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Wai v PNG Ports Corporation Ltd [2025] PGNC 10; N11133 (20 January 2025)

N11133

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]


WS NO. 164 OF OF 2019


BETWEEN:
PETER WAI, on His Own Behalf and on behalf of 301 others whose names are herewith attached on a separate List.
Plaintiffs


AND
PNG PORTS CORPORATION Limited
First Defendant


AND
DAVID KUMAYONG, in His capacity as a Task Force Commander of Lae Central Police Station.
Second Defendant


AND
GARI BAKI, in His Capacity as a Commissioner of Royal Police Constabulary of PNG
Third Defendant


AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant


LAE: DOWA J
30 SEPTEMBER, 12 OCTOBER 2022
20 JANUARY 2025


CIVIL JURISDICTION- plaintiffs seek damages for unlawful eviction by members of the police force-whether notice to quit issued by Provincial Administrator under section 145 of the Land Act is lawful-whether land subject of state lease issued to a state enterprise is government land- Whether the plaintiffs were given reasonable notice to vacate- Plaintiffs failed to prove unlawful eviction -proceeding dismissed


CIVIL PRACTICE AND PROCEDURE-Pleadings-vicarious liability- a person bringing an action against the State must specifically plead that the tortfeasor committed the tort whilst performing or acting in the course of his duties as required by Section 1(1) and (4) of the Wrongs (Miscellaneous Provisions) Act.


Cases cited:
Amos Bai v Morobe Provincial Government [1992] PNGLR 150
Evangelical Lutheran Church of PNG v Jack David (2022) N10011
Jure Investment v Conlife (2018) N7286
Kuima Security Services Ltd v Philip (2024) N11048
Kisa v Talok (2017) SC1650
Laka v Nui (2013) SC1223
Lakoro & 248 others v Project 50 Ltd & Others (2019) N8224
Png Ready Mixed Concrete Pty Ltd v PNG & Ors [1981] PNGLR 396
Paga Hill Development Company v Daure Kisu (2014) N5683
Pinda v Inguba (2012) SC1181
Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694
Tirima v Angau Memorial Hospital Board (2005) N2779
Tom Amaiu v Thomas Yalbees (2020) SC2046
Yooken Paklin v The State (2001) N2212


Counsel
W Kume for the plaintiffs
J Poya for the first defendant
S Maliaki for the second, third and fourth defendants


DECISION


  1. DOWA J: This is a decision on liability only.
  2. The Plaintiffs, in a class action, claim damages against the Defendants for loss of residential homes, trees, household items and livestock as a result of an alleged unlawful raid conducted on the property described as Portion 508, Lae Morobe Province, on 12th September 2018.

Facts


  1. The Principal Plaintiff, Peter Wai, and 301 others (Plaintiffs) are settlers of Malaita Tais, Portion 508, Lae, Morobe Province, commonly known as the Lae Tidal Basin.
  2. The First Defendant, PNG Ports Corporation Limited (PPCL), is a State-owned enterprise, duly registered under the Companies Act. PNG Ports Corporation Ltd is the registered state lease holder of Portion 508, Lae, Morobe Province having been granted the state lease since November 1981. Portion 508 is located along the main wharf towards the Papua Compound and the Salamanda area of Lae city. The Plaintiffs are settlers living, primarily along the main wharf to the Salamanda area. This area is known as phase (2) of the Lae Tidal Basin project. The Plaintiffs claim they were allowed to live and develop the once swampy land by the customary landowners for many years and therefore have acquired equitable rights and ownership over the land.
  3. The Plaintiffs were issued Notice to Quit Portion 508, pursuant to Section 145 of the Land Act by the Morobe Provincial Government under the hand of the Morobe Provincial Administrator. However, the Plaintiffs failed to vacate the said Portion 508 within the time prescribed in the Notice.
  4. On the 12th of September 2018, the defendants organized and conducted an ejectment exercise on Portion 508 removing all settlers and occupants on the land.
  5. The Plaintiffs allege that the ejectment was illegal and unlawful, harsh and oppressive. The Plaintiffs allege they were not served Notice to Quit, that they were not given sufficient notice, that the eviction exercise was carried out without a lawful Court order and that their equitable interests acquired in the land as longtime occupants were not considered.
  6. As a result, the Plaintiffs instituted the current proceedings claiming damages for illegal trespass, burning down of 302 houses, destruction caused to trees and vegetation and food gardens, livestock and other personal items; and for breaches of various Constitutional rights

Defence


  1. The Defendants collectively deny liability, pleading that the eviction exercise was lawful pursuant to Section 145 of the Land Act, and further that the pleadings fall short of attributing liability to the Defendants, especially vicarious liability against the first and fourth Defendants.

Trial on Liability


  1. On 20th September 2022, the trial proceeded on the issue of liability only by agreement of all the parties. Selected affidavits of the respective parties were tendered by consent to determine the issue of liability. The parties agreed that the finding of liability based on the evidence of the selected Plaintiffs would be binding on the rest of the Plaintiffs because the factual evidence is identical and the same on the issue of liability. The matter was then adjourned to 12th October 2022 for submissions. The parties presented their submissions both orally and in writing and the matter was then reserved for decision which I now deliver.
  2. During submissions, the Defendants raised the issue of sufficiency of pleadings on vicarious liability against the first and fourth Defendants.

LEGAL ISSUES


  1. The main issues for determination are:

EVIDENCE- The Plaintiffs evidence


  1. The Plaintiffs rely on the following Affidavits:
  2. This is the summary of the Plaintiffs’ evidence led by Peter Wai, the lead Plaintiff and community leader. Just before mid-day of 12th September 2018, armed police personnel from Lae Central Police Station, in six (6) motor vehicles entered their premises at Portion 508, Malaita Tais, Salamanda, Lae. The policemen were led by David Kumayong, the Task Force Commander of Lae Central Police Station. They were accompanied by a representative from PNG Ports Corporation. On arrival the policemen fired warning shots into the air and told people not to move. The lead Plaintiff and others were then informed that the police were there to evict the Plaintiffs from Portion 508. Mr. Wai and other Plaintiffs pleaded with the Commander to stop the eviction and allow them to remove their properties. The police did not take heed of their requests. They proceeded with the eviction. They burnt down houses and trade stores, cut down trees, killed domestic animals, and destroyed food gardens belonging to the 302 Plaintiff’s named in these proceedings.
  3. The Plaintiffs depose they have been on the property for more than 60 years. They were not aware of the land being acquired by the State and a state lease issued to PNG Ports Corporation. They were not consulted on the acquisition of the customary land by the State. They were not informed of the ownership of the subject land by PNG Ports Corporation. They were allowed to reside without objection and were led to believe that it was customary land, and they continued to live and put up permanent structures.
  4. They depose further that the eviction was sudden and surprised them.

They were not warned of the eviction exercise. They were not served Notice to Quit. They were not served any summary ejectment orders nor warrants for eviction. They were not warned that police would carry out eviction that day. They were not given time to remove their personal belongings. The Plaintiffs depose, that the actions of the defendants were harsh and oppressive.


The evidence of the defendant, PNG Ports Corporation Ltd


  1. The First Defendant, PNG Ports Corporation, relies on the following Affidavits:
    1. Affidavit in Support of William Luke sworn on 7th January 2020 and filed on 8th January 2020 (“Exhibit 1 D1”).
    2. Affidavit of Harold Viyogo sworn on 21st October 2020 and filed on 29th July 2020 (“Exhibit 1 D2”).
    1. Affidavit of Harold Viyogo sworn on 29th July 2021 and filed on 21st October 2020 (“Exhibit 1 D3”).
    1. Affidavit of Samuel Lepani sworn on 26th November 2021 and filed on 29th November 2021 (“Exhibit 1 D4”).
    2. Affidavit of Michael Konduagle sworn on 08th September 2022 and filed on 13th September 2022 (“Exhibit 1 D5”).
  2. This is the summary of their evidence. PNG Ports Corporation Ltd is the proprietor of the land described as Portion 508, Lae, Morobe Province, State Lease Volume 14 Folio 80. The State (Industrial) Lease was issued to its predecessor, PNG Harbours Board, in November 1981.Portion 508 is a tidal basin covering an area of 452 hectares. The National Government developed part of the land into a world class wharf with overseas funding in 2014. Nearing completion of the first phase of the project, the Government found it necessary to further develop the rest of Portion 508.
  3. On 9th July 2014 Notice to Quit under Section 145 of the Land Act was served on the settlers who were occupying the land. They were given three months to vacate the premises. At the time of the Notice, there were about 98 houses being identified and notices served.
  4. The settlers, including the Plaintiffs in this proceeding, filed proceedings in the District Court in DC No 375 of 2014-Peter Wai and 675 others v Peter Kougl and PNG Port Services Ltd seeking stay of the intended eviction and for compensation. The District Court granted interim restraining orders and directed parties to discuss settlement.
  5. On 9th August 2014, the Plaintiffs presented a compensation claim of K 21million.On 18th August 2014, the PNG Ports corporation officials met with the Plaintiffs at the Lae Melanesian Hotel to resolve the issues. During the meeting PNG Ports offered repatriation packages. The offer for repatriation packages was refused by the Plaintiffs. They insisted on their demand for compensation and resettlement. The discussions reached a stalemate and the matter unresolved. The District Court proceedings were eventually dismissed on the 8th of March 2016.
  6. On 9th July 2018, Notice to Quit under Section 145 of the Lands Act was again served on the Plaintiffs. The Notice to Quit was issued by the Morobe Provincial Administrator. The Notice was served on the Plaintiffs by the officers of the Morobe Provincial Administration and the PNG Ports Corporation staff members. All the settlers were each served a copy of the Notice to Quit.
  7. After the service of the Notice to Quit, one Martin Messach and 23 others disputed the Notice to Quit served on them. They instituted proceedings in the District Court in proceedings DC 503 of 2018.The Complainants argued that Mr. Messach and the 23 others who were served Notice to Quit were residing on Section 39 Papuan Compound and not within the boundary of Portion 508. The parties resolved the matter through a boundary identification exercise at the direction of the District Court. It was eventually confirmed that the Complainants led by Mr. Messach were indeed residing outside the boundary of Portion 508 and the Notice to Quit did not apply to them. The District Court proceedings were finally withdrawn.
  8. Mr. Viyogo deposes that Mr. Kume, the lawyer for the current Plaintiffs, was acting for Mr. Messach in the District Court proceedings. Mr. Kume, who was apparently representing the Plaintiffs interest as well in the land at that time took issue with the title held by PNG Ports Corporation. The Learned Magistrate suggested to the Plaintiff’s lawyers that if there is a bona fide dispute as to title held by PNG Ports Corporation, they take it up with the National Court.
  9. After the withdrawal of the proceedings by Martin Messach, the Defendants were at liberty to carry out the eviction of the settlers as per the Notice to Quit. The eviction was organized by the Morobe Provincial Administration at the request of PNG Ports Corporation. The Morobe Provincial Administration sought assistance from the Police Force of Lae Central Police Station to carry out the eviction exercise.
  10. On 12th September 2018, the eviction of the settlers including the Plaintiffs took place. The eviction exercise was halted midway after some political intervention. Portion 508 is government land, and the Defendants were entitled to forcefully remove the Plaintiffs after serving Notice to Quit under Section 145 of the Land Act. The Defendants deny the Plaintiff’s allegation that it was sudden and done without warning.

The evidence of the State Defendants


  1. The State Defendants rely on the evidence presented in the following Affidavits:
  2. This is the summary of their evidence. On the morning of 12th September 2018 at about 10.00 am, the members of the Lae Central Police Station were requested by Morobe Provincial Administration to carry out an eviction on illegal settlers living on Portion 508, a portion of land at the Lae Tidal Basin. The eviction exercise was carried out under the immediate supervision of Inspecter David Kumayong in his capacity as Officer in Charge of the Sector Response Unit (SRU). The Policemen numbering up to 20 from SRU and Mobile Squad 13 were engaged. The instructions came from the Morobe Provincial Administration. The Deputy Provincial Administrator for Morobe Provincial Administration accompanied the police personnel to the site. Before the eviction was conducted, the policemen were shown court documents, notice to quit and other documents, letters from the Morobe Provincial Administration. They also received approval from the Metropolitan Command of the Morobe Police Command to proceed with the eviction.
  3. On arrival the police personnel and other staff of the Morobe Provincial Administration proceeded to pull down makeshift bush material buildings and cut down the trees to clear the area for the Tidal Basin project undertaken by PNG Ports Corporation. The occupants of the makeshift houses packed all their belongings and left the houses before they were pulled down, and no force was used.
  4. After a while around 12.30pm, the eviction exercise was aborted at the direction of their superior officers after receiving a direction from the Member for Lae Open, Hon John Rosso. The police personnel and other staff involved left the site and returned to their other duties.

Submissions of the Parties


  1. Mr. Kume, counsel for the Plaintiffs, submits that the eviction was unlawful, and the Defendants are liable because:
    1. The eviction was done without a court order or warrant issued under Section 6 of the Summary Ejectment Act.
    2. The eviction was carried out without the Plaintiff first being served Notice to Quit under Section 145 of the Land Act.
    3. The eviction was sudden, without reasonable notice, harsh and oppressive.
    4. The members of the Police Force were negligent and used brutal force.
    5. The Plaintiffs acquired rights to occupy the land both customarily through longevity and by acquiescence of those who had legal interest, like PNG Ports Corporation.
    6. The State and PNG Ports Corporation are vicariously liable for the actions of the Policemen
  2. The Defendants submit that they are not liable for the following reasons:
    1. The Plaintiffs failed to properly plead vicarious liability against the State and PNG Ports Corporation as required by Section 1 (1) and (4) of the Wrongs (Miscellaneous Provisions) Act.
    2. The eviction was lawfully conducted after Notice to Quit was duly served on the Plaintiffs as required by Section 145 of the Land Act.
    3. An eviction order under Section 6 of the Summary Ejectment Act is not applicable for the purposes of evictions under Section 145 of the Land Act involving State land.
    4. The Plaintiffs were given more than reasonable notice before the eviction was carried out.
  1. The eviction was orderly conducted according to instructions.

Burden of Proof


  1. The Plaintiffs have the onus of pleading a proper cause of action and proving same with credible evidence on the balance of probabilities. Refer: Yooken Paklin v The State (2001) N2212

Consideration of the Issues


  1. Whether the pleadings are sufficient to attach vicarious liability against PNG Ports Corporation and the State
  1. The Defendants submit that the Plaintiffs did not properly plead a cause of action against the Defendants. In particular, the Plaintiffs failed to provide particulars of negligence and plead facts showing vicarious liability under the Wrongs (Miscellaneous Provisions) Act.
  2. Generally, the law on pleadings is settled. Where there is no pleading or where the pleadings are vague or lacking clarity, the Plaintiff is not entitled to the relief sought. Refer: Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694. The Plaintiff is only entitled to the relief he clearly pleads in the statement of claim and not otherwise.
  3. The Plaintiffs claim against PNG Ports Corporation and the State is principally based on vicarious liability. Vicarious liability is a common law principle by which one legal person is held liable for the acts or omissions of another person or group of persons over whom the first person has control or responsibility. Refer Tirima v Angau Memorial Hospital Board (2005) N2779 and Kuima Security Services Ltd v Philip (2024) N11048.
  4. In this jurisdiction, the Wrongs (Miscellaneous Provisions) Act makes provision for vicarious liability in respect of claims against the State and State entities for torts committed by its servants. Section 1 subsections (1) and (4) of the Act are relevant and they read:

“1 GENERAL LIABILITY OF THE STATE IN TORT.

(1) Subject to this Division, the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject–

(a) in respect of torts committed by its servants and agents; and

(b) in respect of any breach of the duties that a person owes to his servants or agents under the underlying law by reason of being their employer; and

(c) in respect of any breach of the duties attaching under the underlying law to the ownership, occupation, possession or control of property.

..........

(4) Where functions are conferred or imposed on an officer of the State as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government.”


  1. Generally, the State is subject to all liabilities in respect of torts committed by its employees and servants pursuant to Section 1 (1) and (4) of the Act. A person bringing an action against the State based on vicarious liability must specifically plead that the tortfeasor committed the tort whilst performing or acting in the course of his duties as required by Section 1(1) and (4) of the Wrongs (Miscellaneous Provisions) Act. The law is settled by the Supreme Court in the cases, Pinda v Inguba (2012) SC 1181 and Kisa v Talok (2017) SC1650 and others.
  2. In the case, Pinda v Inguba (supra) the Supreme Court stated the law in no uncertain terms in its head note:

“1. In a case of illegal police raid, for the second respondent (the State) to be held vicariously liable in damages for the negligent acts or omissions of policemen, the appellant must plead that the policemen were acting in the course and within the scope of their employment or while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law when they conducted the raid: section 1(1) & (4) of the Wrongs (Miscellaneous Provisions) Act, Ch 297.”


  1. In the present case, I have perused the Further Amended Writ of Summons and the statement of claim and note that the Plaintiffs failed to specifically plead the relevant statement of law that the policemen were acting in the course and within the scope of their employment or while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law under the principles of vicariously liability. The pleadings did not meet the requirements of Section 1(1) & (4) of the Wrongs (Miscellaneous Provisions) Act, Ch 297 to attach vicarious liability against PNG Ports Corporation and the State for the alleged tortious acts of the policemen.
  2. Furthermore, the Plaintiffs failed to name the servants, employees and agents of the PNG Ports Corporation Ltd for whose benefit the eviction was carried out. The Plaintiffs failed to name the Morobe Provincial Government who issued the Section 145 Notice. The Plaintiffs knew or ought to have known as of July 2014 that the eviction exercise was a joint exercise by Morobe Provincial Government and the PNG Ports Corporation Ltd and yet chose not to plead the relevant facts and law as required by Section 1 of the Wrongs (Miscellaneous Provisions) Act, the National Court Rules and the case law in this jurisdiction.
  3. For the foregoing reasons, the first and fourth Defendants can not be held vicariously liable for any tortious actions or omissions of the policemen in the absence of pleadings connecting them. I find the first Defendant, PNG Ports Corporation Ltd and the fourth Defendant, the State, are not vicariously liable for the actions of the policemen.
  4. I will now proceed to the substantive issue as the whether the ejectment exercise was unlawful.
    1. Whether the eviction exercise conducted by the Defendants on the 12th of September 2018 is unlawful?
  5. The Plaintiffs allege that the eviction exercise was unlawful because; they were not served the Notice to Quit relied on by the police, that there was no Court orders issued under Section 6 of the Summary Ejectment Act and that they were not given reasonable time to vacate.
  6. There is no dispute that on 12 September 2018, members of the PNG Royal Constabulary attached to the Lae Central Police Station led by Inspector David Kumayong entered the premises of the Plaintiffs at Portion 508, Lae Tidal Basin and conducted the eviction. The police received their instructions from the Morobe Provincial Government Administration in consultation with the PNG Ports Corporation. They were equipped with Court documents and Notice to Quit issued by the Morobe Provincial Administrator dated 9th July 2018 under Section 145 of the Land Act. The evidence shows the policemen executed the eviction in accordance with the Notice to Quit. They did not have any order for eviction issued under the Summary Ejectment Act.
  7. The immediate question that arises is whether the Notice to Quit issued under Section 145 of the Land Act dated 9th July 2018 legitimises the actions of the police. Section 145 reads:


“145 UNLAWFUL OCCUPATION OF GOVERNMENT LAND AND CUSTOMARY LAND.

(1) A person who, without authority, enters, occupies or uses Government land or customary land, is guilty of an offence.

Penalty: For a first offence–a fine not exceeding K500.00 or imprisonment for a term not exceeding 6 months.

For a second or subsequent offence–a fine not exceeding K1,000.00 or imprisonment for a term not exceeding 12 months.

(2) It is not a defence that the entry, use or occupation of the land was under a claim of right.

(3) A person who contravenes Subsection (1) and refuses to leave after receiving notice to quit from the Departmental Head or the Provincial Administrator of the province in which the land is located may be forcibly ejected by a member of the Police Force.”


  1. Section 145 of the Land Act is clear. A person who enters and occupies Government or customary land without authority is, apart from criminal penalties, liable to be forcibly ejected by a member of the Police Force. The elements to be satisfied are:
    1. The land is either government land or customary land
    2. The entry, occupation or use of the land is unauthorised
    3. Notice to quit must be issued by the Departmental Head or the Provincial Administrator
    4. Notice to quit must be served on the unauthorised occupant.

Is Portion 508 Government land


  1. Portion 508, Lae, is a State Lease, Volume 14 Folio 80, granted for Industrial purpose. It is registered and owned by PNG Ports Corporation Ltd. The State Lease was granted to PNG Harbours Board, the predecessor of PNG Ports Corporation, in November 1981. Portion 508 is therefore not customary land. Is Portion 508 then Government land. Government land is defined by Section 1 of the Land Act to mean land that is not customary land and land that is not the subject of a State Lease. Portion 508 is a State Lease for special industrial purpose. It was once a government land specifically allocated to PNG Harbours Board for development for wharfs and industrial purpose. PNG Ports Corporation Ltd, once a state entity, and now a state enterprise, is responsible for all ports in Papua New Guinea. The Lae Tidal Basin is a very important and strategic wharf for Papua New Guinea and that is why the Government allocated a massive 452 hectares of land to PNG Ports Corporation Ltd to develop a world class wharf. Alienated land is scarce in Papua New Guinea and some of the line Departments and Government institutions have lost and may continue to lose their government land through unscrupulous land deals if not protected. So, where a government department or a Provincial or Local Level Government decides to convert a government land into a State Lease to secure its infrastructure and improvements, it ought to be applauded and encouraged. A State Lease granted to a Department or a State institution or a State enterprise should not be treated any less or differently from a government land for the purposes and application of Section 145 of the Land Act. I form the view that Portion 508 remains state land through its entity, PNG Ports Corporation Ltd, for the purposes of Section 145 of the Land Act.

Are the Plaintiffs unauthorized occupants


  1. Are the Plaintiffs unauthorised occupants? The Plaintiffs assert that they have acquired the customary land rights through continuous occupation for the last 60 years and through acquiescence by PNG Ports Corporation Ltd. The Plaintiffs have even questioned the title held by PNG Ports. They have, however, not disputed the title in any substantive proceeding of their own. Until it is set aside, PNG Ports Corporation is now the registered proprietor of Portion 508 and has indefeasible title pursuant to Sections 32 and 33 of the Land Registration Act.
  2. The Plaintiffs are not the original landowners. The original customary landowners are the Ahi people of Labu, Lae in the Morobe Province. The Plaintiffs on the other hand are settlers from the rest of Papua New Guinea, some of whom have been on the land for long periods. The land has been owned by PNG Ports Corporation for more than 43 years. Part of the land has been developed into a world class wharf for PNG and its people. There is no evidence that the Plaintiffs were expressly authorised by PNG Ports to continue occupation. On the contrary, the evidence shows PNG Ports has over the years protested the illegal occupation by the Plaintiffs. Accordingly, I find the Plaintiffs are unauthorised occupants of Portion 508.

Was the Notice to Quit lawfully issued


  1. The next requirement is that the Notice to Quit under Section 145 must be issued by the Departmental Head or the Provincial Administrator on government land only. It has been held in the case Roy Lakoro & 248 others v Project 50 Ltd & Others (2019) N8224 that an eviction notice issued under Section 145 by the Provincial Administrator on behalf of the Catholic Mission Kavieng Property Trust was null and void. The Court reasoned that Section 145 Notices apply to state land only and not on state leases privately owned.
  2. The facts and circumstances of this case is distinguishable to the case of Roy Lakoro & 248 others v Project 50 Ltd & Others (2019) N8224.
  3. In the present case, the Notice to Quit was issued by the Morobe Provincial Administrator at the request of the PNG Ports Corporation. PNG Ports Corporation Ltd is neither a Government Department nor a Provincial Government. It is a company incorporated under the Companies Act. It is however a state enterprise owned by the State. It conveniently sought the assistance of the Morobe Provincial Administration to issue Section 145 Notice.
  4. PNG Ports Corporation had the option to seek orders for summary ejectment under Section 6 of the Summary Ejectment Act and achieve the same outcome. However, it chose the procedure under Section 145 of the Land Act with the assistance of the Morobe Provincial Administration. There is nothing irregular in the options used PNG Ports Corporation and the action taken by the Morobe Provincial Administrator in issuing Section 145 Notice. This is especially so when the land is in the province, owned by a major State enterprise and is earmarked for major development that will bring in socio-economic benefits to the Province, the Nation and its people.
  5. I find nothing irregular about the Notice to Quit dated 9th July 2018 issued by the Morobe Provincial Administrator. Rather it is valid and lawful as allowed by Section 145.

Were the Plaintiffs served the Notice to Quit


  1. The next question is whether the Plaintiffs were served Notice to Quit under Section 145 of the Land Act. The Plaintiffs allege that they were not served Notice to Quit before they were ejected. They were taken by surprise on the fateful morning of 12th September 2018.
  2. Contrary to the Plaintiffs’ contention, there is evidence given by Michael Konduagle that the Plaintiffs were each served Notice to Quit on 9th July 2018. Mr. Konduagle is the Lands Manager in the employ of PNG Ports Corporation. He was in the company of Mr. Lucas Kisu and other officers from the Morobe Provincial Administration who drove throughout the settlement and served Notice to Quit on all the settlers. They gave them 21 days to give up vacant possessions.
  3. I accept the evidence of Mr. Konduagle that the Plaintiffs were each served notice to quit on the 9th of July 2018. I note from the evidence that on being served Notice to Quit, some of the settlers led by one Martin Messach reacted. They disputed the Notice on the basis that they were residing outside the boundary of Portion 508 which was subsequently proved correct, and they were excluded from the eviction exercise.
  4. I also note the Defendants rely on an admission from Mr. Kume that the Plaintiffs did receive Notice to Quit. This evidence is from Harold Viygo. Mr. Viyogo is a lawyer and is employed by PNG Ports as its Litigation Manager. He was counsel for PNG Ports during the hearing of the case between Martin Messach and PNG Ports Corporation. He deposes that Mr. Kume, who appeared as counsel for the complainants, confirmed to him (Viyogo) that his clients, the current Plaintiffs, did receive the Notice to Quit but were questioning the legality of the title held by the PNG Ports Corporation. Mr Kume proceeded to dispute the title held by PNG Ports Corporation in Court, but the Learned Magistrate directed Mr. Kume to raise the issues challenging the title in the National Court.
  5. The evidence of Mr. Konduagle and Mr. Viyogo remains unchallenged, and I accept them as truthful witnesses that the Notice to Quit was served on the Plaintiffs. There is overwhelming evidence that Notice to Quit was served on all the Plaintiffs more than two months before they were evicted. On the other hand, I do not accept the evidence of Peter Wai and other deponents that they were not served Notice to Quit. Their evidence is unreliable.

Were the Plaintiffs given sufficient Notice before eviction


  1. The Plaintiffs allege they were not given sufficient notice and time to vacate. They allege further that they not given time to remove their personal belongings. The Defendants on the other hand submit the Plaintiffs were given more than sufficient time to vacate. They submit they were given time to remove their personal items before the houses were pulled down and destroyed.
  2. There is no dispute that some of the Plaintiffs are long time residents, spanning over 40 years. Portion 508 has been their home. This is where they lived their lives and raised their children and conduct their daily activities. Reasonable notice and time must be given for them to vacate.
  3. The law on this issue is settled. Settlers or squatters who have occupied land over long period of time, without authority but also without objection acquire limited equitable interest in the land and are entitled to be given reasonable notice by the owner before they vacate. Tom Amaiu v Thomas Yalbees (2020) SC2046,Amos Bai v Morobe Provincial Government (1992) PNGLR 150, Png Ready Mixed Concrete Pty Ltd v PNG & Ors [1981] PNGLR 396 Jure Investment v Conlife (2018) N7286, Paga Hill Development Company v Daure Kisu (2014) N5683 and Laka v Nui (2013) SC1223, Evangelical Lutheran Church of PNG v Jack David (2022) N10011
  4. The period of notice varies, ranging from two weeks to four months depending on the circumstances of each case. In the present case, Notice was served on the Plaintiffs on 9th July 2018 to vacate the premises within 21 days. The Plaintiffs did not take any action but allowed time to lapse. The ejectment took place on 12th September 2018, more than two months later. Is two months unreasonable. In the context of other proceedings and actions of the parties preceding the ejectment, I am of the view that the period is not unreasonable. This is based on the strength of evidence presented by PNG Ports Corporation which remains firm and unshakable.
  5. Prior to the 2018 Notice, the Plaintiffs were first served Notice to Quit under Section 145 of the Land Act on 9th July 2014. The July 2014 Notice was served to all the Plaintiffs. They were given three months to vacate the premises. The Plaintiffs, led by Peter Wai, filed District Court proceedings in DC No 375 of 2014-Peter Wai and 675 others v Peter Kougl and PNG Port Services Ltd seeking stay of the intended eviction and for compensation. The District Court granted interim restraining orders and directed parties to discuss settlement.
  6. Between 9th and 18th August 2014, the Plaintiffs and PNG Ports Corporation discussed settlement. PNG Ports offered reasonable repatriation packages which was refused by the Plaintiffs insisting that they be paid around K40,000 per family. The discussions reached a stalemate and the matter unresolved. The District Court proceedings were eventually dismissed on the 8th of March 2016.
  7. At least by July 2014, the Plaintiffs were aware that PNG Ports is the proprietor of the land they were occupying. They were served Notice to Quit which spelt out in no uncertain terms that if they fail to vacate within three (3) months, they would be forcibly ejected.
  8. The Plaintiffs challenged the Notice to Quit in the District Court in proceedings, DC No 375/2014.The District Court restrained the forced eviction for some time but the proceeding was eventually dismissed in March 2016 and that nothing would hinder the forced eviction.
  9. Come July 2018, four (4) years later, the Plaintiffs were still on the property. The Plaintiffs were then served a second Notice to Quit. They were given 21 days to vacate. They failed to give up possession. Two months later, they were forcibly ejected by the Police Force. The Plaintiffs knew or ought to have known that the Police Force would carry out the eviction by force as threatened in the Notice to Quit. Either they did not believe it or that they just simply defied, hoping nothing would happen. Now that the ejectment did take place, they can not blame anyone except themselves. They had more than reasonable notice and time to quit the premises. I also accept the evidence of the policemen that the Plaintiffs were given time to remove their personal belongings before the ejectment.
  10. For the foregoing reasons, I am not satisfied that the Plaintiffs were not given reasonable notice and time to vacate

Were the actions of the Police harsh and oppressive


  1. The Plaintiffs allege that the actions of the members of the Police Force were harsh and oppressive and amounted to breach of the Plaintiffs’ Constitutional rights. The Plaintiffs claim the policemen were brutal and caused massive destruction, burning down 302 buildings, felling down trees and killing domestic animals. The evidence shows there were about 20 policemen, and the eviction lasted a short time and was aborted after the Member for Lae Open directed them to stop the exercise.
  2. It is the evidence of the police that they were carrying out lawful instructions of the Morobe Provincial Administration and the PNG Ports Corporation as directed in the Notice to Quit. Notice under Section 145 of the Land Act is clear. The police were authorised to forcibly eject the Plaintiffs who were unauthorised occupants on the Defendants land. They were given sufficient time to quit the premises but have defied. Force was necessary for their removal as allowed by law. The evidence shows, the Plaintiffs were given time to remove their personal items before the houses were pulled down. The houses were pulled down and trees felled as part of the ejectment exercise. There is no evidence of inhuman treatment or physical assault inflicted on the Plaintiffs.
  3. As held in the case of Amos Bai v Morobe Provincial Government (1992) PNGLR 150 no claim for breach of Constitutional rights lies when loss and inconvenience is caused to a person during or because of the execution of ejectment exercise with notice issued under Section 145 of the Land Act.
  4. I am not satisfied that the actions of the policemen were harsh and oppressive. I do not find the actions of the police personnel amounted to a breach of the Plaintiff’s Constitutional rights.

Conclusion


  1. This is the conclusion of my findings:
    1. On the Pleadings, the Plaintiffs have failed to plead vicarious liability against the first and fourth Defendants, and thus, they are not liable.
    2. On the substantive claim, the Plaintiffs failed to prove that the forceful eviction conducted on 12th September 2018 was unlawful. On the contrary, the Notice to Quit Portion 508 was lawfully issued by the Morobe Provincial Administrator who had the powers under Section 145 of the Land Act. The land, Portion 508 was State land occupied by the Plaintiffs who were unauthorised occupants, and the eviction conducted under Section 145 was lawful and necessary to recover State land.
    1. The eviction was carried out orderly in compliance with the requirements under Section 145 of the Land Act.
  2. In the end, I conclude that the Plaintiffs have not discharged the burden of proof on the balance of probabilities that the forceful eviction of the Plaintiffs by the police personnel was unlawful. I find the Defendants are not liable. I will therefore dismiss the Plaintiffs claim with costs.

ORDERS


77. The Court orders that:

  1. The Plaintiffs proceeding is dismissed in its entirety.
  2. The Plaintiffs shall pay the cost of the proceedings to be taxed, if not agreed.
  3. Time be abridged.

_______________________________________________________________
Lawyers for the plaintiffs: George Kaore Lawyers
Lawyers for the first defendant: Poya Legal Services
Lawyer for the second, third and fourth defendants: Solicitor General

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