DC4098

PAPUPA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

Civil Jurisdiction
DC N0 1873 & 1876 OF 2007

CIVIL AVIATION AUTHORITY
- Complainant-

-V-

GILBERT KUIMARE (1873/07)
- Defendant -

TAIGA KEPU (1876/07)
- Defendant -

PORT MORESBY:	Pupaka, PM
2008:				28th May

Eviction proceedings – Section 6 of the Summary Ejectment Act – Complainant’s ownership rights and or possessor rights over State lease by virtue of its status as a government functionality not disputed – Eviction orders may therefore otherwise issue – Reasons advanced in support of a contention that the defendants have a right to remain in occupation not a lawful defence to eviction proceeding but it may amount to an assertion of a “reasonable cause” under Section 6 (2)(b) of the Act – Reasons given neither sufficient to amount to “reasonable cause” nor strong enough to counter demand for vacant possession of property by owner or entitled entity particularly when the defendants’  possible rights may lay in damages only.

Mr. B. Ovia for the Complainant
Mr. W. K. Bigi for the Defendants

28th May 2008

PUPAKA, PM:	These are two matters among a number of eviction suits commenced by the complainant, Civil Aviation Authority of Papua New Guinea (CAA), against former employees who are still occupying certain ‘institutional’ premises long after all those former employees’ respective employments with CAA were severed for one reason or other.

Given the type of defenses raised in each case, and for reasons of convenience for the parties, the cases had to be separated and dealt with differently, either collectively or singularly, as circumstances necessitated. Some of the cases have had to be dealt with alone whereas others have been heard jointly. These two cases are dealt with together for convenience. They both defended by Patterson Lawyers and they involve residential premises in the same portion of land. Further the defendants’ have filed affidavit evidence which they want to be considered also for the other and vice versa.

These cases were actually set aside for summary disposal because, as the facts outlined below would show, the defenses raised are such that they need to be dealt with that way. There was no need for an overly contested hearing because the parties only differ in agreeing upon a common conclusion, although the generic facts they all rely upon, in both cases, are not seriously disputed. Nevertheless, in accordance with their wishes, I have considered the parties’ respective affidavit evidence. I have also considered their respective final submissions. The following therefore is the considered judgment of this Court in relation to both cases.

Facts

The facts in both cases are the same or similar. The primary facts in each case are not disputed at all. These relate to the status of the premises, the previous relationship of the parties, where or at what stage their relationship currently is and the nature and character of the premises.

The CAA is a legal entity possessed of full capacity. It was created into existence by Section 18 of the Civil Aviation Act 2000. The defendants are two former employees of CAA. These proceedings were instituted to rid the defendants off residential premises described as “Flat 251/1” and “Donga 276/3”, which are located on land described as “Portion 1430, Milinch Granville, Fourmil Moresby, in Konedobu in the National Capital District.

It seems that these two premises and other properties elsewhere are now presumed to be lawfully owned by CAA as a result of a transfer agreement executed between itself and the State of Papua New Guinea. This transfer agreement was filed previously by the complainant in relation to all its eviction cases. That document’s validity and relevance is not challenged, either by these two defendants or other defendants. Therefore the regularity, intent and effect of the “Agreement” between the State of PNG and the CAA is accepted as a matter of course. However, even if it was challenged, its inclusion here as evidence is as a matter of law. The Agreement bears the corporate seal of CAA. Section 18 (3) of the Civil Aviation Act 2000 reads:

“(3)	All courts, judges and persons in a judicial capacity shall take judicial notice of the seal of the Authority affixed to a document and shall presume that it was duly affixed.”

After a perusal of the terms of agreement and indeed the affixed seals, all indications are that this Agreement appears to have been reached after careful thought and consideration on the part of the State and one of its functionalities – the CAA. The Agreement appears to be the result of deliberate exercise of sovereign authority by the State. In my view this Court is obligated to heed and respect clearly expressed sovereign will and policy.

An argument has been raised in these two cases and the other related matters, that the National Housing Corporation (NHC) always had and still retains custody and control of the premises and properties in issue. The idea behind this argument permeates throughout not only these two instant cases but the other CAA cases as well. Therefore I must say at this juncture that the argument and the idea of it is misleading and thoroughly misconceived. The NHC cannot work or act contrary to the smooth operations of the CAA. If it has determinative say over lands vital to or required for the workings and operations of CAA, or indeed any other government entity, NHC is duty bound to ensure that the that government functionality’s operations are not affected for the lack of land. In fact those for whom and in whose interests the NHC must hold land in trust in the first instance are the “Approved Applicants” under Section 1 of the National Housing Corporation Act 1990, which incidentally are nearly all government entities or functionalities like this current complainant (CAA).

The point I make here is that there is a presumptive right vested in the complainant, in relation to the two premises in issue, which the defendants could not possibly overcome without having for themselves a better right like a title deed or enforceable contract for exclusive use and occupation, more particularly to the exclusion of CAA.

Unfortunately, as it is, the defendants were allocated the house or flat, as the case maybe, as a result of their employment with CAA. It was CAA that permitted them to reside in the premises, conditional upon continued employment and payment of nominal rents as shown in the tenancy agreements. The defendants were retrenched on 30th September 2005. Now, though they are no longer employed by CAA, they continue to occupy the premises. Retrenchment is not disputed by the defendants. The defendants were served notices to vacate the premises and render vacant possession but they have refused. Ergo this suit by CAA is to have them evicted.

It is common ground that the defendants are no longer employed with the CAA. Whether they are retrenched or were terminated by CAA is, for the moment, of no consequence. The defendants had no right to move into or occupy residence “Flat 251/5” and “Donga 276/3” respectively in the first place, other than on the bases of their employment with CAA. That too is not disputed. Whilst there is issue over their rights to stay on, the defendants cannot deny the complainant’s rights over the property, especially its rights to seek eviction orders on the bases of all its possessor or ownership rights over it. By application of the equitable principle of estoppel by deed the defendants cannot deny the complainant’s authority by which it gave them permission to move in and occupy the premises in the first place.

Defence

Nevertheless the defendants each have filed a (similarly worded) defence. By them they deny most of the assertions of law and reference to official records in the complainant’s pleadings. They also dispute the complainant’s right to ownership and possession saying it has no title to the land on which the residences stand. It is further pleaded that the defendants, as well as others like them, were assured, by virtue of a Nation Executive Council (NEC) decision, that the houses they occupied would be sold to them.

In light of these assertions there are a few matters that I need to highlight in relation to the nature of the defence pleaded:

First of all it is not said who or which entity was meant to enter into a contract of sale of the property with the defendants, in compliance with the alleged NEC decision. Was it the NHC or was it the CAA? If the NHC was not meant to have any part in this yet to be implemented NEC resolution then that entity’s participation in anything, at any time, in relation to the properties in issue, is of no consequence.

However, if the CAA was to have implemented the NEC decision, clearly, either by not implementing it or by this eviction suit or both, it (CAA) has adequately demonstrated that it will not implement that NEC decision. Therefore one would have thought the defendants needed to assert sale or seek damages or both in an appropriate forum (National Court).

Secondly, when there is estoppel, and indeed when the complainant’s apparently superior rights (short of clear title) are unable to be negated, one would have thought that the defendants, and indeed those who advise them, must know that eviction orders are unavoidable. Just why the defendants have not sought relief by way of either specific performance or damages based on any binding NEC decision, if there is any, is unclear.
It is uncertain whether or not there was progress made in creating contracts of sale of the property, and if so, for how much each. Indeed, as all good lawyers may know, there can be no demand for specific performance without there being at least the minimum features of an enforceable contract, in relation to that which is to be asserted or demanded. Also a damages suit may become even harder for the same reasons. The defendants of course are no lawyers but fortunately, or unfortunately, their legal advisors are, so after this advice they might, hopefully, be prompted to do the right thing. I say this because it seems to be the only thing that these two defendants could do.

Issue for Summary Determination

The turnkey issue to be determined here has been as to whether the defendants are entitled to remain in the properties pending the finalization, if ever or at all, of any sale agreements over the properties.

It is arguable at best whether the defendants are entitled to continued occupation of the premises pending sale of the same to them, however whether they in fact are entitled to is an issue of fact. As I said, there must at least be the minimum features of an enforceable agreement first.

Yet, on the facts, they seem not to be entitled to remain as a matter of law, for they cannot otherwise negate or counter the superior rights of the complainant. I cannot think of any requirement of law, whether of statute or the principles of common law and equity that favors these two gentle men. No reference to any binding precedent or the principles of common law and equity has been pleaded or submitted on their behalf. In the circumstances it is now not a case of whether or not the CAA cannot be granted the orders it seeks. CAA is otherwise entitled to obtain such orders. It may just be, if at all, only a question of whether there are grounds for the defendants to be granted reprieve from summary eviction at this stage.

Nevertheless it ought to be said that eviction proceedings and indeed the right to vacant possession by an owner of land is a matter of law. The law is that unencumbered ownership bestows upon the owner the right to evict any person or persons who are in occupation of such an owner’s premises without any rights. Section 6 of the Summary Ejectment Act grants that power. In fact the power in that provision is the one being invoked by the complainant here, and it reads:

6.	Recovery of premises held without right, etc
(1)	Where a person without right, title or licence 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.

The available evidence shows that the defendants continue to occupy residences “Flat 251/1” and “Donga 276/3” without property rights or title or licence or permission. They cannot nullify the complainant’s superior rights. They continue to occupy the premises despite demands to vacate and give up possession. Therefore their continued occupation is unlawful.

That however, does not mean that the defendants cannot be allowed to stay on for any determined length of time if they can show any “reasonable cause” that subsection (2) (b) of the provision cited above alludes to.

I am not sure whether the defendants were aware that they had to put a case to the complainant, and the court, that there are reasonable causes for them to stay on. Pleading a reasonable cause is an invitation to the Court to assess the reasonableness of their requests. They could put up a case, showing the unfairness or injustice that may result if they are not granted their requests. Instead, I think the defendants have demanded continuous occupation as a matter of right when they cannot show the lawful bases for such a right.

The defendants seem to have pleaded complete defenses to the eviction suits. However the assertions in their respective instruments of defence raise no valid defense to the eviction proceedings. The complainant’s claim in each case is based on exclusive ownership, or failing that a right to exclusive possession and occupation, which the defendants cannot dispute. Therefore the defendants really ought to have attempted to show why they should not be evicted, instead of mounting an affirmative defence, deny the complainant’s apparent rights. The latter approach really cannot assist them.

The complainant entity is the Civil Aviation Authority of Papua New Guinea. It is the successor entity of the Department of Civil Aviation. It has control of lands and premises and properties, presumably including Portion 1430, all over the country. As government functionality carrying on government and public service functions, CAA does not have to have security of title over government lands. Its presumptive rights alluded to above takes care of that. Precedents like the one in N1486 (Southern Highlands Provincial Government –v- Kapipi & Or) leaves no room for debate on this aspect.

The defendants contend that they have valid tenancy agreements. However, as I said, because of the interests of the complainant over these premises, the defendant’s rights under the tenancy agreements were or can only have been conditional upon continued employment. The tenancy agreements would no doubt have also been conditional upon regular payment of ‘reserved’ rent, like most arrangements over institutional premises. Only the defendants would know whether they have breached on the reserve rent condition. Their reliance on a tenancy agreement holds no water if they have breached.

The case of Robinson –v- National Airlines Commission [1983] PNGLR 476 is perhaps the best known binding precedent on the other generic issues that also seem to be raised by these matters. The National Court said in that case that where there are opportunities for an employee to seek adequate or alternative relief in law, granting interim orders like continued occupation of company accommodation is not appropriate.

In that case (supra) the plaintiff had had his employment as deputy general manager of the defendant company terminated and he had instituted proceedings for damages for wrongful dismissal. While the substantive matter was pending the plaintiff, by notice of motion, sought orders directing the defendant to refrain from demanding possession of a company supplied car and house and to ensure non-termination of electricity etc., to the house and to continue to pay the salary and allowances and to accord privileges to the plaintiff pursuant to a contract of employment. Justice Andrew, when ruling on the application, said:

“In order to determine this, the court will have regard to such factors as the adequacy of damages, the possibilities of alternative remedies, whether there has been any latches and delay, the strength of the grounds of defence suggested by the defendant, what, if any, undertakings the defendant is prepared to give, and most importantly, hardship and the balance of convenience”.

In the cases before me, moving out of the premises cannot cause any irreparable losses to the defendants, i.e., if they have any legitimate or enforceable cause by virtue of any NEC decision. Since it does seem overwhelmingly obvious that the defendants’ former employer (or its successor entity, CAA) is determined to not implement any NEC decision but totally ignore it, the defendants must seek to enforce that NEC decision. They have, as yet, not lost any opportunity to seek damages. Indeed, in the current circumstances, seeking damages seems to be the only perceptively viable option left open to the defendants.

On the other hand, as long as the defendants do not give up vacant possession, the complainant would continue to suffer losses. For instance the complainant would have incurred and will continue to incur costs in accommodating persons who replaced the defendants. If in the end it turns out that the defendants had no lawful cause, NEC decision or otherwise, CAA would have quite needlessly incurred all the costs it had incurred as a result of the defendants’ continued occupation of the premises. It is not certain in these two particular cases, but in other similar CAA cases, there was some suggestion that electricity was provided to certain houses at cost to the complainant. If that is also true in these cases there maybe other amenities that go with the houses too. Moreover the defendants would have lived in the premises for 3 years by 30th September this year (2008). Therefore the overall cost CAA incurred in having to put up with these defendants in the premises over that time is anybody’s guess.

Needless to say, when all things are fully considered, that the balance of convenience lies in favour of granting the orders that the complainant seeks.

Conclusion

This and the other similar cases were commenced in mid September 2007. Before that the defendants had been advised that they and their families had to leave and give up vacant possession. The CAA is entrusted with vital public functions. It must have every opportunity it should have to discharge all such public functions. No good purpose is served in delaying the inevitable outcome in these matters. There is no reason why the orders sought by CAA cannot be granted. The defendants, having been fully forewarned, only need reasonable time to move out of the respective premises they occupy. They have had years and months of fair warning. Consequently they now only need a couple of weeks to move out and give up vacant possession. Any longer time is unfair on CAA.

Therefore I order that the defendant, Gilbert Kuimare, move out of CAA residential premises described as “Flat 251/1”, which is located on land described as “Portion 1430, Milinch Granville, Fourmil Moresby, in Konedobu in the National Capital District within 14 days of being served with this eviction order.

I also order that the defendant, Taiga Kepu, move out of CAA residential premises described as “Donga 276/3”, which is also located on land described as “Portion 1430, Milinch Granville, Fourmil Moresby, in Konedobu in the National Capital District within 14 days of being served with this eviction order.

The complainant shall have its costs of these proceedings, the same to be taxed if not agreed to between the parties.

Mai Lawyers for the Complainant
Patterson Lawyers for the Defendant