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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS (HR) NO 16 OF 2014
THOMAS YALBEES, WILSON KUYAKO & BEN LUNGA
FOR AND ON BEHALF OF THEMSELVES AND 155 OTHERS NAMED IN THE SCHEDULE TO THE STATEMENT OF CLAIM
Plaintiffs
V
TOM AMAIU, MANAGING DIRECTOR,
MACATA ENTERPRISES LIMITED
First Defendant
MACATA ENTERPRISES LIMITED
Second Defendant
INSPECTOR PEROU N’DRANOU
Third Defendant
SENIOR CONSTABLE HANSON TOKALI, ACTING POLICE STATION COMMANDER, GORDONS POLICE STATION
Fourth Defendant
TOAMI KULUNGA, COMMISSIONER OF POLICE
Fifth Defendant
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant
Waigani: Cannings J
2018: 22 February, 1, 2 August
HUMAN RIGHTS – enforcement – trial on liability – forced demolition of houses of long term occupiers of government land under a State Lease – eviction exercise – whether occupiers had valid interests in the land – whether reasonable notice given – whether actions of registered proprietor of State Lease and Police harsh and oppressive for purposes of Constitution, Section 41 – whether human rights of occupiers breached in eviction exercise.
TORTS – negligence – whether registered proprietor of State Lease or Police owed duty of care to long-term but unauthorised occupiers of government land – whether registered proprietor or Police were negligent in carrying out eviction exercise.
The plaintiffs were unauthorised but long-term occupiers of government land in the National Capital District. The second defendant was the registered proprietor of the State Lease over the land. In March 2013 the second defendant entered the land, with the assistance of the Police, and conducted an eviction exercise, involving forced ejectment of the occupiers and destruction of houses and other structures to make way for development of the land. The plaintiffs commenced proceedings against the second defendant, a company, and its managing director (the first defendant) and two members of the Police Force they alleged supervised and controlled the eviction exercise (third and fourth defendants), the Commissioner of Police (fifth defendant) and the State (sixth defendant), seeking damages. Two causes of action were relied on: the tort of negligence and breaches of human rights under Constitution, Sections 36 (freedom from inhuman treatment), 37 (protection of the law), 41 (proscribed acts), 44 (arbitrary search and entry) and 53 (unjust deprivation of property). The plaintiffs claimed that the eviction exercise took place on two days, 8 and 16 March, and that the exercise on 16 March was conducted contrary to a National Court order of 14 March that restrained any further evictions of the plaintiffs. The defendants argued that the proceedings should be summarily dismissed as only ten of the 158 plaintiffs had given evidence, and the evidence of those ten was uncorroborated and unreliable. As to the merits of the claim the defendants asserted that the whole exercise was conducted prior to the order of 14 March, that none of the defendants owed a duty of care to the plaintiffs, so liability could not be established in negligence, that no breach of human rights had been established and for those reasons, if the proceedings were not summarily dismissed, the proceedings should be dismissed on the merits. A trial was conducted on the question of liability. Five issues were identified by the Court: (1) should the proceedings be summarily dismissed due to lack of evidence? (2) when did the eviction exercise take place and what did it entail? (3) have the plaintiffs proven a cause of action in negligence? (4) have the plaintiffs proven a cause of action in breach of human rights? (5) what orders should the Court make?
Held:
(1) There was no good reason to summarily dismiss the proceedings on evidentiary grounds. There is no rule of law or practice dictating that in representative proceedings, in a trial on liability, each plaintiff must give evidence in support of the claim. Here ten of the 158 plaintiffs gave evidence as to the eviction exercise and the various court proceedings surrounding it. The fact that it was uncorroborated and practically identical (each affidavit appeared to be a copy and paste of each other) did not force the conclusion that it was incapable of forming the evidentiary basis of the plaintiffs’ case.
(2) Evidence of the first, third and fourth defendants as to the timing of the eviction exercise was more persuasive than the plaintiffs’ evidence on this issue. A finding of fact was made that the exercise took place from 7 to 11 March 2013. It was completed before the 14 March 2013 National Court injunction.
(3) The relationship between the registered proprietor (the second defendant) and the unauthorised occupiers (the plaintiffs) was sufficiently close to rise to a duty of care owed by the second defendant to the plaintiffs. That duty was breached by the negligent (if not deliberate) interpretation and publication of a National Court order of October 2012 which appeared to, but did not actually, authorise the eviction exercise. That breach of duty caused damage of a type not too remote. Therefore a cause of action in negligence was made out against the second defendant. But not against the State or any of the Police defendants (third to sixth defendants) as they could not reasonably be expected to appreciate the nuances in interpretation of the October 2012 order.
(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. They were not given proper notice. The manner in which the eviction exercise was conducted involved a breach of human rights under Constitution, Sections 36 (freedom from inhuman treatment), 37 (protection of the law), 41 (proscribed acts), 44 (arbitrary search and entry) and 53 (unjust deprivation of property). Those who committed the breaches were the second defendant and un-identified members of the Police Force.
(5) As no claims had been proven against the first, third, fourth or fifth defendants, the proceedings against them were dismissed. The second defendant was liable in negligence and for breach of human rights. The sixth defendant, the State, was vicariously liable for the breaches of human rights committed by unidentified members of the Police Force who assisted the second defendant in conducting the eviction exercise.
(6) A trial on assessment of damages was ordered in respect of the claims against the second and sixth defendants.
Cases Cited:
The following cases are cited in the judgment:
Papua New Guinea Cases
Anita & Andrew Baikisa v J & Z Trading Ltd (2016) N6181
Ben Lunge v Macata Enterprises Ltd, OS No 704 of 2012, 19.02.13, unreported
Francis Wandaki v Wini Henao & The State (2009) N3676
Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74
Kembo Tirima and Others v Angau Memorial Hospital Board and The State (2005) N2779
Yange Langan v The State (1995) N1369
Lelete Plantation Ltd v Paul Rame (2007) N5020
Levi Nanguan v PNG Maritime College (2017) N6711
Linda Kewakali v The State (2011) SC1091
Lome v Sele, Wagambie & The State (2017) N6854
Otto Benal Magiten v William Moses (2006) N5008
Paul Perex v PNG Institute of Medical Research (2014) N5614
Philip Nare v The State (2017) SC1584
Tony Yagon & Settlers of Dylup Plantation v Nowra No 59 Ltd (2008) N3375
Yange Langan v The State (1995) N1369
Overseas Cases
Donoghue v Stevenson [1932] AC 562
STATEMENT OF CLAIM
This was a trial on liability in which the plaintiffs sought to prove a claim in damages for negligence and breach of human rights.
Counsel
E Wurr & J Kambao, for the Plaintiffs
S Japson, for the First & Second Defendants
G Akia, for the Third, Fourth & Fifth defendants
2nd August, 2018
1. CANNINGS J: In March 2013 persons engaged by Macata Enterprises Ltd (the second defendant), assisted by members of the Police Force, entered, with heavy machinery, an area of land at Waigani, National Capital District, occupied by the plaintiffs, Thomas Yalbees, Wilson Kuyako, Ben Lunga and 155 others. The plaintiffs’ houses and other buildings they had erected on the land over a period of up to 30 years were bulldozed and demolished. It was an eviction exercise involving forced ejectment of the occupiers and destruction of houses and other structures to make way for development of the land. The land is known formally as Portion 1564, Milinch of Granville, Fourmil Moresby. It was known informally as the Waigani Arts settlement. It is government land covered by a State Lease. The lessee and registered proprietor is the second defendant. It was granted the Lease in the year 2000. The land is 12.13 hectares in area.
2. In 2016 the plaintiffs commenced court proceedings against the second defendant, and its managing director, Mr Tom Amaiu (the first defendant) and two members of the Police Force they alleged supervised and controlled the eviction exercise (third and fourth defendants), the Commissioner of Police (fifth defendant) and the State (sixth defendant), seeking damages. Two causes of action are relied on:
3. The plaintiffs claim that the eviction exercise took place on two days, 8 and 16 March 2013, and that the exercise on 16 March was conducted contrary to a National Court order of 14 March, made by Justice Sakora, in OS No 121 of 2013, which restrained any further eviction of the plaintiffs.
4. The defendants argue that the proceedings should be summarily dismissed as only ten of the 158 plaintiffs have given evidence, and the evidence of those ten was uncorroborated and unreliable. As to the merits of the claim the defendants assert that the whole eviction exercise was conducted prior to the order of 14 March, that none of the defendants owed a duty of care to the plaintiffs, so liability could not be established in negligence, that no breach of human rights had been established and for those reasons, if the proceedings were not summarily dismissed, the proceedings should be dismissed on the merits.
5. A trial has been conducted on the question of liability. The following issues arise:
(1) should the proceedings be summarily dismissed due to lack of evidence?
(2) when did the eviction exercise take place and what did it entail?
(3) have the plaintiffs proven a cause of action in negligence?
(4) have the plaintiffs proven a cause of action in breach of human rights?
(5) what orders should the Court make?
6. I find that there are no good reasons to summarily dismiss the proceedings on evidentiary grounds. It is correct that only ten of the 158 plaintiffs gave evidence as to the eviction exercise and the various court proceedings surrounding it. However, there is no rule of law or practice dictating that in representative proceedings, in a trial on liability, each plaintiff must give evidence in support of the claim. Mr Akia, for the third to sixth defendants, relied on Yange Langan v The State (1995) N1369 to support the argument; but I am not persuaded. The point emphasised in that case was the need for each plaintiff in representative proceedings to prove their losses, even if a default judgment had been obtained and there was no evidence from the defendants. It can be regarded as a principle of evidence relating to a trial on assessment of damages. A similar rule does not, to my knowledge, apply in a trial on liability, such as the present.
7. As for the argument that the affidavits of the ten plaintiffs who gave evidence should carry little weight as their evidence was uncorroborated and practically identical (each affidavit appeared to be a copy and paste of each other), I am not persuaded. Mr Akia relied on Francis Wandaki v Wini Henao & The State (2009) N3676, a case in which a large number of plaintiffs gave identical evidence. The trial judge, Makail J, made the point that the fact that a large number of plaintiffs have given the same evidence does not necessarily make the evidence more credible or believable. I agree with his Honour in that regard. But by the same token, having a large number of plaintiffs giving the same evidence does not force the conclusion that that evidence should be disbelieved. Any collection of evidence must be considered on its merits. Corroboration is always desirable. But it is not necessary. In this case the defendants concede the essential facts: that an eviction exercise took place in March 2013. They oppose the plaintiffs’ evidence about when it occurred and what it entailed. But the fact that an eviction exercise took place and that properties were destroyed in the process is not in contention. I reject the defendants’ argument that the proceedings should be summarily dismissed on evidentiary grounds.
8. I find the evidence of the first, third and fourth defendants as to the timing of the eviction exercise more persuasive than the plaintiffs’ evidence on this issue. I find that the eviction exercise took place from 7 to 11 March 2013. It was largely completed before the 14 March 2013 National Court injunction.
9. To establish a cause of action the plaintiffs must prove the four elements of the tort of negligence, ie:
(a) the defendant owed a duty of care to the plaintiff;
(b) the defendant breached that duty (ie acted negligently);
(c) the breach of duty caused damage to the plaintiff; and
(d) the type of damage was not too remote.
See generally J G Fleming, The Law of Torts, 5th edition, LBC Information Services, © 1977, Chapter 6, Negligence: Introduction, pages 104-105. In some cases, I have said that there are five elements, the fifth being that the plaintiff rebut any defences such as contributory negligence and voluntary assumption of risk (eg Kembo Tirima and Others v Angau Memorial Hospital Board and The State (2005) N2779, Otto Benal Magiten v William Moses (2006) N5008, Paul Perex v PNG Institute of Medical Research (2014) N5614). On reflection I think it is better to treat such defences separately and not regard them as giving rise to an element that must be proven by the plaintiff. In the present cases no such defences were raised by the defendants so it is not necessary to address the question of their rebuttal.
10. As for the claim against the first and second defendants, I consider that the plaintiffs have proven a duty of care existed between them and the second defendant. That is, the second defendant, as registered proprietor of the State Lease, owed a duty of care to the actual occupiers of the land (even though their occupation was not authorised by the second defendant they had equitable interests in the land arising from their long-term occupation of it). This duty arose by application of the ‘neighbour’ principle in the landmark decision of the House of Lords in Donoghue v Stevenson [1932] AC 562, which forms part of the underlying law of PNG, and which I explained in Anita & Andrew Baikisa v J & Z Trading Ltd (2016) N6181 in the following terms:
11. I find that the second defendant’s duty of care to the plaintiffs was breached by the negligent (if not deliberate) interpretation and publication of a National Court consent order of 15 October 2012 which appeared to, but did not actually, authorise the eviction exercise that took place in March 2013. The 15 October 2012 order was made by Kawi J, with the consent of the parties, Macata Enterprises Ltd (as plaintiff) and Kelly Palleyo & Others (defendants), in OS No 727 of 2011. The order, on the face of it, appeared to order that if “the defendant ... and any other persons illegally living on the property ...” did not vacate it and remove their structures within 14 days, the Police were authorised to enter the property by force and remove “the defendant ... and those other persons illegally living on the property ...”. However, I uphold the submission of Ms Wurr for the plaintiffs that that order did not apply to the plaintiffs as they were not named as defendants in those proceedings. This was a significant feature of the order of 15 October 2012 highlighted by Kariko J in his judgment in Ben Lunge v Macata Enterprises Ltd, OS No 704 of 2012, 19.02.13, unreported.
12. That breach of duty by the second defendant caused damage of a type not too remote. Therefore a cause of action in negligence is made out against the second defendant.
13. As for the negligence claim against the State and the Police defendants (third to sixth defendants), I find that though they may have owed a duty of care to the plaintiffs they were not negligent as they could not reasonably be expected to appreciate the nuances in interpretation of the October 2012 order.
14. In summary, a cause of action in negligence is established against the second defendant, but not against any of the other defendants.
15. Before addressing the merits of the human rights claims, an important point needs to be made about the status of the plaintiffs. They had equitable interests in the land arising from their long-term occupation of it and the lack of opposition over a long period to them being there and developing the land. 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).
16. The defendants argue that the plaintiffs were in fact given plenty of notice as they knew about the 15 October 2012 consent order and there was an awareness exercise conducted by the Police. There is evidence in support of these arguments but I find no actual clear notice in writing to any of the plaintiffs that they had to move out or face forced eviction. Clearly they knew that their continued occupation of the land was in jeopardy. But they have given evidence that they were caught be surprise. I accept that evidence. I find that they were not given proper notice.
17. I accept the evidence of the plaintiffs as to the manner in which the eviction exercise was conducted. I further find that the manner in which the eviction exercise was conducted involved a breach of human rights under Constitution, Sections 36 (freedom from inhuman treatment), 37 (protection of the law), 41 (proscribed acts), 44 (arbitrary search and entry) and 53 (unjust deprivation of property). Those who committed the breaches were the second defendant and un-identified members of the Police Force (not the members of the Police Force named as defendants).
18. I find that the State is vicariously liable for the breaches of human rights committed by the unidentified members of the Police Force. In making that finding I refer to the decision of the Supreme Court in Philip Nare v The State (2017) SC1584. This was an appeal against the decision of the National Court to refuse a claim for damages, arising from an unlawful Police raid of a village. The Supreme Court noted that there was evidence of “an appalling display of Police brutality and abuse of power with serious wrongs being inflicted on the plaintiffs with bodily injuries and property damage being alleged”. The National Court refused the appellant’s claim as he did not name any of the police officers allegedly involved as defendants. The National Court applied the principles developed in the Supreme Court case of Linda Kewakali v The State (2011) SC1091: if a plaintiff is suing the State on the basis of vicarious liability for a tort or other civil wrong committed by members of the Police Force, the member of the Police Force who is alleged to have done wrong must be named as a party to the proceedings and named in the pleadings and must be identified in the evidence.
19. In Nare the Kewakali principles were thoroughly examined and regarded as not good law. Kewakali was overruled. The Court in Nare consisted of five Judges: Injia CJ, David J, Ipang J, Higgins J and Neill J. In Kewakali the Court consisted of three Judges (Davani J, Kariko J and Sawong J). Because Nare was a decision of a greater number of Judges than in Kewakali, and the Court in Nare was led by the Chief Justice and it is the more recent decision and it overruled Kewakali, it is the Supreme Court decision that must now be followed.
20. As I pointed out in Lome v Sele, Wagambie & The State (2017) N6854, as well as settling the law on the question of whether the actual alleged police wrongdoers have to be named as parties, named in the statement of claim and identified by name in the evidence, the Court in Nare also dealt with the question of whether it is necessary for a plaintiff to prove that the police officer was acting within the lawful scope of his duties. It was clearly indicated that this is not necessary. It is sufficient to prove that the police officer was acting or purporting to act in the course of his duties.
21. The decision in Nare is very significant. It stands as authority for the following propositions in any case in which a person sues the State, claiming that it is vicariously liable for the torts or other civil wrongs including human rights breaches committed by members of the Police Force or any other employee of the State:
22. In light of the approach to the issue of vicarious liability of the State in Nare, I find that all the elements have been proven and that the State is vicariously liable for the breaches of human rights committed by members of the Police Force in the course of the eviction exercise.
5 WHAT ORDERS SHOULD THE COURT MAKE?
23. As no claims have been proven against the first, third, fourth or fifth defendants, the proceedings against them must be dismissed. The second defendant is liable in negligence and for breach of human rights. The sixth defendant, the State, is vicariously liable for the breaches of human rights committed by unidentified members of the Police Force who assisted the second defendant in conducting the eviction exercise. The question of costs will be deferred. There will be a trial on assessment of damages.
ORDER
(1) Liability has been established by all plaintiffs, for damages, against the second defendant in negligence and in breach of human rights under Constitution, Sections 36 (freedom from inhuman treatment), 37 (protection of the law), 41 (proscribed acts), 44 (arbitrary search and entry) and 53 (unjust deprivation of property), as pleaded in the statement of claim.
(2) Liability has not been established against the sixth defendant in negligence, but liability has been established by all plaintiffs, for damages, against the sixth defendant in breach of human rights under Constitution, Sections 36 (freedom from inhuman treatment), 37 (protection of the law), 41 (proscribed acts), 44 (arbitrary search and entry) and 53 (unjust deprivation of property), as pleaded in the statement of claim.
(3) The proceedings against the first, third, fourth and fifth defendants are dismissed.
(4) There shall be a trial on assessment of damages in relation to the claims against the second and sixth defendants and for that purpose a directions hearing is set for 25 September 2018 at 9.30 am.
Judgment accordingly.
________________________________________________________________
Public Solicitor: Lawyer for the Plaintiffs
Japson & Associates Lawyers: Lawyers for the First & Second Defendants
Solicitor-General: Lawyer for the Third, Fourth & Fifth Defendant
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URL: http://www.paclii.org/pg/cases/PGNC/2018/264.html