Keitinga Ltd v Ane [2022] PGNC 36; N9479 (11 March 2022)

N9479

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1504 OF 2019

BETWEEN
KEITINGA LIMITED
First Plaintiff

AND
KUNAI TOMBA in his capacity as the Director of the First Plaintiff
Second Plaintiff

AND
ALA ANE, in his capacity as the current Acting Registrar of Titles
First Defendant

AND
BENJAMIN SAMSON, in his capacity as the current Secretary for Department of Lands and Physical Planning
Second Defendant

AND
HON JOHN ROSSO MP, in his capacity as the current Minister for Lands and Physical Planning
Third Defendant

AND
NATIONAL CAPITAL DISTRICT COMMISSION
Fourth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Makail, J
2021: 18^th June
2022 11^th March

LIABILITY – NEGLIGENCE – Duty of care – Duty of care of public officer – Discharge of duty – Whether public officer owe a duty of care – No duty of care owed to public at large – Liability not established – Action based on negligence dismissed

Facts
The plaintiffs sued the defendants for negligence. It is not disputed that the defendants are either public officers or bodies. The plaintiffs alleged that the first, second and third defendants owed a duty of care to check and ensure that the land was located in a zone where it may be available for leasing before they published it in a notice in the National Gazette as being available for leasing. As for the fourth defendant, it had a duty of care to inform the first, second and third defendants that the land was a reserved land and for purposes and not available for leasing. Each defendant breached its duty of care when they failed to do that and allowed the plaintiffs to apply and the first plaintiff was granted a State Lease for business commercial purpose. After the grant of the State Lease, the plaintiffs were denied access and possession of the land and to develop it because the State Lease was contrary to and breached the zoning requirement, in that, the land was reserved for public purpose. Because of that, they suffered damages.

Held:

1. A public officer owed no duty of care to the public at large in the discharge of his duties: Rupundi Maku & Ors v. Steven Maliwolo, Police & The State (2011) SC1171 referred to.
   
2. By virtue of the State Lease, the first plaintiff held an indefeasible title. It remains valid until such time it is set aside. If the plaintiffs have been deprived of possession of the land and right to quiet enjoyment, it is a separate matter for them to pursue.
   
3. For now, the cause of action the plaintiffs have maintained against the defendants does not support the relief sought because the defendants owe no duty of care to them. In other words, the plaintiffs have relied on a wrong cause of action.
   
4. Liability has not been established and the proceeding is dismissed with costs.
   

Cases Cited:
Papua New Guinean Cases

Daniel Pomat v. Consort Express Lines Limited (2020) N8300
Rupundi Maku & Ors v. Steven Maliwolo, Police & The State (2011) SC1171
Melinda Baduk v. Waigani Community School Board of Management & The State [1993] PNGLR 250

Overseas Cases

Donoghue v. Stevenson [1932] AC 562

Counsel:

Ms. J. Topo, for Plaintiffs
Ms. B. Kulumbu, for First, Second, Third & Fifth Defendants
Ms. L. Raula, for Fourth Defendant

JUDGMENT

11^th March, 2022

1. MAKAIL J: By a writ of summons filed 26^th November 2020 the plaintiffs sued the plaintiff for negligence and sought the following orders:

(a) General damages for negligence, frustration and hardship.
(b) Loss of business of K7,936,736.00
(c) Special damages of K100,000.00
(d) Aggravated damages for loss of business

(e) Interest at 2% pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act, 2015
(f) Costs

Undisputed Facts

2. From the various affidavits tendered by parties, it is not disputed that the first plaintiff was granted a State Lease over a piece of land described as Allotment 35 Section 137 Hohola National Capital District on 23^rd November 1995. The land is located at Waigani.

3. Prior to the grant, the land was published in a notice in the National Gazette as being available for leasing and the first plaintiff applied for it. Its application was accepted and it was recommended to be granted the State Lease by the Land Board.

4. After it was granted the State Lease, the plaintiffs were denied access and possession of the land and could not develop it because the fourth defendant applied to the first defendant to cancel the State Lease on the ground that it was contrary to and breached the zoning requirements, in that, the land was identified as reserved for public purpose.

5. On 5^th March 2010 the first defendant upheld the request and cancelled the first plaintiff’s State Lease. The plaintiffs filed proceedings OS (JR) No 832 of 2013 and sought judicial review of the decision of the first defendant to cancel the State Lease. On 21^st April 2017 the National Court upheld the application for judicial review and ordered that first plaintiff’s State Lease be restored.

6. The defendants denied liability and maintained the ground that the State Lease was granted contrary to and in breach of the zoning requirements. They contended that while the National Court had upheld the plaintiffs’ application for judicial review and ordered the first defendant to restore the first plaintiff’s State Lease, it is still open to them to rely on the breach of zoning requirements as a complete defence to the action for trespass.

Liability

7. To prove liability in negligence, the plaintiffs must prove that the defendants owed a duty of care to them, the defendants breached the duty of care and they suffered damages.

8. The pleadings in the statement of claim alleged that the defendants owed a “legal duty of care towards the plaintiffs” to, amongst others; ensure that the first plaintiff’s State Lease was proper, legal and valid. They breached the duty of care when the first, second and third defendants failed to ensure that the land was within a zone designated for business commercial purposes and available for leasing.

9. The plaintiffs must first prove whether a duty of care exists and a public officer, in this case, the first, second and third defendants owed a duty of care to check if the land was located in a zone where it may be available for leasing before they published it in a notice in the National Gazette as being available for leasing.

10. As for the fourth defendant, the plaintiffs must prove whether the fourth defendant had a duty of care to inform the first, second and third defendants that the land was a reserved land and for purposes and not available for leasing.

11. The plaintiffs submitted that based on the common law tort of negligence, the defendants owed a duty of care to them. That duty of care included ensuring that the land was free of any encumbrance prior to advertising it as being available for leasing. They breached that duty of care.

12. This submission appears to be premised on the view that a public official owes a duty of care in the discharge of his duty. If so, it is rare to find a case where a public officer was held liable for being negligent in the discharge of a public duty. Contrast this case with Daniel Pomat v. Consort Express Lines Limited (2020) N8300 where it was held that failure by a shipping company to comply with the provisions of a statute (Merchant Shipping Act) constituted a breach of statutory duties and the company was held liable in damages to an injured employee (seaman).

13. Unlike a professional negligence action against a doctor or lawyer where it is recognised at common law that a doctor or a lawyer owes a duty of care to a patient or client respectively, the alleged negligence in this case is against a public officer. The question is does the neighbourhood principle enunciated by Lord Atkin in Donoghue v. Stevenson [1932] AC 562 extend to a public officer in the discharge of his public duty?

14. The cases including Donoghue v. Stevenson cited by counsel for the parties in their written submissions are of general application. None of them directly address the issue of whether a public officer owes a duty of care to the public at large. It would appear that under common law a public official owes no duty of care to the public at large in the discharge of his duties for it would be against public policy and good administration.

15. Significantly, it would not be an accurate representation of the relationship between the public official and the public at large to equate a public officer to the level of a doctor or lawyer because in the latter cases, there exist a special relationship between a doctor and patient and lawyer and client respectively for which a duty of care exists. Amongst others, one of the duties is to be diligent and act in the best interest of the patient or client. Such duty of care does not extend to or exists between a public officer and a member of the public.

16. In the discharge of his duty, a public officer should be judged at the same standard as a member of the police who fails or refuses to stop a fight or robbery from taking place. In one case, the allegation that members of the police failed to stop a tribal fight was rejected by the Supreme Court for public policy reasons: see Rupundi Maku & Ors v. Steven Maliwolo, Police & The State (2011) SC1171.

17. In another example, imagine the chaos and disruption it would have on a learning environment in a public school if the law recognised a duty of care exists for a teacher to attend work each day to teach its pupils and what if the teacher failed or deliberately absconded. This case scenario is different to recognising a duty of care exists to provide a safe and secured learning environment in a classroom and where a pupil is injured by another pupil, the class teacher is held to have breached the duty of care and the School and the State held liable for negligence: see Melinda Baduk v. Waigani Community School Board of Management & The State [1993] PNGLR 250.

Conclusion

18. In this case, there is no dispute that the first to fourth defendants are either public officers or bodies. And in conclusion and in answer to the question posed, these defendants owe no duty of care to the plaintiffs when a decision was made to grant a State Lease to the first plaintiff for the subject land even though the State Lease was allegedly granted in breach of the zoning requirement.

19. The fact remains a decision was made in favour of the plaintiffs and the first plaintiff was granted a State Lease. By virtue of the State Lease, it held an indefeasible title. Even though the State Lease was cancelled, it was subsequently restored by an order of the National Court and remains valid until such time it is set aside: see Section 33 of the Land Registration Act. If the plaintiffs have been deprived of possession of the land and right to quiet enjoyment, it is a separate matter for them to pursue.

Order

20. For now, the cause of action they have maintained against the defendants does not support the relief sought because the defendants owe no duty of care to them. In other words, the plaintiffs have relied on a wrong cause of action. It follows they have failed to established liability. The proceeding is dismissed with costs to the defendants, to be taxed, if not agreed.
_______________________________________________________________
Emunah Legal: Lawyers for Plaintiffs
Solicitor General: Lawyers for First, Second, Third & Fifth Defendants
NCDC Legal Division: Lawyers for Fourth Defendant