DC651

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTIING IN IT’S CIVIL JURISDICTION]

DCCi. 267 of 2005

BETWEEN:

THE BOARD OF MANAGEMENT OF MODILON GENERAL HOSPITAL
Complainant/Respondent

AND

THOMAS VINIT
Defendant/Applicant

Madang: M Selefkariu
2006: April 21

CIVIL - Complaint pursuant to section 6 of Summary Ejectment Act alleging defendant is illegally residing at a property, a house at Section 5 Allotment 18 Kalibobo Drive, Madang, Madang Province being a property owned by complainant, Modilon General Hospital.

CIVIL - Interlocutory injunction – application to restrain landlord from possession of property.

SUMMARY EJECTMENT ACT
Section 6 – where a person without right, title, or licence is in possession of premises, the owner makes a complaint to court to 	recover possession of the premises and where the person 	summoned appears and does not show reasonable cause why possession of the premises should not be given, the court may, on proof of the complaint, issue a warrant directed to a member of the 	Police Force requiring him, on or before a date specified in the warrant to enter, by force with assistants if necessary and give possession of the premises to the complainant.

DISTRICT COURTS ACT
Section 21 (4) (f) – District Court has no jurisdiction when the title
to land is bona fide in dispute. Practice & Procedure – It becomes
obligatory for parties to show their rights, titles or licenses at the outset for Court to determine jurisdiction.

PRACTICE & PROCEDURE
Injunction – Principles applicable as found in American Cyanamid Principle and first applied in PNG in Mount Hagen Airport Hotel Ltd v. Gibbes and Another [1976] PNGLR 216 – Questions to be asked – Is there a serious question to be tried? – Whether the balance of convenience lies in favour of granting or refusing the interlocutory relief sought.

CASES CITED:
1. Mt. Hagen Airport Hotel Ltd v. Gibbes & Ors. [1976] PNGLR 216
2. Robinson v. National Airlines Commission [1983] PNGLR 476

LEGISLATION:
1. Summary Ejectment Act, Chapter 202 
2. District Courts Act, Chapter 40

21 April 2006

SELEFKARIU (DCM): 	There are two matters before this Court. One is the complaint laid in court on 24 August 2005 by the Board of Management of Modilon General Hospital pursuant to section 6 of Summary Ejectment Act seeking to evict the defendant, Thomas Vinit from a house situated at Section 5 Allotment 18, Kalibobo Drive, Madang, Madang Province. 

2. The other is an application for interlocutory injunction laid on 8 December 2005 by the applicant, Thomas Vinit against the respondent, the Board of Management of Modilon General Hospital seeking for the following orders:

1.	The respondent or his agents be restrained from evicting the applicant and his family until all his entitlements and loss of salaries are fully paid as listed below:

1.1	Full contract entitlements under EO4 Level be paid for one year service as Care Taker Manager from 12 February 2002 to 12 February 2003,

1.2	Contract entitlements for senior officer category A for acting Chief Executive Officer from 12 February 2003 to June 2004.

1.3	Difference of K15,000.00 for applicant’s underpayment of furlough leave entitlements. 

1.4	Loss of salaries from December 2004 to October 2005 following manipulation of resumption pay and the suspension without pay of applicant’s salaries in February 2005.

2.	The applicant is given a permanent position before he is relocated, and

3.	That all necessary transfer costs are fully met before the respondent can move into the property at section 5 allotment 18, Kalibobo, Madang Town.

3. The brief facts as to the background of these cases are that the defendant/applicant, Thomas Vinit hereafter to be referred to as ‘defendant’ is a medical doctor by profession and was employed by the complainant/respondent, Board of Management of Modilon General Hospital hereafter to be referred to as ‘complainant’ as Care Taker Manager and acting CEO from 12 February 2002 to June 2004. The CEO position has now been given to another officer making the defendant become displaced and unattached.

4. On 24 August 2005, the complainant laid a complaint into Court pursuant to section 6 of Summary Ejectment Act seeking orders to evict the defendant from a house which he currently occupies at section 5 allotment 18, Kalibobo Drive, Madang, Madang Province. 

5. On 8 December 2005 the defendant made an application for restrainment orders to restrain the complainant from evicting him and his family from the house and other orders as outlined above.

6. Based on practice and procedure this court will first deal with the defendant’s application for interlocutory injunction and later the complainant’s substantive case.

7. In support of the defendant’s application, he filed a sworn affidavit dated December 2005. In his evidence the defendant said as follows:-

That he is a medical doctor by profession and has worked for 18 years as a senior permanent public servant with no bad record. That he wasn’t terminated for any criminal wrong nor any severe disciplinary charges that requires suspension without pay.

8. When he joined the Modilon General Hospital he was appointed Care Taker Manager from 12 February 2002 to 12 February 2003 and then acting CEO from 12 February 2003 to June 2004.

9. That his rights as senior public servant were infringed by the complainant and the Department of Personnel Management (DPM) when the latter appointed another officer to the position the defendant acted on since 2002, thus making him unattached.

10. That the complainant now implies the defendant is an illegal occupant of the official residence of CEO at section 5 allotment 18, Madang, Madang Province.

11. That the action of the new CEO in suspending the defendant without pay in February 2005 without criminal or disciplinary charges or a termination notice is illegal.

12. That the defendant lodged his appeal with the Public Services Commission (PSC) when he was not confirmed to the position of CEO for which he acted on for almost three years and cited improper selection process and loss of contract entitlements that he should have been paid had he be confirmed to his acting position such as:-

13. Care Taker Manager on EO 4 rate for acting in absence of the Board of Management of Modilon Hospital until new Board was appointed on 8 February 2003. This would have been an NEC endorsed appointment as per the Secretary’s letter dated 23 January 2002.

14. The fourth Board of Management under the chairmanship of Fr. Jan Czuba appointed the defendant as acting CEO until they were threatened by PEA and PNG Nurses Union and they had to appoint another officer.

15. According to General Orders 9: 35, the defendant says he should be paid all his contract entitlements for acting on a contract position that was substantively vacant. The Board’s term had expired and the National Minister for Health reaffirmed that position, that the Board was acting without authority in a letter dated 13th March 2002.

16. In a letter dated 4 February 2002 the Minister for Health appointed the defendant as acting CEO of Modilon Hospital effective as of 12 February 2002. This appointment was wrong as the appointment should have been done by the Hospital Board. The defendant reminded the Secretary of Health on several occasions to no avail.

17. On the advice of the new CEO of Modilon Hospital to the Personnel Section, the defendant’s pay was suspended in February 2005 after the defendant’s resumption pay in December 2004 was interfered with.

18. The defendant said the action was illegal and his family including himself had suffered grossly in struggling to make ends meet. The defendant took up short term contract work with private companies to finance for the family basic needs and to pay another law firm to act for the defendant.

19. The defendant seeks orders from the court for full back payment of all his salaries at Grade 16 level from December 2004 to October 2005 when the National Department of Health commenced the defendant on their payroll.

20. The defendant says that it is a normal process that career public servants are confirmed on their acting positions to prevent such additional costs and it has to be on merit with good performance that the defendant said he achieved that through the Board and the Ministerial Inquiry Report 2002.

21. The defendant submitted that it was the Government’s decision that he was made unattached, hence he will remain on the same position without any penalty of loss of pay nor eviction order until he is given another position or be retrenched, whichever happens first. 

22. The defendant said his last administrative means was through PSC and since July 2004, there was no outcome nor action taken thus resulting in the new Hospital Management and the Board of Management further causing injustice to the defendant as follows: 

23. The under-payment of defendant’s furlough leave by 40% of actual net payment had he be placed on full pay for six months and nine weeks of accrued credit annual recreation leave the defendant said he only received K8,000.00. 

24. Upon resumption, CEO and his Personnel Section manipulated defendant’s salary and eventually suspended him from payroll in February 2005.

The defendant said he struggled to find funds to find another lawyer as Narokobi Lawyers who had the defendant’s file had a conflict of interest when they represented Modilon Hospital Board in the present proceedings to evict the defendant.

25. The defendant said he had exhausted all administrative means to rectify these infringements and loss of payments. Whilst awaiting for the outcome, the Hospital Board has decided to challenge the defendant in court, hence the defendant now seeks these restrainment orders as per the application.

26. In the case of the complainant it relied on the affidavit of the acting Chairman of the Modilon Hospital Board, Mr. Bill Kramer dated 24 August 2005 who stated as follows:-

27. That the defendant was a former employee of the complainant employed as the Chief Executive Officer of Modilon General Hospital. As part of his entitlement, he was allocated to reside at the CEO’s official residence located on section 5, allotment 18, Kalibobo Drive, Madang, Madang Province.

28. On or about the 5 June 2004, the defendant’s employment with the complainant was terminated. As such the defendant was required to vacate the premises of the Modilon General Hospital.

29. However, the defendant informed the Board that he had young children still in school and requested if he would be allowed to remain in the property until the end of the school year for which the complainant agreed to.

30. In the meantime, complainant employed a new CEO for the hospital as of 6 June 2004. The new CEO had to be accommodated at a Hotel until the defendant moved out of the premises at the end of the school year for 2004.

31. At the end of 2004 school year, the defendant did not move out. The complainant caused numerous correspondence to the defendant to voluntarily move out of the premises but to no avail. 

32. The defendant is no longer an employee of the complainant. His action in remaining at the hospital property has caused the complainant valuable money to accommodate its new CEO at a hotel in Madang. Up to June 2005, the total cost of accommodating the new CEO at the hotel is K33, 960.00.

33. In the complainant’s meetings on 21 December 2004, 29 April 2005 and 3 May 2005 it was resolved that the defendant be evicted from the Hospital property.

34. There is evidence that the defendant’s employment with the complainant ended on or about 5 June 2004. By consent defendant was allowed to remain at the house at section 5 allotment 18, Kalibobo Drive, Madang town until the end of 2004 school year.

35. The defendant remains in the premises till today. Several attempts by complainant to move the defendant failed and the matter is before court. The complainant alleges that the defendant is illegally in occupation of its property at section 5 allotment 18, Kalibobo Drive of Madang Town.

36. The defendant argues he is not an illegal occupant as he was put there legally by the complainant as acting CEO as he then was. He demands that this Court grants him the orders to restrain the complainant from evicting him and his family until all his entitlements and repatriation costs are paid and that he be secured to a new permanent position before relocated.

37. The restrainment orders the defendant seeks are none other than the interlocutory injunctions. The law on injunctive orders are well established in the American Cyanamid principle and first applied in PNG in the case of Mount Hagen Airport Hotel Ltd v. Gibbes and Another [1976] PNGLR 216. In that case the court held that the questions to be asked are: Is there a serious question to be tried? Whether the balance of convenience lies in favour of granting or refusing the interlocutory relief sought?

38. It is fair to mention that the parties have filed written submissions as directed. But with respect both submissions fall short in searching the relevant law and to assist court in deciding the issues before it.

39. The defendant says he will vacate the premises only when the complainant pays him his entitlements as contract Care-Taker Manager and acting CEO from 12 February 2002 to June 2004, balance of underpayment of furlough leave and loss of salaries from December 2004 to October 2005, and repatriation costs. On top of that the defendant demanded that he be given a permanent position before he is relocated.

40. In relation to the demand for permanent position this court thinks it is unreasonable as the complainant has no authority and cannot possibly make such appointments outside its hospital. It is also unreasonable and noxious to the parties for the defendant to be given a position within Modilon General Hospital given their relationship. Sometime ago, the parties were directed by Court to research the law and make submissions on the matters before it. The defendant was at some stage spoken to by Court to see a lawyer and to explore the possibility of working out the amount of his entitlements as claimed and to put a formal complaint into Court subject to the District Court monetary jurisdiction. Up until today the defendant failed to take heed of the advice and warning given by the Court.

41. According to the defendant’s submission he submitted that his claim for underpayment of his furlough leave is some K10,000.00. This Court wonders how much else are his other entitlements as claimed.

42. It can be clearly inferred that the claims would exceeds District Court civil jurisdiction of K8,000.00 and K10,000.00 respectively. The District Court as a matter of law is a court of limited jurisdiction. The defendant is asking for orders under the pretext of restrainment or interlocutory orders and should the court grants him these orders it would exceeds its jurisdiction.

43. There is no longer a contractual relationship between the parties as of 5 June 2004. Their relationships have become noxious and the defendant cannot continue to subject the complainant to huge accommodation cost unless he lodges a formal claim before a competent court of law.

44. In this case one can only speculate that the competent Court is the National Court. In the case of Robinson v. National Airlines Commission [1983] PNGLR 476, it was held: 

"(2) An injunction will not in ordinary circumstances be granted to compel either master or servant to continue a personal relationship which has become noxious to either of them.

(5) An interlocutory injunction, the purpose of which is to preserve the status quo will be granted where just and convenient: the plaintiff must prove that he has a serious, not a speculative case, which has a real possibility of ultimate success and that he has a legal or equitable right, title or interest which might be jeopardized if the injunctive relief were not granted: it is then for the court to determine whether nonetheless the injunction should not go taking into account such factors as the adequacy of damages as a remedy, the possibilities of alternative remedies, whether there has been any laches or delay, the strength of the grounds of defence, what if any undertakings the defendant is prepared to give and most importantly hardship and balance of convenience." 

45. The defendant did not heed the advice and warning given by Court and failure to put a formal complaint to court does not show proof that he has a serious case and one which has the possibility of ultimate success and within the jurisdiction of the court.

46. A case which is based on speculation can be fatal as in this case as the Court is suspicious and not sure if it has jurisdiction to grant the injunctions and order the complainant to act upon them. According to the submissions it is clear the defendant has been redeployed by the National Department of Health and has been given accommodation in Port Moresby.

47. A fact which is not properly evidenced but not contested either. The defendant is now living at his new work location in Port Moresby and perhaps with his family. The house at section 5 allotment 18 is currently occupied by one of defendant’s son and another relative as some of the defendant’s heavy properties are held there.

48. The defendant’s other demand is for repatriation cost but without clear formal complaint setting out the various heads of claim it is not known for how much and if he is entitled to such claim under his then contract of employment. An issue which is difficult to resolve and consider. The defendant may have faced hardship immediately after his termination but is no longer and if he is still facing hardship this court is not satisfied as his claim is only speculative.

49. The complainant has shown that whilst the defendant is in occupation of the premises they continue to pay huge cost for accommodating their new CEO, who was appointed a day after the defendant’s termination. The Court is of the view that to grant the injunctions would cause far greater inconvenience to the complainant.

For the above reason this court refuses the defendant’s application.

50. In relation to the substantive complaint, the law is whether the defendant has shown reasonable cause why possession of the premises should not be given. The parties were directed by court to give evidence of their title, licence or interest over the premises. This is necessary pursuant to the jurisdictional requirements of section 21 (4) (f) of District Courts Act. 

51. For this, the complainant through their lawyers filed an affidavit of Mr. Bernie Meten dated 2nd February 2006. According to the attached documents the complainant has now entered into a contract of sale over the said property between itself and the National Housing Corporation. The Transfer Certificate acknowledging acceptance of K33, 100.00 as the sale price of the property is also supplied.

52. The defendant did not submit any documents of title, license or interest. The defendant no doubt was in occupation of the premises by virtue of his employment with the complainant as acting CEO but no longer enjoys that. This ended on 5 June 2004 and even though no longer the CEO was allowed to remain on the premises until the end of 2004. 

53. The documents supplied by the complainant amounts to a legal interest as evidenced. The defendant has not satisfied the court whether his interest is a legal one or an equitable one as he failed to mount a formal claim in court as earlier attributed to. The conduct of the defendant in continuing to occupy the premises is only frustrating and putting the complainant to huge accommodation cost. If anything this court views the defendant’s conduct unreasonable and most unfair.

54. If the defendant ever succeeds in lodging an action against the complainant, in the court’s opinion the most adequate remedy would be damages. That right is not lost and remains open to the defendant unless he commences necessary processes before a competent court. As to the interest over the property, the court is satisfied that the complainant’s interest is a legal one unlike the defendant whose interest is very remote.

55. Having made the declaration, this court is satisfied that the complainant has proven its case to the required standard and the defendant has failed to show reasonable cause to prevent the complainant obtaining the orders sought.

56. Accordingly this court grants to the complainant orders under parts (a)(b) and (c) of the complaint. Consequently a warrant will be issued to the members of Police Force to enter by force if necessary and give possession of the premises to the complainant by Friday 5th May, 2006.

Counsel for complainant to draft the orders and to return for endorsement and entry. Each party pays own costs.

For the Complainant/Respondent, Mr. B. Waipek 
For the Applicant/Defendant, In person