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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS 395 OF 2024 (IECMS)
BETWEEN
DICKSON IKIPE for himself and on behalf of other Residents/Occupants of Portion 967, Portion 970 and Portion 3299 Nine Mile, Port
Moresby, National Capital District whose names are listed in the Schedule to the Writ of Summons
Plaintiffs
AND:
NATIONAL CAPITAL DISTRICT COMMISSION
First Defendant
AND
HON. POWES PARKOP MP, in his capacity as Governor of National Capital District & Chairman of the NCDC Physical Planning Board
Second Defendant
AND
JOHN MAKOP, in his capacity as Project Manager for the National Capital District Commission
Third Defendant
AND
THE INDEPENDENT STATE OF PAPUA NEW
GUINEA
Fourth Defendant
WAIGANI: KANDAKASI DCJ
16 OCTOBER 2025
LAND LAW – Plaintiffs illegally entry, occupation and permanently improving defendants land – buildings and structures built on the land without first obtaining Physical Planning Board approval – demolition of – no valid cause of action against the defendants for compensation or other remedies – proceedings dismissed.
PRACTICE & PROCEDURE – Class action – no evidence of authorization by each of the plaintiffs for issuance and maintenance of proceeding – possible duplication and abuse of process by one of the plaintiffs – failing to appear at hearing on - incompetent proceedings – proceedings dismissed.
Facts
Trespassers and or squatters entered, occupied, built permanent houses, rental accommodations, other improvements upon the land and gained from these activities without first seeking and securing the consent and approval of the landlord and title holder. The houses and other permanent structures the squatters built were without first seeking and securing the relevant physical planning and building board’s approval. The title holder or landlord, after due notice and public awareness, demolished the houses and other structures that were in the way of road constructions to implement their plan to turn squatter settlements into suburbs. The squatters sued for damages for the demolition of their houses and other permanent structures in a class action, without meeting the requirements for class action. One of the plaintiffs even issued and maintained his own proceedings over the same cause. With the consent of all parties, the issue of whether people who trespass, squatter, build permanent buildings and other improvements without any prior approval and gain economically from such activities are entitled to damages for was listed for hearing and determination as a determinative preliminary legal issue. On the day of the hearing the squatters failed to turn up and make submissions despite a short adjournment for them to do so.
Held
Cases cited
Simon Mali v. The State & Ors [2002] PNGLR 15
John Koima v. Romily Kila Pat (2020) N8181
Rimbunan Hijau (PNG) Ltd v. Ina Enei (2017) SC1605
Niugini Steel Corporation v. Paul Pondo (2021) SC2173
Png Ready Mixed Concrete Pty Ltd v. PNG and Ors [1981] PNGLR 396
Counsel
Mr. J Ules Jnr for the first to third defendants
Mr. S.P Ako for the fourth defendant
No Appearance for the plaintiffs
FINAL EX TEMPORE DECISION
1. KANDAKASI DCJ: Leave is granted to the Defendants to proceed with their submissions as required by the orders of 25 August 2025, which were extended to today from yesterday to enable the Plaintiffs’ lawyers to turn up if they wished to be heard on the preliminary arguments, but they have failed. The Court is shown a copy of an email by Counsel for the First to the Third Defendants sent to the lawyers for the Plaintiffs dated 15 October 2025. The grant of leave is conditional on the Defendants, adducing the said email into evidence by way of an annexure to an affidavit to be filed after today.
Issues for determination
2. This matter was the subject of prior orders and directions of this Court, the latest of which were the directions issued on 25 August 2025, when it became apparent that there were preliminary issues that need to be dealt with and disposed of first. Term 2 of the orders of 25 August 2025 states the issues in these terms and I quote:
“Before the matter proceeds any further, especially if the parties fail to settle the matter, the court will hear and determine the question of whether persons unlawfully trespassing onto State land or that of the Defendants or other people’s properties without prior consent and approval of the landlord or title holder, build buildings or other structures on the land and live on the land rent free, entitled to damages for any demolition of structures brought upon or built on the land without prior seeking and obtaining of building board approvals and subsequently evicted from the land.”
3. When the matter returned to the Court yesterday, there was no appearance for by the Plaintiffs. The Court therefore adjourned the matter to this morning to enable the Plaintiffs and or their lawyers to turn up if the Plaintiffs were pursuing this proceeding as ordered earlier on. I was satisfied that the Defendant’s Counsel informed the plaintiff's lawyers of yesterday’s adjournment, the matter coming up today and the need for the Plaintiff's lawyers to appear in Court ready to address the Court, per the directions just referenced. Despite that, the Plaintiffs continue to fail to show interest in pursuing this matter further, which is evidenced by the Plaintiffs’ lawyer or themselves failing to turn up, ready to assist the Court with submissions as directed on the issues for the Court to determine.
4. Aside from that which is recorded in term 2 of the orders of 25 August 2025, there is the issue of whether these proceedings are competent. That is based on the issue of whether each of the Plaintiffs, for whose benefit these proceedings are before the Court, has given their free and informed consent for the issuance and maintenance of the proceeding through the law firm that has issued the proceeding. That in turn is based on none of the Plaintiffs having filed and served affidavit evidence disclosing amongst others, an authorization of the lawyers to issue these proceedings and for the lead Plaintiff to represent them. The Defendants have raised that point in their defence and in correspondence and have requested the Plaintiffs to withdraw the proceeding. The Plaintiffs have not taken care of the issue raised by the Defendants and have not withdrawn the proceedings.
Competency of proceeding
5. It is a trite position at law, as was highlighted by the Supreme Court decision in the matter of Simon Mali v. The State & Ors [2002] PNGLR 15. There, the Court clearly stated that, where there is a representative action, there is a need for each of the plaintiffs to endorse their purportedly representation by one person called the lead plaintiff and the law firm issuing the proceedings.
6. In this case, the Defendants made their request and have raised the issue in their defence. The Plaintiffs have failed to adhere to the request and there is nothing in the Court records to show that the proper consent and approval of each of the plaintiffs have been sought and obtained prior to the commencement of these proceedings. This is a critical point when as Counsel for the Defendants points out, there were prior proceedings under file reference WS (HR) 9 of 2021. Those proceedings were dismissed for want of prosecution. Not only that, but the dismissal was also for a failure to comply with Court orders and directions.
7. Furthermore, there is a separate proceeding under Court file reference WS 403 of 2024. The Plaintiff there is a Phil Tony against the same Defendants in this proceeding for the same cause as in the present case. He is one of the plaintiffs in this proceeding, so in so far as his proceedings WS 403 of 2024 go, it is a duplication of proceedings. Obviously one of them is an abuse of the process of the Court. The matter of WS 403of 2024 is a matter that is pending before his honour, Makail J. So, I will leave that in his Honour’s Court, but an application is made in this case before me in the light amongst others, of possible abuse of process and incompetence of the proceedings.
8. I am minded to uphold the application to dismiss this proceeding: one, on the lack of authority by each and every plaintiff for the lawyers and the lead plaintiff to commence these proceedings and pursue them further; and two on the basis of a possible abuse of process by one of the plaintiffs maintaining his own proceedings, namely, under WS 403 of 2024 for the same cause of action.
9. Turning then to the main legal points that were required to be addressed by the parties, I accept the submissions of Counsel for the Defendants on the law on point. But before getting to the law on point, it is important to highlight the factual background relevantly as is possible from which the legal issues are presented.
Relevant factual background
10. I note that the plaintiffs are claiming they are permanent residents of 9 Mile Quarry Settlement (Bomana Road) located within land described as Portion 967, 970 and portion 3299, 9 Mile Port Moresby, National Capital District, (the Land). The plaintiffs claim they have been in constant possession of parts of the land for over 20 years. They also claim they have carried out substantial improvements and erected permanent structures, permanent residential homes and rental accommodations on the land.
11. The First Defendant is the registered proprietor of the subject land. There has been no request made nor was any approval granted at any point in time for any of the Plaintiffs to occupy the land and use it as they have. They have used the land in the way they have done so without paying any rents to the landlord and meeting the other out goings usually applying to landlords who hold proper legal titles to portions of State land. The subject land was directly granted to the First Defendant by the Minister for Lands and Physical Planning under s100 of the Lands Act 1996 for a Special Settlement to Urbanization purposes. The subject land is located within the boundaries of the National Capital District and is captured in the Third Defendant’s city-wide Settlement Upgrading to Urbanization Strategy 2016 – 2026, otherwise shortly reference as Settlement Upgrading Strategy.
12. The Settlement Upgrading Strategy was a strategy that was launched in 2018. Multiple awarenesses were carried out to ensure that the settlers were made aware and became aware of the Settlement to Suburb Program gets implemented, without unnecessary hinderances. The awareness programs were also to ensure that the settlers, including the Plaintiffs, understood the structures constructed within the proposed road corridor will be demolished to make way for road construction amongst others. Having carried out that awareness, the Defendants proceeded to demolish buildings and structures that were in the way of the proposed roads and proceed to an implementation of the Settlement Upgrading Strategy.
13. The Plaintiffs have come to Court not once but more than twice complaining about a demolition of their buildings, structures and other improvements, which we can describe as illegal structures and or improvements brought onto the land.
Relevant law
14. That brings into proper understanding and application of a simple principle of law, namely, any permanent structures brought upon one’s land by another without the owner’s expressed approval become part of the land. So, there is neither an interest nor a right vested in those who bring onto another’s land improvements with the prior consent and approval of the landlord or title holder. Where the improvements are within city limits in the country, physical planning approval needs to be first sought and obtained before proceeding with any proposed improvements. I discussed the law at some length, in my decision, in the matter of John Koima v. Romily Kila Pat (2020) N8181 cited by Counsel for the First to the Third Defendant’s in his submissions. There, the Court made the point clear that, a person who brings on improvement on any land without first obtaining the prior approval of the relevant building board is doing so at his or her own risk. As doing so it amounts to an illegal conduct from which the actor cannot gain from by way of compensation or any benefit.
15. In the case just referred to, it was a case in which the property had certain buildings or structures that were demolished to make way for the construction of the Flyover Bridge in Erima, National Capital District. The plaintiff did have title to the property. He built a mini supermarket and rental accommodation and conducted related business using those structures. He claimed damages for loss of the buildings and the related businesses and income. He did not, however, properly apply for and secured the National Capital District’s Physical Planning Board approval. Instead, he had only applied for the required approval for the construction of the buildings and change of purpose, use or status of the land from residential to commercial. That application was only acknowledged. There was no subsequent decision granting the approvals required.
16. Without a doubt, what the plaintiff brought upon the land was unauthorised improvements or illegal structures or buildings and used them to conduct unauthorised and therefore illegal businesses. From the figures the plaintiff claimed in damages against the State, he had made substantial sums of money out of the illegal businesses. Clearly, therefore, he had substantially gained from his own illegal conduct and unauthorised use of the property. Having done so, he wanted the State to compensate him from losing out on that illegal gain.
17. Despite the illegal buildings and structures, the plaintiff had managed to secure trading licenses for the mini supermarket and rental accommodation. In respect of that, the Court held the grant of license to trade for the plaintiff’s illegally constructed mini supermarket was of no consequence. At paragraph 21 of the judgement the Court held:
“It is well- settled law that no one can be allowed to gain from one’s own illegal conduct or as...the Supreme Court said in PNG Deepsea Fishing Limited v. Luke Critten (2010) SC1126 in trying to make sense of conflicting Supreme Court decisions in case of fraudulent transfer of titles is on point. There the court said:
‘The decision in Mudge and Koitachi could work well with one complimenting the other. Where title in certain property has passed a number of hands and or a considerable period of time has passed and is hard to trace back what has happened, the need to bring fraud home to the eventual title holder is sensible and could apply. However, where title in a property has not passed hands or the circumstances leading to either grant or transfer of title can easily be traced and established, the requirement to bring fraud as determined by Mudge and Koitachi home to the eventual title holder may be inappropriate. The title holder knowing this position of the law may well have deliberately or by his conduct facilitated a breach or otherwise a failure to follow all relevant processes and requirements for a proper, fair, and transparent grant or transfer of title over State Leases, which may fall short of fraud as held by Mudge and Koitachi to gain from his own illegal, improper, unfair and questionable conduct. This would no doubt run into conflict with well-established principles of law which say that no one can be permitted to gain from his or her own illegal conduct.’”
18. I accept that the Supreme Court in the other matter of Rimbunan Hijau (PNG) Ltd v. Ina Enei (2017) SC1605, expressed this view in the context of trespass and illegal activity.
“Trespass is clearly an illegal activity, which is both a criminal and a civil wrong in nature which can result in criminal prosecution and a civil claim for damages. Following the English common law or case law approach as adopted and applied in PNG already, effectively allows a trespasser to gain from his or her own criminal or unlawful conduct and get away with it save only for the small amount of damages as assessed in the past cases. We are of the view therefore that, any assessment of damages must have a clear reflection of the extent of a trespasser’s gain out of his or her illegal entry and use of another’s land, and not the rate that applies to rental of city and town land areas or indeed any such rate in terms of price per square meters. Both fairness and equity demand that the damages that ultimately get assessed against a trespasser should indeed reflect the gains the trespasser has made out of his or her illegally using another’s land as in this case, which may far exceed the price per square meter. Both fairness and equity demand that the damages that ultimately get assessed against a trespasser should indeed reflect the gains the trespasser has made out of his or her illegally using another’s land as in this case, which may far exceed the price per square meter.”
19. Finally, I turn to the decision of the Supreme Court in Niugini Steel Corporation v. Paul Pondo (2021) SC2173, which was also cited by Counsel for the First to the Third Defendants submission at paragraph 13. I was the trial judge in that case. That was a case in which squatters occupied the appellant’s land. The appellant successfully sued for declaratory orders as to its ownership of the land and for vacant possession. Going by the Png Ready Mixed Concrete Pty Ltd v. PNG and Ors [1981] PNGLR 396, line of cases, I commented that the squatters were entitled to compensation or damages. On appeal against that part of my decision, the Supreme Court said at paragraph 9:
“There is however, no Supreme Court authority or indeed, any National Court authority of which we are aware which has held that a squatter such as the respondent is entitled to compensation for occupying a property. We note that the primary judge did not rely on any authority when in his reasons for decision he stated that subsequent cases since ‘png Ready Mix’ recognized “.... a squatter’s right to reasonable compensation for being on the property ....”. To the extent therefore, that the primary judge found that a squatter is entitled to reasonable compensation, the primary judge fell into error and was with respect, wrong.”
20. That is the latest decision or authority on the question of what reliefs might be open to illegal trespassers and squatters. Per this Supreme Court decision, a squatter or trespasser is not entitled to any compensation or damages. That being the case, the Plaintiffs have come to this court pursuing something that they are not entitled to. Perhaps that is the reason why the Plaintiffs have failed to appear, despite their attendance on the day the directions returning yesterday but further adjourned to today were issued with the consent of all parties. The Plaintiffs’ Counsel is not in attendance and is not able to make any submissions to the contrary.
Decision and Orders in the present case
21. In all circumstances, I find the Plaintiffs being trespassers having no prior consent and approval from the Defendants for the Plaintiffs to enter and occupy the land, the subject of this proceeding, then occupy and use the land as they have without paying any rents and or rates, have no valid cause of action against the Defendants. Consequently, I find the Plaintiffs are not entitled to any compensation or damages for the alleged demolition of the buildings, structures and improvements they allegedly brough onto the land. Additionally, I re-affirm having found the proceedings are incompetent and must be dismissed on account of the Plaintiffs’ failure to commence this proceeding validly by meeting the requirements for representative action. Accordingly, I make following formal orders:
(1) An order in the form of a declaration that the Plaintiffs as squatters have no valid cause of action to pursue against the Defendants.
(2) Consequently, the Plaintiffs are not entitled to any redress be it compensation, damages or other reliefs.
(3) Accordingly, the proceedings are dismissed.
(4) The Plaintiffs shall pay the Defendants’ costs to be taxed, if not agreed.
(5) Subject to any enforcement of the cost order, Court filed to be closed in archived forthwith.
(6) The time for the entry of these orders is abridged to take place forthwith upon the Court signing the Orders.
22. Judgment and orders accordingly.
________________________________________________________________
Lawyers for the plaintiffs: Jerewai Lawyers
Lawyers for first to third defendants: NCDC In House Counsel
Lawyers for the fourth defendants: Solicitor General
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