Ipata v Obe [2018] PGNC 606; N7593 (29 November 2018)

N7593

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 15 OF 2017

JIMMY IPATA, LYEI KINGI & ANGO LEPATU
Plaintiffs

V

LESLIE ALU OBE, CITY MANAGER &
NATIONAL CAPITAL DISTRICT COMMISSION
First Defendants

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Cannings J
2018: 12^th July, 25^th September, 29^th November

HUMAN RIGHTS – enforcement – trial on liability – forced demolition by a public authority of houses and other structures of long term occupiers of land along road corridor – alleged illegal structures – whether human rights of occupiers breached in demolition exercise

The plaintiffs were long-term occupiers of land along a road corridor in the National Capital District. Two months after service on them of demolition notices requiring them to demolish the houses and other structures erected on the land, to make way for construction of a new highway, persons engaged by the National Capital District Commission (NCDC) entered the land and demolished all the buildings on it, thereby forcibly evicting the plaintiffs from the land. The plaintiffs commenced proceedings against the NCDC and the State, seeking damages for breaches of human rights. The plaintiffs claimed that the land was customary land, that they had the permission of the customary owners to occupy it and erect houses and other buildings on it, that the land was never compulsorily acquired by the State, that the NCDC failed to respond to their concerns and failed to negotiate with them and did not conduct a survey of who and what was on the land with a view to arranging relocation of the settlers and offering them reasonable compensation, and that the NCDC gave them unequal, harsh and oppressive treatment compared to alternative occupation and compensation packages offered to illegal squatters affected by development projects in other parts of the city. A trial was conducted on the question of liability.

Held:

(1) The plaintiffs were long-term occupiers of the land. Some had been living on the land, without active opposition, for more than 30 years.

(2) When it was first occupied by the plaintiffs, the land was customary land, but in the period from when the demolition notices were served to when the demolition exercise was carried out, it was government land, having been compulsorily acquired by the State under the Land Act.

(3) The plaintiffs’ assertion that they had occupied the land with the consent of the customary owners was unproven.

(4) The demolition notices were validly issued under the Physical Planning Act.

(5) The plaintiffs had equitable interests in the land arising from their long-term occupation without active opposition from any lawful authority. They had to be given reasonable notice to leave.

(6) The plaintiffs were given two months to dismantle their buildings and vacate the land. This was ample notice given that the land was immediately required for a proper public purpose.

(7) The plaintiffs were not treated harshly or oppressively and none of their human rights were breached.

(8) Liability was not established against any of the defendants. The proceedings were wholly dismissed. The parties were ordered to bear their own costs.

Cases cited

The following cases are cited in the judgment:

Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74
Lelete Plantation Ltd v Paul Rame (2007) N5020
Levi Nanguan v PNG Maritime College (2017) N6711
Tony Yagon & Settlers of Dylup Plantation v Nowra No 59 Ltd (2008) N3375
Wama v Parkop (2018) N7323

APPLICATION

This was a trial on liability to determine the plaintiffs’ application for enforcement of human rights.

Counsel

J Ipata, in person, for the Plaintiffs
M Mukwesipu, for the First Defendants
C Kuson, for the Second Defendant

29^th November, 2018

1. CANNINGS J: On 3 and 4 May 2016 persons engaged by the National Capital District Commission (NCDC), assisted by members of the Police Force, entered, with heavy machinery, an area of land along the Dogura Road (Magi Highway) corridor at Six Mile, National Capital District occupied by the plaintiffs, Jimmy Ipata, Lyei Kingi and Ango Lepatu. The plaintiffs’ houses and other buildings including trade stores that they had erected on the land over a period of more than 30 years were bulldozed and demolished. The plaintiffs had been living on the site of a redevelopment project: the expanded highway (from two-lane to four-lane) being built between Six Mile and Bautama, Central Province. The construction contract for the new highway had the previous year been awarded to Hebou Construction Ltd.

2. In early March 2016 the NCDC issued demolition notices to the plaintiffs and other persons living along the road corridor, requiring them to remove all existing buildings and ancillary structures, which were regarded as unauthorised structures. The plaintiffs did not appeal against the issuance of the notices and did not file any court proceedings aimed at getting an injunction to stop the demolition exercise going ahead.

3. The plaintiffs commenced the present proceedings in January 2017 by filing an application for enforcement of human rights, in form 124 of the National Court Rules. That was and remains the originating process. The plaintiffs were not directed to file a statement of claim. There are two defendants: the City Manager and the NCDC (first defendants) and the State (second defendant). A trial has been conducted on the question of liability.

THE PLAINTIFFS’ CASE

4. The plaintiffs claim that the land was customary land, that they had permission of the customary owners to occupy it and erect houses and other buildings on it, that the land was never compulsorily acquired by the State, that the NCDC failed to respond to their concerns and failed to negotiate with them and did not conduct a survey of who and what was on the land with a view to arranging relocation of the settlers and offering them reasonable compensation, and that the NCDC gave them unequal, harsh and oppressive treatment compared to alternative occupation and compensation packages offered to illegal squatters affected by development projects in other parts of the city.

5. They argue that their human rights were breached, in that they were denied the right to freedom under Section 32 of the Constitution, the right to life under Section 35 of the Constitution, the right to freedom from inhuman treatment under Section 36 of the Constitution and the full protection of the law under Section 37 of the Constitution; they were dealt with harshly and oppressively contrary to Section 41 of the Constitution; their right to freedom of employment was violated contrary to Section 48 of the Constitution; their properties were compulsorily acquired without just compensation contrary to Section 53 of the Constitution; and they were denied the right of equality of citizens under Section 55 of the Constitution.

THE DEFENDANTS’ POSITION

6. The defendants deny liability. They argue that the plaintiffs have not proven that the land was customary land or that they had the permission of the customary owners to occupy it; but if they had permission, the land was compulsorily acquired by the State; and even if they could prove (which is denied) that it remained customary land, the plaintiffs were still subject to the demolition notices. None of the buildings that they had erected had building approval. All were illegal structures. The plaintiffs were obliged to dismantle them, failing which the structures would be demolished. The plaintiffs failed to heed the notices and suffered the consequences which they brought upon themselves. The plaintiffs were given ample time to leave. Their human rights were not breached.

ISSUES

7. The following issues arise:

(1) What was the status of the land?

(2) Were the plaintiffs authorised occupiers of the land?

(3) Were the demolition notices lawful?

(4) Did the plaintiffs have any interest in the land?

(5) Were the plaintiffs given proper notice to leave?

(6) Were the plaintiffs’ human rights breached?

(7) What orders should the court make?

1. WHAT WAS THE STATUS OF THE LAND?
   

8. The plaintiffs’ case is built on the proposition that the pieces of land that they occupied, and developed, and were in effect evicted from, was not government land. The plaintiffs argue that it was customary land and it was never compulsorily acquired by the State.

9. The plaintiffs’ evidence suggests that in the period that they moved on to the land, which they say was from 1986 to 1997, the land was customary land. However, their evidence as to what particular areas of customary land they occupied, is vague. They describe it generally as “Portion 1512C”. While it is reasonably clear that the plaintiffs were in fact occupying customary land in the period from 1986 to 2016, it is equally clear, from the evidence presented by the NCDC, through its principal engineer, Ravu Frank, that the land along the Dogura Road/Magi Highway road corridor was in 2016 “acquired by compulsory process” under Section 12(1) of the Land Act 1996 “for purposes of or connected to the construction of a public road”.

10. I am satisfied on the best evidence available that in fact the land occupied by the plaintiffs was compulsorily acquired by the State. The land was, at the time that the demolition notices were given, no longer customary land. It was government land.

2. WERE THE PLAINTIFFS AUTHORISED OCCUPIERS OF THE LAND?
   

11. The plaintiffs maintain that they entered the land and developed it with the agreement of the customary owners. However, there is very little evidence to support this assertion. In fact, the only evidence is statements to that effect in the plaintiffs’ affidavits. There is no corroboration of the assertions and no evidence of any written record of the agreements. The plaintiffs have failed to prove on the balance of probabilities that they had the permission of the customary owners. I decline to find that they were authorised occupiers.

3. WERE THE DEMOLITION NOTICES LAWFUL?
   

12. I uphold the defendants’ argument that the demolition notices were properly issued under Section 99(3) of the Physical Planning Act and that the plaintiffs were obliged to comply with the notices, by virtue of Section 99(4).

13. Section 99 (stop work and demolition notices) states:

(1) The owner, occupier or developer of any land on which building, engineering, mining or other operations are being carried out in contravention of this Act, may be issued with a stop work notice, by or on behalf of a Board, requiring the operations to stop.

(2) Where unauthorized building or engineering operations have been carried out, a Board may serve a demolition notice on the owner, occupier, developer or builder or on any two or more of the foregoing requiring the unauthorised work to be removed and the land restored to its state prior to the commencement of the operations.

(3) A demolition notice under Subsection (2) shall be issued within 12 months of the date when the operations were first brought to the notice of the Board.

(4) A person who, without reasonable excuse (proof of which is on him), fails to comply with the requirements of a stop work notice or a demolition notice is guilty of an offence.

Penalty: A fine not exceeding K4,000.00.

Default penalty: A fine not exceeding K400.00.

14. I uphold the defendants’ argument that the plaintiffs were obliged to comply with the demolition notices irrespective of the status of the land. Even if it was customary land which had never been compulsorily acquired, and even if the customary landowners had permitted the plaintiffs to occupy and develop it, the plaintiffs were still obliged to comply with the demolition notices. They had not obtained planning or building approval for their houses, trade stores, workshops and other structures that they erected over a number of years. All of their structures were illegal. The plaintiffs were obliged to remove them.

4. DID THE PLAINTIFFS HAVE ANY VALID INTEREST IN THE LAND?
   

15. The plaintiffs argue that they had equitable interests in the land arising from their long-term occupation of it and the lack of opposition to them being there and developing the land. There is ample evidence in support of the argument and I have no difficulty in upholding it. Irrespective of whether the plaintiffs had permission of the customary owners to occupy and develop the land, their long-term occupation and development of it without opposition vested in them equitable interests in the land (Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74, Tony Yagon & Settlers of Dylup Plantation v Nowra No 59 Ltd (2008) N3375).

16. Such interests did not confer any right to long-term occupation, but it gave them a right to be given reasonable notice to vacate the land (Lelete Plantation Ltd v Paul Rame (2007) N5020, Levi Nanguan v PNG Maritime College (2017) N6711).

5. WERE THE PLAINTIFFS GIVEN PROPER NOTICE TO LEAVE?
   

17. Yes. I find that the demolition notices served on the plaintiffs in early March 2016 gave them ample notice – two months – that they had to dismantle their houses and other buildings and move out. It was obvious the new highway was being built.

18. They had no right to compensation or an offer of alternative accommodation. Apart from vague assurances that they had permission of the customary landowners to be on the land, they had no evidence that they were authorised occupiers.

19. The plaintiffs have attempted to argue that they were authorised settlers, not squatters. I agree that there is, in fact and law, such a distinction (Tony Yagon for Himself & on behalf of Settlers of Dylup Plantation v Nowra No 59 Ltd trading a Dylup Plantation (2008) N3375).

20. Their representative, Mr Ipata, argued that this case was different to the recent case of Wama v Parkop (2018) N7323. The plaintiffs in Wama were squatters who moved on to government land, a road reserve, without permission, whereas here, Mr Ipata argues, the land was customary land and he and the other plaintiffs had the permission of the customary landowners to occupy and develop the land. I understand the argument but as I ruled earlier, there is no evidence to support those assertions as to the status of the land and the concurrence of the customary landowners.

21. No former customary landowners have come forward to support the plaintiffs’ case and corroborate what they say. I have come to the view that the plaintiffs squatted on other people’s land without permission and took a big risk in doing so. They were given proper notice to leave.

6. WERE THE PLAINTIFFS’ HUMAN RIGHTS BREACHED?
   

22. No. They were not denied the right to freedom under Section 32 of the Constitution, or the right to life under Section 35 of the Constitution. They were not treated inhumanely under Section 36 of the Constitution. They were not denied the full protection of the law under Section 37 of the Constitution. They were not dealt with harshly or oppressively or in any other way contrary to Section 41 of the Constitution. Their right to freedom of employment was not violated under Section 48 of the Constitution. Their properties were not compulsorily acquired without just compensation. There was no breach of Section 53 of the Constitution. They were not denied the right of equality of citizens under Section 55 of the Constitution.

23. On the last point, the plaintiffs no doubt felt hard done by as it appears that in the period that the demolition exercise took place the NCDC made agreements with squatter groups in other parts of the NCD that provided for limited compensation and resettlement plans. However, this is essentially a political issue rather than a legal, including a human rights, issue. I consider that the fact that other squatter groups were being offered incentives to leave, did not give rise to a right or legitimate expectation vesting in the plaintiffs that they would be given the same treatment.

7. WHAT ORDERS SHOULD THE COURT MAKE?
   

24. The plaintiffs have not proven that their human rights were breached. The case must be wholly dismissed. Normally costs follow the event and the plaintiffs would be ordered to pay the defendants’ costs. However for two reasons I consider that such an order is not appropriate. First, the evidence suggests that on numerous occasions in 2015 and 2016 the NCDC failed to respond to reasonable requests by the plaintiffs to negotiate the issue of their vacation of the land. There was a lack of communication on the part of the NCDC: a lack of willingness to talk, listen and explain. Secondly the defendants were not diligent in bringing evidence before the court to clarify the status of the land. Therefore the parties will bear their own costs.

ORDER

(1) The proceedings are wholly dismissed.

(2) The parties will bear their own costs.

(3) The proceedings are thereby determined and the file is closed.

Judgment accordingly.
____________________________________________________________
Mukwesipu Lawyers: Lawyers for the First Defendant
Solicitor-General: Lawyer for the Second Defendant