Sapien v Department of Foreign Affairs [2001] PGDC 4; DC150 (2 July 2001)

DC150

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE]

BETWEEN

CHARLES SAPIEN

Applicant

AND

DEPT OF FOREIGN AFFAIRS
Respondent

Vanimo

Jack August
27, 28 June, 2 July 2001

RULING

This is an application for a Restraining Order by the applicant who on the 27th day of June, 2001 at 1:30pm in Vanimo District Court wish to move the Court that the respondent be restrained from the following:-

1. evicting the applicant from the disputed residence,

2. any intervention of any sort, and

3. any other orders the Court sees fit, and

4. costs

The applicant is a son of the Late Lawrence Sapien, a former Boarder Liasion Officer (until his death) with the Dept. of Foreign Affairs in Vanimo. Before his death, the Late Sapien has been living in the disputed house located at Section 28, Allotment 17, East Tower in Vanimo since it was built. The house was built by AusAID under a Boarder Development Funding some years back.

The applicant is making the application for and on behalf of the widow of the Late Sapien and nine (9) other children. After the death of their father, the Sapien family continued to live in the house until they vacated the house in 1995 because the Department of Foreign Affairs needed to house its officers.

The respondent in this matter is represented by Mr. Richard Kumani, a Boarder Liaison Officer who has been accommodated in the house since the 12th of October, 1999 until the 23rd May, 2001 when it was alleged that the applicant forced him out of the house on the evening of the 23rd May and he is now living with friends. Mr. Kumani still has the keys to the house.

The widow, Mrs Elizabeth Sapien was living at their house at Arop Village, Aitape when it was destroyed on the 17th July, 1998 in the Tsunami Disaster. She was forced to move in with a daughter Norah Sapien, who was at that time accommodated in a flat while working with Sandaun Provincial Administration. On the 12th April and 1st May, two notices respectively were served on Norah Sapien to vacate the flat at section 28, Allotment 8 for reason not revealed to the Court.

By a notice dated the 03rd May to the Provincial Police Commander for Police assistance to evict the family from the flat, the eviction was finally carried out on the 23rd May by officers of the Provincial Administration with the Police. The family had to reside for 6 days under a neighbour's house until they were alleged to have forced Richard Kumani out of the house on the evening of the 23rd May.

What are the issues here?

The first issue is whether the Sapien family have any legal rights/basis to have forced Mr. Richard Kumani, an officer of the respondent Dept. of Foreign Affairs out of the house situated at section 28, Allotment 17 Vanimo?

The second issue is whether there are any basis in law to grant the restraining orders sought?

The law relating to the restraining orders in the District Court is Section 22 of the Act, Chapter 40. It is assumed that this application is made pursuant to that.

In regards to the submissions by the parties, the applicant is relying on two grounds to their claim of ownership of the disputed house. Firstly they are submitting to the court an alleged conversation between Mrs Sapien (widow) and Mr. Maimou Raka Nou who was then in 1992 Acting Deputy secretary to the Department of Foreign Affairs. The conversation was to the effect that the Department wish to honour the Late Sapien's commitment and faithfulness to the Department by giving the house to the widow and the children. The submission quoted Mrs Sapien as saying,

"Dispela man ikam i makim maus bilong Foreign Affairs Department I kam na singautim mi go autsait long verandah bilong haus taim mi krai sindaun wantaim papa (Late Mr. Sapien) istap. Ora it, em i givim wanpela leta tok sorim bilong Department na em I givim wanpela cheque na bihain em I tok olseml Dispela haus em I blong yu wantaim 01 mangi. Yu ken karim Lawrence igo planim pinis bihain yu kam sindaun long em."

The children were still small at that time and although there were other people there no one was asked by the applicant to verify the statement made by Mr. Raka Nou.

The second ground the applicant is relying on is the inaction of the Department of Foreign Affairs in processing or settling outstanding entitlements for the Late Mr. Sapien. Whatever the entitlement is not clear.

It is my strongest view that the reasons advanced by the applicant has no legal basis in law because of the following reasons:-

1. With all due respect to the Ltd Mr. Lawrence Sapien, his employment or service with the Department has ultimately ceased after he passed away on the 9th of November, 1992. This effectively means that whatever privilege that goes with the position he held before his death also ceases. I am of the view that the Sapien family knew about this when they gave up possession or the occupancy of the house in 1995 to the Department.

2. There is no evidence, legal or equitable, produced to Court to suggest that Mr. Raka Nou gave the house away as a token of appreciation for the Late Mr. Sapien's service to the Department. Whether Mr. Raka Nou made such a commitment is uncorroborated and vague. Mr. Raka Nou does not have the legal authority to dispose of a State asset or property in the manner submitted by the applicant. I am of the view that Mr. Raka Nou as a Senior Public Servant knew he had no power to dispose of any State assets.

3. The inaction of the Department of Foreign Affairs in processing the outstanding entitlement does not give the Sapien family any legal or equitable right to repossess the house at Section 28, Lot 17 in Vanimo nor demand that Mr. Kumani, a current Boarder Liasion Officer serving the interest of the Department of Foreign Affairs vacate the house he legally occupied.

I therefore rule that the applicant and the Sapien family has no legal basis to have moved into the house at section 28, Allotment 17, Vanimo.

As to the second issue, I am of the view that this court has no jurisdiction to grant such relief or remedy as sought by the applicant.

I now set out section 22 of the District Court Act, Chapter 40:

Section 22 (General Ancillary Jurisdiction)

Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall in proceedings before it:-

(a) grant such relief, redress or remedy or combination of remedies, whether absolute or conditional; and

(b) give the same effects to every ground of defence or counter claim, whether equitable or legal,

as ought to be granted or given in a similar case by the National Court and in as full and ample manner (emphasis is mine).

I am of the view that, there is before me no substantive cause of action for a time being within my jurisdiction in order for me to grant the relief sought by the applicant. My interpretation of that provision of the District Court Act is that there has to be a substantive proceedings before this Court in order for me to invoke Section 22 of the Act. If such a substantive claim or proceeding is before me, then I can exercise that jurisdiction conferred by Section 22 to grant the relief whether absolute or conditional. Given such an interpretation of that provision, I am of the view that I have no legal basis to grant the order sought by the applicant in this matter before me. On the other hand, the dispute is not solved if one has to leave the status quo as it is without any remedy. Equity demands that I have to give a relief or remedy under the given circumstances.

Mr. Richard Kumani on behalf of the Department of Foreign Affairs in his submission is making a counter application that the Sapien family be ordered to vacate the house and give possession to the Department as the legal tenant. On the basis of my ruling that the Sapien family has no legal basis to occupy the house, I am of the view that the order should be made. The welfare of the representative of the Department of Foreign Affairs, who ever he may be, is paramount in order to carry out a very important state function in a Boarder Province like Sandaun.

I refuse to grant the orders sought by the applicant and in its stead grant the following orders as sought by the respondent:

1. The applicant and all the occupants of the house at section 28, Lot 17, East Tower, Vanimo shall within 24 hours from today vacate the said house and premises and given peaceable possession to the Respondent, in default, a warrant to Members of the Police Force to Enter and Give possession (Form 1) pursuant to Section 6 of the Summary Ejectment Act, Chapter 202 be executed on the applicant.
   
2. The Clerk of court to issue a Form 1 under the Summary Ejectment Regulation, Chapter 202.
   

Charles Sapien: Applicant
Mr. Richard Kumani: Respondent