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Nesai v Numa [2023] PGNC 110; N10247 (9 May 2023)

N10247

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (HR) NO 9 OF 2021


STEVEN PAUL NESAI FOR HIMSELF AND ON BEHALF OF
474 PERSONS NAMED IN SCHEDULE A
First Plaintiff


PAULUS MUMNA FOR HIMSELF AND ON BEHALF OF
SEVEN SETTLEMENT LEADERS NAMED IN SCHEDULE B
Second Plaintiff


SAMUEL LUGUNA FOR HIMSELF AND ON BEHALF OF
SIX SETTLEMENT LEADERS NAMED IN SCHEDULE C
Third Plaintiff


V


ASHAN NUMA, PROVINCIAL ADMINISTRATOR,
MILNE BAY PROVINCE
First Defendant


HON CHARLES ABEL, MEMBER FOR ALOTAU OPEN
Second Defendant


PETER BOENA, CHAIRMAN,
MILNE BAY PROVINCIAL LAW AND ORDER COMMITTEE
Third Defendant


DAVID MANNING, COMMISSIONER OF POLICE
Fourth Defendant


DAVID TASION, COMMANDER, SPECIAL SERVICES DIVISION, ROYAL PNG CONSTABULARY
Fifth Defendant


PETER BARKIE, PROVINCIAL POLICE COMMANDER,
ROYAL PNG CONSTABULARY
Sixth Defendant


THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant


PNG LANDS LIMITED
Eighth Defendant


Alotau: Cannings J
2022: 11th May
2023: 4th, 9th May


LAND – squatter settlements – whether repatriation exercise conducted by defendants was lawful – whether an eviction exercise or a repatriation exercise.


HUMAN RIGHTS – Constitution, ss 37 (protection of the law), 41 (proscribed acts), 44 (freedom from arbitrary search and entry) – whether human rights of plaintiffs breached by eviction and/or repatriation exercise.


The plaintiffs are long-term occupiers of 26 squatter settlements in and around a provincial capital. In May 2021, in response to a law-and-order crisis involving loss of life and destruction of property, the provincial law and order committee, the police and other government agencies (the first to seventh defendants) resolved to encourage the plaintiffs and other settlers to dismantle and vacate their settlements. An exercise styled as a voluntary repatriation exercise was commenced. The plaintiffs maintained, however, that because of threats and demands issued by the police and raids on various settlements involving burning of dwellings and destruction of property, it was more an eviction, than a voluntary repatriation, exercise. The plaintiffs commenced proceedings seeking declarations as to enforcement of their human rights under ss 37 (protection of the law), 41 (proscribed acts) and 44 (freedom from arbitrary search and entry) of the Constitution, and related orders. The first to seventh defendants opposed the granting of any such relief and argued that the proceedings were based on a false premise that there was an eviction exercise in place. The eighth defendant maintained that it is the registered proprietor of State Leases over two portions of government land on which five of the settlements are located and that it should not be restrained by any order of the court from exercising its rights in relation to those settlements.


Held:


(1) Though there was evidence of isolated police incursions into some settlements, there was no evidence of any formal or de facto eviction exercise. The authorised and formal operation sanctioned and funded by the provincial government and supported by the local member of Parliament was a voluntary repatriation exercise, conducted in good faith for a legitimate public purpose.

(2) The application for a declaration that the exercise was not based on any proper authority and was unlawful and a proscribed act under s 41 of the Constitution and had been conducted in breach of s 44 of the Constitution, was refused.

(3) It was appropriate to grant a declaration that the plaintiffs and other occupiers of the settlements are entitled to the full protection of the law under s 37(1) of the Constitution, and are entitled to reasonable notice if they are required to vacate government land including land that is the subject of a State Lease.

(4) It was appropriate to declare that the defendants had no power or authority to carry out any eviction exercise in relation to settlements on customary land.

(5) Further, as there was sufficient evidence that the voluntary repatriation exercise, although conducted in good faith, had led to genuine fear, apprehension of harm and uncertainty in the minds of the plaintiffs, it was appropriate and necessary to do justice in the circumstances of this case to order pursuant to s 155(4) of the Constitution, that there be no eviction of any of the plaintiffs from any of the 26 settlements without the leave of the National Court. A permanent order in those terms was made.

Cases Cited


The following cases are cited in the judgment:


Papua New Guinean Cases


Amaiu v Yalbees (2020) SC2046
Donigi v The State [1991] PNGLR 376
Gawi v png Ready Mixed Concrete Pty Ltd [1984] PNGLR 74
Joe Kape Meta v Kumono, Kulunio & The State (2012) N4598
Koroma v Mineral Resources Authority (2009) N3926
Lelete Plantation Ltd v Paul Rame (2007) N5020
Morobe Provincial Government v John Kameku (2012) SC1164
Nanguan v PNG Maritime College (2017) N6711
Ok Tedi Mining Ltd v Niugini Insurance Corporation (No 2) [1988-89] PNGLR 425
Petrus and Gawi v Telikom PNG Ltd (2008) N3373
The State v Central Provincial Government (2009) SC977
The State v Lohia Sisia [1987] PNGLR 102
Tony Yagon & Settlers of Dylup Plantation v Nowra No 59 Ltd (2008) N3375


Overseas Cases


Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438


Counsel


R Puyan, for the Plaintiffs
C Kuson & Z Waiin, for the First, Third, Fourth, Fifth, Sixth & Seventh Defendants
G Kogora, for the Second Defendant
M Muga & I Opahi, for the Eight Defendant


9th May, 2023


  1. CANNINGS J: On the night of 29 April 2021 there was chaos in Alotau, the capital of Milne Bay Province. An organised criminal gang allegedly led by notorious criminal, Tommy Baker, attacked and destroyed a police barracks and went on a looting rampage. Several innocent people were killed and a substantial amount of public and private property was stolen or destroyed. The response of the police and other government agencies was swift and decisive. A special police squad was flown in. An emergency meeting of the provincial law and order committee was called. Alotau was in lock-down for several days.
  2. The police and the provincial law and order committee and many others were of the view that the various squatter settlements that had over the years been established in and around Alotau were the problem. The settlements had become breeding grounds for criminals. The settlements were being used as a staging post for mass criminal activity and as a refuge for criminals. The settlements should be shut down. That was the general view of the police and other government agencies and officials.
  3. It was in those circumstances, amidst that law-and-order crisis, that in early May 2021, the provincial law and order committee, the police and other government agencies (the first to seventh defendants) resolved to encourage the plaintiffs and other settlers to dismantle and vacate their settlements. An exercise styled as a voluntary repatriation exercise was commenced. That exercise continued for a month, during which time many people were repatriated from the settlements and returned to their homes in other parts of the province.
  4. On 16 June 2021, however, the exercise was stayed, pending determination of the present proceedings, by an order of the National Court made by Justice Makail in Waigani. On 11 March 2022, in the course of refusing a motion by the defendants to have these proceedings summarily dismissed, I varied the order of 16 June 2021 by clarifying that the defendants were not restrained from assisting those settlers who genuinely wanted to be repatriated.
  5. The three plaintiffs, Steven Nesai, Paulus Mumna and Samuel Luguna are authorised representatives of about 500 people who live in and are long-term occupiers of 26 settlements in and around Alotau. Those settlements are known as Daga, Denewa, Duau, Gawa, Goodenough, Harbours, Hideaway, Hihiyaola, Kewa, Kitava, Kuboma, Masurina, Mobil/IPL 1, Mobil/IPL 2, Morima KB, Musa, NBC, Niugini, Powerhouse/AOG, PTB, Rabaraba, Red Hill, Siona 1 & 2, Suau, Water Tank Goilanai and Yabwau.
  6. The plaintiffs maintain that because of threats and demands issued by the police and raids on various settlements involving burning of dwellings and destruction of other property, it was more an eviction than a voluntary repatriation exercise.
  7. The plaintiffs therefore commenced these proceedings on 9 June 2021. They seek declarations as to enforcement of their human rights under ss 37 (protection of the law), 41 (proscribed acts) and 44 (freedom from arbitrary search and entry) of the Constitution, and related orders.
  8. The first to seventh defendants oppose the granting of any such relief and argue that the proceedings are based on a false premise that there was an eviction exercise in place. The eighth defendant maintains that it is the registered proprietor of State Leases over two portions of government land on which five of the settlements are located and that it should not be restrained by any order of the court from exercising its rights in relation to those settlements.

WHAT RELIEF DO THE PLAINTIFFS SEEK?


  1. The originating summons contains an application for 12 remedies, summarised as follows:
  2. A declaration that the plaintiffs are entitled to the full protection of the law under s 37(1) of the Constitution and must be given proper and reasonable notice to vacate any land they occupy.
  3. A declaration that the eviction and repatriation exercise commenced on 5 May 2021 has no legal basis and is null and void and of no effect.
  4. A declaration that the eviction and repatriation exercise is a proscribed act under s 41 of the Constitution.
  5. A declaration that the eviction and repatriation exercise is in breach of s 44 of the Constitution.
  6. A declaration that the defendants have no power or authority to implement the eviction and repatriation exercise in relation to settlements on customary land.
  7. A declaration that the defendants have no power or authority to evict or repatriate plaintiffs residing in Daga, Hihiyaola, Kitava, Musa, Niugini, Siona or Suau settlements, as those settlements are on customary land.
  8. A stay of the eviction and repatriation exercise pending determination of the substantive proceedings.
  9. An interim injunction restraining the defendants from taking any step to evict or repatriate the plaintiffs.
  10. Referral of the proceedings to mediation.
  11. Costs.
  12. Abridgment of time.
  13. Such other orders the court deems fit.

WHAT RELIEF SHOULD THE PLAINTIFFS BE GRANTED, IF ANY?


  1. I will now determine whether any of the above relief should be granted.

1 A declaration that the plaintiffs are entitled to the full protection of the law under s 37(1) of the Constitution and must be given proper and reasonable notice to vacate any government land they occupy


  1. Section 37(1) (protection of the law) states:

Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.


  1. There is ample authority for the proposition that persons who occupy government land including those who establish settlements on the land have no legal interest in the land, but do acquire 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 (Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74, Tony Yagon & Settlers of Dylup Plantation v Nowra No 59 Ltd (2008) N3375).
  2. Such interests do not confer any right to long-term occupation, but give squatters and settlers a right to be given reasonable notice to vacate the land (Amaiu v Yalbees (2020) SC2046, Lelete Plantation Ltd v Paul Rame (2007) N5020, Nanguan v PNG Maritime College (2017) N6711).
  3. There is no reason to think that the plaintiffs in the present case do not have the right to be given reasonable notice to vacate the settlements in which they have lived for a long time. They do have that right, which can be regarded as part of their right to the full protection of the law under s 37(1).
  4. Should the court declare, in this case, that those rights apply? To answer that question it is necessary to pause and consider the nature and purpose of a declaration.
  5. A declaration is an equitable remedy that should only be granted where it is necessary and convenient to do so and where it would aid in resolution of the real issues at the centre of a dispute between parties. Other conditions that should exist before the Court considers granting a declaration have been spelt out by Kapi DCJ in Ok Tedi Mining Ltd v Niugini Insurance Corporation (No 2) [1988-89] PNGLR 425 and by Brown J in Donigi v The State [1991] PNGLR 376 and by the Supreme Court in The State v Central Provincial Government (2009) SC977.
  6. We continue in PNG to have regard to the persuasive authority of the House of Lords in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438. The inherent jurisdiction of the National Court to grant a declaration of the rights and obligations of parties or the legal effect of their actions should only be exercised if the following criteria are satisfied:
  1. I consider that:
  1. All criteria support the granting of the declaration sought by the plaintiffs. It will provide certainty and reassurance to the plaintiffs that they cannot be forced out of their homes without being given reasonable notice to vacate. It will guide the defendants in how to properly exercise their right to order the plaintiffs to vacate the settlements. I will grant a declaration in the terms sought in paragraph 1 of the originating summons.

2 A declaration that the eviction and repatriation exercise commenced on 5 May 2021 has no legal basis and is null and void and of no effect


  1. To decide whether to grant a declaration in those terms, I first must determine whether the exercise that commenced in May 2021 was an eviction exercise or a voluntary repatriation exercise. There is conflicting evidence. The plaintiffs have testified as to various incidents that occurred in May 2021 in which the police issued threats to evict people at short notice and entered some settlements and burned some dwellings. The defendants, through Superintendent Julius Tasion of the Special Services Division, Provincial Police Commander Peter Barkie, Chairman of the Provincial Law and Order Committee Mr Peter Boena, Provincial Administrator Ashan Numa, and the then member for Alotau Open Mr Charles Abel, have produced a substantial body of evidence to support their case that what was planned and what was implemented was a voluntary repatriation exercise. They say it operated smoothly for a month until stayed by the National Court order of 16 June 2021.
  2. I find the defendants’ evidence more persuasive than the plaintiffs. I find that though there were isolated police incursions into some settlements, there is no evidence of any formal or de facto eviction exercise. The authorised operation sanctioned and funded by the provincial government and supported by the local member of Parliament was a voluntary repatriation exercise, conducted in good faith for a legitimate public purpose. It was not unlawful as it was voluntary in nature.
  3. I decline to grant the declaration sought in paragraph 2 of the originating summons.

3 A declaration that the eviction and repatriation exercise is a proscribed act under s 41 of the Constitution


  1. Section 41 (proscribed acts) states:

(1) Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case—


(a) is harsh or oppressive; or

(b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or

(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,


is an unlawful act.


(2) The burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.


(3) Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.


  1. Section 41 proscribes (ie prohibits) and gives protection against seven sorts of acts (Morobe Provincial Government v John Kameku (2012) SC1164, Petrus and Gawi v Telikom PNG Ltd (2008) N3373; Joe Kape Meta v Kumono, Kulunio & The State (2012) N4598). Even if done under a valid law and notwithstanding anything to the contrary in any law, an act is unlawful if it is, in the particular case:

1 harsh; or
2 oppressive; or
3 not warranted by the requirements of the particular circumstances; or
4 disproportionate to the requirements of the particular circumstances; or
5 not warranted by the requirements of the particular case; or
6 disproportionate to the requirements of the particular case; or

  1. otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.
  2. Under s 41(2) the burden of showing that another person has committed an act falling within one of the seven categories of acts proscribed by s 41(1) is on the party alleging it.
  3. I am not persuaded that the plaintiffs have discharged the burden of proving that the manner in which the voluntary repatriation exercise was conducted warrants the acts entailed in it being put into any of those seven categories. It was not a proscribed act.
  4. I decline to grant the declaration sought in paragraph 3 of the originating summons.

4 A declaration that the eviction and repatriation exercise is in breach of s 44 of the Constitution


  1. Section 44 (freedom from arbitrary search and entry) states:

No person shall be subjected to the search of his person or property or to entry of his premises, except to the extent that the exercise of that right is regulated or restricted by a law—


(a) that makes reasonable provision for a search or entry—


(i) under an order made by a court; or

(ii) under a warrant for a search issued by a court or judicial officer on reasonable grounds, supported by oath or affirmation, particularly describing the purpose of the search; or

(iii) that authorizes a public officer or government agent of Papua New Guinea or an officer of a body corporate established by law for a public purpose to enter, where necessary, on the premises of a person in order to inspect those premises or anything in or on them in relation to any rate or tax or in order to carry out work connected with any property that is lawfully in or on those premises and belongs to the Government or any such body corporate; or

(iv) that authorizes the inspection of goods, premises, vehicles, ships or aircraft to ensure compliance with lawful requirements as to the entry of persons or importation of goods into Papua New Guinea or departure of persons or exportation of goods from Papua New Guinea or as to standards of safe construction, public safety, public health, permitted use or similar matters, or to secure compliance with the terms of a licence to engage in manufacture or trade; or

(v) for the purpose of inspecting or taking copies of documents relating to—


(A) the conduct of a business, trade, profession or industry in accordance with a law regulating the conduct of that business, trade, profession or industry; or

(B) the affairs of a company in accordance with a law relating to companies; or


(vi) for the purpose of inspecting goods or inspecting or taking copies of documents, in connexion with the collection, or the enforcement of payment of taxes or under a law prohibiting or restricting the importation of goods into Papua New Guinea or the exportation of goods from Papua New Guinea; or


(b) that complies with Section 38 (general qualifications on qualified rights).


  1. In summary, every person in Papua New Guinea has a right of protection against any arbitrary search or entry of their premises. This extends to all premises, including domestic dwellings and semi-permanent structures serving as homes of people who live in settlements, even if the settlement is labelled as unlawful. If any person, including the police, wish to conduct a search or enter the premises of another person, their action must be authorised by a written law (such as the Search Act) or by the order of a court that is made in compliance with s 44.
  2. There is insufficient evidence on which to base a finding of fact that the voluntary repatriation exercise was conducted in breach of s 44 of the Constitution. There is evidence of isolated police incursion of some settlements during May 2021 but no evidence of widespread abuse. Any of the plaintiffs who are victims of these sorts of human rights abuses are at liberty to commence their own proceedings for enforcement of those rights.
  3. I decline to grant the declaration sought in paragraph 4 of the originating summons.

5 A declaration that the defendants have no power or authority to implement the eviction and repatriation exercise in relation to settlements on customary land


  1. It has been clarified that the operation conducted in May 2021 was a voluntary repatriation exercise, not an eviction exercise. Provided it remains voluntary, in that the plaintiffs and other residents of the settlements are offered financial and logistical assistance in vacating their settlements to facilitate their repatriation to their homes in other parts of the province, the exercise can be conducted lawfully in relation to settlements on customary land.
  2. If the exercise becomes involuntary, and becomes an eviction exercise, different considerations apply. Customary land, by definition, is not government land. I uphold the plaintiffs’ argument that no eviction exercise can take place on customary land without the authority of the customary landowners.
  3. is in the interests of justice to grant a declaration partially in the terms sought in paragraph 5 of the originating summons.

6 A declaration that the defendants have no power or authority to evict or repatriate plaintiffs residing in Daga, Hihiyaola, Kitava, Musa, Niugini, Siona or Suau settlements, as those settlements are on customary land


  1. I cannot make this declaration as there is insufficient evidence on which to base a finding of fact that the seven settlements referred to are situated on customary land. The National Court has no jurisdiction to inquire into the question of whether an area of land is customary land (The State v Lohia Sisia [1987] PNGLR 102). It can only deal with disputes concerning customary land if a Land Court or Lands Titles Commission has determined the question (Koroma v Mineral Resources Authority (2009) N3926).
  2. I decline to grant the declaration sought in paragraph 6 of the originating summons.

7 A stay of the eviction and repatriation exercise pending determination of the substantive proceedings


  1. This is an application for interim relief that has been inappropriately included in the originating summons, which is the appropriate vehicle for seeking substantive relief. Applications for interim relief ought to be made by notice of motion, which is what happened in June 2021 and let to the injunction granted on 16 June 2021.
  2. I decline to grant the declaration sought in paragraph 7 of the originating summons.

8 An interim injunction restraining the defendants from taking any step to evict or repatriate the plaintiffs


  1. I decline to grant this interim remedy for the same reasons for declining to grant the relief sought in paragraph 7 of the originating summons.

9 Referral of the proceedings to mediation


  1. This option has not been pursued. I decline to grant the declaration sought in paragraph 9 of the originating summons.

10 Costs


  1. The question of costs will be dealt with at the end of this judgment.

11 Abridgment of time


  1. This is unnecessary.

12 Such other orders the court deems fit


  1. There is sufficient evidence that the voluntary repatriation exercise, although conducted in good faith, has led to genuine fear, apprehension of harm and uncertainty in the minds of the plaintiffs. It is appropriate in those circumstances to invoke the inherent power of the court in s 155(4) of the Constitution, which states:

Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.


  1. I consider it necessary to do justice in the circumstances of this particular case to order that there be no eviction of any of the plaintiffs from any of the 26 settlements without the leave of the National Court, applied for by originating summons in separate proceedings. This will mean that the defendants will be able, if they deem it necessary, to conduct an eviction exercise in relation to any of the settlements they consider to be trouble-spots, but they will have to conduct the exercise within a framework authorised by the National Court. This will ensure that the exercise is conducted in an orderly and peaceful manner and that the plaintiffs and others affected enjoy the full protection of the law and all other human rights guaranteed by the Constitution.

CONCLUSION


  1. The plaintiffs have partially succeeded, in that the relief sought in paragraphs 1, 5 and 12 of the originating summons has been granted. Other relief has been refused.
  2. As to the involvement of the eighth defendant, PNG Lands Ltd, in the proceedings, I can appreciate why it applied to be joined. There is ample evidence that it is the registered proprietor of State Leases over two areas of government land, portions 587 and 714, on which five of the 26 settlements are situated (Duau, Goodenough, Mobil IPL 1, Mobil IPL2 and Rabaraba). However, it is largely unaffected by the declarations and orders and there was no application by it for any relief. It is not necessary to make any orders specifically in relation to those portions or settlements.
  3. It is appropriate in these circumstances that the parties bear their own costs.

ORDER


  1. The relief sought in paragraph 1 of the originating summons is granted and accordingly it is declared that the plaintiffs are entitled under s 37(1) of the Constitution to the full protection of the law regarding their occupation of land the site of the settlements in and around Alotau, Milne Bay Province prescribed in the Schedule, and shall be given reasonable notice of any intention to forcibly evict them from the land.
  2. The relief sought in paragraph 5 of the originating summons is partially granted and accordingly it is declared that there shall be no eviction exercise conducted in relation to any of the 26 settlements named in the Schedule that are situated on customary land without the authority of the customary landowners, and without the leave of the National Court.
  3. The relief sought in paragraph 12 of the originating summons is granted and accordingly it is ordered pursuant to s 155(4) of the Constitution, and to enforce the human rights of the plaintiffs declared in order 1, that none of the defendants and no other person shall evict the plaintiffs or any other person in occupation of any settlement named in the Schedule without the leave of the National Court; and for the purpose of obtaining such leave, an application shall be made by originating summons in separate proceedings.
  4. The relief sought in other paragraphs of the originating summons is refused.
  5. The interim order of 16 June 2021 is dissolved.
  6. Subject to specific costs orders made in the course of the proceedings, the parties shall bear their own costs of the proceedings.

SCHEDULE


Settlements referred to in this order are those known as:


Daga

Denewa

Duau

Gawa

Goodenough

Harbours

Hideaway

Hihiyaola

Kewa

Kitava

Kuboma

Masurina

Mobil/IPL 1

Mobil/IPL 2

Morima KB

Musa

NBC

Niugini

Powerhouse/AOG

PTB

Rabaraba

Red Hill

Siona 1 & 2

Suau

Water Tank Goilanai

Yabwau


__________________________________________________________________
Baniyamai Lawyers: Lawyers for the Plaintiffs
Solicitor-General: Lawyer for the First, Third, Fourth, Fifth, Sixth & Seventh Defendants
Namani & Associates: Lawyers for the Second Defendant
Simpson Lawyers: Lawyers for the Eight Defendant


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