University of Goroka v Kambu [2018] PGDC 40; DC4034 (18 December 2018)

DC4034

PAPUA NEW GUINEA

District Courts Act, Chapter 40

[In the Civil Jurisdictions of the District Court at Goroka]

DC No 229 of 2018

Between:
THE UNIVERSITY OF GOROKA –aka- UOG
(First Respondent/Complainant)

And:
DR MUSAWE SINEBARE in his capacity as the Vice Chancellor & CEO of the University of Goroka

(Second Respondent/Complainant)

And:
JIMMY KAMBU
(Applicant/Defendant)

Goroka: C Inkisopo

2018: 1^st, & 9^th November and 18^th December;

District Courts Act, Chapter 40 – Court of limited jurisdiction - practice and procedure at District Court set out and defined by Act – jurisdiction and powers of District Courts set out and parameters of application of these powers demarcated by Act –

Summary Ejectment Act, 1952 – claim for eviction and corollary claim for repossession of properties by registered proprietors proceeded with under s 6 of Act - Act purposed to provide quick remedies to holders of titles etc. –

Notice of Motion seeking to set aside ex-parte eviction order – principles to apply; (1) whether defence on merit disclosed – (b) explanation why judgment by default allowed to go and - (c) promptness of application or reasons for delay (if any) –

UOG’s institutional house – whether UOG required to produce title over property to claim repossession from former employee – whether Defendant as former employee has permission, right, title or licence to enjoy continued occupancy of subject institutional house over and beyond his employment termination timeline –

Right of terminated former employee to claim continued residency pending settlement of final entitlements and repatriation fares –

Legislations/Sub-ordinate legislative enactments, bye-laws rules & regulations

1: District Courts Act, Chapter 40
2: Summary Ejectment Act, 1952

Cases cited
1: Barker -vs- Government of PNG [1976] PNGLR 340
2: BSP -vs- Spencer [1983] PNGLR 239
3: George Page Pty Ltd -vs- Malipu Bus Balakau [1982] PNGLR 140
4: Green & Company Pty Ltd -vs- Green [1976] PNGLR 73

5: Herman Gawi -vs- png Ready-Mixed Concrete (PNG) Pty Ltd [1984] PNGLR 74

6: Robinson -vs-National Airlines Commission [1983] PNGLR 476

7: Southern Highlands Provincial & Local-Level Governments -vs- Kapipi & Embisi [1996] N1486

Appearances

1: Mr Hebert Best Wally for Respondent/Complainant

2: Mr Richard Yombon for Applicant/Defendant

18^th December, 2018

JUDGMENT

C Inkisopo: This is an application by way of motion on notice filed on 6^th November, 2018 by Messrs Niuage Lawyers seeking to set aside a certain order for eviction entered ex-parte on 31^st October, 2018 in favour of the Respondents.

The Background Facts

2: The Applicant/Defendant is a former employee of the First Defendant more specifically described as Farm Manager of a training farm operated by the First Defendant as part of its teaching program in the Division of Agriculture and Rural Development. Applicant whose engagement with the First Respondent was per a written contract of employment that allegedly lapsed effective 8^th February, 2018 and when the position was advised he was said to have not applied for its extension and someone else did successfully and secured the position; Applicant hence was relieved of his engagement altogether. Both Respondents claimed that they served appropriate advices on the Applicant via written notices and advices of him not having have secured an extension of his contract including serving him appropriate notices to vacate the institutional accommodation he was then occupying whilst employed.

3: The Respondents alleged that despite numerous notices and requests for him to yield up possession of the subject institutional house, he still continued occupying the property.

4: As a result of the Defendant’s failure in yielding up occupancy and/or refusing to vacate the subject accommodation, the Complainants came to Court; procured and obtained an ex-parte order for eviction dated 31^st October, 2018 against the Defendant. The Defendant then filed an application by way of a Motion on Notice dated 6^th November, 2018 seeking to have this ex-parte Order set aside; and it is that Application; the subject of this Ruling.

The Law on set aside Applications

5: Section 25 of the District Courts Act is the statutory jurisdictional authority that permits of such applications (to set aside ex-parte orders) by aggrieved parties. Whilst this provision is the statutory jurisdictional basis for such, the provision does not of itself alone operate automatically to grant the relief sought but made workable by applicable legal principles that are long settled in this jurisdiction commencing with the oft-cited case of Green & Company Pty Ltd -vs- Green [1976] PNGLR 73 followed by a wealth of cases after Green that have expanded on and refined those principles that are now settled in this jurisdiction.

6: The principles in such applications that have evolved since seem to me first to consider and establish the nature and type of the subject ex-parte order; whether such an order has been entered regularly or irregularly; only then can the other considerations follow.

7: The settled law is; where the ex-parte default order the subject of the application was entered irregularly, then that ex-parte judgment as a matter of principle must be set aside. See Barker -vs- Government of PNG [1976] PNGLR 340 and BSP -vs- Spencer [1983] PNGLR 239.

8: If however, the subject ex-parte judgment order so entered is made regularly or by slip, it calls for the exercise of a discretion in dealing with the application (See Barker -vs- Government of PNG (supra)). And materials relevant to the exercise of discretion are;

➢ An explanation in the Affidavit filed in support explaining why the subject ex-parte judgment order was allowed to be entered;

➢ Affidavit material filed in support of Application must disclose defence on merit; and

➢ Promptness of Application or an explanation for delay in applying (if any)

9: Applying the principles as discussed above to our instant case; the first question I must consider is the regularity or otherwise of the subject ex-parte judgment order and the facts and circumstance then prevailing when the subject Order was granted.

10: The Applicant had just been relieved of his job with the Complainants and when given notice to vacate the residential property he was then occupying, he had not moved yet; instead putting up resistance by not yielding up the property even when he allegedly was no longer in the employ of the Complainants’; albeit for reasons, as he claimed; of non-payment of his final entitlements and repatriation fares.

11: Here was a terminated employee continuing to stubbornly occupy his former employer’s institutional house claiming entitlements to certain rights that need attention, protection, enforcement of those purported rights and/or positive actions by the Complainants/Respondents.

12: It is noted that the Respondents/Complainants did not plead and initiate their cause under the Summary ejectment Act, 1952 but claimed a common law right to have an illegal occupier of its property; who has no reasonable cause or good reason to continue to occupy its institutional house to be removed as he is allegedly thereby causing inconveniences to the good and smooth administration of the affairs of the Complainant Organization.

13: Against that factual background, the question looms; was the subject ex-parte order; entered regularly or irregularly? With an answer to this question, one will be placed in a better position to consider what relevant principle should apply in dealing with this matter.

Looking at the background facts of this case and the surrounding circumstance that gave rise to the existence of the subject Order, I am satisfied that the subject ex-parte order was here regularly entered which consequently calls for the discretion of the Court to come into play.

14: Hence; because Applicant/Defendant could not vacate the property after repeat notices, Respondent/Complainant came to Court and procured the subject ex-parte order for eviction.

15: By the very fact of the subject order having been issued ex-parte after the Complainants were granted leave to dispense with the service requirements to apply ex-parte for the subject order, I am by that fact alone satisfied that the first of the three required principles for such applications has been made out to my satisfaction.

16: I am also satisfied that the third requirement is adequately made out; in that the timing in relativity to the Application (06/11/2018) from the date of the ex-parte order (of 31^st October, 2018) is almost 6 days which in my view is relatively a prompt action.

17: Whilst I am satisfied with the requirements of explaining why an ex-parte judgment order was allowed to go and the established promptness of this Application, I sadly find myself unable to agreeing that the Applicant has advanced supporting Affidavit material disclosing Defence to the claim on merit.

18: Applicant has provided no material in his supporting Affidavit as to what Defence (if any) he would have to raise against the claim to have him vacate the subject institutional house. As a State entity, in my humble view, the Respondent/Complainant need not provide or produce proof of title to prove ownership of the subject institutional house (See Southern Highlands Provincial & Local-Level Governments [1996] N1486). For this and two other distinct reasons, the Complainants need not prove ownership; firstly, Defendant raises no dispute as to the Complainant’s claimed ownership; and secondly, the Complainant has produced to Court a lease title deed registered in the name of the First Complainant.

19: In the final analysis, I find that the Applicant has sadly fallen short of the mark in this application; he has in his affidavit material not disclosed to the Court what his Defence to the Respondent/Complainant’s claim was going to be like; in other words, if the application to set aside was granted and matter reinstated for an inter-party hearing, what Defence would Applicant be raising? I fail to see any plausible and possible Defence Applicant/Defendant would likely raise!

20: All I was able to gauge from Applicant’s Affidavit material and also from Counsel’s oral presentation during submissions were that Applicant/Defendant had nowhere to stay and pursue his final entitlements claims with the Respondent/Complainant. Also that if he was to be thrown out on the streets of Goroka he and his family is going to face extreme difficulty as he is not from Goroka, EHP but from the SHP. Hence, he should be paid his repatriation fares as he hails from the SHP where he should be repatriated to with his family as he was initially recruited from; so he says!

21: Counsel for Applicant Mr Richard Yombon submitted that the subject ex-parte order should be set aside and matter re-instated for a full inter party hearing and the Applicant enabled to present his side of the story and be heard why he should not be removed from the subject institutional house he now occupies.

22: In presenting this line of argument, Mr Yombon also raised and argued emphatically certain alleged procedural irregularities. For an example, he pressed emphatically that Respondents/Complainants sought and obtained a substantive relief by way of a Notice of Motion which practice he says is not permitted by the rules of Court.

23: In the face of these arguments for the Applicant/Defendant, we have a Complainant who has an unenviable task on its hands of dealing with a former stubborn employee who is resisting all notices to vacate the subject property. Even despite the fact that the employee has already been relieved of his job; he was demonstrating by his conducts that he was not going to take his termination and consequential eviction lying down; not even yielding to the several notices to quit he was occupying. He claimed that he was not paid his final termination and repatriation fares as yet but being forced to vacate. Then Counsel in submission revealed that his client had just filed a writ of Summons claiming unlawful termination and consequential damages against the Complainants.

24: On the other side of the equation, Respondents/Complainants have had to deal with a very difficult former employee who refused to vacate; and filed proceedings claiming unlawful termination and consequential damages.

25: I next ask myself the question, what is the balance between these two equally countervailing factors? The fact of the Applicant having have taken out a writ of summons against the Respondents verses or as against the fact of the Applicant having been relieved of his employment and the consequential notices to yield up occupancy of the institutional accommodation by the Applicant. The legal position on this point in this jurisdiction is a settled law; in such employer/employee relationship situations, where an employee files a writ against the employer claiming damages for alleged unlawful termination of employment; such is held to amount to being an acknowledgment by the employee that he is indeed terminated. “A writ for damages for wrongful dismissal is an effective election to accept repudiation of the contract of employment and so to treat it as at end”. See Robinson -vs- National Airlines Commission (NAC) [1983] PNGLR 476 per Andrew J.

26: In my humble view, the balance of convenience would lie in favour of the Respondents/Complainants as against the Applicant/Defendant given the under-current - that the Applicant is no longer an employee of the Respondent/Complainant and consequently no longer entitled to the institutional housing privilege he once enjoyed as an employee back then; and further that adequate relief in an award for damage is available to the Applicant should he suffer consequential damages.

27: Thus far, it is obvious to me that the former cordial employer/employee relationship the parties enjoyed has now soured and is over; and this Court cannot compel parties in such positions to resume their relationship.

28: To set aside and reinstate the case as Applicant/Defendant seeks is tantamount to saying the Applicant/Defendant can resume his employment in the Complainants’ employ as well as to resume his continued residency of the subject institutional house over which the parties are already up at each other’s throat!

29: This Court more so will not and cannot compel parties into a relationship they have already fallen out from by restraining the Respondent/Complainant from terminating the Applicant/defendant from his employ and restrained from being evicted from the subject institutional accommodation. “Injunction will not in circumstances be granted to compel either master or servant to continue a personal relationship that has become noxious to either of them.” See Robinson -vs- NAC (supra)

Finding

28: On the basis and strength of the above discussions, I make the following determinations;-

➢ Application to set aside ex-parte order fails as no Defence on merit has been disclosed.

➢ Applicant has effectively been terminated from his employ with the Respondent/Complainant;

➢ At the instance of termination, entitlement to accommodation lapses or discharges;

Court’s final Order

29: In the final upshot, the Court Orders as follows;-;

1: Application is dismissed;

2: As costs are a matter for judicial discretion; and given the particular circumstance of this case, I order each party to bear own costs of these proceedings

Lawyers:

1: Herbet Best Wally Lawyers: Lawyers for Complainant of Port Moresby

2: Niuage Lawyers: Lawyers for Defendant of Goroka