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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (HR) NO 2 OF 2022
NAGIRA MALE,
ON BEHALF OF HERSELF & PAUL MASTA, MERILYN KAJOI, DOROTHY MARUBU, JOSEPHINE SIMAI & HELEN HABUKA
Plaintiffs
V
EZIKIEL SHAMMER YAWII
First Defendant
NATIONAL HOUSING CORPORATION
Second Defendant
METROPOLITAN SUPERINTENDENT,
NATIONAL CAPITAL DISTRICT, ROYAL PNG CONSTABULARY
Third Defendant
Waigani: Cannings J
2021: 29th October,
2022: 12th, 29th April, 1st July
REMEDIES – declarations – whether appropriate to declare that plaintiffs are legal tenants and occupiers of residential property.
HUMAN RIGHTS – Constitution, sections 37 (protection of the law), 41 (proscribed acts), 53 (protection from unjust deprivation of property) – whether human rights of plaintiff occupiers of residential property were breached by not naming all occupiers of the property in court proceedings.
The plaintiffs are long-term occupiers of a residential property in an urban area who for a significant period paid rent to the National Housing Corporation (second defendant). The first defendant, who claimed to be the registered proprietor of the property, obtained an order from the District Court authorising eviction of the plaintiffs. The plaintiffs did not appeal against that order, but instead commenced these proceedings, as an application for enforcement of their human rights under Constitution, ss 37 (protection of the law), 41 (proscribed acts) and 53 (protection from unjust deprivation of property). The plaintiffs sought four declarations: (1) that the principal plaintiff had standing to bring the proceeding on behalf of five other persons; (2) that the plaintiffs are legal tenants of the property; (3) that the principal plaintiff was denied the full protection of the law under Constitution, s 37 when she was not named as a party in the District Court proceedings; (4) that the District Court order authorising eviction of the plaintiffs was unlawful under ss 41 and 53 of the Constitution.
Held:
(1) The principal plaintiff potentially had standing to bring the proceedings on behalf of others but should have complied with the requirements for commencement of representative proceedings. First declaration refused.
(2) The first defendant is the registered proprietor of a State Lease over the property. The National Housing Corporation was the previous registered proprietor but transferred the property to the first defendant through a contract of sale. The plaintiffs are no longer lawful tenants of the National Housing Corporation. Second declaration refused.
(3) The fact that the principal plaintiff was not expressly named as a defendant in the District Court proceedings is inconsequential as those proceedings were commenced against some of the existing plaintiffs and “all other illegal occupants” of the property. She was not denied the full protection of the law. Third declaration refused.
(4) None of the plaintiffs have been denied the full protection of the law, the manner in which the first defendant commenced proceedings in the District Court was not harsh or oppressive and there has been no unlawful deprivation of the plaintiffs’ interests in the property. Thus, there has been no breach of the plaintiffs’ human rights under ss 37, 41 or 53 of the Constitution. Fourth declaration refused.
(5) All claims for relief were refused and the proceedings were dismissed, subject to an order that the plaintiffs have two months to vacate the property, during which time the National Court order restraining their eviction shall continue and at the end of which time the District Court order and warrant to police granted by the District Court shall be reinstated.
Cases Cited
The following cases are cited in the judgment:
Papua New Guinean Cases
Donigi v The State [1991] PNGLR 376
Emas Estate Development Pty Ltd v John Mea [1993] PNGLR 215
Gawi v png Ready Mixed Concrete Pty Ltd [1984] PNGLR 74
Joe Kape Meta v Kumono, Kulunio & The State (2012) N4598
Kol Toki v Moeka Morea (2016) SC1588
Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120
Lelete Plantation Ltd v Paul Rame (2007) N5020
Morobe Provincial Government v John Kameku (2012) SC1164
Ok Tedi Mining Ltd v Niugini Insurance Corporation (No 2) [1988-89] PNGLR 425
Petrus and Gawi v Telikom PNG Ltd (2008) N3373
PNG Deep Sea Fishing Ltd v Luke Critten (2010) SC1126
Simon Mali v The State (2002) SC690
The State v Central Provincial Government (2009) SC977
Tigam Malewo v Keith Faulkner (2009) SC960
Tony Yagon & Settlers of Dylup Plantation v Nowra No 59 Ltd (2008) N3375
Overseas Cases
Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438
Counsel
J Marubu, for the Plaintiffs
K Nugi, for the Defendants
1st July, 2022
1. CANNINGS J: The plaintiffs are long-term occupiers of a residential property, Section 12, Allotment 3, Tanatana Street, Boroko, National Capital District. For a significant period they paid rent to the National Housing Corporation (second defendant). The first defendant, Ezikiel Shammar Yawii, who claims to be the registered proprietor of the property, obtained an order from the District Court authorising eviction of the plaintiffs.
2. The plaintiffs did not appeal against that order, but instead commenced these proceedings, as an application for enforcement of their human rights under Constitution, ss 37 (protection of the law), 41 (proscribed acts) and 53 (protection from unjust deprivation of property).
3. The plaintiffs seek four declarations:
(1) that the principal plaintiff has standing to bring the proceeding on behalf of five other persons;
(2) that the plaintiffs are legal tenants of the property;
(3) that the principal plaintiff was denied the full protection of the law under Constitution, s 37 when she was not named as a party in the District Court proceedings; and
(4) that the District Court order authorising eviction of the plaintiffs was unlawful under ss 41 and 53 of the Constitution.
4. The principal plaintiff potentially had standing to bring the proceedings on behalf of others but I uphold the submission of Ms Nugi, for the first defendant, that she should have complied with the requirements for commencement of representative proceedings.
5. The leading Supreme Court cases of Simon Mali v The State (2002) SC690 and Tigam Malewo v Keith Faulkner (2009) SC960 show that if a person, such as the principal plaintiff, Nagira Male, puts themselves forward as a plaintiff acting in a representative capacity for other persons – which has been done here as Ms Male asserts that she represents five other tenants of the property, there are procedural requirements that must be met:
(a) all intended plaintiffs (including those the lead plaintiff claims to represent) must be named in the originating process;
(b) each and every intended plaintiff must give specific instructions (evidenced in writing) to their lawyers or their personal representative to represent them; and
(c) all persons in whose name proceedings are commenced and who claims to represent other intended plaintiffs must produce an authority to the court to show that they were authorised by them to file proceedings as a class representative.
6. Requirement (a) has been met, but not (b) or (c). This in itself provides the grounds on which these proceedings can be dismissed as an abuse of process. The first declaration sought by the plaintiffs is refused.
2 ARE THE PLAINTIFFS LEGAL TENANTS?
7. There is an abundance of evidence to show that the first defendant is the registered proprietor of a State Lease over the property. The National Housing Corporation was the previous registered proprietor but transferred the property to the first defendant through a contract of sale.
8. As the registered proprietor the first defendant has indefeasible title subject only to the exceptions in s 33(1) (protection of registered proprietor) of the Land Registration Act, including s 33(1)(a), which states: “The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except ... in the case of fraud”.
9. “Fraud” means actual fraud or constructive fraud. Constructive fraud exists where the circumstances of transfer of title are so unsatisfactory, irregular or unlawful, it is tantamount to fraud, warranting the setting aside of registration of title. There is now a strong line of Supreme Court authority in support of the constructive fraud approach: Emas Estate Development Pty Ltd v John Mea [1993] PNGLR 215, PNG Deep Sea Fishing Ltd v Luke Critten (2010) SC1126, Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120 and Kol Toki v Moeka Morea (2016) SC1588.
10. It has been alleged by the plaintiffs, but only loosely and vaguely and without evidence, that the first defendant obtained title by fraud. The issue of fraud has not been properly raised and the allegation of fraud has no substance in these proceedings.
11. The plaintiffs are no longer lawful tenants of the National Housing Corporation. The second declaration sought by the plaintiffs is refused.
12. Section 37(1) (protection of the law) states:
Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.
13. The fact that the principal plaintiff was not expressly named as a defendant in the District Court proceedings is inconsequential as those proceedings were commenced against some of the existing plaintiffs and “all other illegal occupants” of the property. She was not denied the full protection of the law.
14. Section 41 (proscribed acts) states:
(1) Notwithstanding anything to the contrary in any other provision of any law, any act that is done 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 circumstances or of the particular case; or
(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,
is an unlawful act.
(2) The burden of showing that Subsection (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.
(3) Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.
15. Section 41 proscribes (ie prohibits) and gives protection against seven sorts of acts (Morobe Provincial Government v John Kameku (2012) SC1164, Petrus and Gawi v Telikom PNG Ltd (2008) N3373; Joe Kape Meta v Kumono, Kulunio & The State (2012) N4598). Even if done under a valid law and notwithstanding anything to the contrary in any law, an act is unlawful if it is, in the particular case:
1 harsh; or
2 oppressive; or
3 not warranted by the requirements of the particular circumstances; or
4 disproportionate to the requirements of the particular circumstances; or
5 not warranted by the requirements of the particular case; or
6 disproportionate to the requirements of the particular case; or
16. Under s 41(2) the burden of showing that another person has committed an act falling within one of the seven categories of acts proscribed by s 41(1) is on the party alleging it.
17. I am not persuaded that the plaintiffs have discharged the burden of proving that the first defendant’s bringing of proceedings in the District Court or the order of the District Court falls into any of those categories of proscribed acts. The first defendant, as registered proprietor, who was not subject to any other proceedings challenging his title, was in a very strong position. On the face of it, the District Court has made a proper order under the Summary Ejectment Act, within its jurisdiction. There has been no appeal against the District Court order. I fail to see how what has happened can be regarded as harsh or oppressive or falls into any of the categories of proscribed acts.
18. Under s 53(1) of the Constitution every person has the right to be protected against compulsory taking or acquisition of their property unless the taking or acquisition occurs in accordance with the requirements set out in other provisions of Section 53.
19. Section 53(1) states:
Subject to Section 54 (special provision in relation to certain lands) and except as permitted by this section, possession may not be compulsorily taken of any property, and no interest in or right over property may be compulsorily acquired, except in accordance with an Organic Law or an Act of the Parliament, and unless—
(a) the property is required for—
(i) a public purpose; or
(ii) a reason that is reasonably justified in a democratic society that has a proper regard for the rights and dignity of mankind, that is so declared and so described, for the purposes of this section, in an Organic Law or an Act of the Parliament; and
(b) the necessity for the taking of possession or acquisition for the attainment of that purpose or for that reason is such as to afford reasonable justification for the causing of any resultant hardship to any person affected.
20. The only interest in the subject property that the plaintiffs have, as occupiers, is equitable in nature. They have a right to be given reasonable notice to vacate the property. That is all (Gawi v png Ready Mixed Concrete Pty Ltd [1984] PNGLR 74, Tony Yagon & Settlers of Dylup Plantation v Nowra No 59 Ltd (2008) N3375, Lelete Plantation Ltd v Paul Rame (2007) N5020).
21. I conclude that none of the plaintiffs have been denied the full protection of the law, the manner in which the first defendant commenced proceedings in the District Court was not harsh or oppressive and there has been no unlawful deprivation of the plaintiffs’ interests in the property. There has been no breach of the plaintiffs’ human rights under ss 37, 41 or 53 of the Constitution.
REMARKS
22. Before concluding, I make these remarks about these novel proceedings. The plaintiffs have sought four declarations. They have not sought any consequential relief. This is a risky tactical move. A declaration is an equitable remedy that should only be granted where it is necessary and convenient to do so and where it would aid in resolution of the real issues at the centre of a dispute between parties. Other conditions that should exist before the Court considers granting a declaration have been spelt out by Kapi DCJ in Ok Tedi Mining Ltd v Niugini Insurance Corporation (No 2) [1988-89] PNGLR 425 and by Brown J in Donigi v The State [1991] PNGLR 376 and by the Supreme Court in The State v Central Provincial Government (2009) SC977. We continue in PNG to have regard to the persuasive authority of the House of Lords in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438. The inherent jurisdiction of the National Court to grant a declaration of the rights and obligations of parties or the legal effect of their actions should only be exercised if the following criteria are satisfied:
23. This means that even if the plaintiffs had managed to convince the Court that in principle the declarations should be granted, it was unlikely that the declarations would in fact have been granted as there has not been any application for any order, as such, against anyone.
CONCLUSION
24. These proceedings will be dismissed, subject to an order that the plaintiffs have two months to vacate the property, during which time the National Court order restraining their eviction shall continue and at the end of which time the District Court order and warrant to police granted by the District Court shall be reinstated.
25. Costs would normally follow the event. However, because of the precarious position in which the plaintiffs have been put, I consider that it would not be in the interests of justice to order them to pay the first defendant’s costs. The National Housing Corporation appears to be at fault due to its failure to communicate with the people who were their tenants. The Corporation has not been cooperative with the Court and has lost interest in these proceedings. The interests of justice are best served by allowing the parties to bear their own costs.
ORDER
__________________________________________________________________
Marubu Lawyers: Lawyers for the Plaintiffs
PANG Legal Services: Lawyers for the First Defendant
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