Wal Wine v Bill Giglmai [1990] PNGLR 462

• Jurisdiction: Papua New Guinea
• Judge: Brunton J
• Judgment Date: 19 November 1990
• Citation: [1990] PNGLR 462
• Court: National Court
• Year: 1990
• Judgement Number: N933

Full Title: Wal Wine v Bill Giglmai [1990] PNGLR 462

National Court: Brunton J

Judgment Delivered: 19 November 1990

N933

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WINE

V

GIGLMAI

Kundiawa

Brunton J

23 July 1990

19 November 1990

LANDLORD AND TENANT — Rent — Recovery of — Under equitable lease — Lease for 12 months — Subject to Ministerial approval — No approval obtained — Benefit of possession — Estopped from denying title — Relevant principles — Land Act (Ch No 185), s 69 (1).

EQUITY — Principles of — Appropriateness of to Underlying Law — Discussion — Equitable leases — Constitution, Sch 2.2.

Held (obiter):

Where a lease of State land was formally entered into for a period of 12 months subject to Ministerial approval under s 69 (1) (c) of the Land Act (Ch No 185) and the tenant went into possession:

(a) the lack of Ministerial approval under s 69 (1) (c) of the Land Act affected the lease at law only; it did not affect the lease in equity;

Walsh v Lonsdale (1882) 21 Ch D 9, considered.

(b) in equity, the parties to such a lease will be treated as parties to an agreement for lease with the same rights and obligations as parties to a legal lease;

(c) the District Court had jurisdiction to grant relief in respect of a claim for unpaid rent under an equitable lease;

(d) the benefit of possession, estopped the tenant from asserting that he held the land otherwise than as tenant;

Hatfield v Alford (1846) 1 Legge 330, considered.

(e) where a tenant who has enjoyed the benefit of undisturbed possession, goes out of possession and the landlord sues on the covenant for rent or for breach of the covenant to repair or to yield up in repair, the tenant is estopped from denying the landlord's title;

Industrial Properties (Barton Hill) Ltd v Associated Electrical Industries Ltd [1977] QB 580, adopted.

(f) the courts should enforce equitable leases to the extent that they do not conflict with the public law contained in the Land Act.

Consideration of the appropriateness of equitable doctrines to the development of the Underlying Law under Schedule 2.2 to the Constitution.

Cases Cited

The following cases are cited in the judgment:

Harrison v Wells [1966] 3 All ER 524.

Hatfield v Alford (1846) 1 Legge 330.

Industrial Properties (Barton Hill) Ltd v Associated Electrical Industries Ltd [1977] QB 580; [1977] 2 All ER 293.

Luabar Logging Pty Ltd, Re [1988] PNGLR 124.

McCosker and King v Kuster [1967-68] P&NGLR 182.

Monroe v Kerry (1710) 1 Bro PC 67; 1 ER 421.

Ningiga v Koavea [1988-89] PNGLR 312.

Walsh v Lonsdale (1882) 21 Ch D 9.

Appeal

This was an appeal from a decision of a District Court magistrate in which a tenant under a lease of State land was ordered to pay K1,500 and costs for unpaid rent.

Counsel:

I Kuamin, for the appellant.

The respondent in person.

Cur adv vult

19 November 1990

INTRODUCTION

BRUNTON J.: At one level this case is an appeal from the District Court, Kundiawa, involving two businessmen in the Simbu Province who made an agreement, one to rent a trade store to another. The tenant did not pay the rent, and the landlord sued.

The case was complicated because, when it got into the District Court, it was found that the landlord did not have a State lease in the first place, and it appeared that the lease was never approved by the Minister for Lands. The case is a matter of statute law, common law and equity.

At another level the case is about the plight of small businessmen in the provinces who depend upon the grace of a centralised bureaucracy in Waigani to service their applications for State land, and to grant or withhold approval in relation to land transactions. It is about the transactional costs to small business of a centralised system. It is about centralised State power, and decentralisation.

It is also about lower courts and lawyers who operate with no law library and few other facilities.

THE APPEAL

This is an appeal against a decision of the District Court, Kundiawa, in which the appellant was ordered to pay K1,500 and costs, for unpaid rent.

The grounds of the appeal were:

1. "That there was hardly no evidence of available to suggest that the Complainant was neither the registered owner of the land nor the building upon which he was collecting rents from" [sic].

2. "That the Magistrate had a substantial interest in the outcome of the case".

As to the second ground, there was no evidence on the face of the District Court record, nor was any affidavit evidence put before me. Mr Kuamin made a number of factual points from the bar table, but these were not evidence. There was nothing before me in admissible form to support this ground of appeal, and it is, accordingly, dismissed.

The first ground was more substantial.

THE LEASE

By a document entitled "Lease" and headed "Papua Real Property Act 1913 (As amended) New Guinea Lands Registration Act 1924 (as amended) " the parties to this appeal entered into a lease. The document recited in its relevant parts:

" [sic] Bill and Bernard Gigmai of PO Box 110 Kundiawa, Simbu Province, Papua New Guinea (hereinafter called the 'leasors' being registered as the proprietors of an estate in leasehold in the land hereinafter described subject however to such encumbrances liens and interests as are notified by memorandum underwritten or endorsed hereon do hereby lease unto Wal Wine of PO Box 17 Kerowagi, Simbu Province, Papua New Guinea (hereinafter called 'the lessee' all that piece or parcel of land more particularly described in the First schedule (which land and improvements) are hereinafter referred to as 'the demised premises' to hold the same for the term specified hereto yielding and paying therefore the annual rent set out in the said second schedule payable at the times, by the payments and: the manner set out in the said schedule subject to the following covenant conditions and restrictions namely:

1. The Lessee hereby covenants with the lessor

(a) That the lessee will pay the rent at the times and by the payments, herein appointed for the payment thereof to the lessor at such place as the lessor may from time to time by writing direct without any deductions whatsoever.

2. The lessor hereby covenants with the lessee:

(a) That the lessor will pay all rents payable under the provisions of the said Government lease and all council land rates payable by the lessors as and when the same shall become due and payable by the lessors as and when the same shall become due and payable and will duly and punctually observe perform and comply with the covenants conditions and provisions contained or implied in such lease and on the part of the lessee hereunder to be observed and performed in so far as the same are not by these presents made the obligation of the lessee hereunder ...

3. It is hereby agreed and declared by and between the lessor and the lessee as follows:

(d) That these presents have been entered into and executed subject to any approval which may be required under the provisions of the Land Act 1962 (as amended) and unless and until such approval is given these presents shall have no force and effect ...

The First Schedule Hereinbefore Referred to all that the buildings and improvements situated on a allotment 4 Section 8, Kerowagi, Simbu province.

The Second Schedule Hereinbefore Referred to The term of the lease is for one (1) year commencing on the Fifteenth day November 1988 and expiring on the Fifteenth day of November 1989.

The rental is K4,200 per annum payable calendar month for the first six months from the 15th day of November 1988 to the 15th day of May 1989 payable in lump sum in the sum of K1,800 on the 15th day of November 1988 and thereafter from the 13th day of June 1989 to the 15th day of November 1989 at the rate of K400 per calendar month."

THE DISTRICT COURT RECORD

By a complaint laid in the District Court, Kundiawa, Bill Giglmai sued Wal Wine for K1,500 unpaid rent, "for the months of July (K400), August K400, September K400 and October K300 total to K1500 all for 1989" [sic].

The District Court gave judgment in favour of Mr Giglmai and ordered Mr Wine to pay K1,500 plus costs.

The District Court record does not disclose whether any sworn testimony was taken from any of the parties. It would appear that two people addressed the court. They appear to be Mr Kuamin, a lawyer acting for Wal Wine, and Mr Bongere acting for Bill Giglmai.

The main issue argued by counsel was whether or not Mr Giglmai held a lease in the subject land from the State.

No evidence was taken about what rent had been paid, what rent was outstanding and what periods of time were involved. There do not appear to be any admissions on the court record made by counsel for Wal Wine. I do not know whether Mr Wine actually occupied allotment 4, section 8, Kerowagi, and for what periods of time, if any. These facts are not before me.

As there was no admissible evidence on which the magistrate could base his decision, and there are no...