested for 2 to 3 weeks extension in order to collect these monies and settle the outstanding rental arrears.

The Complainant gave evidence that since 1987 he was paying rentals through pay deductions at a rate of K200.00 per fortnight though the rent was K180.00 per fortnight. He was paying extra K20.00 fortnightly on rent. He was then out of work for 18 months from 2000 to 2001. And at that time he was not paying rent.

After Mr. Roio had received his loan monies from the BSP and Teachers Savings and Loans Society, he wanted to pay his outstanding rental arrears. However he could not as the NHC have closed his files.

On 12th July 2005, the Complainant signed a form at the NHC office at Tokarara to cease salary deduction for the rent. Mr. Roio said he was forced to sign this cease deduction form by the Housing Office who had already filled every detail by that officer. And Mr. A. Roio told the Housing officer that he will sign the form because he told him but he will not move out of the house.

On the next day 13th July 2005 the NHC locked up the property. The Complainant and his family had to live under the house for two weeks. The Complainant obtained a court order on 25th July 2005, which authorized the complainant to remain on the property. And with the police assistance the Complainant and his family re-entered the house.

The witness Timex Kemoti gave evidence of installing the fence around the said property on or about March 1988.

The witness Joseph Sa'a in his affidavit deposed that he is the neighbour to the complainant since 1990. He saw the fence being erected around the subject property in 1998. He also witnessed that on the 13th and 14th July 2005 in which the complainant was locked out of the house by the security personnel from the Delta Security Services and the group of Highlanders who were deployed by the defendant. Mr. Joseph Sa'a however stepped in to the complainants aid and prevented the complainant from been forced out. The Highlanders claim that they have purchased the house.

The witness Charlie Avasuru, also a close neighbour to the complainant, gave evidence confirming the evidence of witnesses Timex Kemoti and Joseph Sa'a.

The witness Boas Ken, a Senior Staff and Salaries section (Southern Region) of the Education Department deposed in his affidavit confirming Mr. Albert Roio's rent of K200.00 was been deducted from his salaries fortnightly.

The evidence for the defendant NHC came from the only witness Ms. Madeline Paulisbo. She is the Provincial Manager for the NHC in the NCD. She gave evidence that on the 18th April 1986 the complainant entered into a tenancy agreement with the NHC for the subject property and agreed to pay fortnightly rent of K180.00.

She said the complainant had defaulted in his rental commitment. On 02nd October 2002 Mr. A. Roio was given 15 days notice to settle his outstanding rental arrears of K11, 085.00. Mr. A. Roio did not respond. The NHC gave further notice on 03rd June 2005 with the arrears of K6, 552.50 when Mr. A. Roio failed to respond, the NHC gave a third notice on 04th July 2005 to vacate the premises within 48 hours.

On 12th July 2005 Mr. A. Roio voluntarily called in at the NHC office and signed an authority for Salary Deduction to cease rentals and the NHC cancelled the tenancy. And the NHC has entered into another tenancy agreement with Ruth War on the 13th July 2005. As a result Mr. A. Roio and his family have to be locked out of the premises.

The Issues

The Defendant has raised three (3) issues for this court to address. These are: -

1.	Whether the complainant has breached the tenancy agreement that give rise for the defendant to repose the property on 12th July 2005.

2.	Whether the complainant had legal rights to remain on the property in question now.

3.	Whether the courts decision to dismiss the proceedings is a proper thing to do in the circumstances of the current situations in Papua New Guinea.

I now consider these Issues.

ISSUE 1: Whether the complainant has breached the tenancy agreement that gives rise for the defendant to repose the property on 12th July 2005.

The evidence before this court shows that the complainant was to pay fortnightly rent of K180.00 but he was paying K200.00 instead. For the period from 1987 to 12th July 2005 where he would have paid a total rent of K86, 820.00 at the rate of K180.00 fortnightly. For the same period he was paying K200.00 rent a fortnight. For that period he would have paid a total of K96, 400.00 less the 18 months he was out of work where he has not paid rent totalling to K6, 480.00. So the total rent he actually paid was K89, 920.00 (K96, 400.00 - K6, 480.00). For the period from 1987 to 12th July 2005 he was expected to pay a total rent of K89, 920.00. This means that the complainant had made advance rental payment of K3, 100.00 for the same period. The tenancy agreement to for the complainant to pay rent was K180.00 per fortnight. He was paying K200.00 per fortnight and advance payment of K20.00 per fortnight. Though this may be in breach of the agreement however it was for the benefit of the defendant as there were part advance payments made each fortnight. As a result of these part advance payments made the complainant had made a total advance payment of K3, 100.00 for the same period. He was never in rental arrears therefore I find that he has not breached the tenancy agreement. The Defendant's action reposes the subject property on 12th July 2005 was quite unlawful.

ISSUE 2: Whether the Complainant had legal right to remain on the property in question now.

In the light of my discussion in the ISSUE 1 above, the complainant had made advance payments for rents and that he is not in rental arrears. For that reason he has the legal right to remain on the property. It is true that the Complainant had signed the form to cease rental deductions on 12th July 2005. The circumstances in which he had sight this form was that he was forced by the Housing Officer to sign. The form was prepared by the Housing Officer of every detail and Mr. A. Roio was asked to just sign which he did. And he told the Housing Officer there and then that he was signing the form because the Housing Officer forced him to sign but he will not move out of the property.

Had the Housing Officer made the proper calculations of the rental payments, the officer would have known that Mr. A. Roio had made advance payments and that he was not on any rental arrears, then the officer would not have forced Mr. A. Roio to sign the cease deduction for to cease tenancy agreement. The Housing Officer has mistakenly forced Mr. A. Roio to cease the tenancy agreement. I find that the complainant had the legal title to remain on the property the subject of these proceedings.

ISSUE 3: Whether the courts decision to dismiss the proceedings is a proper thing to do in the circumstances of the current situation in Papua New Guinea.

I consider that it is not necessary to consider this Issue to dismiss the proceedings. I find that the complainant has proven his case to restrain the Defendant from evicting him I am satisfied that the complainant has not fallen into rental arrears therefore the defendant does not have the right to evict him. As a result this proceedings to restrain the defendant from evicting the complainant could not be dismissed in the circumstances of the case as it stands.

Accordingly this court makes the orders that:-

1.	The defendant (NHC), its agents, servants or other authorized person acting on behalf of the NHC are restrained from evicting, the complainant and or his family from the property know as Section 237 Allotment 26 Gerehu Stage 2, NCD.
2.	That the Defendant (NHC), its agent, servant, and or any other authorized persons acting on behalf of the NHC are restrained from harassing, intimidating or abusing the complainant and his family.
3.	Any other persons or would-be- buyers of the subject property, and their agents, servants or any other authorized person acting on behalf of the would-be-buyers, are restrained from evicting, harassing, intimidating or abusing the complainant and his family from the said property.
4.	If there is any rental arrears owing by the complainant on the subject property, the complainant be given a period of 12 months to settle by instalment payment each fortnight in addition to the K200.00 fortnightly rent.

By the Court