Civil Aviation Authority v Cholai [2008] PGDC 80; DC827 (29 February 2008)

DC827

PAPUPA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
Civil Jurisdiction

DC N0 2021 OF 2007

CIVIL AVIATION AUTHORITY
Complainant

V

JOHN CHOLAI
Defendant

PORT MORESBY: Pupaka, PM

2008: 29th February

Eviction proceedings – Section 6 of the Summary Ejectment Act – Complainant’s ownership rights and or possessor rights over State lease by virtue of its status as a government functionality not disputed – Eviction orders may therefore otherwise issue – Reasons advanced in support of a contention that the defendant has a right to remain in occupation not a lawful defence to eviction proceeding but it may amount to an assertion of a "reasonable cause" under Section 6 (2)(b) of the Act – Reasons given neither sufficient to amount to "reasonable cause" nor strong enough to counter demand for vacant possession of property by owner or entitled entity particularly when the defendant’s possible rights may lay in damages only.

Counsel:

Mr. Ovia for the Complainant
Mr. Imal for the Defendant

29th February 2008

PUAKA, PM: This matter is one out of a number of eviction suits commenced by the complainant, the Civil Aviation Authority of Papua New Guinea (CAA), against former employees who are still occupying certain ‘institutional’ houses long after all those former employees’ respective employments with CAA were severed for one reason or other.
Given the type of defenses raised in each case and for reasons of convenience for the parties, it has been necessary to have the CAA cases separated and dealt with differently. Some of the cases would have to be dealt with alone whereas others need to be heard jointly. This particular case has been set aside for summary determination because, as the facts outlined below would show, the defence raised or pleaded is such that the matter is best dealt with summarily.

Facts

The primary facts are not in dispute at all. These relate to the status of the premises, the previous relationship of the parties, and where or at what stage their relationship is currently.

The CAA is a legal entity possessed of full capacity. It was created into existence by Section 18 of the Civil Aviation Act 2000. The defendant is a former employee of CAA. This proceeding was instituted to get rid of the defendant from "Residence 111 at Taldora, NCD", a house located on Portion 2437, Milinch Grandville Fourmil Moresby. It seems that this particular house and other properties elsewhere are now presumed to be lawfully owned by CAA as a result of a transfer agreement executed between itself and the State of Papua New Guinea. This transfer agreement was filed previously by the complainant in relation to all its eviction cases. That document’s validity or its relevance is not being challenged, either by this defendant or the other defendants. Therefore the regularity, intent and effect of the "Agreement" between the State of PNG and the CAA is accepted as a matter of course. However, even if it was challenged, its inclusion herein as evidence is as a matter of law, particularly by virtue of Section 18 (3) of the Civil Aviation Act 2000, which reads:

"(3) All courts, judges and persons in a judicial capacity shall take judicial notice of the seal of the Authority affixed to a document and shall presume that it was duly affixed."

After a perusal of the terms of agreement and indeed the affixed seals, all indications are that this Agreement looks to have been reached after careful thought and consideration on the part of the State and one of its functionalities, the CAA. The Agreement also seems to be the result of a deliberate exercise of sovereign authority by the State and, in my view; this Court is obligated to heed clearly expressed national policy.

Moreover it does seem that the defendant was allocated the house as a result of his employment with CAA. However, even though he is now no longer employed, he continuous to live in the house. He was apparently retrenched in 2005. Retrenchment is disputed by the defendant, who now insists that he was terminated. The defendant has been served notice to vacate the house and render vacant possession but he has continued to refuse to do that. Ergo this suit by CAA is to have him evicted from the house.

It is, as I said, common ground that the defendant is no longer employed with the CAA. Whether he was retrenched or he was terminated by CAA is, for the moment, of no consequence. The defendant had no right to move into or occupy "Residence 111" in the first place, other than on the bases of his employment with CAA. That too is not disputed. Whilst there is issue over to his employment status, the defendant cannot deny the complainant’s rights over the property, especially its rights to seek eviction orders on the bases of all its possessor and ownership rights over it.

Defence

Nevertheless the defendant has filed a defence and cross-claim. In the defence part of it he denies most of the assertions of law and reference to official records in the complainant’s pleadings. It is uncertain whether the defendant realized that the nature of his defensive pleading in relation to matters of law and official records offend against rules of practice that say one must not plead the general issue. The defendant is, in a way, lucky that his defence was not struck down, which means that whatever he has pleaded in his defence will now have to be considered on its merits.

In any event the defendant pleaded that he was never retrenched but was unlawfully terminated. He pleaded that an appeal he lodged against the complainant’s decision to "dismiss" him from employment, to the Public Service Commission, is still pending. Therefore he sought an order in the cross-claim part of his defence to restrain the CAA from evicting him from the house until the Public Service Commission has determined his appeal.

Issue for Summary Determination

Consequently the turnkey issue manifested here, to be determined first, is as to whether the defendant is entitled to remain in the property pending the determination of his appeal by the Public Service Commission.

The defendant maybe entitled to the continued occupation of the house pending determination of his appeal to the Public Service Commission. However whether he in fact is entitled to do so depends on whether there is a provision to that effect in his contract of employment (if there was any). He maybe entitled as a matter of law. It could also be on the bases of any binding precedent or the principles of common law and equity. Whilst it remains to be seen whether the defendant needs to be allowed continued occupation after his employment was determined, one thing is certain: In the circumstances it is not a case of whether or not the CAA cannot be granted the orders it seeks. CAA is otherwise entitled to obtain such orders. It is now only a question of whether the there is grounds for the defendant to be granted reprieve from summary eviction.

First of all the defendant does not say that he is entitled to remain in the house because it is covered or allowed for in his employment contract. If there was such a employment term it may mean that while the actions of the complainant in relation to the employment of the defendant is being reviewed, the defendant will be entitled to continue to enjoy benefits that come with the employment, including things like salary and housing. However no such contractual clause or term is being asserted or invoked so I take it that the defendant’s demand is not as a matter of contract.

Secondly the defendant did not plead or assert any statutory provision that grants him an interim reprieve. Therefore it must mean that there are no relevant statutory bases for his demand.

Nevertheless it ought to be said that eviction proceedings and indeed 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.

The available evidence shows that the defendant continues to occupy "Residence 111" without any property rights or title or licence or permission. He does so despite demands to vacate and give up possession. Therefore his continued occupation is otherwise illegal and unlawful.

That however, does not mean that the 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 quite sure whether the defendant was aware that he needed to put a case to the complainant, and indeed the court, that there is reasonable cause for him to continue to stay on. Pleading a reasonable cause is an invitation to the complainant or this Court, now that the matter is before this 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 defendant has instead demanded continuous occupation as a matter of right when he cannot show the lawful bases for such right.

If the defendant intended to provide or show a reasonable cause it would have to be contained in the words of his declaration in paragraph 15 of his defence. Certainly he does not seem to have mentioned any other thing anywhere else in his defence. In paragraph 15 he declares that his continued residence in the premises is "in the full exercise of his rights and entitlements until full and due consideration and determination of his appeal to the Public Services Commission" (sic).

I have already said above that the defendant failed to plead any contractual clause or statutory provision that bestows upon him the right of ‘entitlement’ to continuous occupation. I am further not convinced that the statement in paragraph 15 of his defence is an assertion of a reasonable cause. He really seems to be raising a complete defence to the eviction suit. However the declaration raises no valid defense to the eviction proceeding. The complainant’s eviction suit here is based on exclusive ownership which the defendant cannot dispute, so the latter really ought to have attempted to show why he should not be evicted, instead of saying something that raised an affirmative defence which just cannot stack up as anything here.

The defendant really ought to have made an effort to put together an argument for himself based on the bases of the precedents and the principles of common law and equity. The defendant ought to know that no one is owed an employment. That of course is not to say that once there is or there has been an employment relationship, and that relationship has soured or has been breached or severed and consequently there are issues that need to be resolved, the law and the precedents and the principles of equity cannot apply. However it is a misconception to think that once someone has lost a job there are certain presumptions in his or her favour. Interim relief, of whatever type, is available from the courts to those who seek it, but these are granted upon proof of loss or eminent or likely loss or other just cause.

The case of Robinson –v- National Airlines Commission [1983] PNGLR 476 is perhaps the best known binding precedent on the general issues that seem to be raised by this instant matter. The National Court said in that case that where there are opportunities for an employee to seek adequate or alternative relief in law, granting interim orders like continued occupation of company accommodation is not appropriate.

In that case (supra) the plaintiff had had his employment as deputy general manager of the defendant company terminated and he had instituted proceedings for damages for wrongful dismissal. While the substantive matter was pending the plaintiff, by notice of motion, sought orders directing the defendant to refrain from demanding possession of a company supplied car and house and to ensure non-termination of electricity etc., to the house and to continue to pay the salary and allowances and to accord privileges to the plaintiff pursuant to a contract of employment. Justice Andrew, when ruling on the application, said:

"In order to determine this, the court will have regard to such factors as the adequacy of damages, the possibilities of alternative remedies, whether there has been any latches and delay, the strength of the grounds of defence suggested by the defendant, what, if any, undertakings the defendant is prepared to give, and most importantly, hardship and the balance of convenience".

In the instant case before me, it is not said what position the defendant held in the complainant before he was retrenched or terminated as he now says, but he should be able to get his job back if he is successful in his appeal. There is insufficient evidence to determine now whether the defendant’s former position was filled or is vacant or was made redundant, but in the event that he cannot be given his old job back for whatever reason after he is successful in his appeal to the Public Service Commission, he has every right to sue for damages for losses he incurred and for the hardship he suffered whilst trying to secure reinstatement to his former position. Otherwise, upon reinstatement the defendant would be automatically entitled to his entitlements, including accommodation, if accommodation was one of his entitlements. If accommodation cannot be provided he would be entitled to receive money in lieu. If entitlements are not provided or paid for the defendant could seek relief in damages as I said. Therefore, moving out of the house now cannot cause any irreparable losses to the defendant.

On the other hand, as long as the defendant does not give up vacant possession, the complainant would continue to suffer losses. For instance the complainant would have incurred and will continue to incur costs in accommodating any person who replaced the defendant. If in the end it turns out that the defendant is unsuccessful in his appeal, CAA would have quite needlessly incurred all the costs it had incurred as a result of the defendant’s continued occupation of the house. Further on that, it is not quite certain at this stage but there is some indication that electricity might be provided to the house at cost to the complainant. There maybe other such amenities or provisions that goes with the house too. Moreover the defendant would have lived in the house for 3 years by April this year (2008). Therefore the cost that CAA incurred in having to put up with this defendant in the house for 3 years is anybody’s guess.

Just why the defendant’s appeal to the Public Service Commission remains unheard for 3 years is not disclosed so one maybe excused for thinking it could take any number of years more for it to be dealt with, if indeed there is an appeal at all still pending. The strength of the defendant’s appeal to the Public Service Commission is unknown. The defendant has not disclosed anything that may be of assistance in assessing the strength of his appeal. The defendant has given no indication that he would be willing or whether he is prepared or that he has in fact already given any undertaking of any kind, including undertakings as to damages.
Needless to say, when all things are fully considered, that the balance of convenience lies squarely in favour of granting the orders that the complainant seeks of this Court.

Conclusion

This and the other similar cases were commenced in mid September 2007, which is some 5 months ago. Before that the defendant had been advised that he and his family had to leave and give up vacant possession. The CAA is entrusted with vital functions. It must have every opportunity it should have to discharge all such functions. No good purpose is served in delaying the inevitable outcome in this matter. There is no reason why the orders sought by CAA cannot be granted. The defendant, having been fully forewarned, only needs reasonable time to move out of the house. He has had years and months of fair warning. 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.

Therefore I order that the defendant, John Cholai, move out of CAA Residence 111 at Taldora, NCD, located upon Portion 2437, Milinch Grandville Fourmil Moresby within 14 days of being served with this eviction order. The complainant shall have its costs of this proceeding, the same to be taxed if not agreed to between the parties.

Mai Lawyers for the Complainant
Kassman Lawyers for the Defendant