Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Southern Highlands Provincial & Local Level Government v Kapipi and Embisi [1996] PGNC 48; N1486 (24 October 1996)

Unreported National Court Decisions

N1486

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO 71 OF 1996
BETWEEN
SOUTHERN HIGHLANDS PROVINCIAL & LOCAL LEVEL GOVERNMENT - Plaintiff
And
DAVID KAPIPI - First Defendant
And
NELSON EMBISI - Second Defendant

Mount Hagen

Injia J
22 March 1996
4 April 1996
15 August 1996
2 September 1996
4 October 1996
11 October 1996
24 October 1996

LANDLORD AND TENANT - Provincial Government landlord and provincial government employee as tenant - Illegal tenant - Eviction of illegal tenant - State-owned “reserve” house - Proof of title by land-lord - Whether Provincial Government should be required to produce evidence of registered State Lease title or Certificate of Occupancy.

Held:

(1) There is a presumption that the Provincial Government is the agent for the National Government on all housing matters in respect of government houses which are not owned by the National Housing Corporation and this includes State-owned “reserve” houses.

(2) Where the illegal occupant of a State-owned “reserve” house in a province concedes that the house is owned by the State and the Provincial Government is the administrator of government reserved houses, the Provincial Government need not produce a State Lease title or a Certificate of Occupancy or some other form of title. There is a presumption of title in favour of the Provincial Government as agent for the National Government.

Cases Cited:

Re Somare [1981] PNGLR 28

Herman Gari v PNG Ready Mix Concrete Pty Ltd [1984] PNGLR 74

Counsel:

P Kunai for the Plaintiff

P Niningi for the Defendants

24 October 1996

INJIA J: The Plaintiff brings eviction proceedings against the two Defendants severally in respect of two high-covenant “reserve” State-owned residential houses situated in Mendi town which they presently occupy. The houses are situated on Allotment 1 Section 39, Mendi, and Allotment 13 Section 39, Mendi. Mr Embisi occupies the former house and Mr Kapipi the latter. The Defendants are employees of the Plaintiff. Mr Kapipi is the Provincial Paymaster and Mr Embisi is the Provincial Liquor Licensing Inspector.

The Plaintiff’s lawyer says the proceedings are brought under the Summary Ejectment Act Ch 202. However, that Act provides for summary ejectment proceedings to be brought in the District Court, not in this Court. I treat Mr Kunai’s statement to be made out of inadvertence because the Originating Summons does not base the relief sought under that Act. I have treated the action as a claim for possession of land under the National Court Rules. As the Plaintiff has not taken any objection to the competency of the proceedings on this basis, I do not see this as an issue in these proceedings. In any event, I dispense with the procedural requirements, if any, under the National Court Rules pursuant to Order 2 r. 7. Leaving procedural issues aside, I decide the case on the merits of the case before me.

The evidence for the Plaintiff comprises of the affidavit of Hubert Aoae sworn on 27/2/96 (Exhibit “A”). He was cross-examined by the Defendant’s counsel on his affidavit. Mr Aoae is the Provincial Legal Officer of the Plaintiff and Chairman of the Provincial Housing Allocation Committee (“the Committee”). There is an affidavit of Tau Liu sworn on 27/2/96 and filed herein but the Plaintiff did not seek to rely on it because Mr Liu could not be produced for cross-examination. I will not consider that evidence.

Both Defendants gave oral evidence on which they were cross-examined by the Plaintiff’s counsel.

The evidence of Mr Aoae is that the appropriate authorities responsible for the management and control of State-owned “reserve” houses in the province did not allocate the house to the Defendants. The appropriate authority is the Provincial Housing Allocation Committee. The houses being government “reserve” houses are reserved for senior officers employed by the State, may they be employed by the National Government or the Provincial Government. The two Defendants are junior officers and they are not entitled to high-covenant reserve houses. He says the two Defendants moved into the houses illegally when the Australian Army officers occupying the houses vacated them. Repeated efforts to remove them had failed, hence these proceedings were instituted.

The Defendants say they are eligible for the two houses, the Committee over-looked their applications, they approached the then Acting Administrator Mr B Ramonong who allocated the houses to them only to be revoked later by the Committee under instructions from the Administrator Tau Liu when he resumed duties, the houses were allocated to the other persons, one of whom, Herowa Agiwa, a member of the National Parliament who was not entitled to be allocated a government house. They ask this court to declare invalid the decision of the Committee to allocate the two houses to one Ham Yawari and Herowa Agiwa, on the grounds of illegality, abuse of power in terms of nepotism being practiced by the Administrator on his own and/or in connection with the Committee and political bias in the allocation of houses to friends and cronies of the Administrator or the Provincial Government and so on.

The Defendants through their counsel also raise objections as to the competency of the proceedings by the Plaintiff. First, it is submitted that the Plaintiff has no locus standi to bring these proceedings. They submit the Plaintiff has not shown that it has “sufficient interest” to bring the action: Re Somare [1981] PNGLR 28. They submit the Plaintiff, as distinct for the National Government and or the State, has not shown that it owns the property by producing a Certificate of title or a Certificate of occupancy which entitle them to bring these proceedings. Secondly, they submit the Plaintiff cannot rely on their equitable interest, if any, because proceedings under the Summary Ejectment Act Ch 202 is based on “clear title”: Herman Gawi v Papua New Guinea Ready Mixed Concrete Pty Ltd [1984] PNGLR 74.

The Defendants however, admit that the two houses are owned by the State.

I accept the contention that there is no evidence such as Certificate of title or certificate of occupancy issued to the Plaintiff by the State. But the Plaintiffs contend that the Plaintiff has always been responsible for the allocation, control and management of State-owned houses in the province including these two houses and that constitutes “sufficient interest”.

The Defendants respond by submitting that the subject of allocation, management and control of State-owned houses in the province is not the exclusive function of the Plaintiff. The State’s houses are administered by the Housing Department whilst the National Housing Corporation owns its own houses and manages them. Therefore, they submit, it is essential that the Plaintiff produce some tangible evidence of clear title.

In my view, in view of the admission of the Defendants that the two houses belong to the State and in view of the fact that the Plaintiff is the second level of government at the provincial level in this country, this very relationship creates a presumption that the provincial government is an agent for the National Government on all housing matters which are not owned by the National Housing Corporation. This includes all State-owned “reserve” houses in a province which are not owned by the National Housing Corporation. The Plaintiff need not produce Certificate of title or Certificate of occupancy or some other form of title. The onus is on the party alleging the contrary to prove that fact. That has not been done in this case. I hold the view that the Plaintiff has sufficient interest to bring these proceedings. Consequently, the issue of equitable interest does not arise for consideration.

The next issue is whether the Defendants have a right to be in possession of the two houses. On the strength of the evidence of Mr Aoae, I find that the Defendants have no such right. I also find that their own evidence does not help their case either. I accept that when they moved into the two houses, the Acting Administrator Mr Ramonong may have made some sympathetic representation to the two Defendants. In the case of Nelson Embisi, he relies on a letter written to him by Mr Ramonong on 8/12/95 which he says gave him the permission to occupy the house. That letter reads:

“Request for Allocation of a House

Reference is made to your verbal request to occupy one of the vacant house at North Kagua which the Australian Army personnel had vacated recently.

Both these houses fall in the category of “reserved house” that the Housing Allocation Committee of this Department will sit and screen applications for allocation of the houses to it’s senior staff.

However, it is understood that the Housing Allocation Committee is yet to obtain the keys and particulars of the houses from the Department of Works.

As soon as the keys are being received from the Department of Works, this office will consider allocating one of the houses to you as your reasons are quite genuine.”

In my view, there is no suggestion by Mr Ramonong in this letter that he had the power to allocate this particular house and was allocating the house to Mr Embisi. The letter acknowledged the Committee’s exclusive authority to allocate government “reserved houses” and left it to that Committee to decide the fate of his application.

In the case of David Kapipi, similar representations to Mr Ramonong would have been made and similar responses received from Mr Ramonong.

It is clear from the evidence that both Defendants interpreted Mr Ramonong’s letter and verbal representations as authorizing them to occupy the houses and took possession of the houses somehow when the Australian Army personnel vacated the two houses. In the meantime, the Committee met and decided to allocate the two houses to two other persons. But upon realizing that the two Defendants were occupying the two houses, the Committee asked them to vacate the houses voluntarily and when they resisted, got Police assistance. When these failed, they commenced these proceedings.

There is however, evidence that the two Defendants may have formalized their tenancy somehow by effecting fortnightly pay deductions for house rent in respect of these two houses. Nevertheless, there is no evidence as to the circumstances in which how this pay deduction was effected. Any authorization for the pay deduction could not have come from the Committee. In the circumstances, I cannot read the fortnightly rental deductions to confer any lawful authority by the Plaintiff to the defendants occupy the two houses. The most that can be inferred is that they were rent-paying tenants on a fortnightly basis.

I am satisfied on the evidence that the Defendants took possession of the two houses without authorization by the Acting Administrator or Administrator Tau Liu and most importantly the Committee.

The two Defendants have gone at length to address me on the sufferings they and their families have gone through as a result of not being provided houses or suitable houses. I accept that they are career public servants who have served the government with dedication over long periods. I understand their plight. At the same time, I cannot ignore the legal duty of the Plaintiff to secure government houses and allocate them to appropriate persons in government.

As to the Defendants claim of illegal practices, practice of bias and nepotism in the allocation of government houses in the province, I find that they lack substance. I take it that they are raising those things to justify their own illegal occupation of the two houses.

I am told now that these two Defendants have been disciplinarily dealt with and terminated from their jobs because of this dispute. However, that should be a different matter, the subject of separate proceedings. For the purpose of this case, that in itself is another reason why they should not continue to occupy the two houses.

For these reasons, I order that the two Defendants vacate the current houses they occupy forthwith.

Costs of this application is granted to the Plaintiff.

Lawyer for the Plaintiff: P Kunai Lawyers

Lawyer for the Defendants: P Niningi Lawyers