DC5019

PAPUPA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

Civil Jurisdiction
DC N0 285 OF 2007

PAULA VUVU
- Complainant-

-V-

CLERK PYANGTAIU
- Defendant -

PORT MORESBY:	PUPAKA, PM
2008:				22nd September

Eviction case  – Section 6 of Summary Ejectment Act – Title – Defendant occupies part of premises as a result of a lease agreement with  previous owner – Lease agreement still current – Previous owner now deceased – Complainant is lawful successor – Issues of law as a result  of succession – Complainant demands defendant’s departure from the premises but the latter refuses to vacate – Costs.

Parties’ relationship now strained and antagonistic – Lease agreement now obviously breached – Reasons given by the defendant to stay on not enough or “reasonable cause” under Section 6 (2) (b) of Act and therefore cannot counter demand for vacant possession – Eviction orders proper – Defendants’ possible rights if any are only in damages.

The Complainant in person
The Defendant in person

24th September 2008
PUPAKA:	This was a contested eviction case. After many mentions the parties agreed to rely on their affidavit evidence and file written submissions. The defendant initially indicated that he may cross-examine the complainant but he opted not to do so. Parties then invited the Court to consider their affidavit evidence and submissions and decide on the issues.  I have therefore considered their evidence and the defendant’s final submission. The following is the considered judgment of this Court.

THE FACTS

The facts, as I am able to make out in the circumstances, are that the property, subject of this proceeding, is Section 148, Allotment 9, Vaibori Avenue, Takarara, National Capital District. Title over the property is now registered under the name of the complainant. It used to be owed by one Elias Vuvu, who is apparently now deceased. The complainant, wife of the deceased owner, inherited the property. She was awarded succession ahead of another woman who apparently was living with the late Elias Vuvu at the time of the latter’s demise. There were some issues and controversy over which of the two women was to inherit the property and the related disputes were subject of litigation both in the District and National Courts. In the end the Public Curator had to decide who should have the property. The complainant was ultimately granted ownership and consequently she became the registered title holder of the property. These are now clear facts. Ownership is not and cannot be in issue. There is evidence to suggest that the actual transfer of ownership happened before the Public Curator officially decided on succession. That is why the Nation Court seems to have noted and declared once that the transfer of ownership to the complainant was null and void. However the Public Curator, after that pertinent National Court ruling, confirmed succession of the property to this complainant. That effectively meant ownership is in the complainant. As a result the other wife of the late deceased Elias Vuvu, one Renagi Api, though she was occupying the property at the time, has since vacated the premises and moved on. Renagi Api no longer retains interests over the premises, nor is she a party to this proceeding. The Public Curator has already completed distribution of assets of the deceased’s estate and finalized succession issues.

Apparently the complainant, once she got rid of her rival Renagi Api, wanted the defendant, who had been occupying part of the premises and operating a tucker shop, to vacate the property as well. After numerous squabbles and failed attempts she commenced this instant proceeding to compel the defendant’s departure.

DEFENDANT’S INTERESTS OVER THE PROPERTY

The evidence shows that the defendant and the previous registered title holder of the premises, the late Elias Vuvu, entered into a lease agreement whereby they covenanted that the defendant would rent the portion of the property over which he has his tucker shop for a monthly rental of K300.00. The lease seems to have been agreed for a period of 25 years, with an option to release for another 25 years. Apparently a dead man’s name and signature attests to the veracity of the document. A copy of it is now in evidence. However a lease for 25 years for a paltry (fixed) sum of K300.00 month is not, what one may say, an ordinary lease. It is up front suspect, more so when it surfaces after the demise of the landlord. Nevertheless the defendant now says he has a valid lease agreement and that he wishes to stay on for the duration of that agreement. For her part, the complainant does not raise any issues over the lease agreement’s authenticity.
EVIDENCE EITHER NOT AVAILABLE OR UNCLEAR

It is uncertain and unknown as to whether the defendant made regular rental payments to the late Elias Vuvu. It is equally uncertain whether he paid regular rent to Renagi Api, the late Elias Vuvu’s other wife, during her residency on the property. It is unknown if there are any arrears in rentals over those two separate periods and if so by how much.

Whilst it is clear that the defendant made no payments to the complainant after she succeeded ownership, it is unknown how much she is owed by the defendant in unpaid rentals. It could very well be that there is now over three years’ arrears owing by the defendant, more if there is arrears from the time of the late Elias Vuvu or Renagi Api. I say this, i.e., make reference to vital evidence which is not available, because, as it will be clearer shortly in this judgment, by law the complainant, being the legitimate successor of the property, is entitled to claim or recover all rent, including arrears.

EFFECT OF SUCCESSION BY THE COMPLAINANT

By law the complainant inherited both the good (property and all credits such as rents owing to the owner) and the bad (liabilities and obligations over the property, if any). It is not possible for her to succeed her late husband free of any liabilities or obligations that are attached to the house and the title. It would, for instance, include such liabilities as bank mortgages or loans. Whilst she is entitled to receive rents on the property if and when such are due, the downside of it is that the complainant is obligated to honor and respect lawful interests of other people, in respect of the property, that comes with it. Such interests would have been created or bestowed upon others by her late husband before she succeeded ownership over the property. This is a matter of law and not optional for her.

Therefore, in the circumstances, the complainant is bound by the lease agreement struck and concluded between this defendant and her late husband. She has no right to opt out of it, unless of course she wishes to relinquish succession. She will breach any term of the lease at her own peril.

CAN THE LEASE AGREEMENT PREVENT EVICTION?

According to the defendant it obviously does. He thinks he is secured from eviction. In fact he intends to stay on for the duration of the lease. The lease is apparently for over a 25 year period so presumably, if the defendant were to stay on, whether as a result of an appropriate outcome in this proceeding or otherwise, it will definitely be a long stay indeed.

However I think the issue here really is a rather simple one. Under the current circumstances I think it is a matter of whether the complainant wants the defendant to leave the premises. If that is her intention, then all other considerations, including the defendant’s interests, especially his potential losses if any, may not stand in the way of her desire. Any losses suffered by the defendant can be recompensed by damages. In my view a title holder seeking vacant possession would have it as and when the same is sought. There are exceptions though. Any reasonable cause – but not necessarily a defence (unless title is challenged) – to stay on maybe raised under section 6 (2) of the Summary Ejectment Act. That section reads:
“6.	Recovery of premises held without right, etc

(1)	Where a person without right, title or licence is in possession of premises, the owner may make a complaint to a magistrate of a District Court to recover possession of the premises, and the magistrate may issue a summons in the prescribed form to the person in illegal occupation.
(2)	Where the person summoned under Subsection (1) – 
(a)	does not appear before the District Court at the time named in the summons; or
(b)	appears and does not show reasonable cause why possession of the premises should not be given,
the Court may, on proof of the matter of the complaint, issue a warrant directed to a member of the Police Force requiring him, on or before a day specified in the warrant – 
(c)	to enter, by force and with assistants if necessary, into the premises; and
(d)	to give possession of the premises to the complainant.”

Subsection (2)(b) (supra) is not expressed in positive language however latent within this provision is a right, of the party being evicted, to argued to be excused. Of course as to whether the plea or excuse or “reasonable cause” is convincing and or indeed it is reasonable would depend on the factual circumstances. I can only think this defendant, in saying what he is saying, is exercising that latent right under subsection (2) (b).

CONSIDERATION OF THE CRITICAL FACTS

First of all, it remains a salient fact in this case that the defendant has not paid rent for his occupation of the rented portion to this complainant, i.e., at least from the time the complainant succeeded the property. As I alluded to above, it is not clear, but the defendant may in fact owe rent monies even from times the other woman (Renagi Api) was in occupation. If so, as the lawful successor, the complainant is entitled to any such arrears. At K300.00 a month, considering that non payment spans over more than three years, the defendant will by now owe close to the value of any improvements he may have on the rented portion, if not more.

Section 4 of the Summary Ejectment Act permits landlords to summarily evict non rent paying tenants with due notice. The section is overly lengthy and I need not reprint it here but basically a landlord can obtain an order to evict if non payment exceeds 42 days on a monthly rental agreement. Yet the default here is many times more than that time fixed by law.

Therefore the defendant has definitely breached the lease conditions by not paying regular rent. He cannot insist on staying on for the duration of the lease when he has breached and not honored the same lease agreement that grants him the right to occupy some else’s property.

Secondly the complainant seems to have demanded and served notice for vacant possession. That also puts at an end the lease agreement. The rest, as I alluded to above, is a matter of the parties asserting their rights in damages.

Thirdly, it is clear that the parties’ relationship has soured beyond salvage and has become obnoxious and unenforceable. If the defendant, whilst operating his tucker shop, is in close proximity to the residential quarters of the complainant, it would be unfair on her to put up with the animosity. A title holder has every right to the peace, comfort, enjoyment and security of his or her property. Clearly these two, and others on their respective sides very much affected as they are, need to be separated. These two people, for all intents and purposes, have no amicable relationship. It really matters little if the agreement, which bound them in the beginning, is cast in concrete. It has simply become unenforceable. Even if they continue to be physically close, due to the fact that they occupy portions of the same land, they are so far apart in intent and purpose. In the circumstance, owing to their soured relationship, their lease agreement can only be considered as breached and unenforceable. It would be up to them to consider whether consequential actions, perhaps for damages for instance, would be pursued.

Fourthly, as a matter of law and the precedents, the defendant cannot assert something that has become unenforceable. The lease agreement has been breached. If not mutually, then certainly unilaterally, but still breached nevertheless. That means his relief can only henceforth lay in damages. The defendant could claim damages for breach of contract. He seems to think he had a valid 25 year lease. In that case he should seek damages.
 
One thing is certain: The defendant cannot seek specific performance of the contract in the District Court. The complainant unequivocally put him on notice that she did not want to maintain or continue a relationship she only inherited. That is her prerogative. Yet I cannot understand why the defendant has not sought what seems to be his burning and passionate desire – specific performance. He should seek specific performance in an appropriate forum. He cannot seek specific performance here as the aggregate value of the specific performance order is likely to be over K10, 000.00. It renders that relief beyond this court’s powers.
That however is not to say the defendant would have an easy time of it. He clearly owes a substantial amount of money in rent and the complainant would have the law on her side. But then again that is another issue and it is best not to speculate needlessly for the purposes of these proceedings. The parties would argue their cases on that issue if and when the time comes.

In all the circumstances of this case, the defendant stood no chance of blocking grant of an eviction order. His rights lay principally in damages, but if seeking damages were inadequate relief for some reason he could assert and sue for specific performance. In any event he must seek one or the other elsewhere, not in the District Court.

CONCLUSION

The complainant, obviously at ease in her legal position as holder of unencumbered title, demands vacant possession, which the defendant is unable to prevent. On the other hand the defendant’s rights, if any, lie in damages and that simply is that. Ergo I must grant the eviction order sought.

The defendant has had sufficient warnings and notices of what was, on the face of it, always an inevitable outcome. By now he would no doubt be ready to render vacant possession to the complainant. The complainant has the right to vacant possession and the peaceful enjoyment of her property.

Consequently I order that the defendant, Clerk Pyangataiu, vacate and move out of Section 148, Allotment 9, Vaibori Avenue, Takarara, National Capital District, within 30 days from service of this order. The complainant shall have her nominal costs of this proceeding, the same to be taxed if not agreed. If there is no voluntary render of possession, the complainant may obtain a warrant directing members of the Royal Papua New Guinea Constabulary to enter by force, with assistance if necessary, and secure for her vacant possession.

________________________________________________

The Complainant in person
Yalal & Associate Lawyers for the Defendant