N2143

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO: 40 of 2000

BETWEEN:

KOITAKI FARMS LIMITED
Plaintiff

AND:

KEMOKO KENGE & OTHER
SQUATTERS AT ITIKINUMU
Defendants

WAIGANI:	KANDAKASI J
2001: 9th July

PRACTICE & PROCEDURE - Mode of commencement of proceedings – Originating summons appropriate where facts are not seriously in issue – National Court Rules Order 4 Rule 3 & Order 16 Rule 3.

PRACTICE & PROCEDURE – Res judicata – Orders by District and National Courts effectively deciding issues raised in subsequent proceedings – Failure to comply with previous orders while another subject of appeal amount to contempt (possible) and abuse of process.

EVIDENCE – Evidence of previous orders and other documents filed in Court – Copies with Court seal on – No contest on the existence of such – Sufficient prove of – Evidence Act s.44.

LAND LAW – Former employees of previous owners of land continuing to occupy with new owners consent – Not illegal squatters but tenants or licensees at will of landlord – Rights of tenant at will of landlord limited to will of the landlord – Tenants or licensees at will entitled only to reasonable notice to vacate.

Cases Cited:
Peter Ipu Peipul v. Sheehan J, Mr. Ori Karapo and Iova Geita (Constitution the Leadership Tribunal) & Ors (unreported judgement 25/5/01) N2096 at page 8.
The Administration of the Territory of Papua and New Guinea –v- Doriga Guba [1973] PNGLR 603 at page 696
AGC (Pacific) Limited –v- Sir Albert Kipalan and Ors (24/02/00) N1944.
Tulom Abai and 765 others –v- The State (20/12/95) N1402.
Mesulam Tomalana –v- Bragus of PNG [1991] PNGLR 65 at p. 71.
PNG Ready Mixed Concrete Pty Ltd v. The Independent Sate of Papua New Guinea [1981] PNGLR 396.
Jivetuo v. The Independent State of Papua New Guinea [1984] PNGLR 174.
Bai v. Morobe Provincial Government [1992] PNGLR 150.

Counsel:
S. Ketan for the Plaintiff
D. Keta for the Defendants 

9th November 2001

KANDAKASI J:	On the 21st of January 2001, the respondents buried one of their dead relatives a Mr. Ani ("the deceased"), on land owned by the plaintiff at Sogeri described as Portion 200 Milinch Bulidobu, Fourmil Moresby, Central Province, commonly referred to as, "Itikinumu Plantation" ("plantation"). That was without the consent of the plaintiff. The plaintiff asked the respondents to exhume and remove the dead man’s body but they refused. That resulted in the issue of these proceedings seeking orders that the respondent exhumes the deceased’s body and removed from the plantation. It also seeks the following declaratory orders that:

1.	The plantation is owned by the plaintiff, Koitaki Farms Limited;

2.	The defendants and anyone else living on the premises without the plaintiff’s expressed consent is an illegal squatter; 

3.	The defendants and the other Southern Highlanders living on the plantation are squatters and they do not have any property right in the plantation.

The plaintiff abandoned the claim for an order that the deceased body be exhumed and removed in exchange for the defendants agreeing not to bury anymore deaths. So it is no longer an issue between the parties. Similarly there is no issue on the ownership of the plantation.

The defendants do not dispute that the plaintiff is the legal owner of the land but they claim that they have been in continuous occupation of the land for over 25 years. That has been with the consent and knowledge of the plaintiff and its previous owners starting with the British New Guinea Development Corporation. They also claim that the matter has already been determined by two previous District and one National Court judgement and orders, with the National Court judgement being the subject of a pending appeal number SCA 90 of 1999. Given these, they argue that this proceedings amount to an abuse of process if not res judicata. Hence, they argue that the orders and declarations the plaintiff seeks should not be granted. Further, they argue that the plaintiff should have proceeded by way of judicial review under Order 16 of the National Court Rules ("Rules") and not by an Originating Summons.

What is in issue before me are the following:

1.	Has the plaintiff used the correct mode of proceedings?

2.	Are these proceedings an abuse of process by reason of:

(a)	res judicata; and

(b)	the issues raised are already before the Supreme Court with the effect that this Court is without jurisdiction?

3.	Are the defendants illegal squatters on the plantation?

The Evidence

This was a trial by affidavit without any cross-examination of witness. The plaintiff’s evidence comprises of an affidavit each by Jerry Vavasour, sworn 31st January 2000 (Exhibit P1), Awea Maeana, sworn 15th February 2000 (Exhibit P2), Senior Inspector Messo Awe, sworn 15th February 2000 (Exhibit P3) and Simon Ketan, sworn 11th July 2000 (Exhibit P4). 

Mr. Vavasour gives evidence as to the ownership of the plantation by the plaintiff and that the defendants are squatters. Mr. Maeana gives evidence as to the burial of the deceased. Inspector Messor gives evidence on the burial. Mr. Ketan’s evidence is twofold. First, it is a chronology of events relating to the court proceedings between 10th April 2000 and 11th July 2000 in particular as to the discussions between Counsel and between Counsel and the Court in an endeavour to resolve the matter. Secondly, Mr. Ketan annexes a copy of a published decision of Woods J (as he then was) in WS 1259 of 1997. That was between the plaintiff and Hebale Parayea and Ors, in which the plaintiff was sued for damages for destruction to trees and food gardens of the Defendants and the Court dismissed the claim. The Court found that plaintiff (now Defendants) were licensees or permissive occupants and amounted to a tenancy at will in law and could therefore occupy the land only at the mercy of the owner.

The defendants’ evidence comprises an affidavit each from Kemoko Kenge, sworn 4th February 2000 (Exhibit D1), Toko Pimbi, sworn 25th February 2000 (Exhibit D2), Magaru Ambulu, sworn 25th February 2000 (Exhibit D3) and Ori Hou Kauvu, sworn 5th April 2000 (Exhibit D4).

Mr Kenge denies any personal involvement in the illegal burial. Mr. Pimbi says the plaintiff and its predecessors (without specifying them) never took any issue on the burial of the defendants’ deaths during the period of their occupation of the plantation. He does acknowledge by inference that the plantation is owned by the plaintiff. Mr. Ambulu’s evidence is similar to Mr Pimbi’s evidence except that he expressly states that the plaintiff owns the plantation. Finally, Mr Kauvu in his evidence gives an historical account of how the defendants got onto the plantation and the developments to the present day including the moves of the plaintiff seeking to get the defendants evicted. He also confirms that the plaintiff is the owner of the plantation. 

From these evidence, the facts are straightforward. The defendants and their parents were engaged as contract labourers to cut rubber on the plantation. That dates back to about 1951 during the colonial administration. Of course, their older ones died and their children took over as time went by. They were accommodated on the plantation in houses owned by the previous owners of the plantation, predecessors of the plaintiff. There is no dispute that the defendants or their parents were permitted to use part of the plantation to make gardens to supplement their incomes and even bury their dead. Ori Hou Kauvu, a witness for the defendants says in his affidavit sworn on the 5th of April 2000 that, has far as he knows, there has been 9 burials of the defendants people on the plantation without any objection or protest from the plaintiff and its predecessors. 

In 1973 a mass termination of labourers was carried out. Most of them were repatriated to their home province in the Southern Highlands Province. Some of the labourers were however retained. The defendants say they are part of those that were retained and they have continued to so occupy and use the plantation until its ownership changed to the plaintiff. The new owners have tried unsuccessfully to evict the defendants and prevent the burial of the deceased. That included two District Court actions in which the plaintiff applied for eviction orders against the defendants. The Port Moresby District Court made the first orders on the 3rd of October 1994 and the second one was also by the Port Moresby District Court on the 16th of June 2000 ("the District Court orders"). 

The first of the two District Court orders did in effect ordered in favour of an eviction of the defendants. However, that was made conditional on the plaintiff meeting full repatriation costs for the defendants, inclusive of their wives and children. It is submitted for the defendants without any contest from the plaintiff that the plaintiff failed to comply with the orders of the 3rd of October 1994. Then without complying with that order, the subsequent proceedings were issued and that resulted in the orders of the 16th of June 2000. There is no dispute also over the defendants submission that, the plaintiff has not appealed against either or both of those orders and they remain unsatisfied.

Without first complying with the orders of the District Court, the plaintiff destroyed the defendants’ food gardens. This resulted in the defendants suing the plaintiff for damages under W.S. 1259 of 1997. That action was dismissed by Woods J (as he then was). His Honour found that the defendants were licensees at will of the plaintiff and that they were given sufficient notice to remove their gardens. The defendants lodged an appeal against that decision under the reference SCA No. 90 of 1999, which is still pending.

When this matter initially went before my brother Justice Sheehan and subsequently before me, parties were directed to consider the prospects of having this matter resolved out of court. This resulted in the plaintiff agreeing to abandon the claim for an exhumation of the deceased in exchange for an undertaking or failing that an order that there be no more burials on the plantation by the defendants. The defendants have on their part indicated willingness and they continue to show a preparedness to move out of the plantation. This is subject to the plaintiff paying for their full repatriation costs per the District Court orders of the 3rd of October 1994 with a one year notice to repatriate them or a signing with them a sublease at an agreed rental. This is only an alternative to their main argument for a dismissal of the action for abuse of process.

Nature of Proceedings: First Issue 

Under our Rules, there are two modes of commencing most civil proceedings. The exceptions to that a limited. They are miscellaneous proceedings for other miscellaneous proceedings such company wind ups and matrimonial or such other causes where the Rules or an Act of Parliament allows for other modes of commencing proceedings.

The relevant provisions are Order 4 Rules 2(2) and 3(2). These provisions respectively state that:

"2.	Where writ of summons required. (4/2)

(1)	Proceedings shall be commenced by writ of summons—
(a)	where a claim is made by the plaintiff for any relief or remedy for any tort; and
(b)	where a claim made by the plaintiff is based on an allegation of fraud; and
(c)	where a claim is made by the plaintiff for damages for breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under an Act or independently of any contract or any such provision), and the damages claimed consist of or include damages in respect of the death of any person or in respect of personal injuries to any person in respect of damage to any properly; and
(d)	where a claim is made by the plaintiff for damages for a breach of promise of marriage."

"3.	Where Plaintiff may choose (4/3)

(2)	Proceedings—
(a)	in which the sole or principal question at issue is, or is likely to be, one of the construction of an Act or of any instrument made under an Act, or of any deed, will, contract or other document, or some other question of law; or
(b)	in which there is unlikely to be a substantial dispute of fact; or
(c)	in which a person is authorised by an Act, regulation or by these Rules to make an application to the Court or a Judge with respect to a matter that is not already the subject matter of a pending cause or matter, and no other mode of making the application is prescribed by that Act, or regulation or by these Rules,
are amongst those which are appropriate to be commenced by originating summons unless the plaintiff considers the proceedings more appropriate to be commenced by writ of summons"

							(Emphasis added)

In the present case, the facts are not in issue and the plaintiff is suing for a number of declaratory orders based on his undisputed ownership of the land, the subject of these proceedings. On these basis alone the plaintiff was entitled in my view, to adopt the mode of proceedings employed, namely originating summons.

The submission for the procedure set out under Order 16 of the Rules is misconceived. This so by reason firstly of the fact that, this is a case in which no review of a public body’s decision is sought. It is settled law that Order 16 procedure is specifically about judicial review and nothing else. It is also settled law that judicial review is about the scrutiny of decisions made by public bodies: see Peter Ipu Peipul v. Sheehan J, Mr. Ori Karapo and Iova Geita (Constitution the Leadership Tribunal) & Ors (unreported judgement 25/5/01) N2096 at page 8. Secondly, the proceedings have been issued in accordance with Order 4 Rule 3(2)(b) of Rules.

For these reasons I find the defendants arguments on the mode of proceedings is without any good basis. I therefore dismiss the defendants arguments based on Order 16 and in a few words answer the first issue in the affirmative.

Abuse of Process

It is settled law that once a court of competent jurisdiction as determined an issue as between two parties, neither of the parties is at any liberty to issue fresh proceedings raising the same issue again. Gibbs J in The Administration of the Territory of Papua and New Guinea –v- Doriga Guba [1973] PNGLR 603 at page 696 sets out principles governing the issue of res judicata:

Thus in a recent case, Carl Zeiss Stiftung –v- Rayner & Keeler Ltd (No. 2) [1967] 1 AC 853, Lord Guest said, at p.933: "The rule of estopple by res judicata, which is a rule of evidence, is that where a final decision has been pronounced by a judicial tribunal of competent jurisdiction over the parties to and the subject-matter of the litigation, any party or privy to such litigation as against any other party or privy is estopped in any subsequent litigation from disputing or questioning such decision on the merits (Spencer Bower on res judicata, p.3)". The use of the phrase "judicial tribunal" in this context is convenient as indicating that an estoppel of this kind does not result from a mere administrative decision, but the question whether such an estoppel is raised is not answered by inquiring to what extent the tribunal exercises judicial functions, or whether its status is judicial or administrative: see Caffoor –v- Commissioner of Income Tax, Colombo [1961] AC 584 at pp.597 to 599, per Lord Radcliffe. A fairly obvious example is the case of a court martial, whose sentence might in some circumstances be pleaded as an estoppel (Hannaford –v- Hunn) (1825) 2 T. and P.148, at p.155, although not made in the exercise of judicial power (cf. R. v. Bevan; Ex parte Ellias and Gordon (1942) 66 C.L.R. 452, at pp. 466-46; R.v. Cox; Ex parte Smith [1945] 71 CLR 1, p.23 . The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc .
…

In Carl Zeiss Stiftung v. Rayner & Keeler Ltd. No. 2 (supra), at pp.909-910, Lord Reid said that it ‘is clear that the earlier judgment relied on must have been a final judgment, and that there must be identity of parties and of subject matter in the former and in the present litigation’". 

Speaking of the importance of the doctrine of res judicata, my brother Justice Sakora said this in his judgment in AGC (Pacific) Limited –v- Sir Albert Kipalan and Ors (24/02/00) N1944 

"In this respect it is useful to note for our present purposes (and assistance) the impact of the Australian High Court Decision in Port of Melbourne Authority v. Anshun Pty Ltd (1981) HCA, which is that a party would be estopped from bringing any further action that arises out of the same subject matter as an earlier action. This decision emphasizes the importance of the doctrine of res judicata, as operating to prevent prejudice and unfairness to a party, more particularly a defendant, being burdened and saddled with multiplicity of allegations and claims to answer. The doctrine also operates to confirm the twin doctrines of finality and certainty in judicial decision making process."

His Honour Justice Sheehan in Tulom Abai and 765 others –v- The State (20/12/95) N1402, expressed the principle in simple terms in these words:

"It is simple law that a claim that has been tried in a Court of Law and a decision lawfully made on it cannot be tried again in respect of the same matters.

The legal term for this is res judicata which means "the matter is decided". That is, a final judgment by a competent Court on the merits of a claim has been made and is conclusive – final – as to the rights of the parties and those claiming through them. Such a decision is a bar to any new action involving the same claim or cause of action".

Of course, in order to succeed in a claim for res judicata there must be evidence or proof of the decision finally disposing of the matter in dispute as between the parties on its merits.

Section 44 of the Evidence Act (chapter No. 48) provides for the way in which evidence of a judgment degree, rule, order or other judicial proceedings of a court in Papua New Guinea, the High Court or a Federal Court of Australia or a court of a State or Territory of Australia or a Judge, Justice or a Magistrate of any such court, or any affidavit pleading or legal document filed or deposited in any such court may be given in evidence. They can be allowed into evidence by a production of a document purporting to be a copy of it and proved to be an examine copy of it, or purporting to be sealed with the seal of the court, or purporting to be certified as a true copy by a Registrar or Chief officer of the court. 

Ellis J considered that provision in Mesulam Tomalana –v- Bragus of PNG [1991] PNGLR 65 at p. 71 where he said of the section:

"Unfortunately, there are few reported decisions on this section. In this country it has been held that depositions from prior court proceedings did not come within more less 44(a): see Oscar Tugein –v- Michael Gotaha [1984] PNGLR 137. 
…
As the plaintiff did not comply with requirements of section 44(d) or section 44(c) it remains to consider whether there has been compliance with section 44(c). An examined copy is one which has been examine against the original. Evidence of such examination is normally required. However, in the present case, the deponent is the officer in charge of the original and she has deposed to making a photocopy from the original which I consider sufficient has in this day and age for the annexure to her affidavit to be regarded as examined copy for the reason that, although section 44 was enacted in 1975, it was heavily based upon similar provisions which were first drafted well before the advent of the photocopier, in an era when legal documents were copied by hand and compared to the original so as to be able to be said to have been "examined". I think a court can and should take notice that, apart from confirming that the coping process has reproduced the entire contents of the original document, a photocopy can be relied upon to reflect accurately the original documents. 
…

The next issue to be determine is whether the document entitled "reasons for the decision" fall within the meaning of the word "Judgement" the other alternatives being clearly inapplicable. I find some significance in the structure of section 44 in that section 44(a) deals with "a Judgement, decree, rule, pleading or legal documents filed or deposited". The letter category is "not final" in that they may provide a foundation for a decision but they do not contain or necessarily dictate a result in respect of prior judicial proceedings. In contrast, the documents specified in section 44(a) appeared to be documents recording the result of judicial proceedings. A degree, a rule or an order all meets that test. In those circumstances I think that the word "judgement", where it appears in section 44(a) should be interpreted on an ejusdem generis bases. This approach to statutory interpretation means that the word "judgement" in section 44(a) is interpreted only to apply to documents of the same kind as the other documents specified in section 44(a), namely "degree", "rule" and "order". This approach may seem restrictive. However, it is consistent with the only local reported decision, to which I have already referred. Furthermore, I think it is preferable to read down rather then expend wording of a statutory provision which would have the effect of rendering admissible documents which time-honoured principles relating to admission of documents into evidence and numerous reported decisions would otherwise render inadmissible.

It appears that section 44(a) was intended to allow the results of prior proceedings to be put into evidence and that 44(b) was intended to render admissible documents filed in prior proceedings. Command forensic motivations for seeking to tender such documents would be, in relation to section 44(a), a claim of res judicata and, in relation to section 44(b) question such as issue estopple so far as pleadings are concern and prior inconsistent statements in relation to affidavits".

In the present case there is evidence of a sealed copy each of the two separate District Court orders of the 3rd of October 1994 and the subsequent one of the 16th of June 2000. The plaintiff is not taking any issue on these, either as to their admissibility or otherwise. The decisions evidenced in those orders determined the issue of repatriation proceeding on the undisputed basis that, the plaintiff is the owner of the plantation. This left therefore, no issue yet to be resolved as between the parties on the question of ownership of the land and the status of the defendants in relation to the land and their repatriation to their home province. The matter reached res judicata following the District Court decisions in the absence of any appeal against those decisions resulting in a different decision.

Based on the evidence and the parties’ positions, per their submissions, I find that the problem would have been long resolved had the plaintiff complied with the District Court orders, in particular that of the 3rd of October 1994. There is no evidence whatsoever of what steps the plaintiff took to either comply with that order, or to properly or legally avoid compliance of the orders. Instead, the evidence shows that, the plaintiff has taken steps, though unsuccessfully, to evict the defendants. That was contemptuous in my view of the orders of the District Court. What has occurred since, including the burial of the deceased were set in motion by the plaintiff’s own conduct.

I find that the judgement of Woods J in W.S. 1259 0f 1999 did not effectively over turn or otherwise render non-existent the orders of the District Court. Instead, it merely re-affirmed the undisputed ownership of the land by the plaintiff and that the defendants are merely licensees or tenancies at the will of the plaintiff. Nothing new can be achieved though the issue of the current proceedings though, the claim for a restraining order against the defendants with regard to any new burials would appear to be the only new thing. I quickly note however that, that is even a follow on effect from the position as it was, both prior to and after the District Court orders were made. In any case, I note that Woods J.’s (as he then was) decision is the subject of a pending appeal to the Supreme Court.

For these reasons, I find that the issue of these proceedings amount to an abuse of process, apart from a possible contempt of the District Court orders. On these basis, I order a dismissal of the proceedings with costs. Then given the submissions and concessions made by the parties as per their submission, and provided the plaintiff is still desirous of getting the defendants and their people evicted from its property, I order that the plaintiff forthwith comply with the District Court orders of the 3rd of October 1994.

Further, I note that the law on landlords and squatter settlers is now almost settled. In PNG Ready Mixed Concrete Pty Ltd v. The Independent Sate of Papua New Guinea [1981] PNGLR 396, the National Court held that, a group of illegal squatters on State land, had by virtue of their long occupation, acquired an equitable interest. The Court therefore, ordered that, they be allowed to be in occupation for 12 months for some and 6 months for the others, having regard to their period of occupation. The Court did not curtail the landlord’s right to take out eviction proceedings and evict the occupants if they did not voluntarily vacate the property by or before the end of the time granted to them by the court. That in effect recognised the principle that, squatters or tenants at will have no right or interest over and above the rights and or interest of a landlord.

Subsequent decisions of the National Court as in Jivetuo v. The Independent State of Papua New Guinea [1984] PNGLR 174, and Bai v. Morobe Provincial Government [1992] PNGLR 150, continue to recognize the right of the State has a landlord to evict people who have for some time squatted on State land. These have been made subject to the squatters limited right in equity to be given notice to vacate within a period that is reasonable and not harsh or oppressive. These again recognises the fact that, a landlord’s right and interest can not be extinguished or overridden by the limited equitable interest of a tenant at will or an illegal squatter. 

In the present case, it is not strictly a case of illegal squatting as was in the cases cited. Instead, it was a case of the defendants and or their parents being brought on to the land from their home province in the Southern Highlands, by the previous owners of the land to work on it has labourers. They were housed on the land by the previous owners of the land and were permitted to make gardens. Some of their colleges were repatriated in 1973. The ownership of the property changed hands on more than two or three occasions before the plaintiff acquired it. There is no evidence of what, if any, due diligence, the plaintiff conducted before purchasing the property. If it did, it could have ascertained the position of the defendants’ long uninterrupted occupation of the plantation with the implied consent of all its previous owners. This may have given the defendants a legitimate expectation in equity to continue to occupy the land in much the same way they have had in the past. In the absence of any evidence to the contrary, I find that, the plaintiff bought the land with full knowledge and acceptance of the defendants occupation of the land, which gave rise to a limited right in equity to continue to occupy, subject to reasonable notice for them to vacate.

For these reasons, I further order that the plaintiff serve a notice to vacate on each of the defendants within a period, not less than 12 months from the date of the service of the notice. Such a notice shall be conditional on the plaintiff meeting the repatriation orders of the District Court dated the 3rd of October 1994. 

In summary I answer the issues raised in this case and order as follows:

Answers to questions

1.	Since this does not concern a proper subject for judicial review, the plaintiff has used the correct mode to commence proceedings. 

2.	The matter is res judicata because of the District Court orders of the 3rd of October 1994 and the National Court judgement subject to the pending appeal, finally determined the parties rights in relation to the plantation the subject of this proceedings.

3.	By reason of the defendants and or their parents being brought on to the plantation by its previous owners to work and live on it as contract labourers, a position allowed to continue by the successive owners of the plantation, they are not illegal squatters.

Orders 

On the above findings, I make the following orders:

1.	The proceedings are dismissed with costs against the plaintiff.

2.	The plaintiff shall forthwith comply with the District Court orders of the 3rd of October 1994.

3.	The plaintiff shall serve the defendants with notices to vacate the land, described as Portion 200, Milinch Bulidobu, Fourmil Moresby, Central Province, commonly referred to as, "Itikinumu Plantation" within a period, not less than 12 months from the date of the service of the notice

4.	The notice to vacate shall be conditional on payment of the defendants’ full repatriation cost to their home villages in the Southern Highlands Province in accordance with the District Court orders.
________________________________________________________________________
Lawyer for the plaintiff:			Ketan Lawyers
Lawyer for the defendants:			David Keta Lawyers