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Kivovia v Bogibada Holdings Pty Ltd [1986] PGNC 12; N577 (11 December 1986)

Unreported National Court Decisions

N577

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL NO. 79 OF 1986
BETWEEN
MAHIRO KIVOVIA
(APPELLANT)
AND
BOGIBADA HOLDINGS PTY LTD
(RESPONDENT)

Waigani

Kapi DCJ
18 August 1986
11 December 1986

KAPI DCJ: This is an appeal f decisiecision of the District Court sitting in Port Moresby.

The appellant, by a complaint No. 1751 of 85 started proceedings for possession of property following a notice to quit under the terms of Summary Ejectment Act. This matter came on for hearing before Mr Kwalimu Lofena. On the 4th of October 1985, the matter was dismissed on the basis that the appellant did not establish any right to the property. Indeed, according to the evidence, the title belonged to Koki Market Trust. The evidence revealed that there was an arrangement for a sub-lease to the appellant. However, by the time of the hearing of the matter before Mr Lofena, the sub-lease had not been approved by the Minister for Lands. No appeal against this decision was lodged by the appellant.

Subsequent to this, the appellant then took out two separate complaints.

1) Cimplao.t N3 o7185 - ClaimClaim for rent due to the property.

2) &ـ C6mplaimplaint No.t No.2714 of 85 - Claim for possession of the property.

It appears from the court records that both matters were heard togetherthe hg of matters, a preliminary point was raiseraised undd under s er s 152 of the District Court Act. Although a certificate had not been granted, it was argued that the matter had been dismissed and may not be made the subject of a new hearing.

Proceedings were taken under the Summary Ejectment Act ch 202. It is not clear under what provision the various actions were taken. Whether or not an action is brought under s 3, s 4 or s 5 of the Summary Ejectment Act, the complainant must prove that he is the lessor of the property (includes a sub-lessor).

At the hearing of the first complaint, appellant was unable to prove that he was the lessor therefore not entitled to possession of the property. The court ruled that the same subject matters had been raised again and that according to s 152 of the District Court Act he could not deal with the issue again and dismissed the matter.

An examination of the statement of claim of both complaints is necessary to determine the nature of the claims. Both complaints are based on the same set of facts. In each statement of claim, paragraphs 1 and 2 set out the basis of the claims.

“That Bogibada Holdings Pty Ltd is the lessee under Memorandum of Lease dated the 18th of May 1984 of a part of Allotment 3, Section 85 situated at Matirogo Street of Port Moresby (being the whole of the land comprised in State Lease Volume 29 Folio 7046) such part being the shop premises known as Seaside Cafe.

That by Memorandum of Lease dated the 1st of July 1984, Bogibada Holdings Pty Ltd sub-leased the said premises to Mahiro Kivovia and others.”

It is apparent from this that the appellant was relying on title to land based on a Memorandum of Lease in May of 1984. The question of title as at the date of 4th of October 1985 when Mr Kwalimu Lofena decided the first complaint No. 1751 of 85, the appellant was unable to prove title on the basis that there was insufficient evidence and that the Minister for Lands had not given approval to the lease arrangement. The appellant’s basis of claim to the title in the two complaints is based on exactly the same facts. That is to say a sub-lease between the Koki Market Trust and the appellant in May of 1984 and a lease to the respondent dated the 1st of July 1984. However, this issue has been decided conclusively by Mr Lofena when he decided that the question of title had not passed to the appellant because of the lack of approval by Minister for Lands. The appellant cannot now lay fresh complaints on the same facts. That would be dealing with the same subject matter. It is true that the question of rent was not claimed in the first action decided by Mr Lofena but the basis of rents is also based on lease arrangements in May and July of 1984. That question was conclusively decided by Mr Lofena. I therefore do not find any error in the conclusion reached by the District Court in this matter. I would therefore dismiss the appeal. That of course does not mean that the appellant’s claim is completely lost. The appellant may of course issue new proceedings for possession of land and rents on a new set of facts. For example, if the title to the lands passed to him subsequent to the first hearing on the 4th of October 1985, he may issue fresh proceedings on these new set of facts. The question of title is not permanent and of course such title may be transferred. Any future claim will be based on the approval given by the Minister and the title would be passed on such a date and the question of rent may be considered to start to accrue from that date.

Lawyers for the Appellant: Warner Shand Wilson Donigi Reiner

Counsel: P.J. Wright

Lawyer for the Respondent: H. Aoae

Counsel: H. Aoae