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Kega v Mondo [2021] PGNC 297; N8990 (20 July 2021)

N8990

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 568 OF 2018


BETWEEN:
GORDON KEGA
First Plaintiff


AND:
GRACE KEGA
Second Plaintiff


AND:
SIMON JONES MONDO
First Defendant


AND:
JOHN DEGE AS MANAGING DIRECTOR FOR NATIONAL HOUSING CORPORATION
Second Defendant


AND:
NATIONAL HOUSING CORPORATION
Third Defendant


AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant


Waigani: Miviri J
2021: 03rd March, 20th July


PRACTICE & PROCEDURE – Judicial Review & appeals – Substantive Notice of Motion – Order 16 Rule 1 (1) NCR – Certiorari – Error of Law – Declaration – Legal Tenant – No Two titles at Law – Sections 37 (a) (b) and (c) section 38 (1) (a) (b) of the National Housing Corporation Act - Breach of – Combined effect of Section 38 of the NHC Act and Section 2 of the Frauds and Limitations Act – No written evidence of Tenancy continuity First Defendant – Constructive Fraud of – Ultra Vires – Judicial Review granted – cost follow event.


Cases Cited:
Papua New Guinea Cases

Vailala v National Housing Corporation [2017] PGNC 7; N6598

Iravela v Samson [2018] PGNC 101; N7212

Kim Foon & Sons Pty Ltd v Minister of Finance & Planning [1996] PGNC 19 N1464


Overseas Cases


Associated Provincial Picture House Limited v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.


Counsel:


B. Boma, for Plaintiffs
P. Daime, for First Defendant


RULING

20th July 2021

  1. MIVIRI, J: This is the ruling on the Plaintiff’s notice of motion for judicial review filed as of the 21st September 2018 moving for the following orders;
  2. In support of their cause the plaintiffs rely on the following material and evidence:
  3. What is clear by this evidence is that on the 1st April 1985, a condition of tenancy was signed between Gordon Benard Kega as the tenant with the National Housing Corporation over the property described as section 370 allotment 3. During the course of that tenancy arrangements were made by Gordon Kega and Reverend Pastor Gundu Kagl of the Lutheran Church Koki to let Mr Paul Mondo and his family come into the subject property out of good faith so as to help Reverend Pastor Gundu Kagl free his accommodation of Paul Mondo and his family. Whilst Paul Mondo was resident, he paid some moneys to settle moneys owing by Gorden Kega to the National Housing Corporation. It was mediated that Gorden Kega would repay these back to him.
  4. Pastor Gundu Guenu Kagl confirms that Paul Mondo was recruited as an engineer by NCDC City Hall. He travelled down from Simbu with his wife and child but had nowhere to live. He provided them accommodation intending that it was temporary but it extended into months. The subject property belonged to Gorden Kega and not anyone which is clear by annexure “A” National Housing Commission Papua New Guinea Conditions of Tenancy. The full name there is Gordon Bernard Kega commences on the First (1) day of April 1985. It is signed 08th May 1985 by Gordon Kega Auditor of P. O. Box 42.
  5. Annexure “B” is letter by the National Housing Corporation Provincial Office Jiwaka Minj addressed to the Manager NCD & Central P. O. Box 1550 Boroko NCD subject is My Statement Regarding Property in Section 370 Lot 3 Morata 2. It is written by Fabian Kawo Manager Jiwaka NHC. It reads, “I am honestly saying that the arrangements between Reverend Pastor Gundu Kagl of Lutheran Church Koki and Mr Gordon Kega to Let Mr. Paul Mondo and family into the above Property was out of good faith on Mr Gordon Kega’s part to bail his friend Pastor Gundu Kagi out of accommodation problems the Reverend faced at the time when the Mondo family stayed with the Pastor in Koki Lutheran Church.

The arrangements made between Pastor Gundu and Mr Kega in 1991 was a transit arrangement for Mr Paul Mondo and family to stay a while waiting for NCDC (Employer) to provide accommodation for them.

However, Mr. Paul Mondo stayed on until his death in 1994. After Paul Mondo’s death his family and relatives came back to Mr Kega complaining about monies that Mr Paul Mondo’s Paid for Mr Kega’s NHC arrears.

There was mediation at Gordons Police Station and again Pastor Gundu Kagl and I were dragged in to explain. We told the Mediation that it was a temporary arrangement between Mr Kega and Pastor Gundu for Mr Paul Mondo to move in as a transit point.

The Mediation team decided that Mr Kega must refund what Mr Paul Mondo paid to NHC to settle that amount and got the house back and the matter closed. The Money was refunded to Mr Siune Mond ( Kundiawa Works Department) the deceased younger brother was witnessed by his family members Mr. Richard Dee (Bus Driver), Mr Girai Mond (Bomana Police College).

Every other matter transpired before and after is contained in Mr Kega’s Letter to NHC dated 27th March 2007, as I was given a copy.

For further information, please do contact me; as all these arrangements were made in my presence. Yours faithfully signed Fabian Kawo Manager Jiwaka NHC”


  1. This is also sworn to by affidavit dated the 25th October 2018 filed 26th October 2018 by Fabian Kawo Manager National Housing Corporation Provincial Office Jiwaka (Minj) in particular of the issues relating to the subject property. That he knows the parties to the dispute. And particulars of the accommodation he sets out above. It was a transit arrangement to accommodate late Mondo and his family. Who had gone onto complain of the payments he made to settle the arrears with NHC. And that a mediation followed at Gordons Police Station on the subject at which he witnessed together with Pastor Gundu Kalg. It was decided there that the first Plaintiff should repay what amount Mondo had paid to settle the NHC arrears back. And that was paid back to late Mondo’s brother Siune Mondo (Kundiawa Works Department) witnessed by his family’s relatives including one Richard Dee (bus driver) and Mr Girai Mond (Bomana Police College) and subject property was given back to the Plaintiff.
  2. He took in Paul Mondo to assist him with his son and wife because they had no where to live after transferring from Simbu. That is until they found accommodation of their own in Port Moresby. And Mondo lived for four years from 1991 to 1994 when he passed on. First Plaintiff was a senior Public Servant who was always moving on his job. He was away from the subject property thus appointed friends and relatives as caretakers, and late Mondo was one of them. The Statement above is also annexure “A” to the affidavit.
  3. Further affidavit pursued is filed of the 26th October 2018, sworn of the 25th October 2018 by Grace Kega the second Plaintiff. She deposes that her mother Late Mrs Janet Korai Kega was the first tenant of the subject property in 1980 until she died in 1984. A new tenancy agreement was signed with the NHC and her father the first plaintiff on the 1st April 1985 in respect of that property described as Volume 5 Folio 66 Allotment 3 section 370 Hohola NCD annexure “A” is that tenancy Agreement signed by Gordon Bernard Kega and the NHC for the subject property 1st April 1985. It is dated the 8th May 1985 signed by Gordon Bernard Kega auditor and witnessed. Annexure “B” is letter under hand of Gordon Kega to the NHC to settle as the property is vested with his daughter Grace Kega not Simon Jones Mondo. Which is confirmed by annexure “C” report by NHC under hand of one John Emena acting Manager NCD/ Central. And following Grace Kega is asked by NHC in letter dated the 24th October 2007 to settle outstanding amount of K 4, 560. 42. And she settles evidenced by annexure “D1” receipt of payment of arrears. Which is confirmed by annexure “J” NHC intent to transfer the property to her of the 23rd September 2016. Annexure “K”is minutes of a meeting by NHC to cancel the subject tenancy from Paul Mondo to write to Department of Lands for cancellation and surrendering of the title to the said property. It is signed by Acting Manager NCD Central Jack Lingena. Annexure “L” is letter from the Crimes Division of the Royal Papua New Guinea Constabulary requesting documents in relation to the transfer of State Lease volume 5 Folio 66 Section 370 Allotment 103 Morata National Capital District. That is addressed to the Registrar of Titles, Department of Lands & Physical Planning confirming that the title to the subject property has been obtained fraudulently by Simon Jones Mondo. He must bring forward the said title to the Registrar to cancel it forthwith.
  4. That is followed by a letter dated the 11th July 2018 to the Registrar of Titles by Boma Lawyers acting for the Plaintiffs asking for physical search and inspection of the land files of the subject property. Following which a court order annexure “L2” is obtained and issued to the Registrar of Land Titles for the retrieving of relevant documents to assist in the investigation of police against Simon Jones Mondo in respect of the subject property. And annexure “M” dated 27th June 2018 by the office of the General Manager NHC confirms the intent of NHC to transfer the subject property to Grace Kega as the legal tenant following from her father Gordon Bernard Kega. And for Simon Jones Mondo to surrender the title and subsequent transfer to cancel the State Lease volume 5 Folio 66 but it is still pending execution. It is signed by Kenneth Cooke Acting Managing director of NHC. That is followed by annexure “N” letter of the 08th May 2018 to Simon Jones Mondo from the Office of the Registrar of Titles for production of the Instrument owners copy of State Lease volume 05 Folio 66 allotment 3 Section 370 Hohola NCD within 14 days so appropriate actions under the Land Registration Act are affected.
  5. The affidavit of Pastor Gundu Guenu Kagl of Marimari Lutheran Church of the 26th October 2018 confirms the arrangements to accommodate Paul Mondo and his family in the house the subject property temporary accommodation with Mr Kega at Morata. The property is taken back by his daughter who are currently living on it since 1994. And annexure “A”is letter to the NHC of that fact property is not of Simon Jones Mondo but of Kega. There was no arrangement that Mondo family would have the ownership of the subject property.
  6. In defence the following were tendered - Affidavit of Simon Jones Mondo of the 9th November 2018, Exhibit D1, Affidavit of Simon Jones Mondo of the 28th October 2019 exhibit D2, affidavit of Taus Lau of the 13th November 2018, Exhibit D3, Affidavit of Taus Lau of the 28th October 2019, exhibit D4, Affidavit of Paul Bagme filed the 9th November 2018, exhibit D5, all comprise the defence evidence in reply.
  7. This evidence all do not tally with the history and which is confirmed by the official records of the NHC independently also by witnesses such as Pastor Gundu Guenu Kagle set out above. Which is backed by the Registrar of Titles and the Police in their investigations. It is clear what is deposed to by Simon Jones Mondo is not on par with the evidence by the plaintiffs. The veracity in his evidence is not there. Because the plaintiff’s evidence are independently sourced out and corroborate the assertions made. There is a ring of truth that flows in the evidence of the Plaintiffs as opposed to that of the first defendant with his witnesses set out above. I have examined at length the various affidavits but do not find that they do not lift the first defendant’s case any higher. The balance is discharged by the plaintiffs that there were indeed evidence of unlawful actions per se. There are no reasonable explanations to fill the gaps set out. It means in total I do not accept the evidence of the first Defendant.
  8. I accept unreservedly the evidence of the plaintiffs. Because the NHC Management has decided that the transfer to First Defendant was null and void and he was urged to surrender the title back to NHC for a new one to be issued under the name of the First and Second Plaintiffs. He has not done so leading to a criminal complaint set out by the letter evidencing. And reinstated by Mr Benjamin Samson Registrar of Titles to no avail.
  9. From the facts set out above clearly there are errors of law and lack of jurisdiction demonstrated because the second and third defendants erred in selling and transferring the title to the subject property to the First Defendant who is not an eligible person with section 37 (a) (b) and (c) and section 38 (1) (a) (b) of the National Housing Corporation Act. So that their decision to sell and transfer the property of the 13th June 2013 to the First Defendant was in breach of that Act ultra vires and did not stand in law in favour of the First defendant. In simple he is not eligible as a tenant or the tenant and his next of kin. There is constructive fraud within the meaning set out in Vailala v National Housing Corporation [2017] PGNC 7; N6598 (20 January 2017) evident and it must follow that the First Plaintiff was correct and lawful tenant at law of the subject property and not Simon Jones Mondo given. There was no tenancy agreement with late Mondo entailing the latter.
  10. It cannot be likened to Iravela v Samson [2018] PGNC 101; N7212 (6 March 2018) therefore will fail the First Defendant given all the facts set out above. Because the combined effect is that Section 38 of the NHC Act and Section 2 of the Frauds and Limitations Act denote that a person who has not entered into a valid and written tenancy agreement with the NHC for more than two (2) years shall not be allowed to purchase the said property. There is clear evidence that the father of the First Defendant never ever entered. The converse is of the plaintiff Gordon Kega. It is clear therefore that there is nothing that originates the claim by Simon Jones Mondo. He has no legal footing in his claim and without which his cause is not advanced. Because the plaintiffs were resident on the subject property and have been over 30 years or more as evidence set out above.
  11. The particulars of this facts are that the lawful tenant is the first Plaintiff who has passed that on to his daughter the second plaintiff which is not the same for the first defendant. And that is clear by the written tenancy agreement set out above between culminating in the outstanding arrears to the subject property paid off by Grace Kega. It is clear that the NHC had no authority following to sell the property to Simon Jones Mondo first defendant. What is set out by Iravela (supra) comes into play sale of the subject property should now be made to Grace Kega the Second Plaintiff. It is clear by the Wednesbury decision this is unfair and cannot be sanctioned by the law as reasonable in that sense, Associated Provincial Picture House Limited v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. It is a decision so absurd that no sensible person would dream that it lay within the powers of the authority-decision that no reasonable body, could have come to. It is embodied in the principle of irrationality that we referred to earlier. We prefer a simplified break-up of this principle into six categories by Doherty J in Kim Foon & Sons Pty Ltd v Minister of Finance & Planning [1996] PGNC 19; N1464 (24 July 1996) as follows;

(a) It must be a real exercise of discretion;

(b) The body must have regards to matters which is expressly or by implication referred by the Statute conferring the discretion;

(c) It must not operate on the basis of bad faith or dishonesty;

(d) It must direct itself properly in law; and

(f) It must act as any reasonable person would act and must not be so absurd in its actions that no reasonable person would act in that way.”


  1. It is evident that the First and Second Plaintiffs have always lived on the said property and they have paid off the remaining arrears with receipt issued to that effect set out above. What should follow immediately is the property would now be processed in their name and title accorded evidencing. That has not happened because of the illegal reluctance on the part of the First defendant. He is not sealed by the law in his actions, nor can he rely on the fact of a sale of the subject property to himself. He has no title in law that flows given the natural consequence set out evidenced in the case of the plaintiffs. He is not picking up from where his deceased father has left. He has nothing to offer and to stand from to continue.
  2. Therefore, in all the circumstances there has been error of law committed by the second and third defendants in selling the subject property to the first defendant because the Law says that the First Defendant is not an eligible person with section 37 (a) (b) and (c) section 38 (1) (a) (b) of the National Housing Corporation Act. So that their decision to sell and transfer the property on the 13th June 2013 to the First Defendant was in breach of that Act ultra vires and did not stand in law in favour of the First defendant.
  3. Accordingly, Certiorari lies in favour of the Plaintiffs and is granted forthwith quashing the decision of the second and third defendants on the 13th June 2013 to sell or transfer the Property or State Lease described as Volume 5, Folio 66, Allotment 3, Section 370, Hohola, NCD to the First Defendant under the give-away scheme (GAS) by way of signing a contract of sale and transfer instrument.
  4. Secondly and consequential declaration has been made out and is granted in favour of the plaintiffs pursuant to Order 16 rule 1 (2) of the National Court Rules, and declaration is hereby granted that the title to the property described as Volume 5, Folio 66, Allotment 3, Section 370, Hohola, NCD transferred to the First Defendant on 14th July 2016 from the National Housing Corporation (NHC) is null and void or of no legal effect forthwith.
  5. Thirdly and consequential pursuant to Order 16 rule 1 (2) of the National Court Rules declaration lies that the First Plaintiff is the Legal tenant in relation to the Property described as Volume 5, Folio 66, Allotment 3 Section 370, Hohola, NCD and as such the Plaintiffs are eligible persons to purchase the said Property under the giveaway Scheme.
  6. The formal orders of the court are:

Orders Accordingly.

__________________________________________________________________

Boma Lawyers: Lawyer for the Plaintiffs.

P. Daime Lawyers: Lawyer for First Defendant.

Office of the Solicitor General: Lawyer for the Second, Third and Fourth Defendant

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