Wambena v Neofa [2014] PGDC 2; DC2051 (27 August 2014)

DC2051

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 232 OF 2014

BETWEEN

CHRISPETER WAMBENA and FELICITAS WAMBENA
Complainants

V

Dr ZUI NEOFA as, DIRECTOR OF PNG EDUATION INSTITUTE
First Defendant

AND

THE PNG EDUCATION INSTITUTE
Second Defendant

Port Moresby: TATAKALI DCM
2014: 27th August

Locus Standi-- lacks standing to ask - but question not raised by defendant – assumption of standing appropriate
Questions raised for court to determine. Complainants answers questions raised themselves. No need for court to answer and determine
Restraining orders- Substantive matter must be filed in court. Matter before PSC or other bodies are not matters before the court

Eviction order – Granted but suspended—Humanitarian grounds

Case cited:
Public Employees Association of Papua New Guinea and Napoleon Buyawo Liosi v. Public Services Commission [1988-89] PNGLR 585,

Markscal Limited & Robert Needham v. Mineral Resources Development Company Pty Limited [1996] PNGLR 419

Counsel

S. Japson (Mr) for the complainants
P. Puiye (Mr) for the defendants

RULING

TATAKALI:DCM This is a ruling on a complaint by the complainants seeking orders to declare that the defendants do not have title to a property where the complainants are currently residing in and therefore do not have the legal right to evict them from that property at the Papua New Guinea Education Institute (PNGEI)I at Waigani in the National Capital District

MATERIAL FACTS

The complainants are a married couple who are residing in a property at the Papua New Guinea Education Institute (PNGEI) that is the subject of this dispute, The first complainant was previously employed by the Education Department for over 30 years. He resigned to contest the 2012 General Elections however he did not move out of the property that he was living in when he resigned. He did not succeed at the elections and later applied to be reinstated to his former position or any other equivalent position in the Department of Education who were his former employers. However his application for reinstatement was not favorably considered. He claims that he has appealed against that rejection to the Public Service Commission. He also alleges that he has other outstanding claims against the Education Department.

The second complainant who is the wife of the first complainant is, a school teacher for some 30 years and is currently, teaching in a primary School in the National Capital District. She claims that she has been paying fortnightly rent to the defendants since the resignation of the first complainant in 2011. They have been issued a number of eviction notices by the defendants who claim to have legal title and right over the property in question. They allege that due to a number of threats and intimidation by the defendants they have sought these orders that they now seek from the court.

The complainants have applied to the court for the court to make an order that the defendants do not have legal right and title to the property and as such do not have any legal right to evict them from the said premises.

ISSUES

According to the plaintiff, the main cause of action is to determine whether or not the defendants have a legal title to the property. They claim that the defendants do not have legal title and therefore cannot evict them from the premises that they are currently residing in.

From the outset the defendant did not raise any issue in relation to the locus standi of the complainants to bring this action although the court is not really satisfied on that question, however since the issues of standing was not raised this court will proceed with the case on the assumption that the complainants do have standing.

That brings us to the million dollar question which is, who has the legal title to that property where the complainants currently reside in. (There seems to be a bit of uncertainty as to the exact allotment and section so the court will refer to it as the property,)

So who has legal title to that property? In short that question has been answered by the complainants themselves in paragraph 5,7,9 of the first complainant affidavit and in paragraph 4 and 5 of the second complainants affidavit and paragraphs 1, 3 and 4 of their final submission where they all admit that the property is owned by the education department..

Therefore, there is no need for the court to determine the question that has already been answered by the plaintiffs themselves. The conclusion is that both parties do not own the property.

The property is owned by the Education Department and not the complainants or the defendant.

However the court has noted that the secretary for Education being the person legally charged with all the responsibilities to deal with the Department of Education, has written a letter dated 04.04.14 addressed to the first complainant stating in very clear terms that the defendants are the legal landlords of the property in question.

That letter has not been disputed or challenged by the complainants so the court must accept this letter as proof that the defendants [not the plaintiffs] have legal rights to exercise in relation to the properties at the PNGEI, including the current property where the plaintiff is residing in. These rights that the PNGEI has by virtue of the education secretary’s letter of the 04/04/14 includes the right to evict the plaintiffs from the current disputed property.

In the first complainants letter to the secretary of education to be reinstated dated 20/08/14 plaintiff admits that he is occupying an institutional house at In service college which must now be the PNGEI. And I also note in paragraph 11 that the wife is paying K73 per fortnight to the defendants for rent. It also seems that this is an admission that the defendants are recognized by the complainants as the legal landlords of the property in dispute.

Is there a substantive matter before the court?

The law is clear in our jurisdiction on application for restraining orders A number of judgments have been delivered by the higher court including the cases of Public Employees Association of Papua New Guinea and Napoleon Buyawo Liosi v. Public Services Commission [1988-89] PNGLR 585, and Markscal Limited & Robert Needham v. Mineral Resources Development Company Pty Limited [1996] PNGLR 419

All these cases state that at least four main conditions must be satisfied before a restraining order can be considered which are that

1. He must have a substantive or main action already filed on foot.

2. He must establish that he has a serious, not speculative case, which has a real possibility of ultimate success.

3. He must also establish that he has a legal or equitable right, title or interest which might be jeopardized if the restraining order is not granted.

4. He must show that "irreparable damage" or "injury" would result if a restraining order is not granted.

In relation to our case it is not for granting of a restraining order but to determine whether or not there is a substantive matter already filed or on foot.

The complainants alleged that their substantive matter is an appeal before the Public Service Commission and also alleged that they have outstanding claims before the Education department.

Can these alleged claims against these bodies like the Public Service Commission, Education Department or the Department of Personal Management, amount to a claim or matter being filed before the court as a substantive matter? Counsel has not been able to refer the court to any precedent or any relevant case law to assist the court so the court must conclude that there is no substantive matter before this court for it to determine.

So the end result is that all the reliefs sought are denied.

In making these findings I understand the full implications of this ruling and in doing so I note the reality of the situation on the ground, The applicant and his family are most likely to be affected as a direct result of the courts orders and may be evicted without due consideration to their welfare or without due eviction processes.

Everyone is aware of the dire housing situation in the city, it is the middle of the year. The wife is a senior teacher or head master of a big school in the city, the applicant is also awaiting the results of his appeals and claim against the education department. The court is very mindful of how very slow and inconsistent these PSC meetings are . There is every chance that the applicant may yet be reinstated but also there is the likely situation that immediate eviction proceedings may be forthcoming. These are issues that I have considered.

Further to that I have also considered the cross notice of motion filed by the defendant asking the court to evict the plaintiff from the current premises. I have considered this motion and wish to deal with that in these orders as well.

Having been satisfied that the plaintiffs have no legal right to be in that property, and that the defendants are in fact the lawfully recognized landlords of the PNGEI, as per the letter of the education secretary dated 04/04/14, I ask myself whether or not I should proceed to deal with the motion seeking to evict the plaintiffs from the property. I could allow the defendants to file fresh proceedings for eviction under the Summary Ejectment Act but this would be a lengthy process considering the fact, that the plaintiff has been residing in that property since his resignation in October of 2011.

Balancing the humanitarian interest of the plaintiffs and the defendants legal right to proceed with the eviction proceedings I proceed to deal with the motion seeking eviction orders.

In doing so I wish to follow the reasoning that my brother magistrate late Alva Arua took in a similar case in the case of Evara v Gulf Provincial Administration [2007] PGDC 131; DC699 (3 May 2007) where the court ruled that even if an applicant fails to qualify for a restraining order yet on purely humanitarian grounds a temporary restraining order should be granted.

Therefore I grant the following orders

1. First Relief is Denied
   
2. Second Relief is Denied
   
3. Third Relief is TEMPORARILY GRANTED in the following manner
   
   1. Defendants or any other persons or agents acting on behalf of the defendants are TEMPORARILY RESTRAINED from evicting the applicant and his family from the property in dispute where they currently reside in at the Papua New Guinea Education Institute, UNTILL the 20th of December 2014
      
   2. Plaintiffs shall be evicted from the property after the 20th of December 2014.
      
4. Parties are to bear their own costs
   

BY THE COURT

Lawyer for the Complainant: In person
Lawyer for the Defendants: Japson Lawyers

Dated at Port Moresby this 27th day of August 2014