N7323
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 162 OF 2014

SIMON WAMA FOR HIMSELF AND 42 OTHERS OF ERIMA, NATIONAL CAPITAL DISTRICT
Plaintiffs

V

THE HONOURABLE POWES PARKOP MP, 
GOVERNOR, NATIONAL CAPITAL DISTRICT
First Defendant

NATIONAL CAPITAL DISTRICT PHYSICAL PLANNING BOARD
Second Defendant

NATIONAL CAPITAL DISTRICT COMMISSION
Third Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

DEKENAI CONSTRUCTION LIMITED
Fifth Defendant

Waigani: Cannings J
2016: 14 December 
2017: 3 August 
2018: 28 June

HUMAN RIGHTS – enforcement – trial on liability – forced demolition of houses of long term occupiers of government land – whether demolition notices defective – whether occupiers had valid interests in the land – whether reasonable notice given – whether actions of authorities harsh and oppressive for purposes of Constitution, Section 41 – whether human rights of occupiers breached in demolition exercise.

The plaintiffs were unauthorised but long-term occupiers of government land in the National Capital District. Three months after service on them of demolition notices requiring them to demolish the houses and other structures they had erected on the land, to make way for construction of a new highway, persons engaged by the National Capital District Commission (NCDC) entered the land and demolished all the buildings on it, thereby forcibly evicting the plaintiffs from the land. The plaintiffs commenced proceedings against the NCDC and other defendants, seeking damages for breaches of human rights. The plaintiffs claimed that the land was waste land, that the demolition notices were defective, that they had equitable interests in the land, that they had been given inadequate notice to leave and that their human rights were breached, as they were denied the full protection of the law contrary to Section 37(1) of the Constitution; they were dealt with harshly and oppressively contrary to Section 41 of the Constitution; they were subject to arbitrary entry of their homes contrary to Section 44 of the Constitution; their right to privacy was violated contrary to Section 49 of the Constitution; their properties were compulsorily acquired without just compensation contrary to Section 53 of the Constitution; and they were denied natural justice contrary to Section 59 of the Constitution. A trial was conducted on the question of liability. 

Held:

(1)	The plaintiffs were long-term occupiers of the land. Some had been living on the land, without active opposition, for more than 30 years.  

(2)	The land was not waste land. It was a designated road reserve on government land.

(3)	The demolition notices were validly issued under the Physical Planning Act. 

(4)	The plaintiffs had equitable interests in the land arising from their long-term occupation without active opposition from any lawful authority. They had to be given reasonable notice to leave. 

(5)	The plaintiffs were given between three and four months to vacate the land. This was ample notice given that the land was immediately required for a proper public purpose. 

(6)	The plaintiffs were not treated harshly or oppressively and none of their human rights were breached.

(7)	Liability was not established against any of the defendants. The proceedings were wholly dismissed. Costs followed the event. 

Cases cited

The following cases are cited in the judgment:

Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74
Lelete Plantation Ltd v Paul Rame (2007) N5020
Levi Nanguan v PNG Maritime College (2017) N6711
Tony Yagon & Settlers of Dylup Plantation v Nowra No 59 Ltd (2008) N3375

APPLICATION

This was a trial on liability to determine the plaintiffs’ application for enforcement of human rights.

Counsel

R Kasito, for the Plaintiffs
M Mukwesipu, for the First, Second & Third Defendants
T Mileng, for the Fourth Defendant
D Mel, for the Fifth Defendant

28th June, 2018 

1.      CANNINGS J: On Thursday 12 June 2014 persons engaged by the National Capital District Commission (NCDC), assisted by members of the Police Force, entered, with heavy machinery, an area of land at Erima occupied by the plaintiff, Simon Wama, and other plaintiffs. The plaintiffs’ houses and other buildings they had erected on the land over a period of more than 30 years were bulldozed and demolished. The plaintiffs had been living on the site of a proposed roundabout on the new highway being built between Erima and Nine Mile. The construction contract for the highway had the previous year been awarded to Dekenai Construction Ltd.

2.     Earlier in 2014 Mr Wama and other occupiers of the land commenced legal proceedings against the NCDC and other defendants aimed at stopping the then proposed demolition of their houses. They succeeded at first in obtaining a temporary injunction but it was dissolved and the demolition and eviction exercise of 12 June went ahead and was completed. The legal proceedings were then converted into a claim for damages, and a trial has been conducted on the question of liability. This judgment is a result of that trial. 

3.     The plaintiffs sued five defendants:

•	Honourable Powes Parkop MP, Governor, National Capital  District, the first defendant;
•	National Capital  District Physical Planning Board, second defendant;
•	NCDC, third defendant; 
•	the State, fourth defendant; and
•	Dekenai Construction Ltd, fifth defendant. 

4.     The plaintiffs seek damages against all defendants who they claim are responsible for breaching their human rights. The plaintiffs – Mr Wama and 28 others who gave evidence at the trial – say that they built permanent houses and established businesses such as trade stores and mechanical workshops on the land. They had developed it since 1979 without opposition by the NCDC or other authorities. It was waste land. They acknowledge that on 18 February 2014 they were served with demolition notices issued by the NCD Physical Planning Board. But the notices were defective. They say that they had equitable interests in the land. They needed more than three or four months’ notice to vacate it. They argue that their human rights were breached, in that:

•	they were denied the full protection of the law contrary to Section 37(1) of the Constitution; 
•	they were dealt with harshly and oppressively contrary to Section 41 of the Constitution;
•	they were subject to arbitrary entry of their homes contrary to Section 44 of the Constitution;
•	their right to privacy was violated contrary to Section 49 of the Constitution; 
•	their properties were compulsorily acquired without just compensation contrary to Section 53 of the Constitution; and 
•	they were denied natural justice contrary to Section 59 of the Constitution. 

5.     All defendants deny liability. They argue that the plaintiffs were unlawful occupiers of the land. It was not waste land. It was a road reserve. The land was required for a proper public purpose. The plaintiffs were given ample time to leave. Their human rights were not breached. The following issues arise:

(1)	What are the facts?

(2)	What was the proper description and status of the land?

(3)	Were the demolition notices defective?

(4)	Did the plaintiffs have any interest in the land?

(5)	Were the plaintiffs given proper notice to leave?

(6)	Were the plaintiffs’ human rights breached?

(7)	What orders should the court make? 

1	WHAT ARE THE FACTS?

6.     The defendants do not concede that all the plaintiffs are long term occupiers. However I am satisfied that the bulk of them are. I accept the evidence of the lead plaintiff, Mr Wama, that he moved on to the land in 1979 and established his family home there. Other plaintiffs moved in after that. They built permanent houses and established businesses. Prior to February 2014 they were not given notice that they were doing anything unlawful. No government authority attempted to remove them.

7.     On 18 February 2014 NCDC officers served the plaintiffs with demolition notices issued by the NCD Physical Planning Board under the Physical Planning Act 1989. The notices required that the plaintiffs “cease the … unauthorised use of land and buildings” on the land, which was described as “part of Hubert Murray Highway Road Reserve adjoining Portion 279, Erima (Wildlife)”. 

8.     In addition to the formal notices, I find, based on the evidence of Kenneth Atasoa, the NCDC’s Deputy Manager, Regulatory Services, that officers of the NCDC Enforcement Division conducted an awareness exercise in January 2014, informing the plaintiffs that all the buildings that they had erected were unauthorised and that they were living on a road reserve and would have to dismantle their buildings, move out and make way for the new road.

9.     It is evident that some of the original group of 43 plaintiffs who commenced these proceedings took the advice. They dismantled their buildings and moved out. Others elected to stay and their buildings were demolished on 12 June 2014. 

2	WHAT WAS THE PROPER DESCRIPTION AND STATUS OF THE LAND?

10.     There is some dispute about the description and status of the land. The plaintiffs say that it was waste land, formally known as Portion 279. The defendants argue that it was not waste land. I agree with the defendants. To say that land is “waste” is a meaningless description. It was government land, not customary land, which was vacant before the plaintiffs moved in. It was not part of Portion 279. Again I rely on Mr Atasoa’s evidence, which I regard as credible and reliable. Portion 279 is the site of the Moitaka wildlife are. The land at the centre of this case had no portion number. It was a road reserve. 

3	WERE THE DEMOLITION NOTICES DEFECTIVE?

11.     The plaintiffs argue that the demolition notices were issued contrary to Section 99(3) of the Physical Planning Act. To appreciate the argument it is necessary to cite the whole of Section 99 (stop work and demolition notices), which states:

(1)	The owner, occupier or developer of any land on which building, engineering, mining or other operations are being carried out in contravention of this Act, may be issued with a stop work notice, by or on behalf of a Board, requiring the operations to stop.

(2)	Where unauthorized building or engineering operations have been carried out, a Board may serve a demolition notice on the owner, occupier, developer or builder or on any two or more of the foregoing requiring the unauthorised work to be removed and the land restored to its state prior to the commencement of the operations.

(3)	A demolition notice under Subsection (2) shall be issued within 12 months of the date when the operations were first brought to the notice of the Board.

(4)	A person who, without reasonable excuse (proof of which is on him), fails to comply with the requirements of a stop work notice or a demolition notice is guilty of an offence.

Penalty: A fine not exceeding K4,000.00.
Default penalty: A fine not exceeding K400.00.

12.    The plaintiffs argue that the NCD Physical Planning Board was obliged to issue the notices to them within 12 months of the date when their allegedly unauthorised building operations were first brought to the notice of the Board.  The plaintiffs argue that that date would have been many years before 18 February 2013 as their buildings were not hidden or built in secret. It would have been obvious to any person or authority taking an interest in what was happening that the land was being developed. It was incumbent on the Board to act quickly, which they did not do. By the time the Board issued the demolition notices on 18 February 2014 it was too late. The notices were defective, rendering the demolition exercise that took place pursuant to the notices unlawful.

13.     The trouble with this argument is that it is unsupported by any evidence. The plaintiffs needed to prove that their unauthorised buildings were brought to the notice of the Board more than 12 months before 18 February 2014. It is not good enough to say that it would or should have been brought to the notice of the Board. There needs to be direct evidence. There is none so the argument fails. I find that the notices were not defective. 

4	DID THE PLAINTIFFS HAVE ANY VALID INTEREST IN THE LAND?

14.     The plaintiffs argue that they had equitable interests in the land arising from their long-term occupation of it and the lack of opposition to them being there and developing the land. There is ample evidence in support of the argument and I have no difficulty in upholding it. Though the plaintiffs were not authorised to occupy and develop the land, their long-term occupation and development of it without opposition vested in them equitable interests in the land (Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74, Tony Yagon & Settlers of Dylup Plantation v Nowra No 59 Ltd (2008) N3375). Such interests did not confer any right to long-term occupation, but it gave them a right to be given reasonable notice to vacate the land (Lelete Plantation Ltd v Paul Rame (2007) N5020, Levi Nanguan v PNG Maritime College (2017) N6711).

5	WERE THE PLAINTIFFS GIVEN PROPER NOTICE TO LEAVE?

15.     Yes. I find that the demolition notices served on the plaintiffs on 18 February 2014, combined with the awareness exercise conducted by the NCDC in January 2014, gave them ample notice – almost four months – that they had to dismantle their houses and other buildings and move out. It was obvious the new road was coming straight through the land which they occupied. They had no right or legitimate expectation of compensation or an offer of alternative accommodation. They moved on to vacant government land without permission and took a big risk in doing so. They were given proper notice to leave. 

6	WERE THE PLAINTIFFS’ HUMAN RIGHTS BREACHED?

16.     No.  The plaintiffs were not denied the full protection of the law. They were in fact protected by the law. The National Court granted them an interim injunction, which forestalled the demolition exercise. The injunction, granted on 7 March 2014, was dissolved on 23 April 2014. Seven weeks passed before the demolition exercise of 12 June 2014. The plaintiffs were not treated harshly or oppressively. They were treated fairly. Their homes were not entered arbitrarily or unlawfully. Their privacy was not unlawfully breached. Their properties were not compulsorily acquired in circumstances not permitted by Section 53 of the Constitution. 

7	WHAT ORDERS SHOULD THE COURT MAKE?

17.     The plaintiffs have not proven that their human rights were breached. The case must be wholly dismissed. Costs will follow the event. 

ORDER 

(1)	The proceedings are wholly dismissed.

(2)	The plaintiffs shall pay the defendants’ costs of the proceedings on a party-party basis, which shall, if not agreed, be taxed. 

(3)	The proceedings are thereby determined and the file is closed.

Judgment accordingly.
________________________________________________________________
Paul Paraka Lawyers:  Lawyers for the plaintiffs 				
Mukwesipu Lawyers:  Lawyers for the First, Second & Third Defendants 
Solicitor-General: Lawyer for the Fourth Defendant		
Mel & Henry Lawyers:  Lawyers for the Fifth Defendant