N485

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

JOHN JIVETUO

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
FIRST DEFENDANT

AND

MADANG PROVINCIAL GOVERNMENT
SECOND DEFENDANT

AND

THE COMMISSIONER OF POLICE ROYAL PAPUA NEW GUINEA CONSTABULARY
THIRD DEFENDANT

Waigani
Bredmeyer J

6 July 1984
13 July 1984

REAL PROPERTY - Eviction of trespassers - Common law remedy of self help available - Notice to quit required - Length of notice harsh and oppressive - Enforcement of fundamental right by extending notice - Land Act (Ch. No. 185), s. 113 - Constitution, ss 41, 57.

TRESPASS - Real property rights - Right to possession - Eviction of trespassers - Common law remedy of self help available - Notice to quit required - "Contravention" of Land Act (Ch. No. 185), s. 113.

STATUTES - Interpretation - Land Act - A person who "contravenes" - Act without authority sufficient - Conviction for offence not required - Land Act (Ch. No. 185), s. 113.

WORDS AND PHRASES - A person who "contravenes" - Act without authority sufficient - Conviction for offence not required - Land Act (Ch. No. 185), s. 113.

CONSTITUTIONAL LAW - Fundamental rights - Protection and enforcement of - Harsh and oppressive act - Eviction of trespassers - Government land - Length of notice to quit extended - Constitution, ss 41, 57.

The Land Act (Ch. No. 185), s. 113, provides:

"(1) A person who, without authority, occupies Government land or customary land is guilty of an offence.

(2) A person who contravenes subsection (1) and refuses to leave after receiving a notice to quit may be forcibly ejected."

In proceedings seeking to restrain the eviction of long term occupiers of government land upon whom notices to quit within 14 days had been served,

Held

(1) The phrase "a person who contravenes subsection (1)" in s. 113(2) of the Land Act means "a person who, without authority, occupies Government land or customary land": it does not import the need for prosecution and conviction for an offence.

(2) The purpose of s. 113(2) of the Land Act is to regulate the use of the common law remedy of self help for eviction of trespassers, to use only after a notice to quit.
Hemmings v. Stoke Poges Golf Club [1920] 1 K.B. 720, and McPhail v. Persons Unknown [1973] Ch. 447, considered.

(3) On the assumption that the notices to quit were valid the shortness of the notice in the circumstances was harsh and oppressive and therefore an unlawful act within s. 41 of the Constitution which should be protected and enforced pursuant to s. 57 of the Constitution by extending the length of the notice to two months from the date of service of each notice.

Cases Cited

Hemmings v. Stoke Poges Golf Club [1920] 1 K.B. 720.
McPhail v. Persons Unknown [1973] 1 Ch. 447; [1973] 3 All E.R. 393.

Application for Injunction

These were proceedings in which the applicant, representing a class of persons on whom government eviction notices had been served, sought to restrain eviction.

Counsel

J. Shepherd, for the applicant/plaintiff.
J Goodman, for the first and second respondents/defendants.
S. Kamkumen, for the third respondent/defendant.
Cur. adv. vult.

13 July 1984

BREDMEYER J: This is an application for an interim injunction. Normally such an application can only be made where there is before the court an application in the form of a writ of summons or an originating summons for substantive relief. The State, however, has not taken this objection and I propose to ignore it. The defendants have no objection to the applicant John Jivetuo representing the class of persons affected by recent government eviction notices in Madang and I declare that he is so appointed. This means under O. 5, r. 13, of the National Court Rules that any judgment or order made is binding on all persons whom he represents.

The plaintiff asks for an injunction restraining the defendants from evicting any of them unless and until:

(a) a court has convicted the residents of an offence under s. 113 of the Land Act (Ch. No. 185) or

(b) a court has ordered their ejectment.

A third alternative that the defendants be restrained from removing them until a court can hear and determine whether any of the plaintiffs class have an equitable interest in the land was not pursued before me. Mr Shepherd, for the plaintiff, said that if proceedings for ejectment were commenced against the plaintiff in the District Court under the Summary Ejectment Act (Ch. No. 202) he would apply on behalf of the plaintiff to have those proceedings transferred to the National Court. Clearly this case may be but the start of a series of court battles.

The basis of the relief sought before me is the plaintiffs interpretation of s. 113 of the Land Act (Ch. No. 185). That section provides:

"113. Unlawful occupation of certain land.

(1) A person who, without authority, occupies Government land or customary land is guilty of an offence.
Penalty: A fine not exceeding K400.

(2) A person who contravenes Subsection (1) and refuses to leave after receiving notice to quit from the Department Head or a District Officer may be forcibly ejected."

(Note the word "Government" was omitted in the copy of the section published in the Revised Laws. It was corrected by the First Legislative Counsel in a notice published in the National Gazette G11 of 4 March 1982, at 137). The plaintiff contends that the words in s. 113(2) "a person who contravenes subs. (1)" means a person who has been convicted of an offence under subs. (1), so that before a trespasser may be forcibly ejected under subs. (2) he must be convicted of trespassing under subs. (1) and given a notice to quit. The State contends that the phrase "a person who contravenes subs. (1)" means "a person who, without authority, occupies Government land or customary land".

I consider that the State’s interpretation is correct. It gives the more natural meaning to the word "contravene". The Concise Oxford Dictionary says the word "contravene" means to infringe a law. To contravene or infringe a law does not necessarily imply prosecution and conviction. One contravenes a law by breaking it even though one is not caught, prosecuted or convicted.

That interpretation is supported by the context. Section 113 should be read and contrasted with s. 114. Section 113(1) and s. 114(1) both begin, "A person who, without authority, ... (does certain things) is guilty of an offence punishable by a fine." Subsection (2) of each section goes on to provide other consequences. In s. 113(2) it is that a person who contravenes subs. (1) and refuses to leave after a notice to quit ... may be forcibly ejected. In s. 114(2) it is the person who is convicted under subs. (1) shall, in addition to the fine imposed, be required to pay compensation. Note the use of the word "convicted". If the draftsman had meant that in s. 113 he would have said so.

Then I consider that the interpretation I favour accords with the common law and I think I can assume, as an aid to interpretation, that the section was drafted against a knowledge of the common law. The common law is very clear that a trespasser can be evicted by self-help. It does not require a court order. See Hemmings v. Stoke Poges Golf Club [1920] 1 K.B. 720 and McPhail v. Persons Unknown [1973] 1 Ch. 447; [1973] 3 All E.R. 393, in particular the judgment of Lord Denning. At common law a land owner who uses self help to evict a trespasser is not liable civilly nor criminally for the force he uses provided that he uses no more than is reasonably necessary. On the point see s. 275 of our Criminal Code (Ch. No. 262). I consider that the intention of the legislature in s. 113 was not to deprive the State of a common law remedy but rather to regulate its use: it can only be used after a notice to quit. The intention of the section was also to give the State a criminal remedy. The section made trespass on Government land or customary land a summary offence. The aim was that the two remedies of conviction and forcible eviction could be used separately or together. In many cases if a man was convicted and fined for trespass under s. 113(1) he would leave the land and forcible eviction would not be necessary. In other cases the District Officer with or without a few police would chase the trespasser off after giving notice to quit and it would not be necessary to prosecute under s. 113(1). It would be rare that both alternatives would need to be used.

The legislative history of the section is interesting. I do not rely on it as a guide to interpretation but it does support, nevertheless, my interpretation. Section 113 of the revised Act was formerly s. 123 of the Land Ordinance 1963 which was substantially in the same form except that s. 123(1) read:

"A person shall not, without authority, occupy Administration Land or native land. Penalty £200."

The different words used in that section were the words "shall not". That Act was a consolidated ordinance of the Land Ordinance 1922 of New Guinea and the Land Ordinance 1911 of Papua. Although the two territories were administratively combined in 1945, the amalgamation of the two land ordinances was not done until 1963. Section 123 was taken from the Land Ordinance 1922 of New Guinea as the Land Ordinance of Papua had no equivalent section. Section 16 of the Land Ordinance 1922 New Guinea read as follows:

"Unauthorised occupation of native lands & Administration Lands

16(1) Except for purely temporary purposes or by virtue of some right of permission under this or some other Ordinance, no person other than a native shall occupy any land owned by natives and subject to this Ordinance no person shall occupy any land the property of the Administration.

(2) Any person who contravenes the provisions of the last preceding subsection and who refuses to leave within a reasonable time after receiving written notice to quit from the Commissioner for Lands or a district officer, may be forcibly ejected and shall be liable on summary conviction to a penalty not exceeding one hundred pounds and in default of payment to imprisonment for a period not exceeding three months."

Section 16 of the Land Ordinance 1922 of New Guinea was not particularly long, it was twelve lines in all but the drafting style in 1963 was to break down "long" sections into shorter subsections and to rely on shorthand drafting clauses, for example on words which had been defined in the Ordinances Interpretation Ordinance. So in 1963 that twelve line section was recast and broken up into smaller sections. I suspect the draftsman had no intention of altering the legal effect of the section whatsoever, but by recasting it he created the ambiguity which has been the subject of argument in this case. The section in the 1922 Ordinance and in the 1963 Ordinance should not simply be seen as an enabling section to evict native trespassers from Government land. It was also the speedy means of evicting non-natives off native land; for example a planter who had planted over his boundaries. The administration of the day took very seriously its promises that no native land was to be occupied except by purchase, or as waste and vacant land, or by compulsory acquisition under the Land Ordinance.

Mr Shepherd briefly raised in argument s. 41 of the Constitution. I decided to hear him on that section and indeed have decided to act on it although the section was not part of the relief claimed in the summons. I did so because s. 57 of the Constitution, which is the relevant enforcement section for s. 41, is in wide terms — "that [a constitutional right or freedom] shall be protected by, ... the National Court, ... either on its own initiative or on application by any person ...". I gave the State one week to put before me any evidence to counter the plaintiffs evidence of hardship etc. but Mr Goodman, for the State, has told me that the State has no evidence to submit on that matter.

Section 41 of the Constitution provides as follows:

"Proscribed Acts

(1) Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case:

(a) is harsh or oppressive; or

(b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or

(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act."

For the purposes of s. 41 I assume for the moment that the notices to quit are valid. I say assume because no proof of the ownership of the land by the State has been placed before me and the plaintiffs counsel has told me that he proposes to argue on some other occasion that the plaintiff has an equitable right to the land. Assuming then that the notices to quit are valid, on the facts before me the plaintiff has been on the land for 12 years and has a house there and many others of the class he represents have also been there for a long time and live there. It is not easy to get other land in Papua New Guinea and I can take it that many of the plaintiffs class are poor and cannot easily buy a property elsewhere. The notices to quit which were served gave about fourteen days to quit. I consider that, although done under a valid law, it is harsh and oppressive to the plaintiff to leave within two weeks and I consider that that contravenes s. 41 of the Constitution. I propose to enforce and protect that fundamental right under s. 57 of the Constitution. I therefore order that the defendants are not to eject the plaintiffs forcibly from the land until two months has elapsed from the service of each notice. In other words the notices to quit are extended two months from the date of service of each notice.

After hearing argument on costs I order that the State pay the costs of the plaintiff for his attendance here in Moresby being a return air fare from Madang and reasonable accommodation expenses in Port Moresby.

Orders accordingly.

__________________________________

Lawyer for the plaintiff: N. Kirriwom, Public Solicitor.
Lawyer for the first and second defendants: B. O. Emos, State Solicitor.
Lawyer for the third defendant: S. Kamaken.