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Saa v Kennedy [2022] PGNC 83; N9512 (28 March 2022)

N9512

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO. 8 OF 2020 (IECMS)

BETWEEN

PHILIP MARK SAÁ

Plaintiff

AND:

JEFFERY KENNEDY - DIRECTOR OF NET HOLDINGS LIMITED

First Defendant

AND:

SERGEANT MARK MOSENA KAVE - GORDONS POLICE STATION COMMANDER

Second Defendant

AND:

DAVID MANNING - COMMISSIONER OF ROYAL PAPUA NEW GUINEA POLICE CONSTBULARY

Third Defendant

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Waigani: Tamade AJ

2021: 27^th October

2022: 28^th March

VICARIOUS LIABILITY – policemen doing another’s bidding – eviction instructions from the first defendant and not the state - policemen acting outside the scope of their duties and not within the course of their employment – state is not vicariously liable.

STATE LEASE – trespass to property - plaintiff has no title over land - plaintiff has had possession for 30 years and claims equitable right to reside on land – no legal right to possess the land.

Cases Cited

The following cases are cited in the judgment:

Rimbunan Hijau (PNG) Ltd v Enei [2017] PGSC 36; SC1605

Ready Mixed Concrete Pty Ltd v The State and Ors [1981] PNGLR 396

Amiau v Yalbees [2020] PGSC 133

Papua New Guinea Banking Corporation (PNGBC) v Tole [2002] PGSC 8; SC694

Kerry v State [2007] PGNC 25; N3127

Pinda v Inguba [2012] PGSC 13; SC1181

Counsel:

Mr Philip Mark Sa’a, Plaintiff in Person

Ms Natasha Aiwara, for the Third and Fourth Defendants

28^th March, 2022

1. TAMADE AJ: This is a claim by the Plaintiff who has chosen to represent himself in the trial of this matter before me. The Plaintiff claims that the Defendants had trespassed his premises and caused destruction to his dwelling house, improvements on the land and as a result his personal items were also destroyed. The Plaintiff alleges that the destruction caused to his house was caused by the police on instructions from the First Defendant using the First Defendant’s equipment and machinery therefore as the police were acting in the course of their duty, the State should be vicariously liable for the actions of the policemen.

2. The Plaintiff pleads in his Statement of Claim that he resided and settled on a State Lease land described as Portion 528 of Eight Mile Morata Swamp settlement located within the radius of the Port Moresby Jackson’s Domestic and International Airport Aerodrome land. The Plaintiff states that he has been residing there for up to 30 years without any interruption and without any eviction from the authorities and therefore claims that he has an equitable right to reside on the land.

3. The Plaintiff states that he had constructed a four-bedroom permanent house and had erected fencing, planted trees and had connected water supply, there is road access to the property and has a vegetable and flower garden, as well as there, were plans for his brother to build a structure beside his house and therefore there were also building materials also stockpiled on the land. The Plaintiff also states that he had two tenants renting out two rooms from his house.

4. On or about 29 June 2015 at around 5pm, police in full uniform and heavily armed arrived at the residence of the Plaintiff in various vehicles and using the First Defendant’s back hoes, graders and bulldozers and tipper trucks ordered the Plaintiff and his family to leave the premises and proceeded to destroying and demolishing the house in an act of eviction removing the Plaintiff, his tenants, and his family from the property.

5. I wonder whether the Plaintiff has a legitimate title to the land. The Plaintiff says in his evidence that he had applied to the National Capital District Physical Planning Board (NCDPPD) under its physical infrastructure development master plan for the city which includes demarcation for subject portion as free space for public consumption and to set aside the land for environmental protection and conservation purpose. I find this hard to believe as the Plaintiff has erected a dwelling house, there is plan for his brother to build beside his house and he has leased his rooms for tenants to rent which are all his private interests.

6. The Plaintiff states that the subject land is wasteland, swampy where all the debris and rubbish from the city gets washed to when it rains. There is no evidence as to whether the NCDPPD granted the Plaintiff’s application.

7. The Plaintiff also states in his evidence that he filed proceedings in OS 473 of 2015 against Net Holdings Limited however those proceedings were dismissed by the Court as the Court found that both the Plaintiff and Net Holdings Limited had no title to the land.

8. The Plaintiff essentially claims at paragraph 46 of his Statement of Claim that the actions of the police personnel amounted to negligence, trespass and breached the Plaintiff’s constitutional rights and freedoms.

9. The First and Second Defendants were not present at the trial of this matter. The Third and Fourth Defendants however state that the eviction and destruction of the Plaintiff’s property and personal items were caused by the agents of the First Defendant. Ms. Aiwara stated in her submissions that even if the police were in uniform, they were not complying with their mandated duty in accordance with the Constitution which is to preserve peace and good order in the country and to enforce the law in an impartial and objective manner.

10. Ms. Aiwara goes further to submit that the Plaintiff has admitted in his evidence that the machinery used in the eviction is owned by the First Defendant and therefore this goes to support the point that the eviction was authorized by the First Defendant and the police personnel involved were out doing the bidding of the First Defendant. The conduct of the police personnel was therefore not in the due discharge of their duties and not within the course of their employment, the policemen were carrying out the instructions of the First Defendant. Ms. Aiwara submits that the State should not be held vicariously liable for the conduct of policemen outside the scope of their duties and not within the course of their employment.

Trespass to property

11. For a claim for trespass to stand, a Plaintiff must show that he has good and legitimate title to the land. In this case, the Plaintiff states he has an equitable interest as he has been in possession of the land. The Supreme Court considered the issue of trespass when they said this in the case of Rimbunan Hijau (PNG) Ltd v Enei [2017] PGSC 36; SC1605 (25 September 2017):

It is not necessary to prove possession. The common law requiring possession may be relevant and applicable in England and the rest of the common law world. However, it is not the law in PNG. The colonial masters made a deliberate decision and correctly arrived at the view that no land is waste and vacant and ownerless in PNG. Hence, the onus is on the administration or indeed anyone claiming any such land exists to prove it. This position at law has been carried over into current PNG by the Lands Act. In other words, there is a presumption that there is no waste and vacant land in PNG. The duty is, therefore, upon the State or any other person which may include foreign investors or developers who wish to enter any land in PNG and more so customary land, to first make it their business to ascertain who the true and correct owners are. Once they have done that, they would then be in a better position to enter into meaningful discussions and negotiations with them and get their free and informed consent or approval before entering, occupying and using their land.

12. A Plaintiff who has squatted on State land with no legitimate title to the land in equity only has to be given sufficient notice to vacate the land in consideration of how long he has squatted on the land. This is set down in Ready Mixed Concrete Pty Ltd v The State and Ors [1981] PNGLR 396 and the Supreme Court case of Amiau v Yalbees [2020] PGSC 133. I find that the Plaintiff has no legal right to the subject land and therefore his claim for trespass is denied.

Negligence and Breach of Constitutional rights and other freedoms

13. The Plaintiff’s claims for negligence and breach of constitutional rights would come under whether the State is vicariously liable for the acts or omissions of its employees, servants, and agents. The State submits that the Plaintiff has not pleaded vicarious liability pursuant to section 1(4) of the Wrongs (Miscellaneous Provisions) Act that the Second Defendant and other members of the Police Force committed the tort whilst performing or purporting to perform the functions conferred or imposed upon them by Statute or the underlying law. A party is bound by his pleadings as is set down in the case of Papua New Guinea Banking Corporation (PNGBC) v Tole [2002] PGSC 8; SC694 (27 September 2002).

14. Having perused the Statement of Claim filed by the Plaintiff, he pleads at paragraph 39 that the State is vicariously liable for the actions of the Second Defendants amounting to the destruction of the Plaintiff’s properties and his losses. Section 1(4) of the Wrongs (Miscellaneous Provisions) Act is therefore not specifically pleaded.

15. Justice Cannings in the case of Kerry v State [2007] PGNC 25; N3127 (26 January 2007) however stated that:

A statement of claim should state clearly the cause of action relied on and plead the elements of the cause of action. However, the court should be reluctant to dismiss a claim by an individual citizen against the State due to deficient pleadings. Provided that the general nature of the claim has been pleaded and the State is not unduly prejudiced, the court should proceed to deal with the claim.

16. In dealing with a claim for vicarious liability, the Supreme Court stated in the case of Pinda v Inguba [2012] PGSC 13; SC1181 (4 May 2012) that:

To succeed in having the second respondent held liable for the negligent actions or omissions of the policemen, the National Court has to be satisfied that:

(a) the policemen as servant or agents of the second respondent committed the tort of negligence during the course and within the scope of their employment: section 1(1)(a) of the Wrongs (Miscellaneous Provisions) Act, Ch 297; and

(b) the policemen as officers of the second respondent committed the tort of negligence while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law: section 1(4) of the Wrongs (Miscellaneous Provisions) Act, Ch 297.

17. To answer the question of whether the Second Defendant and the police officers were acting in the course of their employment by attending at the property and evicting the Plaintiff thereby destroying his dwelling house and properties, the Plaintiff states that it had instituted proceedings against Net Holdings Limited in OS 473 of 2015 in which Net Holdings Limited had done a massive eviction exercise on this land in which the Court found that neither the Plaintiff nor Net Holdings Limited had title to the subject land. From the evidence before the Court and the Plaintiff’s submissions, the eviction and destruction to the Plaintiff’s property was done by policemen in uniform using the machinery of the First Defendant or Net Holdings Limited.

18. I find that the Second Defendant and the policemen involved in the eviction exercise against the Plaintiff were not acting within the course of their employment, they were acting on instructions of the First Defendant and they were doing his bidding. The State should not be held liable when policemen decide to serve private interests of individuals or companies for that matter.

19. The Plaintiff’s claims are therefore dismissed. The Plaintiff is squatting on land to which he does not have a legitimate title and he should not assert a right when it does not exist in law and therefore the State will not be liable in this instance.

20. I, therefore, make the following orders:

1. The Plaintiff’s claim is refused, and these proceedings are dismissed in its entirety.
   
2. Plaintiff shall meet the Third and Fourth Defendant’s costs of these proceedings to be taxed if not agreed.
   

Orders accordingly.

________________________________________________________________

Philip Mark Sa’a: Plaintiff in Person

Solicitor General’s Office: Lawyers for the Third and Fourth Defendants