Unreported National Court Decisions
N1947
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
APP. NO. 298 OF 1997
SISO NASO
APPELLANT
V.
NATIONAL HOUSING CORPORATION
RESPONDENT
Lae
Sakora J
8 February 1999
8 December 1999
Counsel
Mr P. Ousi for Appellant.
Mr M. Philip for Respondent.
8 December 1999
SAKORA J: This is an appeal against the decision of the Lae District Court handed down on 26 September 1997. That decision ordered the eviction of the appellant from the property described as section 295 allotment 7, 4-Mile, Lae.
This decision was made upon hearing the complaint of the National Housing Corporation (NHC) that the appellant had been in illegal occupation of the subject premises despite numerous notices to quit having being served on him.
Alleging legal title to the subject piece of land, the respondent NHC initiated the complaint under the provisions of the Summary Ejectment Act, Ch. 202, more particularly s 6 (1). The NHC sought immediate vacant possession of or to the property in question, together with arrears on the land rates and the annual rent owed to it.
From the material before me in the transcripts of the District Court proceedings, the following facts and circumstances emerge that are pertinent to a determination of this appeal.
The subject property, “block”, is within the 4-Mile settlements division on the outskirts of the city of Lae, a product of the NHC policy of the early 1970s to provide “informal housing” in the squatter settlements that were sprouting up around the periphery of the formal planned urban area of the city of Lae. It involved the sub-division of these settlement areas into “blocks” that individuals could apply to the NHC for to occupy and build houses. It was introduced, therefore, as a self-help housing scheme that involved “no covenant land”.
Under the scheme, managed and supervised by the NHC, applicants could enter into a tenancy agreement with the corporation (the then commission). A typical agreement contained the following provisions (or conditions of tenancy):
1.
(a)      The land would have to be marked by pegs which would be inspected and approved by the NHC.
(b)      The tenant would have to clear, level if necessary or remove unwanted water from the land and start such works at his/her own expense.
2.       Before commencing any construction (temporary/permanent house) the tenant would have to dig on the land, a pit latrine conforming to “Building Regulation No. 13”.
3.       The tenant would have to work on a permanent house conforming to “Building Regulation No. 13”.
4.       The tenant could build a temporary house for occupation by his family during the construction of the permanent house.
5.       The completed permanent house would be inspected by the NHC.
6.       The tenant could erect or plant a fence along the boundaries of the land which did not have a fence or hedge along them at his/her own expense.
7.       The tenant was then required to attend to the following health and hygiene measures:
(a)      To keep clean and stop any unhealthy conditions on the land.
(b)      To place all rubbish in garbage bins and not to throw rubbish on the roads, paths, drains or any other place.
(c)      To take proper care and stop unnecessary waste in the use of water from communal taps, report any leaking taps to the councils or NHC.
Furthermore, under the agreement under this scheme, the tenant was required to commence paying the yearly rental of K50.00 after two months physical occupation of the land. The lease over the land, the “block”, was for a period of 50 years.
The NHC, as said above, had and has the overall responsibility for the implementation of the policy by its management and supervision of these “informal” housing scheme. And the Settlements Division of the NHC has the direct responsibility for carrying out these functions under the scheme. It upgrades and manages these squatter areas in the provision of sites (for “blocks”) and services. It is also authorised to collect fees from the settlers for the services that are provided.
It is to be noted also that some of these settlement lands (“blocks”) were given to the NHC to be developed under what was formerly known as TSLs (Town sub-divisional Leases), now referred to as UDLs (Urban Development Leases). It would appear that these leases are for a duration or term of 5 years. And whilst these leases may have lapsed and the land reverted to the State, the management and supervision of these settlement lands remain the direct responsibility of the NHC.
It would appear that in a typical tenancy agreement (for 50 year lease), the NHC retains direct responsibility in respect of an important matter: the tenant must seek the written permission from the NHC before:
1.       Making any business in or about his premises.
2.       Thinking of selling his house to a new tenant.
These are the facts and circumstances before the learned District Court magistrate before his determination of the complaint of the respondent NHC. Some of these emerge from, firstly, the affidavit of Isaac Pologo, the Settlements Officer with the NHC, sworn 15 August 1997 (filed on behalf of and relied upon by the NHC), and, secondly, a letter to the Magistrate from the President of the 4-Mile Settlement Committee, dated 20 October, 1997.
It would appear from the letter of the President (supra) that the original tenant of the subject “block” was a person by the name of Willie Miamel. He “put on sale” this property, whereupon the appellant made enquiries with the President, following which the appellant made payment on 13 October 1996 to the former tenant (witnessed by a “Rex Miamel, block committees and settlement President”) for the subject property.
It was the assertion of the President, relied upon by the appellant, that it was the “normal procedure for the settlement authorities to witness the payment and the change of occupants for the block”.
The appellant appeals against the decision of the learned trial magistrate, citing the following as the grounds:
1.       That the Magistrate made an Order without an (sic) evidence of the Title Deed or ownership of Section 295 Allotment 7, Lae Morobe Province as required under the Summary Ejectment Act.
2.       That the Magistrate erred in law in not establishing that the procedures through which the appellant occupied the said block of land was improper and unlawful as raised as a defence before His Workship.
In support of the first ground, learned counsel for the appellant relied upon the decision of the Supreme Court in the case of Herman Gawi v. png Ready Mixed Concrete Pty Ltd [1984] PNGLR 74. The Court held there (from the headnotes) that proceedings for the recovery of land under the Summary Ejectment Act (Ch. 202) are intended to provide a quick remedy to people who have a clear title to land or premises: they are not intended to be available where title to land is in dispute or unclear.
The second ground of appeal relies on the letter of the President of the settlement dated 20 October 1997 (supra) about the “normal procedure”.
The respondent Corporation’s submissions can be conveniently summarised as relying upon the policy under which the NHC was vested with the power and responsibility to introduce and implement an “informal housing” scheme in the squatter settlements on the fringes of the Lae urban centre. Learned counsel for the Corporation goes to this and the specific provisions (or conditions) of a typical tenancy agreement under this scheme to suggest the following:
1.       The subject land or premises is State land that the NHC has the power and responsibilities over to manage and supervise (its use) in the implementation of the government’s “informal housing scheme” policy.
2.       The so-called “normal procedure” for sale and change of ownership or occupation breached a condition of the tenancy agreement, and, thus, the purported purchase by the appellant was illegal and invalid. 
From the material before the learned trial magistrate which are now before me, I am unable to see where he could have erred in reaching the conclusion that he did, making the order from that conclusion.
I accept the respondent’s submissions on those two grounds. The authority of the principle enunciated in the case of Herman Gawi v. png Ready Mixed Concrete (supra) is solid, unquestioned. It is just that the principle does not support the appellant’s case at all. It is a plain fact that, even if he acquired any legitimate legal right or title to the subject property, such title or right could never be superior to the State’s, either on a 50 years or 5 year lease.
Finally, the condition that a tenant must seek the written permission of the NHC before thinking of selling his house to a new tenant would prevail here. There was no evidence before the learned magistrate such permission had been sought by the original tenant and had, indeed, been granted. Needless to say, the “normal procedure” the President of the settlement asserts is no procedure known to or recognised by the NHC in its statutory obligations of managing and supervising this “no covenant” and “informal housing scheme”.
This appeal is without merit at all, and I dismiss it with costs. The decision of the District Court entered 26 September 1997 is hereby affirmed and the “stay” order of this Court of 12 December 1997 is hereby, and consequently, discharged.
Lawyers for the Appellant: Warner Shand Lawyers
Lawyers for the Respondent: Moses Philip