National Department of Education v Nakilai [2007] PGDC 168; DC770 (21 November 2007)

DC770

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

DC 244 of 2007

BETWEEN

NATIONAL DEPARTMENT OF EDUCATION
First Complainant

MANUS PROVINCIAL GOVERNMENT
Second Complainant

AND

MATILDA NAKILAI
First Defendant

WESLEY NAKILAI
Second Defendant

PHILIP NAKILAI
Third Defendant

HELEN NAKILAI
Fourth Defendant

TATAH NAKILAI
Fifth Defendant

MAUREEN NAKILAI
Sixth Defendant

ELLA NAKILAI
Seventh Defendant

BEVERLY NAKILAI
Eighth Defendant

Lorengau: G. Madu, PM

2007: November 21

For the Complainants - Mr Pomat Paliau
For the Defendants - Mr Wesley Nakilai on the Nakilai’s behalf

G. Madu, PM : This is an eviction proceeding against the defendants who are illegally residing in the house owned by the complainants.

1. The complainants are the National Department of Education as agent of the State and the Manus Provincial Government as an instrumentality of the State. The defendants are the widow of Mr John Nakilai who was the Co-ordinator of CODE a deceased, Matilda and her seven (7) children.

2. The facts perceived are the deceased John Nakilai was Co-ordinator of CODE and the Officer-In-Charge of CODE on behalf of National Department of Education negotiated the piece of land for the purpose of building the CODE Office and residence. The land allotment 1 section 27 was allocated to Department of Education with the granting of certificate of occupancy.

3. The Department of Works was engaged to construct the Office and residence. The construction of the Office and residence commenced on 26 of November 1984 and completed in 5 of April 1991.

4. In 1985, whilst the building was partly completed late Mr John Nakilai by virtue of his employment as a Co-ordinator of CODE in Manus moved and occupied the residence and office with his family. The construction of the office and residence was funded by the National Department of Education and therefore is the owner of the land and the residence. Mr John Nakilai as the Co-ordinator of CODE in Manus and acting on behalf of National Department of Education and CODE requested the Building Board for the certificate of completion and occupancy and was given on 10 of July 1991.

5. In 1999, Mr John Nakilai passed away and his widow and children (who are the defendants in this case) continued to remain illegally in the premise even up to the date of this hearing. The defendants argued that their father’s entitlements have not been paid in full and that they have acquired equitable interest in the property through their deceased father Mr John Nakilai.

The issues are:-

(1) whether the title of the land in which the Co-ordinator’s residence and office is located in vested with National Department of Education?

(2) whether non-settlement of entitlements is a justifiable reason to prevent the complainant from taking possession of the property?

The Law

The Summary Ejectment Act enables a person to take necessary proceedings for a property held without right.

Section 6 provides for Recovery of Premises held without right etc..

Subsection (1) states where a person without rights, title or licence is in possession of premises, the owner make a complaint to a Magistrate of a District Court to recover possession of the premises; and the Magistrate may issue a summon in the prescribed form to the person in illegal possession.

Subsection (2) where the person summonsed under sub-section (1):-

(a) does not appear before the District Court at the time named in the summon; or

(b) appears does not show reasonable cause why possession of the premises should not be given.

The Court may, on the proof 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 assistance if necessary, into the premises; and

(d) to give possession of the premises to the complainant.

I will now go onto to discuss the first issue:

6. The defendants contended that the complainant have failed to show to this Court the title of the land and certificate of occupancy. The defendants therefore said that the complainants have no legal right over the property.

7. It is all clear that though the complainants have not produced any title to this land, neither the defendants have not also produced titles to claim for the premises. However in the first instance, the National Department of Education was given permission to occupy the land on allotment 1 section 27 and build a residence. Upon completion of the residence, a certificate of completion was issued on 5 of August 1986 and permission was given to occupy the premises on 10 of March 1987.

8. It is also clear from evidence that Mr John Nakilai came to possession of the premises by virtue of his employment. His involvement in the negotiation for land to build the residence and office and his role of supervision to ensure that the project was completed is part and partial of his administration responsibilities entrusted to him as representative of National Department of Education in the Province.

9. He cannot claim that what he did was from his personal expedience. Such claim would not suffice. An inference can be drawn that for all Governmental needs, any land allocated for Government housing and office purposes would have certificate of occupancy issued, giving authority to develop the land. In this case the CODE office was given authority to build the office and residence after permission was given by Lands Department.

10. It is the Court’s view that the defendants do not have legal or equitable rights to the property. The deceased John Nakilai was given the house by virtue of his employment as Co-ordinator of CODE. That legal or equitable right was extinguished when he passed away. The defendants, the immediate family of John Nakilai cannot claim that they have equitable right because he is now a deceased. Therefore they have no legal right nor could they claim under equity law. They are therefore occupying the premises illegally.

11. For the second issue, the defendant contended that the entitlements for the late John Nakilai has not been paid. The complainants have failed to expedite processing of entitlements. The defendant claim that they maintain the premises and that one of the family member is an employee of Division of Education and as such would have equitable interest.

12. The defendants submit that the complainants have treated them unfairly and as such their complaint is now before the Ombudsman Commission. Further the description of the property is wrong and that complainants have no title and as such the action under Section 1 of Summary Ejectment Act fails. The complainant submitted that in any case to deal with entitlement is a personal matter. It is not the matter for complainant or the employer. It is their business to persue the matter further.

13. The complainant submit that the deceased entitlement was paid through Public Curator because the deceased left no will and therefore was a deceased estate which come under the Public Curators Office.

14. If the defendants are off the view that they had not been fairly treated, they have the liberty to take legal action. They cannot take the complainant at ransom because entitlements have not been paid. The new Co-ordinator is waiting to move into the residence and office so that CODE office continues to function.

15. The Court is off the view that the action of the defendant is such that they are sabotaging the CODE’s office function of continuing to provide students with continuing education. The reason of non payment of entitlement, the defendants are advancing for not giving up possession of allotment 1 section 27 is unacceptable.

Accordingly, I find that defendants have been living in the premises without any legal right and therefore are ordered to vacate the premises.

(1) The eight (8) defendants, their agents, associates and relatives deliver up possession of the premises allotment 1 section 27, Lorengau Town to the complainant within thirty (30) days of the date of this order.

(2) That if the eight (8) defendants, their agents, associates and relatives fail to deliver upon possession of the premises to the complainant as per the above orders, a warrant to be issued in the prescribed form delivered to a member of the Police Force requiring him to enter the premises by force and with assistance if necessary to give possession of the premises to the complainant.

(3) That the amount of K50.00 is to be paid as mesne profit.

(4) Parties to meet their own cost.

(5) The defendants to ensure that the house is left in a tenantable condition.

For the Complainants - Mr Pomat Paliau
For the Defendants - Mr Wesley Nakilai