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Surute v Porusa [1995] PGNC 68; N1339 (15 June 1995)

N1339

Papua New Guinea
[National Court of Justice]

APPEAL NO. 86 OF 1995

BETWEEN:

KEVIN SURUTE
-Appellant-

AND:

ANTHONY PORUSA
-Respondent-

Popondetta: Brown J.
1995: 15 June

Appeal - Inferior court - District Court order refusing summons for ejectment. Summary Ejectment Act Chapter 202 s.3(3).

Appeal - No appearance of Respondent - Powers of court to make order unaffected provided -

(a) Notice of appeal served and

(b) Respondent could reasonably be expected to be aware of hearing date - National Court circuit irregularly at place.

Civil Appeal

This Appeal arose out of a Magistrate’s failure to allow a purchaser under a Government Home Purchase Scheme to institute proceedings for ejectment against a tenant who had lawfully entered into possession of premises but remained in occupation beyond the period of the licence and refused to quit.

The facts appear from the judgment.

No Cases were cited.

Ms S. Balen, for the Appellant
No appearance, for the Respondent

Reasons for Decision

15 June 1995

BROWN J.: This is an appeal against an order of the Magistrate at Popondetta refusing a summons for ejectment of tenants of a property at Section 2 Allotment 13 Mandora Street, Popondetta. The Appellant Kevin Surute entered into a contract to purchase the subject property, a high covenant residence while he was working for the government in 1983. On the 22 August 1983 the Secretary, Department of Housing wrote acknowledging receipt of Mr Surute’s notice of acceptance of the Housing Department’s offer to sell the subject property under the government house ownership scheme. The balance of purchase money was to be paid by installments from Mr Surute’s salary by periodic deductions. Mr Surute was an owner/occupier. He was unfortunately retrenched on 7 September 1990. He later entered into a "memorandum of understanding" with the Respondent on 3 September 1993. This document could be loosely described as a lease for it recited the payment of rent of K150 per month under a "tenancy agreement" for 12 months. Mr Surute moved out and Mr Porusa moved in to occupation. The memorandum was prepared at a round table discussion between the parties to this appeal and the Provincial Housing Manager. Consequently there was no doubt that the tenancy agreement was with the consent and approval of the Department of Housing. On 22 September 1994 the Managing Director, National Housing Corporation wrote to the Appellant Mr Surute confirming the Corporation’s approval to sublease the property.

In any event there has been no lease document as such tendered before the Magistrate and the memorandum, which could have doubled as a tenancy agreement was not stamped with duty. The memorandum or agreement expired on the 2 September 1994. No fresh agreement was entered into.

A document was prepared by Mr Surute but the occupier, Mr Porusa, declined to sign it, for the rent had been expressed to increase to K500 per month. Mr Porusa has continued to pay and Mr Surute has continued to accept the K150 per month originally agreed. Consequently there is a tenancy from month to month in an amount of K150 determinable at the will of either party.

On the 22 November 1994, Mr Surute issued a summons seeking to eject Mr Porusa from the premises. The basis of the summons was that the contract for tenancy had expired, Mr Surute had given Mr Porusa notice to quit. Mr Porusa had no right to remain in occupation of Mr Surute’s house when Mr Surute had determined the tenancy.

The Magistrate refused to issue an ejectment order, for he said the Applicant Mr Surute had no legitimate right to exercise. He further said that Mr Surute must fully satisfy the mortgage contract first which was in arrears of K4943.00. The Magistrate further said that the right to evict Mr Porusa only lies with the National Housing Corporation (landlord/mortgagor) and not the Applicant (the mortgagee).

The Magistrate, on the face of his order clearly had no clear idea of the legal rights and obligations which had arisen in the circumstances of this case.

The National Housing Corporation is, pending registration of a transfer the registered proprietor of the property. The Appellant Mr Surute is the purchaser under contract and as such is the equitable owner subject to the contract terms. He cannot be described as the mortgagee nor can the National Housing Corporation be described as the mortgagor.

Once the National Housing Corporation had agreed to a lease by Mr Surute, the contract for sale (requiring the consent of the Corporation to a sublease) was complied with and Mr Porusa’s assertion that Mr Surute was in arrears, with his payments was no bar to Mr Surute seeking the redress of the District Court under the Summary Ejectment Act Chapter 202. The rights of the National Housing Corporation were not in issue in the summons proceedings before the Magistrate. Consequently the Magistrate had no power to make orders that the Appellant pay the National Housing Corporation’s moneys under some supposed mortgage contract.

There is no such thing as a mortgage in this case, rather a terms contract of sale. Since Mr Surute is the purchaser under the terms contract, it can clearly be seen that he is, in equity the owner, for he can call for a transfer on tender of the balance of purchase moneys.

The tenant Mr Porusa has no contractual rights with the National Housing Corporation although he certainly has embarrassed Mr Surute by presuming to write to the National Housing Corporation seeking to have Mr Surute ejected from his own home.

As I say, Mr Porusa has only a tenancy at the will of Mr Surute. Mr Surute does not wish that tenancy to continue.

By virtue of s 3 of the Summary Ejectment Act, on the expiration of the term on the 2 September 1994, Mr Surute was entitled to a summons of ejectment when Mr Porusa refused to vacate. The Magistrate has clearly erred both in law and in fact.
Order

The Magistrate’s order is quashed.

Order

The order of the Court is that a warrant, for possession under s 3(3) of the Summary Ejectment Act in favour of the Appellant, shall issue forthwith. Such warrant shall not be executed for a period of one month.

I order the Respondent to pay the Appellant’s costs of the appeal.

I am satisfied that the notice of appeal has been properly served. I have given leave to file the affidavit of service in Court. Further, on hearing that the Appellant had spoken with the Respondent’s wife to inform her that the matter will proceed today and bearing in mind that the Court circuits irregularly to Popondetta, I am satisfied that the Respondent had notice of the hearing of this appeal in these sittings, I dispense with compliance with any rules which may prevent the Appellant from having the appeal determined today.

_______________________________________

Lawyer for the Appellant: Pato Lawyers
Lawyer for the Respondent: No appearance

_______________________________________

(a) ORDER

This Court Orders:

1. That compliance with rules which may prevent the appeal being heard today are dispensed with.

2. The Orders of the Magistrate dated 30th March 1995 are quashed.

3. A warrant for possession under Section 3(3) of the Summary Ejectment Act in favour of the Appellant shall issue forthwith. Such warrant shall not be executed for a period of one month.

4. The Respondent shall pay the Appellant’s costs of the Appeal.

(b) WARRANT

WHEREAS Anthony Porusa entered into a Lease Agreement to lease the property described in Section 2 Allotment 13 Popondetta, from Kevin Surute for a period of 12 months commencing from the 3 September 1993 to 2 September 1994. The Lease having ended, Anthony Porusa has failed to deliver up possession of the premises to Kevin Surute.

AND WHEREAS the National Court having heard the appeal of Kevin Surute from the decision of the Magistrate on the 30th March 1995 refusing the issue of a warrant for possession, which order was quashed by the National Court on the 15th June 1995 at Popondetta, and whereas the National Court ordered the issue of such warrant for possession of the subject premises.

You are therefore directed on any day after 30 days from the date of this Warrant between 9.00am and 4.00pm on any day to enter by force if necessary and with or without the aid of Kevin Surute or any other person whom you may think necessary to all to your assistance, into and upon the premises the subject of the Complaint and to eject any person, and deliver full and peaceable possession of the premises to Kevin Surute.