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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO 674 OF 2011
SAM SAMOUA FOR AND ON BEHALF OF HIMSELF
AND 14 LABOURERS OF MILINAT PLANTATION
Plaintiff
V
ACES VENTURE LIMITED
Defendant
Madang: Cannings J
2012: 21 September,
2013: 14 June, 16 August
TORTS – trespass to property – whether defendant authorised police to set fire to plaintiffs' houses and chattels and destroy food crops
The plaintiffs claimed damages against the defendant for unlawful destruction by Police of their property and for inhuman treatment by the Police. They claimed that they had for 23 years been living and working as labourers on a plantation and that when the defendant took over the plantation it engaged the Police as its agent who without notice or warning or a court order authorising such conduct entered the area in which they were living and burned down their houses, thereby damaging or destroying their personal property, and destroyed their food gardens. The defendant denied liability on the grounds that the plaintiffs' statement of claim did not disclose any cause of action and that it did not give any orders to the police to execute unlawful eviction of the plaintiffs and that most of the plaintiffs had decided to voluntarily vacate the plantation and it gave them money in good faith to assist them in doing so. A trial was held to determine whether the defendant was liable.
Held:
(1) The statement of claim was not clearly pleaded but nor was it so vague as to fail entirely to disclose a reasonable cause of action.
(2) The statement of claim could fairly be regarded as pleading a cause of action in the tort of trespass to property, the elements of which are:
- (a) the defendant interfered with (eg by damaging or destroying)
- (b) the plaintiff's chattels (any property other than freehold land)
- (c) the defendant acted intentionally;
- (d) the defendant acted without lawful authority; and
- (e) the plaintiff had actual possession of the chattels.
(3) Though there was no direct evidence that the defendant engaged the Police to conduct the eviction exercise, there was circumstantial evidence to that effect and the defendant failed to give evidence in support of its denial that it had engaged the Police or to counter the plaintiffs' evidence that the eviction exercise took place without notice or warning or a court order authorising it. The only reasonable inference was that the defendant had engaged the Police and a finding of fact to that effect was made.
(4) As to the elements of the tort of trespass to property the Court found: that by engaging the Police and authorising them to evict the plaintiffs, the defendant (a) damaged or destroyed the plaintiffs' property, comprising (b) houses, personal property and food gardens and that (c) the defendant (and the Police) acted intentionally and (d) without lawful authority (no notice or warning being given to the plaintiffs and no court order being in place to authorise the exercise, which resulted in damage to or destruction of property of which the plaintiffs had (e) actual possession.
(5) Four of the 15 plaintiffs established a cause of action in trespass in respect of three types of property: houses, personal property (in or in the vicinity of the houses) and food gardens. Claims for other causes of action and other types of property were rejected. There was no evidence by 11 plaintiffs, so there was no judgment in their favour.
Cases cited
No cases are cited in the judgment:
STATEMENT OF CLAIM
This was a trial on liability.
Counsel
B Tabai, for the plaintiffs
B W Meten, for the defendant
16th August, 2013
1. CANNINGS J: The plaintiffs, Sam Samoua and 14 others, have commenced proceedings against the defendant, Aces Venture Ltd. They claim damages for what they allege was an unlawful eviction exercise carried out against them by the Police, on the request of the defendant, at Milinat Plantation in the Alexishafen area of Madang Province on 8 and 9 December 2010. A trial has been conducted to determine whether the defendant is liable.
2. The plaintiffs are from the Simbai area of Madang Province. They say that they had lived and worked as labourers on Milinat Plantation for 23 years until 2010 when the defendant took over management of the plantation and told them that they were no longer required and that they would have to leave. They say that in November 2010 the defendant gave them a small amount of money (several hundred Kina) each to assist in their repatriation but it wasn't enough so they and their families continued to stay on the plantation while they worked out a way of returning to Simbai. On 8 December 2010 a Police task force without warning or notice turned up at the plantation and conducted an eviction exercise: the Police forced them out of their houses and burned down their houses and destroyed their food gardens. As a result, their houses, which were made of bush materials, were destroyed together with their personal possessions and they had nowhere to live and no food to eat. They say that they were treated inhumanely as if they were criminals and were left with nothing more than the clothes that they were wearing. They claim that the defendant requested the Police to conduct the eviction exercise and that the Police, who acted on the request, should be regarded as the agents of the defendant, which is liable for damages. They have not joined the Police or the State as defendants. They only claim damages against the defendant. They rely on evidence in affidavits by the lead plaintiff Mr Samoua and seven other persons to support their case.
3. The defendant denies liability. It filed a defence, pleading that "there was never any or any unlawful eviction of any person" and that "it did not make any orders to the Police to execute unlawful eviction and or inhumanely raid" the plaintiffs. It relies on an affidavit by its managing director, Ernesto Bautista, to support its defence. Mr Bautista testifies that each of the 14 people who Mr Samoua claims to represent voluntarily left the plantation after being given money by the defendant to assist with their transportation to their home villages.
4. In his opening submission at the trial the defendant's counsel Mr Meten argued that the plaintiffs' statement of claim was very vague and disclosed no cause of action, so the case should be dismissed for that reason alone without going into the facts, the plaintiff's version of which is denied by the defendant.
5. I will address the issues in this order:
1 IS THERE A CAUSE OF ACTION?
6. I agree with Mr Meten that the statement of claim is vague. The first 16 paragraphs are clear enough as they allege the facts on which the claim is based. But after that, in the part of the document that should clearly articulate the precise cause(s) of action being relied on and the relief being sought, the pleadings become less clear. It is pleaded:
17. The plaintiff and co-workers were treated inhumanely by the defendant's agents and were forced in an inhumane manner, breaching the Employment Act and the constitutional rights of the plaintiff and co-workers.
18. The defendants did not have respect and have breached sections of the Employment Act and the Constitution and threatened the plaintiff and co-workers who sweat to make money for the Independent State of Papua New Guinea through their labour at Milinat Plantation.
19. Further results of breaches is the Damages Act where all food gardens and houses where life is nourished, were burnt to ashes leaving the plaintiff and 14 others with nothing except their wearing apparels.
AND THE PLAINTIFF CLAIMS:
7. The pleadings are deficient in that:
8. Despite these deficiencies the proceedings have continued to trial. No motion to dismiss them has been filed by the defendant. In these circumstances a more liberal approach to interpretation of the pleadings is required. It would not be fair – unless the statement of claim was so bereft of clarity as to be meaningless – to uphold an application for dismissal on the strength of an oral application made without notice to the plaintiffs at the trial. I think that there is, on a closer reading, a cause of action disclosed: it is in the nature of a claim in tort (a common law, civil wrong) for trespass to property, the elements of which are:
(a) the defendant interfered with (eg by damaging or destroying);
(b) the plaintiff's chattels (any property other than freehold land);
(c) the defendant acted intentionally;
(d) the defendant acted without lawful authority; and
(e) the plaintiff had actual possession of the chattels.
(See generally J G Fleming The Law of Torts, The Law Company Ltd 1977, pages 49-51.)
9. I reject the application to dismiss the proceedings and will determine the proceedings on the understanding that the plaintiffs are claiming damages on the basis that the defendant's agents and associates have committed the tort of trespass to property.
2 WHAT ARE THE FACTS?
10. The critical averments of fact that the plaintiffs make are:
11. The eight persons who gave evidence in support of the plaintiffs give direct evidence of all allegations except the last: there is no direct evidence of the defendant giving instructions or making a request to the Police; the witnesses only depose to what they believe or presume to have happened.
12. The defendant's response has been rather peculiar. While Mr Meten validly criticised the statement of claim for being vague, the same criticism must be made of his client's defence. The statement that "it did not make any orders to the Police to execute unlawful eviction and or inhumanely raid" the plaintiffs, begs questions such as 'what about requests, as distinct from orders, to the Police? did it ask the Police to evict the plaintiffs?' and 'what about a lawful eviction or a humane raid? did the defendant order or request a lawful eviction or a humane raid?' The defence does not take the opportunity to directly deny the averments of fact, in particular the allegation that the Police were acting on behalf of the defendant and were therefore its agent. As for the defendant's evidence, it also leaves the critical allegations of fact un-countered. There was only one piece of evidence, Mr Bautista's affidavit, and it contains no denial of the plaintiffs' averments of fact.
13. I have no difficulty upholding the first three of the plaintiffs' averments and finding as facts that it was a Police raid of the area in which they had been living, the Police came without warning or notice or a court order authorising their actions and that their property was destroyed in the manner alleged. I hesitate to find that the Police acted in that way on the request of the defendant as there is no direct evidence of that. But there is evidence that the defendant had recently acquired the plantation or at least taken over its management, that it wanted the plaintiffs to leave, that it asked them to leave and paid them money, not long before the raid took place. This is circumstantial evidence and, taken together with the defendant's failure to deny that it engaged the Police, the only reasonable inference to be drawn is, and I find as fact that:
3 HAS LIABILITY BEEN ESTABLISHED, GENERALLY?
14. The question now arises whether, given those findings of fact, the plaintiffs have proven on the balance of probabilities the existence of each of the elements of the tort of trespass to property. I find that by engaging the Police and authorising them to evict the plaintiffs, the defendant:
(a) damaged or destroyed the plaintiffs' property, comprising
(b) houses, personal property and food gardens, and that
(c) the defendant (and the Police) acted intentionally, and
(d) without lawful authority (no notice or warning being given to the plaintiffs and no court order being in place to authorise the exercise),
(e) which resulted in damage to or destruction of property of which the plaintiffs had actual possession.
15. All elements have been proven to the required civil standard of proof and liability in the tort of trespass to property has been generally established, in that the plaintiffs have established a cause of action in trespass in respect of three types of property: houses, personal property (in or in the vicinity of the houses) and food gardens. I reject claims for other causes of action and other types of property.
16. It cannot be presumed that all plaintiffs are entitled to damages as not all of them have given evidence and some of the witnesses are not named as plaintiffs. Paragraph 15 of the statement of claim pleads that 15 "aggrieved labourers at Milinat Plantation" incurred damages and these are the persons I have referred to generally as the plaintiffs:
(i) Solex Julie
(ii) Hepan Simon
(iii) Phillip Zimzim
(iv) Kaigin
(v) Wanpis Nipnip
(vi) Martin Forzikel
(vii) George Jingo
(viii) Jacob Taplam
(ix) Alphonse Timothy
(x) Willie Timothy
(xi) Sam Samoua
(xii) Moses Maring
(xiii) Mathew Kanara
(xiv) Ronald Topi
(xv) Sali Tom
17. There were eight affidavits admitted into evidence, the deponents describing themselves as:
(i) Rollen Topi
(ii) Roy Kaegen
(iii) Alphonse Mas
(iv) Moses Maleng
(v) Willy Timothy
(vi) Solex Mangil
(vii) Mathew Manrai
(viii) Sam Samoua
18. I find that the only plaintiffs who have given evidence sufficient to give rise to judgment in their favour are:
19. I find that there is no evidence to warrant judgment being given in favour of the 11 other plaintiffs. I find that the witnesses Roy Kaegen, Alphonse Mas, Solex Mangil and Mathew Manrai are not plaintiffs and that judgment cannot be entered in their favour.
COSTS
20. As both sides have had a victory of sorts it is appropriate that the parties bear their own costs.
ORDER
(1) The defendant is liable in damages to the plaintiffs Sam Samoua, Ronald Topi, Moses Maring and Willie Timothy in the cause of action of trespass to property in respect of damage or destruction of three types of property incurred on 8 and 9 December 2010 at Milinat Plantation: (a) their houses, (b) personal property (in or in the vicinity of the houses) and (c) food gardens.
(2) The defendant is not liable in damages or in any other way to any other plaintiffs or in respect of damage or destruction of any other type of property.
(3) The parties shall bear their own costs.
Ordered accordingly.
___________________________________
Tabai Lawyers: Lawyers for the Plaintiff
Meten Lawyers: Lawyers for the Defendant
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URL: http://www.paclii.org/pg/cases/PGNC/2013/149.html