Air Niugini Ltd v Talum [1992] PGNC 46; N1130 (20 November 1992)

N1130

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO. 263 OF 1992

AIR NIUGINI
Plaintiff

-V-

ELIZABETH TALUM
Defendant

Waigani: Brown J.
1992: 20 November

Writ of possession of land - real prejudice must be shown to delay issue - Relevant principles O.13 r.3 National Court Rules.

Held:

(a) Where "order" in earlier motion for injunction to stay eviction action amounts to a judgment for possession, real prejudice must be shown to warrant delay of the owners right to possession. No real prejudice has been shown.

Judgment on Applications for Writ of Possession of Land

20 November

BROWN J.: On the 6 November I gave judgment for the Commission dismissing a motion by the Association sought in these terms -

"That the defendant (Commission) be restrained from evicting members of the plaintiff Union (the Association) from their company residences until the claims as to unlawful dismissals and suspensions contained in the WS No.835 of 1992 are finally determined by the Court".

Mr J. Sleight now comes by way of originating summons for the plaintiff, relying on an affidavit by the Director - Personnel of Air Niugini, seeking that the Commission have a writ of possession of the premises forthwith. The Commissions application is brought pursuant to O. 13 r 3 which provides for the enforcement of judgment in relation to possession of land. Pursuant to O 13 r 1(a) judgment is defined to include an order. I find that the order I made on the 6 November having regard to the reasons amounts to a "judgment for possession" for the purposes of r 3 (1).

I previously said -

"Further the applicant should give an undertaking as to damages before the Courts will entertain applications which affect proprietary rights. Here Air Niugini asserts that it owns premises and even were the employees still under contract to the Airline, their right of occupation is a permissive occupancy at the option of the Airline. There is no evidence to the contrary".

Now the plaintiff cannot have his order without the leave of the Court. The material considerations are these. A member of the occupants had been served with the summons for possession in time so that the rules relating to service have been complied with. Mr Sleight seeks the Courts leave to deal with two which were only served on the occupants last night (OS No. 267 Eileen Sariman and OS No. 269 Chapau Lomot) for he says in fact no prejudice will be occasioned to these particular two occupants (the matter of the eviction of these past employees being common knowledge amongst them) for attempts were made some 5 days ago without success and that it is for the particular occupants to show prejudice in that they have some defence to the summons for possession.

I will come back to that question of a defence, but suffice to say I am satisfied no real prejudice will be occasioned these two occupants on the ground alone that they have had short service. I rely to a large extent on the fact that at the time of termination they were given notice to vacate the premises by the 19 October 1992, a date subsequently postponed by consent of the Commission and since the 6 November, the occupants rights if any to remain had been extinguished by the terms of my judgment. These proceedings cannot come as a surprise. Still on the question of leave Mr Sleight says that the plaintiff has a common law remedy (which it has exercised if I understand correctly, in the period to the 6 November 1992) but nevertheless it has instituted these proceedings and seeks orders. As well as he says the continued occupation is without the leave or licence of the Commission and he relies on the material in the affidavit of Paul Aisa the Director Personnel. He deposed to the fact of termination of these particular employees and the giving of the notice to vacate which I have mentioned. He says they were only permitted to occupy the premises during their employment by the Commission and that there was no "lease" or "licence" agreement.

On the strength of various overseas and more importantly PNG authorities an occupier in these circumstances has no right to remain, he may have a right to damages where he succeeds in a claim for unlawful dismissal. He referred me to Robinson v. N.A. Commission [1983] PNGLR 476 for instance and a case of Malai v. P.N.G. Teachers Association (unreported judgment of mine N967) which was upheld on appeal to the Supreme Court.

Further I am satisfied who is in occupation of the particular units and that service has been properly effected on those "occupiers". Consequently the Commission is, as Mr Sleight says entitled to possession for it has a better right. All those matters are pertinent to leave, but Mr Paraka for the respondents, says nevertheless I should not affect the status quo and should refuse leave until the aggrieved employees claim is finally determined. Frankly that argument was deal with in the proceedings for interlocutory relief and failed.

He also urged me to exercise my discretion under s 155(4) of the Constitution and make orders to do justice in a particular case, by allowing these persons to remain. I do not consider I need rely on s 155(4), the law expressed in those cases already referred to, is clear. The aggrieved employees rights to sue for breach of contract are unaffected and if it should be shown that their dismissal is unlawful then damages will follow. No right to remain however has been shown here. Further if Eileen Sariman and Chapau Lomot were concerned, I am sure they would have been here to assert why they should be allowed more time to argue and why perhaps they should be treated differently to the others. Mr Paraka has not raised any issue with their status.

In all the circumstances I am satisfied that leave should be given for writs of possession to issue. Whether they should issue forthwith has not been argued, but the plaintiff seeks that they do. A further two weeks has passed from the date of my judgment and no particular facts have been shown to exist which make that order unfair to a particular occupant. When an application is framed as this is, seeking orders which will seriously affect the housing of a respondent, and possibly his well-being, and those orders are sought "forthwith" it is trite to ask for time to seek instructions when the rules relating to notice have been complied with. Five days are allowed and if as here, the persons likely to be affected take insufficient steps to instruct their lawyer beyond that to seek an adjournment, then no good reasons have been advanced to delay the plaintiff further.

Orders:

I make orders in terms of paras 1, 2, 3 & 5 of the Originating Summons in respect of those 7 sets of proceedings consecutively running 263 to 269 inclusive of 1992.