Ambusi v Issac [2008] PGDC 144; DC4095 (4 June 2008)

DC4095

PAPUPA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

Civil Jurisdiction

DC N0 2203 OF 2007

JACK AMBUSI

- Complainant-

-V –

NATHAN ISSAC

- 1^st Defendant -

NATIONAL HOUSING CORPORATION

- 2^nd Defendant -

PORT MORESBY: PUPAKA, PM

2008: 4^th JUNE

Eviction proceedings – Section 6 of Summary Ejectment Act – State lease – No title deed – NHC property – Complainant’s rights to exclusive occupancy based on “Tenancy Agreement” – NHC concedes to eviction of 1^st defendant – Eviction orders may otherwise issue – Reasons advanced in support of contention that 1^st defendant ought to remain in occupation not a lawful defence to eviction proceeding nor does it amount to an assertion of a “reasonable cause” under Section 6 (2)(b) of the Act – 1^st defendant is devoid any shred of a right to remain on the property – Eviction orders must issue.

The Complainant in person
Mr. Kennedy for the 1^st Defendant
No one appeared for NHC

4^th June 2008

PUPAKA, PM: This was initially commenced as an eviction suit by the complainant, Jack Ambusi, against Nathan Isaac, the 1^st defendant only. The 2^nd defendant, National Housing Corporation (NHC), was joined as a party to this proceeding at the direction of the court. The NHC had to be so joined because the complainant had no title but was allegedly a tenant of NHC which retains title over the property in question. Therefore the complainant would not assert anything, especially seek eviction orders, without the consent or acquiescence of NHC. As it turned out, as the following would show, NHC did join as 2^nd defendant, though it could have equally and comfortably joined as a co-complainant. The rest is history.

Facts

The primary facts are not disputed at all. These relate to the status of the premises and the relationship of the parties as against each other.

The property was, is and still would in all likelihood, remain a NHC property. Neither the complainant nor the 1^st defendant has title to it. However the complainant sought to have the 1^st defendant evicted on the bases that he (i.e., the complainant) was entitled to exclusive occupation on the bases of a valid tenancy agreement he has with NHC.

Defence

Nevertheless the 1^st defendant challenged the complainant’s right to exclusive occupancy. The 1^st defendant raised the obvious issue of the complainant’s lack of title. The 1^st defendant was also, at about the time NHC was directed to join in as party, directed to file or disclose evidence of any tenancy agreement he had or has with NHC, especially one dated later than the complainant’s, such as to make him (1^st defendant) the one in possession of a recent or current tenancy agreement. However the 1^st defendant did not file any recent tenancy agreement, for he has none.

Issue for Summary Determination

Consequently the turnkey issue manifested here, to be determined first, is as to whether the 1^st defendant is entitled to remain in the property, considering that the complainant lacks clear title of his own.

First of all the 1^st defendant does not say that he is entitled to remain in the house because he is an employee of NHC or that he has a valid tenancy agreement whereas the complainant has none or that he has title or raise some such argument or assertion that raises a legitimate cause for this proceeding to proceed to full hearing.

On the facts, the 1^st defendant is simply an unlawful occupant of the premises. He is trespassing upon the land. That much is clear because the NHC has had, for some time now, a valid tenancy agreement with the complainant. The complainant had at no time permitted or allowed or acquiesced the 1^st defendant’s occupation of the premises. Needles to say the 1^st defendant has no permission from the NHC. Therefore it means the 1^st defendant must move out and render vacant possession to the complainant.

The NHC has decided not to defend this suit. It has simply declared that the complainant is its lawful tenant. That is very significant indeed. In fact that declaration decides the outcome in this matter. For the party with exclusive right over the property, NHC, has granted right of exclusive occupation to the complainant and, for all intents and purposes, all others, including the 1^st defendant, must make way for the complainant to move in and enjoy peaceful possession. It is that simple really.

Secondly the 1^st defendant’s representative, Mr. Kennedy, raised the issue of lack of title in the complainant and said it meant that in law the complainant lacked standing to either commence this proceeding or obtain eviction orders, despite the fact that the 1^st defendant himself has no status of his own which gave him an enforceable right of occupation. Mr. Kennedy referred to section 6 of the Summary Ejectment Act as the bases for his contention.

Eviction orders or 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.

At first glance the available evidence might show that the complainant is immediately prejudiced, especially for having no title. Unfortunately for the 1^st defendant, the complainant does not need title to occupy. He has permission to occupy and his permission is current. The title holder, NHC, has confirmed the complainant’s rights, particularly as against this 1^st defendant. It is worth noting that the complainant has, even if NHC had sided with the 1^st defendant, an enforceable right under a valid tenancy agreement, whereas on the other hand the 1^st defendant has none whatsoever.

However, that does not mean that the 1^st defendant cannot be allowed to stay on for any determined length of time if he can show any “reasonable cause” that subsection (2) (b) of the provision cited above alludes to.

I am not sure whether the 1^st defendant was aware that he needed to put a case to the court, that there is reasonable cause for him to continue to stay on. Pleading a reasonable cause is an invitation to the court to assess the reasonableness of his request. He could put forward a case explaining the unfairness or injustice that may result if he is not granted his request. I think the 1^st defendant has instead demanded continuous occupation as a matter of right when he cannot show the lawful bases for demanding such a right.

I have already said above that the 1^st defendant failed to plead any contractual bases that bestowed upon him the right of ‘entitlement’ to continuous occupation. Instead he really seems to be raising a complete defence to the eviction suit, which, as I said, is no valid defense to this proceeding. The complainant’s eviction suit here is based on exclusive and enforceable permission to occupy, which the 1^st defendant cannot dispute.

Conclusion

The 1^st defendant knew he could not occupy other people’s properties for ever. This case has been going on for some time. He has been forewarned that he would be packing his bags soon. He should be ready. Consequently he now only needs a couple of weeks to move out and give up vacant possession. Any longer time is unfair on the complainant. Yet 30 days was sought on his behalf by his legal representative. Ergo, in the absence of any arguments or contention to the contrary he shall have 30 days and no more.

Therefore I order that the 1^st defendant, Nathan Isaac, move out of the NHC property on Section 271 Allotment 27, Gerehu Stage One, National Capital District, within 30 days from today and handover vacant possession to Jack Ambusi, the complainant.

The complainant shall have his nominal costs of this proceeding.

The Complainant in person
Mr. Kennedy for the 1^st Defendant