DC840

PAPUPA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
Civil Jurisdiction

DC N0 2224 OF 2008

ROSELYN HANGU
Complainant

V

ALUS EKA
Defendant

PORT MORESBY:	Pupaka, PM

2008: 18th March

Eviction proceedings – Summary Ejectment Act – No title – Eviction orders sought on the bases of purchase of exclusive right of occupation – Upon evidence of purchase eviction order can otherwise issue – Alternative order for refund of purchase money – A defence that purchase money was refunded not made out as refund (if it ever happened) may have been made to the complainant’s husband with full knowledge of their marriage facing difficult times – In any case the complainant personally purchased the place so only she was entitled to any refund – Eviction order and alternative claim for K5000.00 both feasible so if the defendant pays the money he can retain possession – Consequently order for vacant possession and or alternative monetary order issued.

Counsel:

The Complainant in person
The Defendant in person

XXXX 2008

PUPAKA:	This matter was fixed for hearing on 18th March 2008. The parties had previously filed affidavits so, prior to 18th March (on 29th February 2008) they were advised to give each other notices if they wished to cross-examine any witnesses of their respective opponents.

However on 18th March the parties advised the Court that they would each rely on their respective affidavits only and that they would not cross-examine the other’s witnesses. Both decided to close their cases and invite the Court to consider their respective affidavit evidence and make a decision. Consequently I have perused their respective evidence and the following therefore is the considered decision of this Court.

The Complainant’s Case

The complainant took out this case to seek orders compelling the defendant to give up vacant possession of a premises situated at Paga Hill Settlement. In the alternative she sought an order compelling the defendant to refund the initial down payment of K5000.00 for the house.

The complainant’s case is that she bought the premises from the defendant. The sale price was K8000.00 and the complainant paid K4000.00 up front on or around 8th August 2001. She was to pay the balance of K4000.00 later. She then took possession of the house and lived in it for a couple of years.

It is now common ground between the parties that the sale did take place and the K4000.00 down payment was made, leaving the balance of K4000.00 to be paid later. The property permanently changed hands. There is in evidence a Statutory Declaration by the defendant dated 8th August 2001 that adequately testifies to this. It was signed before lawyer Hubert Kikira who signed and attested as Commissioner for Oaths.

The complainant says that she handed over another K1000.00 later, leaving a reduced balance of K3000.00 only. She recalls giving the K1000.00 to the defendant on Sunday 18th April 2002, which is about 8 months after the first deposit. The complainant also says that the second payment was witnessed by Anna, Ennet, and Hangu. The defendant, upon receipt of the money, gave K100.00 to Anna and Ennet, who shared it equally.

The complainant continued to live in the property. However, sometimes later in 2003, the complainant had a serious marriage issue with her husband so she left the children, her belongings, and the property to the care and custody of this defendant and a woman called Tuki Andane and fled to her village and stayed there for 2 and half years.

Then on 14th September 2006 she returned to Port Moresby. From that date on she has been denied excess to her property by those in whose care she had left it. She says she and her children are now living elsewhere. She says further that she has no knowledge of any deals the defendant may have struck with her husband in her absence for 2 and half years. The complainant now wants vacant possession of her property.

The complainant says, since the defendant has become quite attached to the place he once sold, that she is prepared to accept a refund of the K5000.00 she paid him for the property so that the defendant can have the same back. It does seem the complainant may have made offers to complete payment of the outstanding to the defendant. All such offers seem to have been rebuffed. An initial K4000.000 was outstanding, but she paid another K1000.00 on 18th April 2002, so the complainant owes the defendant only K3000.00.

The Defendant’s Case

For his part the defendant concedes that he sold the place to the complainant as said. Of course one can understand why he has no choice but to concede. It would be hard, and indeed foolish, for him to deny existence of and or the details of his own Statutory Declaration dated 8th August 2001.

However, the defendant’s defence is that he refunded the down payment money of K4000.00 to the "complainant and her husband". He says the complainant was out of Port Moresby. She had fled town after she was caught in an act of adultery. He says thereafter the husband tried to sell the place to someone else so he (defendant) decided to ‘refund’ the money and get back the property for himself. Consequently the defendant contends that the complainant’s husband accepted the refund as head of the family.

Findings on the Evidence

There is no corroborative evidence as to whether the defendant actually paid K4000.00 to the complainant’s husband. That is something the complainant has says she cannot have any knowledge about as it could have happened, if in fact it did happen at all, in her absence. The complainant’s husband was not examined as to whether he did receive the ‘refund’. Also the defendant has not called any other person to confirm that he did refund the complainant’s money to the complainant herself, never mind her husband.

Even if the money was refunded as alleged, just why it had to be refunded is another thing. The complainant bought the place. Whether she wanted to resell it or return it or keep it is her prerogative alone. That means, if for some reason or other, the purchase money was to be refunded, it can only be refunded to the complainant, Roselyn Hangu, and no one else, neither her husband nor relatives or anyone else.

Nevertheless I must say this: The Statutory Declaration dated 8th August 2001– which is the only documentary evidence of the sale and purchase – indicate that the transaction was executed between Alus Eka, who is this defendant, and Rose Angu. Since no one has raised issue with it I gather Rose Angu is the same person as Roselyn Hangu, the complainant herein. Further, there is no mention of others, including the complainant’s husband, has having had any part in the buying or selling of the property.

The defendant was aware that the complainant’s husband was not acting for her. He witnessed the complainant fleeing to her village after being caught in adultery. The evidence shows that the complainant’s husband would not have acted in the best interests of the complainant at the time this purported ‘refund’ happened between him and the defendant.

Moreover the defendant does not deny the complainant’s assertion that she left her properties and the house with him, as she knew her husband was never going to act in her best interests. Paragraph 6 of the defendant’s affidavit dated 12th October 2007 is both a admission of his knowledge of these matters and a discloser of an outdated attitude that demonstrates little respect for the complainant, both as a woman and as a adult who he did business with on equal terms previously:

"6.	As common to all PNG man when family problem of such magnitude is experienced the women are chased out of the matrimonial home and all matrimonial properties are taken control of by the husband and dealt with them in any way they want. This is what happened in this case and if the complainant has any cause of action, it is against her husband to refund her money I paid to him. In law she has no cause of action against me."

The defendant says "…if the complainant has any cause of action, it is against her husband to refund her money I paid to him. In law she has no cause of action against me". I rather think the complainant has been badly advised on the applicable law. In my view if what he says is true, i.e., the defendant did give the complainant’s husband K4000.00, than it is he, the defendant, who should be suing the man, not the complainant. 

There is no evidence from anyone to suggest that the complainant and her husband are back together again. If they are I cannot understand why the defendant has not demanded to cross-examine him or indeed why he has not crossed claimed against him. The parties have, for some reasons not yet clear to the Court, decided not to place the complainant’s husband in the witness box. Therefore they will have to live with the consequences and accept the decision about to be handed down. I repeat that the defendant has every right to sue the complainant’s husband or ask her to return the money.

If the complainant had announced that she was selling the place or that she wanted a refund, things would be seen differently. In that case it may just be possible to argue that the husband did act for her. In which case, there may be some legal bases for the defendant to argue that the complainant gave real or active or apparent consent to her husband. However it was not the case here. The complainant left every thing with, of all people, this defendant himself, and escaped to avoid the wrath of her husband. The complainant and her husband did not part on good terms and the defendant knew that. Moreover the defendant knew that the complainant had not given consent to anyone, least of all her husband, to sell the place. However in as much as the defendant seems to be saying that he had full knowledge of the reason why the complainant had to leave Port Moresby in a hurry, and at the same time say he allowed her husband to take advantage of her absence, this defendant has dug his own grave, so to speak. This means he would be considered to have given the money, indeed if he did give any money at all, at his own risk. The defendant must know that he cannot get back the place he freely sold without the free and willing consent of the person he first sold it to.

Consequently I find that the complainant is entitled to have her property restored to her free of any encumbrances. I must be quick to add though that she does owe the defendant K3000.00. I say K3000.00 despite the defendant’s denial that he received the extra K1000.00 on Sunday 18th April 2002 at Ela Beach. The defendant ignores this specific assertion. He cannot do that. In fact he has offered no corroborative evidence other then his own assertions. In the circumstances he has lost overall credibility which means I cannot find substance in his mere denial.

Conclusion

In all the circumstances the complainant is entitled to have vacant possession of the property. Therefore I order that the defendant vacate and render vacant possession to the complainant within 14 days from today.

The complainant offered to accept K5000.00 if the defendant wants the property. K5000.00 is the sum of the initial deposit and the K1000.00 paid on 18th April 2002. This therefore means that there is an option open to the defendant. If the defendant elects to exercise that option he must pay the complainant the K5000.00 within 14 days from the date of this order, to enable him to retain ownership of the property.

I add that it matters little whether the K5000.00 is a strict refund or considered as a fresh sale price. The complainant is entitled to have her property back. She is also entitled to sell or part with the property for any amount she wants, be it K5000.00 or K500.00 or whatever. It is her property so she can deal with it in any manner that pleases her.

For her part the complainant shall pay K3000.00 to the defendant as money still owing on the initial sale price. She shall hand over the K3000.00, also within the affixed 14 days from the date of this order. However in the event that the defendant exercises the option to retain the property and elects to pay the complainant the K5000.00 instead within the time fixed above, the complainant shall be no longer obligated to pay the defendant the K3000.00 that is still owing on the initial purchase price. All payments ordered to be made shall be done in the presence of the Clerk of this Court.

Finally, in the event that the defendant fails to deliver vacant possession of the property and further fails, alternatively, to make payment of the full K5000.00 within the set 14 days, which shall run from the date of this order, the complainant is at liberty to obtain a warrant directing members of the Royal Papua New Guinea Constabulary to enter by force, with assistance if necessary, and give her vacant possession of the premises.

Finally I need to clarify a few things. First of all the complainant initially sued Tuki Andane because she is the person actually occupying the property. However she raised a defence that she was only merely looking after the place for the defendant so the first case, which was against her only, was withdrawn and this case instituted instead. However an eviction order herein means she will in fact be the one evicted. Nevertheless this is only fair as Tuki Andane had adequate knowledge and time to prepare. Her intention has been to be bound by whatever outcome it is in these proceedings. Secondly the defendant is at liberty to sue the complainant’s husband if and when he wants to. The complainant cannot be a part of that case.

The complainant shall have her nominal costs of this proceeding.

________________________________________________

The Complainant in person
The Defendant in person