N10179

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS  1310 OF 2010

BETWEEN:
SOSA JOHN FOR & On Behalf of JOHN LAKI KUMBI (deceased)
Plaintiff

AND:
RICHARD PARI as Constable of Wabag Police 
First Defendant

AND:
GEORGE KAKAS, PPC Enga
Second Defendant

AND:
GARI BAKI as Commissioner of Police
Third Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Wabag: Kangwia J.
2022: 21st January & 18th March 

CIVIL JURISDICTION –eviction exercised on person not a party to proceedings – illegal occupant – duty of care - demolition of property under police presence and supervision – Defendants liable

Cases Cited:

Fuliva v Wagambie (2013) N5221
Baine v Ulga (2019) N8076
Betanjo v Yakasa (2020) N8419
PNG Ready Mixed Concrete Pty Ltd v The State [1981] PNGLR 396
Maku v Maliwolo (2012) SC117
 Mudge and Mudge v Secretary for Lands and Delta Developments Pty Ltd [1985] PNGLR 38

Counsel:

S. Minara, for the Plaintiff
N. Balen, for the Defendants

15th March, 2022

1.      KANGWIA J:  The Plaintiff claimed damages against the Defendants arising out of an eviction and demolition of property on the Plaintiffs residential area identified as State reserve land. 
The Defendants have denied destroying or demolishing property belonging to the Plaintiff but admitted executing a lawful Court Order.

2.     The undisputed facts are that the Plaintiff was a permissive resident on parts of a reserve land identified as section 13 in Wabag town. There was a dispute over allotment 01 between one Rueben Kandiu and Perano Pis Liu. By a District Court Order dated 28 September 2010 while dismissing an application by Perano Pis Liu, the Court by a Warrant ordered that the police enter the premises on allotment 01 and give vacant possession of the land to Ruben Kandiu. It seems the police executed the warrant, the result being the subject of this proceeding. 

3.     At the trial both parties consented to tender affidavits intended to be relied on.

4.     The evidence for the Plaintiff consists of two affidavits of Sosa John which was admitted into evidence by consent and labelled exhibit A & B. The first relate to her being substituted for her husband (the Plaintiff) who had passed on. 

5.    Her evidence in the other affidavit was that her family had lived on that land for 30 years. On 01 October 2010 the Defendants accompanied by a backhoe and others entered the premises on allotment one and carried out demolition, destruction and looting of Lui Perano’s properties on allotment one and continued onto allotment 2 and to the portion of land they had occupied which was not under the Court Order. The Defendants failed to carry out due diligence prior to the eviction exercise and aggressively pointed guns and assaulted them. There was no notice given prior to the eviction. As a result, they lost all their property, and were displaced with no shelter to live in.  

6.    The evidence for the Defence consisted of 03 affidavits of policemen Richard Pari, Francis Lukara and Sgt Peter Saar. They were admitted into evidence by consent and labelled as exhibits C, D, & E.

7.     Their evidence is generally the same. A few policemen followed instructions from the commander to act upon a lawful complaint by Rueben Kandiu against Lui Pis Perano on section 13 Allotment 01. The Plaintiff’s name was not mentioned in the briefing. They told all the illegal occupants to pack up themselves and demolish the small kunai thatched dwellings and vacate the premises. Police were not heavily involved but gave verbal instructions to the illegal occupants. They were assisted by relatives of Reuben Kandiu. Police did not enter the premises of the Plaintiff. 

8.     For the Plaintiff Mr Minara submitted that title to the land was not in issue. It was the actions of the Defendants that were unlawful and unauthorised under the following circumstances:

- The Plaintiff resided on the property after permission was given as a reserve land and had an equitable interest over the land. 
- Where an eviction order obtained for s13 lot 01, the First Defendant and other policemen accompanied Reuben Kandiu to enforce the eviction order by destroying property and demolishing structures which included the Plaintiffs property.
- The property on the land occupied by the Plaintiff was outside the area covered by the eviction order. 
- There was no valid Court Order on the land occupied by the Plaintiff or against the Plaintiff. 
- The eviction was executed without notice by a private citizen and not the Provincial Government who gave him permission to occupy the land upon his request.
- The police were negligent when they failed to identify which property the eviction order was concerned with. 

9.     Therefore, it was submitted that the State was vicariously liable for the negligent conduct of its servants and agents who were acting in the course of their employment. 

10.    Mr Minara relied on the case of Fuliva v Wagambie (2013) N5221 as authority for the proposition that where an agreement with illegal settlers was breached, liability was entered even though the Plaintiffs were illegal settlers. That case is distinguished from the present case. In the present case there was no agreement per se. General permission was granted the Plaintiff to occupy the land subject to future evictions as a warning. The Plaintiff interpreted the letter from the Provincial Lands Advisor as authorising him to occupy the land as a right. There was no breach committed here.

11.   The cases of Baine v Ulga (2019) N8076 and Betanjo v Yakasa (2020) N8419 were also referred to as appropriate guides in the present case. Those cases stemmed from a Police raid unsupported by a Court Order unlike the present case which was an execution of a Court Order.

12.    On behalf of the Defendants Ms Balen submitted that the actions of the First Defendant and the other policemen were lawful as their actions were within the ambit of the law. Their actions were in line with their primary function under s 274 of the Constitution and the duty required as members of the Police Force under s 274 of the District Courts Act. 

13.    The Defendants executed a lawful Court Order by ordering settlers to remove their structures to give vacant possession to the complainant. Furthermore, it was stressed that according to the affidavits tendered by consent for the Defence the Defendants did not carry out any demolition or raids on any other areas apart from the confines of s 13 lot 01 after identifying the boundaries; that other people raided and demolished the properties. 

14.     On the issue of title, it was submitted that the Plaintiff did not have title to the land. As he was illegally occupying the land he was not entitled to damages. The case of PNG Ready Mixed Concrete Pty Ltd v The State [1981] PNGLR 396 was cited as authority for the proposition that the right of a landowner superseded whatever limited equitable interest of an illegal squatter may have. In the present case the Plaintiff was given ample notice through the letter from the Lands Advisor of eviction. 

15.     It was the defence summation that the claim was vexatious and frivolous and meritless in law. The Plaintiff had failed to discharge the burden on the balance of probabilities that the Defendants were negligent and therefore the proceeding should be dismissed.
  
16.    The issue arising from the submissions and evidence offered is whether the actions of the Defendants in the eviction exercise unlawful? Adjunct to that issue is whether the eviction orders covered the Plaintiffs properties; whether the orders included demolition of properties and whether the Plaintiff had title. 

17.    The Law governing eviction is the Summary Ejectment Act. The relevant provisions for the present case are as follows:

6.	Recovery of premises held without right, etc.
(1)	Where a person without right, title or licence is in possession of premises, the owner may make a complaint to a magistrate of a District Court to recover possession of the premises, and the magistrate may issue a summons in the prescribed form to the person in illegal occupation.
(2)	Where the person summoned under Subsection (1)—
(a)	…
(b)	appears and does not show reasonable cause why possession of the premises should not be given,
the Court may, on proof of the matter of the complaint, issue a warrant directed to a member of the Police Force requiring him, on or before a day specified in the warrant—
(c)	to enter, by force and with assistants, if necessary, into the premises; and
(d)	to give possession of the premises to the complainant.

8.	Warrant sufficient authority for entering premises.
(1)	A warrant under the hand of a magistrate of a District Court directed to a member of the Police Force and requiring him to give possession of premises authorizes him to enter, by force and with assistants, if necessary, into the premises named in the warrant, and to give possession accordingly.
(2)	An entry under a warrant shall not be made on a Sunday, Good Friday, Christmas Day or at any time other than between the hours of 9 a.m. and 4 p.m.

18.     Eviction is a process which involves two actions. One relates to expelling someone occupying a property. The second relates to forced removal of residents. Other synonyms include ejection, driving out or throwing out etc. The present case falls into the first category where the Plaintiff was expelled from land he had occupied. 

19.    From these provisions it is safe to infer that the mode of eviction may be voluntary or by compulsion. Where voluntary eviction fails howsoever it may be, either by effluxion of time, ignorance or deliberate defiance of a valid Court Order, compulsion is deemed necessary at the behest of the owner.  

20.    As the provisions in the Act are directed at the Police Force arising out an Order of the District Court the functions and duties of the police under s197 of the Constitution and s 274 of the District Court Act must also be identified. 

21.    The Functions of the Police under s 197 of the Constitution provides:

(1)	The primary function of the police Force is in accordance with the Constitutional laws and Acts of Parliament -
(a)	to preserve peace and good order in the country.
(b)	To maintain and as necessary, enforce the law in an impartial and objective manner”

22.     This provision is an overarching directive intended at preserving peace and good order by enforcing the law in an impartial and objective manner. 

23.     The case of Maku v Maliwolo (2012) SC1171 cited by Ms Balen enhances further the functions of the Police Force.  In that case a group of villagers in a class action alleged that members of the Police Force failed to attend and stop a tribal fight between them and an enemy tribe. It resulted in their property looted and destroyed by the enemy tribe. 

24.     In that case the SC held among others that pursuant to s 197 …the police have a responsibility for maintaining law and order but are subject to no specific requirement as to the way in which they do it. Therefore, the police owe no duty of care to the public at large and there is no duty of care if it is against public policy. 

25.    That case is distinguishable in that, that case involved the public at large. The present case involves private and personal interests.  The Court order in the present case was obtained by one individual against another over a specific piece of land. Therefore, the Defendants as police officers owed a duty of care when performing their mandated functions under s 197 of the Constitution to execute the Warrant. 

26.     The mode of execution pursuant to s 274 of the District Courts Act provides: 

 “All members of the police Force shall obey the Warrants, orders and directions of Magistrates granted given or done, and shall perform their several offices and duties in respect of those offices under the pains and penalties to which a member of the Police Force is liable for neglect of duty. 

27.    This provision imposes a duty on the Police Force to obey warrants, orders and directions of a Magistrate as in the present case. The duty covers strict compliance of the terms of a warrant, order, or directions, whatever it may be.  However, there is a qualification under that provision for neglect of that duty. A member of the Police Force is liable to suffer penalties if he fails to comply with the duty imposed. 

28.     The issues in the present proceeding relate to a state lease and the process of eviction and mode of execution of a Court Order. 

29.     I consider that the findings of facts should be the evidence to find an appropriate determination.  The findings of facts are:

1.	The land the subject of this proceeding described as section 13 allotments 1 and 2 were reserved land when the Plaintiff occupied a portion of it.
 
2.	The status of the land was made known to the Plaintiff by a letter dated 5 September 2008 by the Advisor – Lands and Physical Planning Division of the Department of Enga; that allotment 01 was where one John Peranu was residing while allotment 02 was where Kennedy Store was and extended to the market.  
3.	In the same letter the Plaintiff was advised that he was illegally residing on Reserve State land. Despite that,  the Plaintiff was given permission to occupy the land until a mass eviction takes place on all illegal settlers which presumably included the Plaintiff. This letter did not identify whether the land occupied by the Plaintiff was lot 01 or 02.  
4.	The letter from the Provincial Lands and Physical Planning was issued unbeknown that the land on s 13 lot 01 had been transferred to Reuben Kandiu as a business lease on 5 June 2003. 
5.	Court proceedings were commenced by Reuben Kandiu against Perano Pis Liu over Section 13 Allotment 01. 
6.	On 18 June 2010 the District Court issued orders specifically for Perano Pis Liu to vacate s13 lot 01.
7.	Perano Pis Liu applied to set aside that order but on 28 September 2010 the District Court dismissed his application and ordered Police to evict him. 
8.	Three days after the application was dismissed, a warrant was issued for the eviction of Perano Pis Liu.

30.    From those facts the Plaintiff seems to have acquired a permissive occupancy over reserved land from the Advisor for Lands. Whether the land was within allotment 1 or 2 is unclear. There is no evidence of it. 

31.    Then there is the other aspect of the letter by the Advisor. The Plaintiff interpreted the letter as authorising him to occupy the land as a right. Permission to occupy was not absolute. It was a qualified permission. It was subject to an eviction process in the future. Under those circumstances it is not a valid claim to assert that a right was conferred on the Plaintiff to occupy the premises. 

32.     The undeniable fact is that the Plaintiff was occupying the land without a right, title or licence. 

33.     The principle of indefeasibility of title also comes to play here. That principle confers on the owner total ownership to the exclusion of any other interest in the land. (See Mudge and Mudge v Secretary for Lands and Delta Developments Pty Ltd [1985] PNGLR 387). 

34.     In the present case the land on section 13 lot 01 was transferred to Rueben Kandiu on 5 June 2003 as a business lease and he became the owner when he possessed the title to it. He had every right to seek ejectment orders under the Summary Ejectment Act to enforce his rights as the titleholder. 

35.     By a Court Order of 28 September 2010 through a Warrant pursuant to the Summary Ejectment Act, members of the Police Force at Wabag Police Station were directed to immediately enter by force if necessary and give possession in respect of property on section 13 allotment 01 Wabag to the Complainant and owner Reuben Kandiu forthwith. The Police were dutybound to execute the eviction order. 

36.    The Plaintiff was not a party or named in the District Court proceedings instituted by Reuben Kandiu. The District Court Orders directed the eviction on Perano Pis Liu. Eviction was executed under the valid warrant issued by the District Court.  There is no evidence that a Court Order was issued against the Plaintiff nor is there any notice issued to the Plaintiff on the eviction exercise. 

37.    Under theses circumstances, it is safe to infer that there was gross unfairness to the Plaintiff. The contention that relatives of the landowner did the damage or removal is in my view a blame to avoid sanction. 

38.     The removal, demolition or whatever synonym one may use was done in the presence and authority of the enforcement agency, the police. Police seemed to have played a blind eye on the activities of the relatives of the owner if the relatives truly did what they asserted.  

39.    Law enforcement ran short in that respect. They failed to perform the functions prescribed under s 197 of the Constitution. Others were allowed to break the law under the guise of a Court Order. Police were to ensure smooth removal peacefully and orderly. Not demolishing or destroying property. 

40.    The police were not objective when complying with a Court Order leading to partiality. They failed to protect property in this respect in circumstances where the Court Order did not specifically name the Plaintiff as the person to be evicted. The Court order also did not specify demolition or destruction of property as the way to execute the Order. 

41.    The ability to stop destruction was there. The police accompanied the Complainant of the Warrant to execute the eviction. 
It was not a matter in the public domain like a tribal fight where they owed no duty of care. (See Maku v Maliwolo (2012) SC1171) 
I accept the evidence of the Plaintiff that he was unfairly, unceremoniously and to a large extent unlawfully evicted. Execution of the Court Order in the manner it was done was uncalled for. The warrant was not properly obeyed by the police in breach of their duty under s 274 of the District Courts Act. The law enforcing agency failed to protect property belonging to the Plaintiff who was not a party to the Court proceeding. 

42.     The Court Order did not extend to other occupants apart from Perano Pis Liu. It is therefore the conclusion of the Court that the actions or inactions of the Police at the time the Court Order was executed was unlawful. There was breach of the right to privacy under s 49, protection from unjust deprivation of property under s 53 and the right to freedom from arbitrary search and entry of property and premises under s 44 of the Constitution. 

43.    By these breaches committed by the Defendants the Plaintiff has established a cause of action for negligence against the Defendants in the execution of an eviction order. Such execution being carried out in the course of their duties as members of the Police Force the State is vicariously liable for the loss suffered by the Plaintiff. 

44.     Judgement is entered in favour of the Plaintiff for assessment of damages. 

________________________________________________________________
Public Solicitor: Lawyers for the Plaintiff
Solicitor General: Lawyers for the Defendant