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Yakam v Nicko [2013] PGDC 12; DC2067 (29 July 2013)

DC2067

PAPUA NEW GUINEA
[In the Civil Jurisdictions of the District Court at Bulolo]
DC No 73 of 2012

Between:

LOGAN YAKAM – HEO-OIC BULOLO RURAL HOSPITAL
(Complainant)

And:

ROBERT NICKO
(Defendant)

Bulolo: C Inkisopo

2013: 28th November,
2014: 25th& 27th March, 10th& 24th April, 15th
& 20th May, 6th, 12th& 17th June, 29th July

Claim for eviction from institutional house –District Courts Act Chapter 40 - practice & procedure of District Court defined by Act – jurisdictions & powers set out under s 21 of Act - parameters of application of these powersdefined& demarcated by & under Act –

Claim to evict alleged illegal occupants - dependents of deceased former employee from staff accommodation – Government hospital operated and managed by Department of Morobe –presumption in favour provincial government as agent of State or National Government – Complainantneed not produce title to subject house/property

Claim of right to continue occupation of house on account of non-payment and/or inadequacy of deceased's final legal entitlements -

Legislations referred to& consulted:

1: District Courts Act Chapter 40
2: Summary Ejectment Act, Chapter 202

PNG cases cited& consulted:

1: Herman Gawi -vs- png Read-mixed Concrete (PNG) Pty Ltd [1984] PNGLR 74
1: National Airlines Employees Association of PNG -vs- National Airlines Commission trading as Air Niugini (1992) N 1125
2: National Airlines Employees Association of PNG -vs- National Airlines Commission trading as Air Niugini (1992) N 1126
3: National Airlines Employees Association of PNG –vs National Airlines Commission trading as Air Niugini [1992] PNGLR 287
4: Southern Highlands Provincial & Local-Level Government -vs- Kapipi & Embisi (1996) N 1486
Appearance:
1: Mr Elijah Peu for Complainant
2: Mr Robert Nicko in person

Held:

1: The Defendant Robert Nicko has no right of occupancy to continue to occupy the subject house over and beyond the death of the deceased (who in his living years possessed only a primary right of occupancy as an employee of the Complainant).

2: The Defendant's claim to continue in occupation of the subject house on account of unpaid and/or underpaid final legal entitlements of his late father is not a valid and justifiable reason to continue to occupy the subject house.

3: There is no substantive proceeding on foot pending wherein serious issues of law and fact are triable or that there is no status quo apparent in this proceeding to maintain; and the balance of convenience does not favour the Defendant as adequate avenues forremedies are available to him.

4: Defendant shall give up the subject house and vacate same within 21 days of today's date and/or within such further and appropriate time frame as the Complainant shall deem reasonable to allowfor preparation and vacating.

5: Each party shall bear own costs of proceeding.

29th July, 2014

JUDGMENT

C Inkisopo: The Officer in-Charge of Bulolo Rural Hospital, Mr Logan Yakam filed this proceeding before this Court by way of a Complain and Summons upon Complaint dated 6th August, 2012 against the Defendant and his relatives to vacate the subject house belonging to the Bulolo Rural Hospital located within the Hospital grounds at the PNGF Products Ltd premises here at Bulolo.

2: Since the matter was filed and registered in August, 2012 the matter remained stagnant until it came to Court for its first formal mention before his Worship Mr Sasa Inkung on 11th September, 2012. It then remained stagnant again until it came before me for a further formal mention on 9th May, 2013 andthe matter returned for several more Court appearances.

3: At various stages of the proceeding, the Complainant sought adjournments to procure further supporting evidentiary materials from the Departmental Head Quarters at the Morobe Provincial Administration Personnel Section at Lae. The progression of the matter experienced numerous breaks in between leading to those apparent extended adjournments and the intermittent breaks; untilmid-2014 when the matter returned to Court unexpectedly.

4: This unexpected return was prompted by Mr Geoving Belong, the acting Provincial Administrator of Morobe issuing a formal Notice of Eviction on the Defendant under the Land Act dated 4th March, 2014 to vacate the subject house by the deadline of 19th March, 2014.The Defendant made an urgent ex-parte application to the Court seeking an urgent order for restraint which was readily granted on the sole ground that the issue was pending before the Court and the Provincial Administrator's Eviction Notice was sub judice.

5: The matter was next adjourned to 25th March, 2014 during which the Complainant advised that he was liaising with the Morobe Provincial Administration Legal Services Unit to have one of their legal officers help him expedite the progression of this matter that has beendragging on before the Court for some time then. He said he was doing exactly that and also that he was procuring further evidentiary material relating to payment of the deceased's final legal entitlements. He wasaccordingly granted an extended adjournment for the purpose.

6: Subsequently, Mr Peu, of legal counsel of the Morobe Provincial Administration Legal Services Unit made his first formal appearance for the Complainant on 12th June, 2012. On that day, the parties agreed to make oral submissions on the next return date of 17th June, 2014 at 9am.

7: On the 17th of June, 2014 the parties made their final oral submissions on their respective cases by relying on each of their respective affidavit filed and on Court file; and the Court undertook to deliver its decision in writing; and this is that decision.

8: In each of their respective oral submissions, the parties raised the following matters in support of each of their respective cases;-

8:1 The Complainant addressed on the following points:-

(a) Deceased's final entitlements,
(b) Legality of the Defendant's occupancy of the subject house,
(c) Deceased employee's right of occupancy ceased at his death, and
(d) Nil status quo to maintain by extending the order for restraint vis a vis;nil substantive proceedings on foot and pending that deals with serious issues of law an fact warranting the extension of the order for restraint.

8:2 Whilst the Defendant for his case addressed and pressed the following;-

(a) Unpaid full final legal entitlements of his late father; Nickson Niko
(b) Processing and payment of Workers' Compensation for his late father,
(c) Processing and payment of repatriation fares to home Province.

9: In any claim for eviction, the Complainant must show, prove or demonstrate a clear proof of title to the property in issue. See Herman Gawi -vs- png ReadyMixedConcrete (PNG) Pty Ltd [1984] PNGLR 74.

10: In our present case, the Defendant does not appear to dispute that the house he occupies belongs to the State that the Morobe Provincial Government through the Provincial Administration under its Division of Health administers, manages and occupies. Be that as it may, there is a presumption in favour of the Provincial Government as agent of the National Government and so accordingly Complainant need not produce State lease title or certificate of occupancy or some other form of title to press claims for eviction under the Summary Ejectment Act, Chapter 202. See Southern HighlandsProvincial & Local-Level Government -vs- Kapipi & Embisi [1996] N1486. I therefore hold that the subject house is State property under the immediate control and usage of Bulolo Rural Hospital, a State institution and accordingly, the Complainant need not prove title to advance this claim.

11: The Defendant is the son of the deceased employee late Nickson Niko, a community health worker(CHW) who was granted permissive occupancy of the subject house during his living years as an employee by the Complainant and attached to Bulolo Rural Hospital until his death; they say in 2008.

12: After the deceased's death, the Defendant, his siblings and relatives continue to remain in occupation of the subject house to this very point in time. The Defendant maintains that he and his relatives will not vacate the subject house until and unless the following entitlements of his late deceased father's are processed and paid to him, his siblings and relatives.

13: According to the Defendant, the following are his late father's final legalentitlements that he claims the Complainant has yetto process and pay;-

(a) Deceased's full and final legal entitlements;
(b) Deceased's Workers' Compensation payments;
(c) Repatriation fares for him, his siblings and relatives as deceased's legal dependents to home province.

14: As I gather, the Defendant is not disputing that the subject house he occupies is the Complainant's; and that he is ready to vacate the same as soon as his above itemized lots of entitlements due to his father, the late Nickson Niko are processed and paid to him.

15: The questions that beset the Court are;

(a) Are the claimed final legal entitlements still unpaid, due and owing? If so, by how much is it outstanding and owing in monetary terms?
(b) Was the late Nickson Niko entitled to Workers' Compensation payment?
(c) Was the deceased employee, Nickson Niko entitled to repatriation fares?

16: In respect of the first issue, the Defendant claimed that himself, his siblings and other family members are still waiting for the Complainant to process and pay him and his relatives their late deceased father's full and final legal entitlements. He says if such are paid, he will voluntarily vacate the house; but it has not since been paid so he bluntly says that he"will not vacate the house regardless of what" (paragraph #9 of Defendant's Affidavit of 29th August, 2012).

17: Following the Complainant's fresh additional Affidavit in which evidence of a purported payment of K2, 769.97 as the deceased's final entitlement was furnished, the Defendant seemed to switch around from his previous stance of nil payment to one of gross underpayment of the deceased's final legal entitlements; contending that his late father was not a "casual employee"to be paid that much but an employee of 15 long years of continuous service. He therefore contended that K2, 769.97 did not reflect the number of years his late father had served the Complainant for; indirectly hinting that there are some more entitlements still outstanding and yet to be paid.

18: The Defendant in my observation has neither acknowledged receipt of that K2, 769.97 nor expressly denied its receipt but silent on that issue; giving this Court the impression that it has already been paid and received. Heonly contends that the said purported payment was inadequate as a final entitlement. This Court is satisfied that the deceased's assessed final legal entitlements of K2, 769.97 was duly paid into the deceased'sBulolo BSP bank Account No 1000883648.Notwithstanding the Defendant's claim that the said payment was inadequate. I am however satisfied that an amount of money said to being the final legal entitlements of the late Nickson Niko'shad been calculated, processed and paid into the late employee's personal bank account..

19: If the Defendant disputes that the said final legal entitlements of K2, 769.97 is inadequate for the period of service rendered by the deceased, it was in my view incumbent upon the Defendant to take steps to press that claim by taking legal or other appropriate steps to claim and recover the balance of what he considered to be outstanding. The natural flow-on outcome of such an action would have operated to afford him a legal foundation upon which to press (in Court) to be allowed to continue to occupy the subject house pending the determination of that claim. If he had a case of such pending in Court; that could definitelyhave afforded him a valid basis upon which to claim to continue to occupy the subject house.

20; As far as this Court can glean from evidence before it; the Personnel Section of the Department of Morobe calculated, processed and paid what they considered to be the deceased employee's final legal entitlements based on records held by them on his personnel file and that it has duly been paid. There is therefore no reason for this Court to see it any other way but to accept that the so-called deceased's full legal finalentitlements have duly been paid. If the Defendant thought and considered otherwise, he is expected to have taken appropriate actions to claim whatever outstanding balance he deemed to be still due and owing on that account.

21: If the Defendant feels strongly about the payment as being grossly inadequate, he has unfortunately failed to take appropriate actions to press this claim. This Court can not expect the Defendant to sit back and continue to occupy the subject house he sadly possesses no right to continue in occupation evento begin with; when the deceased is now dead. He can not expect the Complainant to pay him more and over what had already been assessed by the personnel office to be the correct value of the deceased's entitlements based on the deceased's personnel file records and the seniority of and the level ofthe position he held at the relevant time with the Complainant.

22: While the Defendant raises issue on the adequacy of the final legal entitlements as paid so far, the Defendant has however not provided any alternate computations of the deceased's probable final entitlements due and owing; for example like from the only governmental authority dealing with labour, employmentand related issues, namely the Labour Office at Lae. That would at least have operated to give credence to his claim of inadequacy and gross underpayment. He has sadly not done so. Accordingly, in my humble view, the Defendant's claim of inadequate and/or underpayment of his late father's final legal entitlement lacks substance and is without merit.

23: Besides and furthermore, the Defendant's claim to continue occupation of the subject house until he is paid his late father's final full legal entitlement is in my view untenable. The primary lawful tenant entitled to permissive occupancy of the subject house on account of a lawful employment was the late Nickson Niko. The Defendant possesses what I consider to be a secondary right of occupancy on account of him being the legal dependent of the primary rights holder. Upon his death, the deceased's right topermissive occupancy of the subject property ceased. The Defendant's secondary right to occupy the subject house as a dependent of the deceased employee ceased at the instance of the deceased's death.

24: In likeother cases, the deceased's dependents would normally vacate within a reasonable frame of time as could be allowed by the concerned authorities. That right of the deceased to occupy the subject house was dependent on him being in active service to the Complainant; but if the deceased ceased his service to the Complainant on account of resignation, termination or death, then any continued occupation beyond what would be a reasonable time frame is without any right or lawful justification. The Defendant herein as the legal dependent of the deceased late Nickson Niko, strictly speaking has no right to continue to occupy the subject house beyond his late father's death. See National Airlines Employees Association of PNG -vs- National Airlines Commission trading as Air Niugini [1992] N 1125& N 1126

25: The Defendant can not be allowed to continue in occupation of the subject houseas there is no substantive matter pending before a tribunal dealing with serious issues of law and fact that would operate to give rise to an extension of the current interim order for restraint against the Complainant from forced eviction.. See National Airlines Employees Association of PNG -vs- National Airlines Commissiontrading as Air Niugini [1992] PNGLR 291

26: A bare claim or statement claiming non-payment and/or inadequacy of payment of the deceased's final legal entitlements without any actual formal steps taken to pursue those issues to be dealt with by appropriate authorities is not a valid reason for this Court to exercise its discretionin favour of the Defendant to continue to occupy the subject house. Besides, the balance of convenience does not favour the Defendant as he has adequate avenues and processes open to him to take avail of to seek redress.

27: The Defendant's next issue concerns the question of 'Workers' Compensation'. Workers' Compensation as I understand is insurance cover taken out by private sector employers to cover for injuries sustained by employees arising out of carrying out their lawful jobs in any given calling. I'm not aware if Workers' Compensation insurance cover applies to Public sector workers. In any case, the Defendant has not provided evidence to convince this Court that Workers' Compensation applies to public servants much less his late father Nickson Niko.

28: Besides; and assuming that, 'Workers Compensation' applied equally to public servants as much as private sector workers, and also assuming that the deceased was entitled to and covered by the Workers' Compensation fund, I do not belief and accept that it is the responsibility of the Complainant to process and pay the same to the Defendant as he claims. The Workers Compensation funds are held and managed by separate professional insurance fund managers that the Defendant has had to take it upon himself to follow up on same and procure the payment to him.I don't consider this to be the Complainant's responsibility. That process isnot complex; it is just that similar to the POSF funds of the late Nickson Niko totaling K15, 381.27 that was paid into the personal bank account name of Robert Nickoh, BSP Bank account number 1001139293. The Defendant's argument on the question of Workers' Compensation payment is simplywithout basis. I therefore reject this argument and dismiss same outright.

29: The last issue is the Defendant's claim for repatriation fares for the late deceased's dependents back to their home province of Kainantu, Eastern Highlands Province. To my general understanding, this sort of claim and entitlements normally apply in employment or service contracts where this entitlement is specifically spelt out. As far as this Court is concerned, there is really no evidence produced by the Defendant to demonstrate to this Court that his late father and legal dependents were entitled to such an entitlement. There is absolutely no evidence to demonstrate to this Court that the deceased and his dependents were entitled to repatriation fares to their home province. Consequently, I reject this claim as being baseless and without merit.

Conclusion

30: In the final analysis; this Court is not convinced that the Defendant's reasons to continue in occupation of the subject house are justifiable and valid.

I therefore find that the Defendant Robert Nicko, his siblings andrelatives are in illegal occupation of the subject staff house at the Bulolo Rural Hospital premises in Bulolo town within the area of the PNG Forest Products Limited perimeter fenced premises.

Formal Court Order

1: The Defendant Robert Nicko, his siblings and relatives are in illegal occupation of the subject houseof the Complainant's.

2: The Defendant Robert Nicko, his siblings and relatives shall vacate the subject house within twenty-one (21) days of today's date.

3: If the above order is not complied with within the time frame stipulated, the Police shall enter upon the said premises (with force if necessary)and take and give up possession of the subject house to the Complainant.

4 Each of the parties shall bear own costs of proceedings.

Lawyers:

Mr Peu of Counsel of the MPA Legal Services Unit for Complainant

Mr Robert Niko of Defendant for himself in person.