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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
HRA NO 207 OF 2014
IN THE MATTER OF AN APPLICATION
FOR ENFORCEMENT OF HUMAN RIGHTS
ROBINSON NAEMBO
Applicant
V
NATIONAL HOUSING CORPORATION
Respondent
Waigani: Cannings J
2015: 27 August, 2 October
HUMAN RIGHTS – application for enforcement – Constitution, Section 44, freedom from arbitrary search and entry – Constitution, Section 37(1), right to full protection of the law
The applicant claims damages, by way of an application for enforcement of human rights, against the National Housing Corporation arising from an attempt by the Corporation, with the assistance of the Police, to forcibly evict him from a house he rented from the Corporation. He also seeks an interim injunction to allow him peaceful occupation and further time to pay rental arrears.
Held:
(1) The applicant adduced credible evidence. The respondent did not adduce any evidence. The court found that the gist of the allegations was proven and made findings of fact accordingly.
(2) Two of the applicant's human rights were breached, viz
- freedom from arbitrary search and entry (Constitution, s 44); and
- right to the full protection of the law (Constitution, s 37(1)).
(3) The applicant established a cause of action for breach of human rights, with damages to be assessed.
(4) An interim injunction was granted restraining the Corporation from evicting the applicant and allowing the applicant further time to pay rental arrears.
Cases cited
The following case is cited in the judgment:
Joyce Avosa v Rene Motril & Anne Samienta (2014) N5732
APPLICATION
This was an application for enforcement of human rights.
Counsel
S Endehipa, for the Applicant
2nd October, 2015
1. CANNINGS J: Robinson Naembo is applying for enforcement of his human rights under Section 57(1) of the Constitution, which he claims were breached by the NHC and the Police on 18 and 19 December 2014.
2. The applicant says that he and his family live in a house at Gerehu in the National Capital District rented from the National Housing Corporation (NHC). He is the tenant but claims that he was not given a copy of the tenancy agreement that he signed with the NHC when he moved into the house in 1981. The applicant says that the NHC has never carried out any maintenance on the property since he and his family moved into the house. In 1985 the applicant wrote to the NHC asking them if he could purchase the house but the NHC said it does not own the land so it cannot sell the house. 3. In October 2000, the NHC issued the applicant an eviction notice. The applicant responded in November 2000 and asked NHC again if he could purchase the property under the Government's "give-away" scheme. He further asked NHC to give him 15 days to settle his outstanding arrears. The NHC did not respond until December 2014 when it engaged the Police and tried to have the applicant evicted from the house.
4. Although the applicant and his family have moved back into the house, the applicant alleges that there was corruption involved in the manner in which attempts were made to have him and his family evicted. He argues that by engaging in such intimidating and malicious conduct the NHC has breached his human rights. He seeks protection of his human rights through orders and compensation. There has been no appearance by or for the respondent.
5. I will take the same approach to determination of this matter as in a similar case, Joyce Avosa v Rene Motril & Anne Samienta (2014) N5732. There are three issues:
1 HAS THE APPLICANT PROVEN THE FACTUAL ALLEGATIONS?
6. I have considered two affidavits by the applicant, which have been admitted into evidence. He attests to the events leading up to the eviction exercise that the NHC and the Police carried out on 18 and 19 December 2014. The respondent has not given any evidence and has not denied the factual allegations of the applicant. I consider that the applicant's evidence is not incredible, it is believable. The fact that the applicant went to the trouble of filing a human rights enforcement application on 30 December 2014 and gave an account of events in similar terms to that set out in his evidence, supports the truthfulness of the allegations.
7. I find that the applicant has proven on the balance of probabilities that the gist of his allegations is true. The respondent, with the assistance of the Police, intimidated and threatened the applicant when removing him from Section 268, Allotment 11, Gerehu Stage 1, NCD on 18 and 19 December 2014.
2 HAS THE APPLICANT ESTABLISHED A CAUSE OF ACTION FOR BREACH OF HUMAN RIGHTS?
8. When the applicant filled out his Human Rights Enforcement Application form he ticked the following box, which indicated the human rights he alleged had been breached:
9. At the trial Mr Endehipa argued that there had also been a denial of the right to the full protection of the law. I uphold this argument. I consider that two human rights breaches have been established:
Freedom from arbitrary search and entry
10. Section 44 of the Constitution states:
No person shall be subjected to the search of his person or property or to entry of his premises, except to the extent that the exercise of that right is regulated or restricted by a law–
(a) that makes reasonable provision for a search or entry–
(i) under an order made by a court; or
(ii) under a warrant for a search issued by a court or judicial officer on reasonable grounds, supported by oath or affirmation, particularly describing the purpose of the search; or
(iii) that authorizes a public officer or government agent of Papua New Guinea or an officer of a body corporate established by law for a public purpose to enter, where necessary, on the premises of a person in order to inspect those premises or anything in or on them in relation to any rate or tax or in order to carry out work connected with any property that is lawfully in or on those premises and belongs to the Government or any such body corporate; or
(iv) that authorizes the inspection of goods, premises, vehicles, ships or aircraft to ensure compliance with lawful requirements as to the entry of persons or importation of goods into Papua New Guinea or departure of persons or exportation of goods from Papua New Guinea or as to standards of safe construction, public safety, public health, permitted use or similar matters, or to secure compliance with the terms of a licence to engage in manufacture or trade; or
(v) for the purpose of inspecting or taking copies of documents relating to–
(A) the conduct of a business, trade, profession or industry in accordance with a law regulating the conduct of that business, trade, profession or industry; or
(B) the affairs of a company in accordance with a law relating to companies; or
(vi) for the purpose of inspecting goods or inspecting or taking copies of documents, in connection with the collection, or the enforcement of payment of taxes or under a law prohibiting or restricting the importation of goods into Papua New Guinea or the exportation of goods from Papua New Guinea; or
(b) that complies with Section 38 (general qualifications on qualified rights).
11. The applicant was subject to arbitrary entry of his premises. There was no court order authorising entry by the respondent or the Police into the premises he occupied.
Protection of the law
12. Section 37(1) of the Constitution states:
(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.
13. The applicant was denied the full protection of the law due to the abrupt and unauthorised and unlawful entry of his premises.
Conclusion as to cause of action
14. The applicant has established a cause of action under Section 57(1) of the Constitution for breach of human rights conferred by Sections 44 and 37(1) of the Constitution.
3 WHAT ORDERS SHOULD BE MADE?
15. As this trial was confined to the issue of liability, no assessment of damages will be made. The case will proceed to an assessment of damages or compensation at a separate trial. I will grant the interim relief sought by the applicant as this will preserve the status quo and bring certainty to the matter during the time it takes to bring the proceedings to a close.
ORDER
(1) The application for enforcement of human rights is upheld.
(2) The applicant has established a cause of action for breach of human rights, in particular the rights in Sections 44 and 37(1) of the Constitution, against the respondent.
(3) The question of assessment of damages will be determined at a separate trial.
(4) The applicant has until 31 January 2016 to settle rental arrears on the subject property, Section 268, Allotment 11, Gerehu Stage 1, NCD.
(5) The respondent and all other persons including all members of the Police Force are restrained from taking any steps to evict the applicant from the subject property without an order of the National Court.
(6) The respondent shall pay the applicant's costs of the proceedings to date, on a party-party basis, which shall if not agreed be taxed.
Judgment accordingly.
___________________________________________________________
Sampson Endehipa & Co Lawyers: Lawyer for the Applicant
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URL: http://www.paclii.org/pg/cases/PGNC/2015/194.html