N5864

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 113 OF 2012

BETWEEN

PHILIPAI PUPU
Appellant

AND

PANGIA HEALTH CENTRE
First Respondent

AND

NATIONAL HOUSING CORPORATION
Second Respondent

Ialibu: Kassman, J
2014: 12th November
2015: 13th February

APPEAL – tenancy agreement between NHC and appellant – appeal from District Court by appellant on the grounds that appellant was not given opportunity to hear his argument prior to Court granting orders to complainants – respondents hold that appellant has no valid title to occupy property so should be evicted – no parties produced evidence of title except appellant who produced a tenancy agreement between NHC and appellant - district court erred in making its ruling in favour of complainants under s6 Summary Ejectment Act when title was bona fide in dispute – appeal upheld

Case cited:

Gawi v PNG Ready Mix Concrete [1981] PNGLR 396

Legislation cited:
Summary Ejectment Act c.202 Section 6
District Courts Act c. 40 Section 21(4) (f)

Counsel:

Karen Rema, for the Appellant
Terry Berem, for the First Respondent 
Paul Pera, for the Second Respondent 

DECISION 

13th February, 2015

1.	KASSMAN J; Philipai Pupu ("the Appellant") appeals from the decision of the learned magistrate of the District Court in Mendi of 25 October 2012. In that decision, the District Court refused the Appellant's application to set aside orders made in the absence of the Appellant on 9 July 2012, confirmed the orders of 9 July 2012 as to the eviction of the Appellant from a residential property and ordered the Appellant to pay the Respondents' costs of those proceedings.

2.	Being aggrieved with the decision of the District Court in Mendi of 25 October 2012, the Appellant filed this appeal on 19 November 2012. Pending determination of this appeal, this court on 19 November 2012 ordered the stay of the eviction orders of 9 July 2012 and 25 October 2012. This appeal was heard in Ialibu on 12 November 2014 and this is the court's decision on the appeal.

Background 

3.	The Appellant claims he is a lawful tenant of a property described as Allotment 26 Section 3 Pangia in the Southern Highlands Province ("the property") where he currently resides with his wife and family. The Appellant says he moved into the property in May 2004 when the property had been abandoned for four to five years, was run down and was unfit for human inhabitation. The Appellant says that after moving in to occupy the property, he cleared the area surrounding the house and renovated the house. The Appellant claims he subsequently secured from the National Housing Corporation ("NHC") a tenancy agreement authorizing his occupation and interest in the property as a prospective purchaser.

4.	Meapa Kagu ("Kagu") claims he is the District Health Officer at Pangia Health Centre which falls under Ialibu/Pangia District Health Services of the Southern Highlands Provincial Administration. Pangia Health Centre claims it was allocated the property for occupation by the Health Extension Officer based in Pangia. Kagu claims the Appellant was a cleaner employed on a casual basis at some time with the Pangia Health Centre and the Appellant was just asked to take care of the property while the lawful tenant, a Mr George Epi was away on study leave.

District Court proceeding

5.	On 15 September 2011, a Complaint was filed in the District Court at Pangia by Pangia Health Centre seeking an order that the Appellant be evicted from the property pursuant to Section 6 of the Summary Ejectment Act. NHC was joined as a party in the proceedings as the Second Complainant on 16 May 2012.

6.	No party produced a copy of title such as a state lease after the proceedings were commenced, when NHC joined the proceedings and when the matter was dealt with in court in the years 2011 and 2012. The District Court depositions reveal the Appellant produced evidence that he had held discussions with and exchanged correspondence with NHC thus acknowledging the Second Respondent NHC's claim as the holder of title to the property. The Appellant argued he had secured a tenancy agreement with NHC. The NHC denies the Appellants claims and argues that the tenancy agreement relied on by the Appellant is not lawful. 

7.	The National Court House for the Southern Highlands Province is located in the main provincial town of Mendi. This court currently conducts court circuits to Ialibi town which is located midway between Mendi and Mount Hagen off the Okuk Highway, a distance by road of about seventy kilometers from Mendi. The town or station of Pangia is located some 15 kilometers inland in the westerly direction from Ialibu. A new District Court House was constructed in Ialibu a few years ago but has not been in use as there is no Magistrate resident there. There has been no Magistrate resident in Ialibu in the last five years. As such, Magistrates based in Mendi have been conducting court circuits once or twice a year to Ialibu and most matters filed in Pangia and Ialibu are heard and determined in Mendi.

8.	The matter was listed for hearing on 20 June 2012 in the District Court in Mendi but the hearing was adjourned to the following day as His Worship Mr Vincent Linge was away on circuit in Tari. The matter was mentioned again on 21 June 2012 but Mr Linge was still away. It is at this stage where there is a difference in what the parties say about the next date for hearing. Pangia Health Centre and NHC say they were all told by the Clerk of Court to return to court on 4 July 2012. The Appellant says he was informed by the Clerk of Court that all matters were adjourned for allocation of a date in the month of September 2012. There is no court file notation and neither is there a copy of a public notice that assists any of the parties with their version of events. This occurred within the period of or immediately after the 2012 National General Elections, an event which has an impact of the normal operations of government services and business including sittings of the courts. 

9.	Kagu and NHC returned to the District Court on 4 July 2012 and the court proceeded to hear the matter in the absence of the Appellant. The court then delivered its written ruling on 9 July 2012. This decision confirms the hearing on 4 July 2012 that was held in the absence of the Appellant and the court considered claims as to ownership and tenancy and found that NHC had title to the property and the Appellant did not have lawful authority to occupy the property. The relevant part of the judgment is repeated below.

"22. upon consideration of the evidence deposed to by the Complainants witnesses in the documents and materials before me, I'm satisfied that:

(a)	The property at Section 03, Allotment 26 at Pangia in Southern Highlands Province an H75 house is the property of the National Housing Corporation Pursuant to Section 81 of the National Housing Corporation Act of 1990.

(b)	The house was then allocated to Pangia Health Centre by the National Housing Corporation (use to be National Housing Commission) since 1970s and has been occupied by the Health Extension Officers on a one in, one out bases.

(c)	There is no evidence before me to imply upon or substantiate that the property was allocated to another person or institution other than Pangia Health Centre.

(d)	There is no evidence before me to imply upon or that substantiate fraud in the process of acquiring the property at Section 03, Allotment 26 at Pangia by the National Housing Corporation and subsequently allocated to Pangia Health Centre.

(e)	The defendant who is a son of the officer In charge of Pangia Health Centre was employed as a casual cleaner at the centre. Within his employment housing was not or never a condition attached to his employment. That is not a surprise to me because casual employees as such who are parties to oral contract of service have no security of tenure into their employment and are subject to hire and fire under Section 35(4) of the Employment Act 1978.

23.	The title acquired by the National Housing Corporation over the property at Section 03, Allotment 26, Pangia was under Torrens System of registered title that is re-enforced under Section 33 of the Land Registration Act which confers indefeasible title which can be avoided on the grounds stipulated under Section 33 of the Land Registration Act.

24.	There is no evidence before me to show that the title acquired by the National Housing Corporation was ever been voided nor interfered with or disturbed at all in any way by proof of any of the grounds under Section 33 of the Land Registration Act.

25.	I therefore hold that, there is no person or Institution that holds valid title to the property other than the National Housing Corporation".

10.	Even at the hearing of this appeal, there was no copy of title produced that definitively states the name of the owner of the property, whether that is NHC or any other person or institution.

Grounds of the appeal

11.	The Appellant argues the District Court erred on 25 October 2012 in refusing the Appellant's application to set aside the orders made in the absence of the Appellant on 9 July 2012 and failing to find the orders of 9 July 2012 were irregularly entered. The appellants arguments are based on the following grounds:

a.	the Appellant was not given notice of, and was not aware of, the hearing of the Complaint when it was heard on 4 July 2012;

b.	there was evidence before the court that the Appellant had a legitimate interest in the property and the District Court should have adjourned the hearing of the Complaint on 4 July 2012 and provide the Appellant with an opportunity to be heard on the Complaint before hearing and determining the Complaint;

c.	the First Complainant did not have legal capacity to institute proceedings;

d.	there was no evidence of title to the property produced by either Pangia Health Centre or NHC and as such the District Court did not have the jurisdiction to hear and determine the Complaint made pursuant to Section 6 of the Summary Ejectment Act Chapter 202 and Section 21(4) (f) of the District Courts Act .

e.	Alternatively, the Appellant argues that even if the District Court did not err in finding NHC as the owner of the property, the District Court did err in failing to find that the Appellant had a lawful tenancy agreement entered into with NHC authorizing the Appellant's occupation of the property at the relevant time.

12.	 At the hearing, I dealt with the argument that the First Complainant did not have legal capacity to institute proceedings. Although it was conceded by Mr Berem that Pangia Health Centre was not a duly registered or incorporated entity with capacity to sue or be sued, there was no doubt that Kagu had instituted the proceedings as representative of Pangia Health Centre and that deficiency could have been cured by Kagu being named as the First Complainant in place of Pangia Health Centre. I was also satisfied that at the hearing on 4 July 2012, NHC was already joined as the Second Complainant. The Appellant conceded NHC was a duly registered or established entity. As such, the proceeding was properly before the court on 4 July 2012 and there was no utility in considering this argument. This ground or argument was dismissed.

13.	All parties agreed the principles to be considered on an application to set aside are:

a.	There is a reasonable explanation for allowing judgment to go in default or ex parte.
b.	The application to set aside is made promptly or if there is delay there is a reasonable explanation for it.
c.	There is a defence or there is a valid argument affecting the merits of the claim.

14.	The judgment in favor of the complainants was entered on 9 July 2012. The application to set aside the order of 9 July 2012 was filed on 23 August 2012. That is a period of one month and fourteen days or about six weeks. I find there was no delay and I also find the period of six weeks is not so unreasonable as to cause prejudice to the claim of the complainants. In fact no such arguments were raised by the respondents.

15.	I am also satisfied that the Appellant did not have notice of the matter being set for hearing on 6 July 2012. I am satisfied that the Appellant produced sufficient evidence that shows that he was not aware that the matter was set for hearing on 6 July 2012. As stated above, there is no court file notation or entry that states that the matter was set for hearing on 6 July 2012. Neither is there a court file notation or entry that states that the matter was set for hearing in September 2012 as submitted by the Appellant. As a result, the only just outcome would have been for the District Court to give the Appellant the benefit of the doubt and further adjourn the proceeding on 6 July 2012 instead of conducting the hearing in the absence of the Appellant thus denying the Appellant the opportunity to be heard.

16.	I am also satisfied that, on the material before the court on 6 July 2012, the Appellant had raised an arguable defence on the merits of the claim. The evidence is undisputed that as at 6 July 2012, none of the complainants had produced evidence that one or both had title to the property. Pangia Health Centre and Kagu did not produce any document to assert title to the property. NHC at best had an arguable claim to be the owner of the property according to law and nothing more. NHC could only say it had an arguable claim to title. Clearly, title to the property was in issue. The reasoning of the learned magistrate demonstrates this clearly and there is no doubt His Worship went to lengths to set out detailed reasons why NHC had title or "better title" than any claim by the Appellant. There are two separate but sound consequences to this that fall in favor of the Appellant.

17.	Firstly, the Complaint was filed pursuant to Section 6 of the Summary Ejectment Act. As stated by the Supreme Court in Gawi v PNG Ready Mix Concrete [1981] PNGLR 396, the District Court can only make an order to vacate under Section 6(1) of the Summary Ejectment Act when the order is sought by the "owner" and the person proposed to be subject of the order is "without right, title or license" over the land i.e. an illegal occupier. The facts are clear that the Appellant produced a document that was a tenancy agreement. That was evidence of a right to occupy the property. NHC argued the document relied on by the Appellant was not a lawfully binding document for various reasons. The fact remains, the Appellants had an arguable defence to the complaint in that the Appellant was an existing tenant of the property and produced a document that was evidence of the Appellants claim to lawfully occupy the property. It was conceded the Appellant was not asserting he had title to the property but that did not detract from his arguable claim to the right to occupy the property. As such, the District Court did not have the power to hear the Complaint made pursuant to section 6 of the Summary Ejectment Act.

18.	Further, for the very same reason, the District Court did not have power to here the complaint as title was in issue. Section 21(4)(f) of the District Courts Act provides the District Court has no jurisdiction when title to land is bona fide in dispute. The reasoning of the learned magistrate demonstrates that title was bona fide in dispute between NHC and the Appellant. Neither party produced a copy of title. That much was agreed and that was sufficient to render the learned magistrate with power to hear and determine the Complaint.

19.	 For the reasons stated separately or collectively, I uphold the appeal. I will not grant the Appellant's request for a declaration that he is a lawful tenant of the NHC. As stated at the hearing, that is matter that must be properly raised for argument. Until then, I will order that the NHC is restrained from taking any step to evict the Appellant from the property. As costs follow the event, I also order that the Respondents pay the Appellant's costs of this appeal.

20.	The formal orders of the court are:

a.	The appeal is upheld. 

b.	The Appellant's request for a declaration that he is a lawful tenant of the NHC must be properly raised for argument and, until then, NHC (or any other party claiming title to the property) is restrained from taking any step to evict the Appellant from the property described as Allotment 26 Section 3 Pangia in the Southern Highlands Province. 

c.	The Respondents shall pay the Appellant's costs of this appeal to be taxed if not agreed.

Judgment accordingly:
______________________________________________________________________________

PANG Legal Services: Lawyers for the Appellant 
Public Solicitor: Lawyers for the First Respondent
Legal Officer, National Housing Corporation: Lawyers for the Second Respondent