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Avosa v Koba [2022] PGDC 12; DC8010 (28 January 2022)

DC8010

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]

DCC NO: 155/2021

IN THE MATTER BETWEEN:

PHILIP AVOSA.
Complainant.
.
AND.
JAMES KOBA
Defendant.

Popondetta: Michael W. Apie’e

2021: October 14^th, 28^th, November 04^th,16^th,18^th,25^th, December 12^th, 2022: January 11^th,12^th,13^th, 18^th and 28th.

CIVIL PROCEEDINGS. - Action seeking Eviction of Defendant from titled family property. Defendant in occupation of such title Property by virtue of a Purported Residential Lease Agreement.
Repudiation of Lease Agreement by Complainant on ‘Bad Faith’ activities by the Defendant.
Claim of such lease agreement no longer valid as between the Parties.

Cases Cited:
Theodore Mondia v. John Kapo [2015] PGSC 37 SC 1442 (10 July 2015)
Tom Rangip and or’s v. Roland Yeung and another [1998] PGDC 2; DC 25 (17 February 1998)
South Pacific-PNG-Seafood’s Co. Ltd v. National executive Council [2017] PGNC 214 N6888 (25 September 2017)
Awesa v. PNG Power Ltd [2014] PGNC 114; N5708 (04^TH August 1014)

References:
District Court Act.
Summary Ejectment Act
Pacific Contract Law, Roebuck, Srivastava and Nonggorr (1987) UPNG Press.

Representation:
Complainant in Person
Defendant in Person

JUDGMENT ON TRIAL.

Background.
Complainants case.

1. The Complainant Philip Avosa files action against the Defendant in his action of 08/08/21 and seeks the following primary orders;
   
   1. Orders for the Eviction of the Defendant and his family from the Complainants family property at Section 02 Allotment 05 Koropa Crescent, Bendora Avenue at Independence oval in Popondetta township Northern Province.
      
   2. Interest and costs.
      
2. The Complainant is a Beneficiary of the Estate of his Late Father who was a long serving Public Servant in Oro Province who had taken part in The National Housing give away scheme and therefore was given the above name property through his children.
   
3. The Complainant is one of four (4) siblings name as Purchasers and Owners of the said Property in the Contract of Sale of the Property between themselves and the National Housing Corporation on the 28^th of February 2012, via the Legacy of their Late father.
   
4. On the 12/02/21, the Complainant entered into a Residential Lease Agreement with the Defendant, wherein the Terms and conditions of the Agreement were agreed to and endorsed between The Parties.
   
5. The Terms of the Agreement are as follows;
   
   1. The Lease Shall be for a Long Period of time.
      
   2. Lease agreement commence on 01/02/21.
      
   100. At the Expiration of the Initial tenancy period, the Parties may negotiate the extension of the Lease agreement in whereas necessary.
        
   4. The Tenant may make his intention known in advance before the expiration of the Lease Agreement, if he wishes to renew the Lease Agreement.
      
   5. All maintenance and reconnection of water to be met by the tenant as agreed by both parties.
      
6. Rental Payment were set as follows;
   
   1. The monthly rent shall be K600.00 and shall be paid in the beginning of each month on the fortnightly of K300.00.
      
   2. The Rental Payment are to be made to the Landlord by cash payment of direct Deposit to Account details –given.
      

Observations and Assessment of the Lease Agreement.

7. The Complainant was approached and he agreed to lease his property to the Defendant because he wanted to utilize the rental fee’s coming in to fix up the run-down house, and so he moved to his In-Laws premises while the Defendant moved into his house in February of 2021.
   
8. By the 08/08/21 however, some Six Months Later the Complainant had filed his action seeking to Repudiate the Lease Agreement and to Evict the Defendant from his Property given certain irreconcilable differences as follows;
   
   1. Continuous Delays in Rental Payment.
      
   2. Poor Communication between them and the effective locking out of the Complainant from the premises.
      
   3. No Maintenance being done to the Property up to current despite the contract supposedly putting that as a condition of the Lease agreement.
      
   4. Threats to take-over the family home though some ‘Power-Play’ from the Complainant and his family, as Complainant is not an Oro-Kaiva man or a Local.
9. This Agreement was obviously prepared by non-Lawyers and signed between the Parties themselves without resorting to Legal Consultation let alone getting a Lawyer, a Justice of the Peace or a Commissioner of Oaths to witness and counter sign this agreement.
   
10. That being the case, on face value, the terms of the Lease Agreement are not Definite and do not make contractual senses for instance, Term # 1. says ‘the lease shall be for a long period of time’
    
    1. What does long period of time mean in the circumstance of this case?
       
    2. If the Term of the Lease is for an undeterminable long time, then what is the Expected Initial Lease Period, and when does it expire?
       
    3. The term Lease Shall be for a long period of time denotes non-specificity of the term of the Leases Agreement therefore makes this Lease Agreement potentially flawed and non-binding or unenforceable as between the Parties.
       
    4. This lack of definitiveness in the term of the Lease Agreement is vital and will feature later in this Judgement.
       
11. Regarding the Failure to pay Lease payments on time and the non-payment of lease from August to current, the Court notes as follows;
    
    1. The Defendant alleges that the Complainant was very sporadic in coming and asking for the lease payments at odd times therefore breaking with the terms of the Agreement.
       
    2. The Defendant alleges that the Complainant decided himself and opted not to get rental payments from August 2021 onwards and hence the non-payments.
       
    3. The fact that this action by the Complainant was filed in August of 2021, and the Complainant was probably looking for a speedy result in getting the Defendant Evicted from the Property so did not want to get the Lease payments, however, here we are and Monthly Lease Payments remain outstanding from August 2021 up to current.
       
12. The Complainant also cited a breakdown in communications and the Locking out of the Complainant from the Premises.
    
    1. The Fact remains that once a person takes up residence in a Property, it is assumed that they are entitled to their privacy, even from the Land Lord and the expectation from the Complainant that he is entitled to walk into the Property at any time of the Day and enter such premises without seeking permission from the tenant is unreasonable.
       
    2. Even if the Land-Lord intends to check on the status of the Property, it would be reasonable that the tenant must be warned and given reasonable notice of such intentions so as to avoid the encroachment into their Privacy.
       
    3. The Complainants expectation that he can walk into the house at any time without warning or notice to the tenant and check on the house is unreasonable and, maybe such action by the Complainant led to the Defendant instructing his line to keep the gates lock from everyone including the Complainant.
13. Regarding failure to carry out maintenance on the property, the court notes that;
    
    1. The Property was already in a rundown and state of ill-repair when the Defendant took up residence and the Expectation for the Defendant to single handedly maintain and repair and bring this house to an acceptable state of repair is unreasonable and illogical from the Complainant.
       
    2. Normally. In lease agreements, one would expect that any Premises offered for Lease ought to be in reasonable Repair before being entered into a lease arrangement. However, in this case the Defendant admittedly contracted himself to take up residence in this run-down house.
       
    3. However, the Complainant should take responsibility and fix this house himself, rather than trying to pin the Defendant down to fixing this rundown house for him.
       
14. Finally, and more importantly, Regarding the threats to take-over the property above, the Court notes that;
    
    1. The Defendant had indeed been making enquiries behind the Complainant in what can be surmised as being in ‘Mala fides/Bad Faith’ with the Housing Corporations (NHC) and he was indeed holding onto certain documents that were Private and Personal and Confidential to the Complainant and NHC and he was therefore compelled by Police Senior Sergeant Joe Walike to return these documents to the Complainant on the 21/09/21.
       
    2. This incident above in that he had obtained certain documentations personal to the Complainant from the NHC in itself amount to a breach of confidentiality between the Complainant and NHC, and also encroachment into that trust and confidentiality by the Defendant.
       
    3. He had no business obtaining these documents, unless he had some ulterior motives, such as the intention to take-over the house.
       
    4. Also, there is an SMS Transcript of a harassing Text Message sent by the Defendant to the Complainant intimating, (Falsely) that the Complainant had outstanding Lease Payments with the NHC in excess of K10,747.00 which he (Defendant) had paid off and that the complainant owed the Defendant over K7400.00 on the Property. This is despite the fact that NHC has signed over the House to the Complainant and his siblings.
       
    5. This court is led to believe that the Defendant upon taking up residence in the Complainants property most probably began to harbor the intention to take over the property from the Complainant and therefore began to make enquiries in Bad Faith behind the Complainant about this property, hence his possession of documents he had no right to possess in the first place.
       
    6. The fact remains that the NHC has signed over this Property to the Complainant and his Siblings, and any intention to take over this property must be between whomever is interested in taking over the property and the Owners of the Property, in this case the Complainant and his siblings.

The Law.

15. This Case basically revolves around a Supposed Lease Agreement entered on the 01/02/21 between the Parties and this Court is guided by the District Court Act primarily in its deliberations of the matter.
    
16. The Primary intent of the Complainants action is to seek the Eviction or Ejectment of the Defendant from his Property at Section 02 Allotment 05 Koropa Crescent Township of Popondetta and such intention has its basis under section 6 of the Summary Ejectment act.
    
17. Section 6 of the Summary Ejectment Act reads;
    

Section 6. RECOVERY OF PREMISES HELD WITHOUT RIGHT, ETC.

(1) Where a person without right, title or license 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.

18. Section 21 and 22 of the District Court Act relates to the District Courts Civil Jurisdiction, and in the Supreme Court case of Theodore Mondia v. John Kapo SC 1442 per Injia CJ, Batari and Hartshorn JJ, an appeal against a District Decision Wherein Section 22 was invoked in the Ejectment of a Party from Property, the Ejected Party appealed to the National Court against the District Court Orders pursuant to Section 22 of the District Court Act and Also Section 6 of the Summary Ejectment Act.
    
19. The National Court Refused that Appeal and the matter was further Appealed to the Supreme Court on the ground that ‘The District Court could not make Declaratory Orders pursuant to Section 22 of the Act and that only the Registered title holder to a property can apply for eviction under Section 6 of the Summary Ejectment Act.’
    
20. In the Theodore Mondia v. John Kapo SC 1442 it was held by the Supreme Court as follows that ‘We are Satisfied that section 22 is sufficiently wide to permit a declaratory Order to be made. Section 21 (4) of the District Court Act provides that the District Court does not have Jurisdiction to deal with certain matters. The District Court Proceeding was not concerned with any of those matters.’
    
21. Section 21(4) of the District Court Act reads;
    

Section 21. CIVIL JURISDICTION.

((1) Subject to this Act, in addition to any jurisdiction conferred by any other law, a Court has jurisdiction in all personal actions at law or in equity where the amount of the claim or the amount or value of the subject matter of the claim does not exceed–

(a) where the Court consists of one or more Principal Magistrates. – K10,000.00; and

(b) where the Court consists of one or more Magistrates. –K8,000.00.

(c - d)15 [Repealed.] (

2) [Repealed.]

(3) Subsection (1) shall not be taken to limit the jurisdiction of Courts in cases where, by any law, money, irrespective of amount, may be recovered before a Court.

(4) A Court has no jurisdiction in the following cases: –

(a) where the validity or effect of a devise or bequest or a limitation under a will or settlement, or under a document in the nature of a settlement, is in dispute;

(b) the infringement of trade names;

(c) an action for or in the nature of slander of title;

(d) an action for illegal arrest, false imprisonment or malicious prosecution;

(e) for seduction or breach of promise to marry;

(f) when the title to land is bona fide in dispute.

22. In the case at hand, I also note that the issues emanating from this case are not covered under Section 21(4) of the District Court act and as such section 22 of the district Court applies to the current case insofar as my deliberation of this case are concerned.
    
23. Section 22 of the district Courts Act reads;
    

Section 22. GENERAL ANCILLARY JURISDICTION.

Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall, in proceedings before it–

(a) grant such relief, redress or remedy, or combination of remedies, whether absolute or conditional; and

(b) give the same effect to every ground of defense or counterclaim, whether equitable or legal,

as ought to be granted or given in a similar case by the National Court and in as full and ample a manner.

Repudiation.

24. Though not binding on this court, I refer to the earlier Unreported case of Tom Rangip and or’s v. Roland Yeung and another, Senior Magistrate George Manuhu as he then was returned certain Rulings including the Ruling in respect of ‘Repudiation of an existing Lease Agreement on the basis of an inability to continue to perform to the Lease Agreement when the Property was supposedly sold or disposed to Second Person after being first sold or disposed previously to another person.
    
25. Repudiation simply means ‘refusing to Accept’ or in Contract situations ‘When one party being aggrieved within certain breaches or infractions in a contract no longer wishes to be bound by the terms of the contract moves to terminate the contract and ending any and all duties and responsibilities emanating from such.
    
26. In adjudicating in the Rangip v. Yeung case above Magistrate Manuhu cited extracts of the Pacific Contract Law, Roebuck, Srivastava and Nonggorr (1987) UPNG Press, and I also refer to that here;

In Pacific Contract Law, Roebuck, Srivastava and Nonggorr (1987) UPNG Press at 709 the writers stated:

"Breaches of contract may be put into three categories: failure to perform, repudiation, and self-imposed inability to perform which is really a sub-category of repudiation. Breaches usually arise where a party fails to perform what he promised to do under the contract, because he fails to pay or deliver on time, or perhaps his goods or workmanship is faulty. Repudiation takes place where a party expressly or impliedly says that he will not carry out his part of the contract. The third category is of cases where a party makes it impossible for himself to perform his part; if A has contracted to sell his car to B and then sells it to C, he has no car with which to perform the contract."

27. In the case at hand, the Complainant Philip Awosa seeks to Repudiate the existing Lease Agreement however flawed it is between himself and the Defendant James Koba on the foregoing grounds but more primarily on the Bad Faith intentions of the Defendant in respect to the Defendants ownership of the Property at Section 02 Allotment 05 Koropa Crescent Township of Popondetta.
    
28. The Premise on which the Parties entered into their Lease Agreement was on the basis that the Complainant is Titled owner of the Property at Section 02 Allotment 05 Koropa Crescent Township of Popondetta, and the Defendant would be the tenant to that Property, nothing more nothing less.
    
29. So the Broadly agreed premise of the Lease Agreement was that the Complainant was the Owner of the Property he was Leasing and the Defendant agreed to lease the same Property for an unspecified Duration as tenant at K600.00 per month.
    
30. After taking up residence at the Complainants premises, among other things, the Defendant then is alleged to have started questioning or asking questions about the Complainants status over this property with NHC.
    

Mala Fides/Bad Faith.

31. The allegations of ‘Intended Power Play’ to take over the house by the Defendant and the actual enquiries and possession of Confidential documentations private to the Complainant and NHC by the Defendant and also his text messages challenging the Complainants Lease status with the NHC could be said to be examples of activities undertaken in ‘Mala Fides/Bad Faith’ against the Complainants rights over the Property the Subject of the Lease Agreement.
    
32. The concept of ‘Bad Faith’ Activity has been comprehensively expounded on in relation to Alternative Disputes Resolutions (ADR) by Kandakasi J as he then was, in many of his deliberations and Judgements. In cases like the Awesa v. PNG Power Ltd a 2014 case and also the South Pacific-PNG-Seafood’s Co. Ltd v. National executive Council to name only two of the many judgments he delivered in which he addressed on ‘Bad Faith’ activities by parties insofar as ADR processes are concerned.
    
33. In those cases, true to the Definition of ‘Mala Fires or Bad Faith’ the Defendants simply refused to attended let alone make any effort to warn or inform the other side of their intention not to attend mediation on several successive dates. Their conduct was deemed as being in ‘Bad Faith’ and so in the case of Awesa v. PNG Power Ltd, Kandakasi J held at Paragraph 20 of his Judgment that;
    

“The Court has a wide discretion of powers to make such orders as it may think appropriate in the proceedings once a case of Bad Faith is made out against a Party. I note that this is not a vesting of a new power that the court does not already have. Instead, as it has been repeatedly and abundantly made clear by this and the Supreme Court under the First and Third factors outlined above r.10 (7) merely restates and reinforces a power the court already has. It would follow therefore that, a case of ‘Bad Faith could be met by any one or more of the following orders depending on the seriousness of the Conduct and whether the conduct is deliberate or inadvertent:

1. Dismissal of the Claim;
2. Permanent Stay of the claim; or

100. A Stay of the Claim pending a meeting of certain conditions; or

4. A Strike out of a defense and entry of judgment; and or
5. Order of costs.
   

34. This adjudication above by Kandakasi J as he then was, is Reminiscent of Section 22 of the District Court Act cited above in Paragraph 23.
    
35. The Relevance of those Judgments to the Current case is that the Suggested intended ‘Power Play’ by the Defendant to take over the house from the Complainant on the premise of him (Complainant) not being from the Northern Province even though he is clearly a Title holder to the Property is in the Judgment of this court ‘a Manifestation of ‘BAD FAITH’ on the part of the Defendant after entering into an Agreement to Lease the Property and then threatening to oust him just because he is not from this Province.
    
36. This allegation by the Complainant brings back to mind the heady days of the ‘Oro for Oro’ fever that once set alight this province much to the detriment of the Lives and Economy of this Province.
    
37. On that basis, applying the logic and determinations of Kandakasi J above, the Defendants Defense to this Action by the Complainant can be Struck out and judgment entered for the Complainant.
    
38. That alone in the opinion of this court, is sufficient to enable repudiation of the Lease Agreement between the Parties by the Aggrieved party, in this case the Complainant.

Possible Extension of the Lease Agreement to end of Term of Lease Agreement.

39. In some cases, such a falling out as in this case between the Parties, a Court would in the exercise of Fairness between the parties Order that the Lease Run at least to the end of the term of the Lease Agreement and then not further, and also the Defendant would have been perfectly within his right to insist that the lease be allowed to run until its termination point before the Lease Agreement can naturally lapse, but unfortunately in this case that is not possible.
    
40. The Possibility of winding up the Lease Agreement to the ending of the First term of the Agreement is not an option here as the ‘So-Called Lease Agreement’ between the Parties entered into among themselves on the 12/02/21 does not have a definitive Termination Point to the term of Lease.
    
41. Also the Possibility of allowing the Lease Agreement to continue between the Parties in a more controlled and definitive manner was an option that has occurred to the court but since the differences and animosities expressed by the parties toward each other is too great, it just would not work out.
    
42. To allow further continuance of the Lease Agreement is not the answer as their relationship has soured too much to allow for amicable continuation.
    
43. The Title holder has required Vacant Possession of his property at Section 02 Allotment 05 Koropa Crescent, Bendora Avenue at Independence oval in Popondetta township, and in all the circumstance of the case, justifiably so.
    
44. Accordingly, the only logical redress that can be considered in the circumstance of this case is outright confirmation of the Repudiation and the ordering of the Summary Ejectment of the Defendant from the Complainants titled Property as per section 6 of the Summary Ejectment Act.
    
45. From August 2021 to the current date is over six months during which the Defendant continues to occupy and live in the Complainants property at Section 02 Allotment 05 in Popondetta township for which he owes lease payments totaling about 6 months’ x K600.00 =K3.600.00 of so.
    
46. In the final analysis, the Court will rule as follows that;
    
    1. The Lease agreement entered between the parties on the 12/02/21 has effectively being repudiated as of the Filing of this action on the 08/08/21 as the Complainant no longer wished to continue in the Lease Agreement.
       
    2. The Defendants activities in threatening to oust the Complainant from the property since he was not from the Northern Province and also his ‘Bad Faith’ enquiries and obtaining of Personal and Confidential Documents relating to the Property is all done with Malice and in bad faith and that is held against the Defendant.
       
    3. The Lease Agreement as entered between the Parties is not Definitive as to the term of the Lease Agreement therefore the only redress left to this court is to approve the Repudiation and order the vacant possession desired by the Complainant.
47. Accordingly, pursuant to Section 22 of the District Court Act the Court will order as follows;
    
    1. The Complainants Intended Repudiation of the Lease Agreement is affirmed and parties discharged from the Strictures of their purported Lease agreement of 12/02/21.
       
    4. The Defendant is found to still owe Lease Payment for the months he has being in Occupation of the Property from August of 2021 to current, which he must settle before exiting from the Property.
       
    5. The Defendant is allowed until the 12^th of February 2022 to vacate the Complainants Property at Section 02 Allotment 05 Koropa Crescent, Bendora Avenue at Independence oval in Popondetta township.
       
    6. Failure to self-evict will result in Police being ordered to enter and give vacant possession pursuant to section 6 of the Summary Ejectment Act.
       

Complainant in person.

Defendant in person.