PNG Ports Corporation Ltd v Kua [2008] PGDC 164; DC5015 (26 September 2008)

DC5015
PAPUPA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

Civil Jurisdiction

DC N0 854 OF 2008

PNG PORTS CORPORATION LIMITED

- Complainant-

-v-

TOM KUA

- Defendant -

PORT MORESBY: PUPAKA, PM

2008: 26^th September

Eviction case – Section 6 of Summary Ejectment Act – Title – Defendant (former employee) continues to occupy premises he first occupied as a result of his employment with the complainant – Employment relationship ceased – Defendant refuses to heed demands to vacate premises.

Relationship through which defendant permitted to occupy and enjoy residence upon the premises has been terminated – Reasons given by the defendant to stay on not enough or “reasonable cause” under Section 6 (2) (b) of Act and cannot counter demand for vacant possession – Eviction orders proper – Costs.

Mr. Ginyaru for the Complainant
The Defendant in person

26^th September 2008

PUPAKA: This eviction case was contested by the defendant. However just what his defenses are has never been at all clear. The parties were directed to file and serve affidavit evidence which they have done. I intended to peruse the affidavits and decide the issue summarily. However the Court was compelled to wait for the defendant who did not appear the last two adjournments. Mr. Ginyaru of counsel was directed to inform the defendant and insist that he (defendant) present himself in court today. I wanted the defendant to be fully informed why he must vacate the property.

When the defendant appeared in court today he was promptly informed of what was going to happen. He immediately said that he has lived long in the place and he was not going to move out of it. He said he was going stay on that simply is that.

THE FACTS

The facts, as I am able to make out in the circumstances, are that the property, subject of this proceeding, is Section 311, Allotment 25, Gabut Street, Gerehu Stage 4, National Capital District. Title over the property is now registered under the name of the complainant. The complainant, and prior to it the entity it succeeded, has owned the property for some considerable time though. The property used to be owed by one Nuku Holdings Pty Ltd. It was purchased by the complainant’s succeeded entity from Nuku Holdings Pty Ltd. A copy of the Title deed, which is now in evidence, confirms all of these.

DEFENDANT’S INTERESTS OVER THE PROPERTY

As I said at the fore part of this judgment the evidence shows that the defendant was a former employee of the defendant. He occupied the place initially as a result of his employment. He is now no longer in the complainant’s employ.

The defendant has live so long in the place so he clearly feels attached to it. He may have done running repairs whilst he was in occupation.

FINDINGS ON EVIDENCE /CONCLUSION IN LAW

However the defendant does not say if he has any equitable rights over the property. He cannot counter the complainant’s assertion that he was paid his full entitlements upon leaving employment, including full repatriation costs. He is owed nothing by the complainant. At the moment he is squatting on the complainant’s land. In fact he has lived beyond the cessation of his employment by over 7or 8 years. He was retrenched in 2002.

In my view, by law a title holder seeking vacant possession would have it as and when the same is sought. There are exceptions though. Reasonable cause – but not necessarily a defence (unless title is challenged) – to stay on maybe raised under section 6 (2) of the Summary Ejectment Act. That section 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.”

Subsection (2)(b) (supra) is not expressed in positive language however latent within this provision is a right, of the party being evicted, to argued to be excused. Of course as to whether the plea or excuse or “reasonable cause” is convincing and or indeed it is reasonable would depend on the factual circumstances. I can only think this defendant, in saying what he is saying, is exercising that latent right under subsection (2) (b).

However it remains a salient fact in this case that the defendant has not paid rent for his occupation of the place he is squatting upon. He was advised to vacate many times. He has flaunted such demands. He cannot have retained or become entitled to any equitable rights by default. As it is he an unlawful squatter in the complainant’s property.

Section 4 of the Summary Ejectment Act permits landlords to summarily evict non rent paying tenants with due notice. The section is overly lengthy and I wish not reprint it here but basically a landlord can obtain an order to evict if non payment exceeds 42 days on a monthly rental agreement. The defendant’s fault here is that he pays no rent and he is a squatter.

In all the circumstances of this case, the defendant stands no chance of blocking grant of an eviction order. He has no rights over the property. He is owed nothing by the complainant.

The defendant has had sufficient warnings and notices of what was, on the face of it, always an inevitable outcome. By now he would no doubt be ready to render vacant possession to the complainant. The complainant has the right to vacant possession and the peaceful enjoyment of its property.

Consequently I order that the defendant, Tom Kua, vacate and move out of Section 311, Allotment 25, Gabut Street, Gerehu Stage 4, National Capital District within 21 days from service of this order. The complainant shall have its nominal costs of this proceeding, the same to be taxed if not agreed.

If there is no voluntary render of possession, the complainant may obtain a warrant directing members of the Royal Papua New Guinea Constabulary to enter by force, with assistance if necessary, and secure for it vacant possession.

________________________________________________

Mr. Ginyaru for the Complainant
The Defendant in person