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Mamu v Ford [2021] PGNC 477; N9338 (22 November 2021)

N9338

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (HRA) NO. 273 0F 2021
BETWEEN:
LESLIE B. MAMU, THE PUBLIC SOLICITOR
OF PAPUA NEW GUINEA
Plaintiff

V

ROD FORD, THE NATIONAL PROPERTY MANAGER – PACIFIC PALMS PROPERTIES LIMITED
First Defendant

AND:
WONYE LIMITED
Second Defendant

Mt. Hagen: Eliakim AJ
2021: 19^th, 22^nd November

HUMAN RIGHTS – application for enforcement - Constitution, section 57(1) – Enforcement of guaranteed rights and freedom – Constitution, section 53 – protection from unjust deprivation of property - power of the National Court to protect and enforce guaranteed rights and freedoms

Counsel
Mr. S. Minara, for the Plaintiff
Ms. V. Palts, for the Defendant

DECISION

22^nd November, 2021

1. ELIAKIM AJ: The plaintiff has applied for enforcement of his rights and protection in his capacity as the Public Solicitor of Papua New Guinea, from unjust deprivation of property under s. 57(1) and s.53 of the Constitution of the Independent State of Papua New Guinea.
   
2. The plaintiff had earlier attempted to proceed by way of an urgent application, however, counsel was directed to effect service of relevant documents on the defendants.
   
3. The application came before me for inter parte hearing on 19 November 2021.
   
4. From the outset, the defendants indicated that they neither consented nor objected to the first orders sought by the plaintiff. They, however, consented to the second orders sought which was to summon the Government Office Allocation Committee (GOAC) Chairman to appear in court.
   

Background

5. On 03 July 2020, the GOAC facilitated a Tenancy Lease Agreement signed by the defendants and the State represented by the Minister for Lands & Physical Planning, John Rosso.
   
6. The GOAC is responsible for negotiating and facilitating office leases and payments of leases on behalf of State entities.
   
7. The Public Solicitor’s Office, as a State tenant under this Lease Agreement, commenced occupation around May 2021 and has been operating from there until 20^th October 2021 when they were locked out by the defendant for non-payment of rental.
   
8. As per the Lease Agreement, the defendants forward their monthly invoices to the GOAC Rental Payment Officer at the Finance Department, Vulupindi Haus in Port Moresby.
   
9. The GOAC then effects these monthly rental payments on behalf of the State entities.
   
10. The first defendant has also sworn an Affidavit in response to the plaintiff’s application.
    
11. From Mr. Ford’s affidavit sworn and filed on 18^th November 2021, the defendants have sent several letters of demands for outstanding rental payments to the GOAC, since 07 September 2021, however, these outstanding payments have not been settled to date.
    
12. Following a final notice to GOAC on 05 October 2021, to lock out the plaintiffs as well as the other State entities occupying the other units in the defendant’s building, Chairman of the GOAC, Dr. Ken Ngahan responded in a letter dated 13^th October 2021.
    
13. Dr. Ngangan, as Chairman of GOAC and also Secretary of the Department of Finance, gave an undertaking to have the rental arrears settled but no payment was effected.
    
14. As a result, the defendants gave an extension of the lockout notice up until 20 October 2021 and since no payment had been made, proceeded to finally lock out the five (5) State entities, including the Office of the Public Solicitor.
    
15. As at 18^th November 2021, the defendant alleges that the State owes a total of K90,671.40 for Unit 4 of its building, that was being occupied by the plaintiff.
    

PLAINTIFF’S HUMAN RIGHTS APPLICATION

16. The plaintiff’s human rights application filed on 12 November 2021, sought the following substantive relief:
    

“Pursuant to s.57(1) and s.53 of the Constitution, an Order directing the defendants to give immediate and unimpeded access to the Plaintiff and his employees and agents to the property described as Wonye Office, Building D, Unit 5, Section 16, Lot 05, Mt Hagen, Western Highlands Province for the purpose of removing all Public Solicitor’s Office properties”.

17. In his Notice of Motion filed on 17 November 2021, the plaintiff sought the substantive relief as well as an additional order that “the Departmental Head of the Department of Finance who is also the Chairman of the GOAC (Government Office Allocation Committee) be summoned to appear in Court and explain as to why and when the outstanding rentals would be settled”.
    
18. The plaintiff has filed two (2) Affidavits from the Public Solicitor himself and from the solicitor in charge of the Mt Hagen office.
    
19. Public Solicitor, Mr. Leslie Mamu in his Affidavit sworn on 11^th November 2021 and filed on 12^th November 2021, confirmed the lockout of his Mt Hagen office.
    
20. He further deposed that the lockout has seriously impeded the efficient performance of his constitutional duties in Mt Hagen since office files are all kept in that building and his officers have been denied access.
    
21. He further deposed that the lockout had also seriously impeded the efficient performance of his constitutional duties in Jiwaka Province as well, since the Mt Hagen Office also services the ordinary clients from that Province.
    
22. The Office of the Public Solicitor provides free legal service to ordinary Papua New Guineans who would otherwise not afford private lawyers.
    
23. Mr. Mamu further deposed that his office was never privy to the Lease Agreement.
    
24. He deposed that he had requested for the office to be opened to allow his officers to access court files but was informed on 5^th November 2021 that that would not be possible until the rental payments are settled.
    
25. Mr. Mamu also expressed that from his experience, rental payments from the government although delayed, are eventually paid.
    

THE LAW

26. Section 57(1) of the Constitution provides:
    

“A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of Parliament, either on its own initiative or an application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority”.

27. Section 53 relates to the unjust deprivation of property. It provides “...possession may not be compulsory taken of any property, and no interest in or right over property may be compulsory acquired...”. The only exception to compulsory acquisition is in accordance with an Organic Law or an Act of Parliament and unless required under Sub Sections (a) and (b).
    
28. There must be property that has been taken. I am satisfied that property belonging to the plaintiff has been compulsory or forcefully been taken by virtue of the defendants not allowing the plaintiff access into the building to access them.
    
29. Further, I am not satisfied that the defendant’s reasons for the lockout fall under any of the exceptions stipulated in s.53(1)(a) or (b).
    

CONCLUSION

30. The Public Solicitor’s Office being the public defenders, represents clients both in civil and criminal matters. The Mt. Hagen office deals with clients in both Western Highlands and Jiwaka Provinces. It is therefore in the interest and efficient administration of justice, that they be allowed access to their files.
    
31. I do agree with Mr. Mamu that apart from the fact that his office was never privy to the Lease Agreement, there are other dispute resolution processes available to resolve the rental issues rather than taking drastic approach of locking out an important constitutional office such as the plaintiff’s office.
    
32. Furthermore, the Public Solicitor’s clients, who are the average citizens who cannot afford private lawyers, have been denied justice as a direct result of the lockout.
    
33. I am satisfied that the applicant’s rights and freedom has been breached.
    
34. I however will not grant the second orders sought in this application as the substantive relief sought by the plaintiff is only limited to excess to its properties.
    

ORDERS

35. I make the following orders:
    
    1. The application for the enforcement of rights is granted.
    2. The defendants give immediate and unimpeded access to the Plaintiff and his employees and agents to the property described as Wonye Office, Building D, Unit 5, Section 16, Lot 05, Mt Hagen, Western Highlands Province for the purpose of removing all Public Solicitor’s Office properties including court files, within the next seven (7) days, starting Monday 22^nd November 2021.
    3. I do not grant the second orders sought by the plaintiff to summon the Government Office Allocation Committee (GOAC) Chairman to appear in court.
    4. Parties shall bear their own costs.

________________________________________________________________

Office of the Public Solicitor: Lawyers for the Plaintiff

Veronica Palts Lawyers: Lawyers for the Defendants