N2512

PAPUA NEW GUINEA

[In The National Court of Justice]

OS NO. 40 OF 2002

Between:

JOHN KAMEKU
for himself and on behalf of Yonggo Mountain Settlers
Plaintiff

And:

PATILIUS GAMATO,
Lae Urban Local Level Government Council
First Defendant

And:

MANASUPE ZURENUOC
Morobe Provincial Government
Second Defendant

And:

MOROBE PROVINCIAL GOVERNMENT
Third Defendant

JALINA J
LAE	 :		24TH OCTOBER, 2002
WAIGANI:		02ND APRIL, 2004

Real Property – State Land – Occupied by some squatters for nearly fifty years – Some had erected permanent buildings and grown fruit trees and conducted small business such as trade stores and raised chicken and pigs for sale without objections from Defendants – Whether equitable interest over State Land acquired by Plaintiffs. 

Constitutional Law – Eviction of squatters on State Land – Some settlers had lived on State Land for nearly fifty years – Some had erected permanent buildings and had coconuts and other fruit trees and small business such as trade stores and raised chicken and pigs for sale without objection from the Defendants – whether thirty days notice to quit harsh and oppressive – Thirty days notice to quit too short and therefore harsh and oppressive and unlawful – Constitution s. 41.

Cases Cited:
John Jivetuo v The State & 2 Ors [1984] PNGLR 174
Amos Bai v Morobe Provincial Government and the State [1992] PNGLR 150

Counsel:
B. Ovia for the Plaintiffs 
P. Ousi for the Defendants 

02ND APRIL 2004

JALINA J:	By Originating Summons filed herein on 29th January 2002, the Plaintiff claims on behalf of himself and on behalf of other settlers of Yonggo Mountain Settlement the following relief:

1.	A declaration that the Notice to Quit dated 20th December 2001 issued to the Plaintiffs by the Defendants in respect of the Land known as "Vacant Government Land", Portion 209, 2 Mile, Yonggo Mountain is harsh and oppressive.

2.	A declaration that the Plaintiff has acquired an equitable interest to the said vacant Government Land Portion 209, 2 Mile, Yonggo Mountain.

3.	An order that the Defendants be restrained from forcibly evicting the Plaintiffs from the said vacant government land, Portion 209, 2 Mile, Yonggo Mountain.

At the hearing however, Mr Ovia indicated that restraining orders have already been granted so it is not necessary for me to consider the third relief sought by the Plaintiffs.

Undisputed Facts

Facts that are not disputed are that Portion 209, 2 Mile, Yonggo Mountain at the outskirts of Lae City is a State Lease and is therefore State Land.

It is also not disputed that the Plaintiffs have resided on the land over varying periods with the earliest settlements having been erected as early as 1952 without any objections by the Defendants let alone the State through the Department of Lands. The Defendants have failed to assert their legal rights until 20th December 2001 when an order to quit was served on the Plaintiffs requiring them to vacate the said land by 20th January 2002 failing which they were to be forcibly evicted.

It is again not disputed that the eviction was carried out soon after the 30 days expired on 20th January 2002.

It is further not disputed that during the period of occupancy of the said land by the Plaintiffs, they had erected permanent buildings and had full grown fruit trees, such a coconuts and mangoes and were engaged in commercial activities such as raising chicken and pigs for sale as well as trade stores and that at the time of eviction the Plaintiffs properties were demolished.

Issues

The issues before me for consideration and determination are:

1.	Whether in the circumstances the conduct of the Defendants was harsh and oppressive and therefore unlawful.

2.	Whether the Plaintiffs have acquired an equitable interest in the vacant Government Land Portion 209, 2 Mile, Yonggo Mountain.

Decision

In considering the submission by both parties in light of the affidavit evidence filed herein, I note that the Plaintiffs have relied on a number of Constitutional provisions such as s. 36, 39, 41, 53, 57, 59, 60, 62 and 63 in their submissions. I further note that apart from a mere reference to those provisions (ss. 36, 39, 53, 57, 59, 60, 62 and 63 of the Constitution), the Plaintiffs have neither adduced evidence by affidavit nor made any detailed submissions in relation to the constitutional provisions to demonstrate to my satisfaction as to how the Defendants are alleged to have breached or deprived them of their rights. Consequently I dismiss those aspects of the claim.

The Plaintiffs have also failed to make any submissions in relation to their claim for declaratory orders that they had acquired an equitable interest in the said Government land, known as Portion 209, 2 Mile, Yonggo Mountain, Lae.

The law relating to whether or not a person who squats on State land for a long period of time without objection from the State can acquire an equitable interest in the land is as set out in John Jivetuo & 2 Ors -v- The State & 2 Ors [1984] PNGLR 174 and Amos Bai -v- Morobe Provincial Government & the State [1992] PNGLR 150 so there is no need for me to repeat it here. The law in essence is that a person who occupies land unlawfully cannot acquire an equitable interest in land. That is consistent with the equitable principle that he who comes to equity must come with clean hands. In my opinion, it is not sufficient to merely say that in view of some of them having lived on the said land for almost 50 years between 1952 and 2001 without objection from the State as owner, conferred upon them equitable interest in the said land. In my view, it is not uncommon to find not only in relation to government or state land but also in relation to customary land particularly land located within the environs of a city or town that the owners do not raise any objections to the use or continued occupation by someone else of their land until the need for use of such land arises or the occupiers conduct themselves in such a way as showing disregard or disrespect towards the owner or owners.

So in the present case, it is not disputed that the State, through the Defendants, asserted its rights over the said land and sought to evict the Plaintiffs as a result of continuous criminal activities which appeared to have been linked to the people living in the settlements in and around Lae City including the land the subject of these proceedings.

Thus, in the present case, merely because the Defendants failed to take steps to evict the Plaintiffs or to give them notice to quit over many years in the past did not confer upon them equitable interest in the land. A person who illegally occupies or squats on another person’s land cannot confer upon himself equitable right to the land and for this court to recognise such a right would be tantamount to sanctioning an illegal or an unlawful act. It could also create a means by which the mighty and the powerful can take advantage over the weak who does not raise any objections out of fear.

That does not mean however, that they are not entitled to reasonable notice to quit and in that respect the Plaintiffs have placed much emphasis in their submission on s. 41 of the Constitution. 

Section 41 provides: 

(1)	Notwithstanding anything to the contrary in any other provision of any law, any act that is done 

(2)	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 circumstance or of the particular case; or 

(c)	is otherwise not; in the particular circumstances, reasonably justifiably in a democratic society having a proper regard for the rights and dignity of mankind, is an unlawful act.

(3)	The burden of showing that subsections (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.

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

It has been submitted by the Plaintiffs that having regard to their long period of residence which had caused them to believe that they would permanently reside on the land thus resulting in them erecting permanent buildings and setting up small scale business ventures such as trade stores, piggery and poultry, the eviction exercise carried out by the Defendants with only 30 days notice to quit was harsh and oppressive and inhuman in the circumstances and was not reasonably justifiable in a democratic society having a proper regard for the right and dignity of mankind and as such it was unlawful. They submitted that they were therefore entitled to damages. 

The Defendants have submitted that they had the authority under s. 145 of the Lands Act to issue notices to quit to the Plaintiffs. They further submitted that the Plaintiffs were not entitled to damages in these proceedings as they have not made any claim for damages among the reliefs sought.

I accept the Defendants’ submission that the Plaintiffs are not entitled to damages in these proceedings. The originating summons filed by the Plaintiffs herein does not claim any such relief nor do they claim "other orders as the Court may deem fit" to enable the Court to make orders for damages to be assessed. So in the event of me declaring the conduct of the Defendants harsh and oppressive and therefore unlawful in view of the particular circumstances of this case, then any claim for damages would have to be instituted separately in the National Court.

With regard to the issue of whether or not the conduct of the Defendants in evicting the Plaintiffs after only 30 days notice was harsh and oppressive and therefore unlawful in the circumstances of this particular case, the Defendants have not mounted any legally sustainable defence at all. Their submission that hey had the right to issue notices to quit under s. 145 of the Lands Act is not in issue. It was and is an undisputed fact.

Having regard to the fact that the Plaintiffs had lived at varying periods totalling almost 50 years and had even erected permanent buildings and engaged themselves in small scale commercial ventures such as trade stores, piggery and poultry as well as planted fruit trees under an honest but mistaken belief that they would reside on that land permanently, they could not have been reasonably expected to dismantle let alone destroy those properties within a period of one (1) month from the date of the notice to quit.

I am satisfied, on the balance of probabilities, that the Plaintiffs have discharged the onus imposed upon them by Constitution s. 41 (3). I find that on the evidence and in the circumstances, the eviction carried out by the Defendants was not only harsh and oppressive but inhuman and was not reasonably justifiable in a democratic society having regard to the inherent dignity of the human person. I accordingly declare the eviction unlawful.

The Plaintiffs’ costs shall be paid by the Defendants to be taxed if not agreed.
_____________________________________________________________
Gamoga Lawyers		for the Plaintiffs
Warner Shand Lawyers	 for the Defendants