|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS (HR) NO 12 OF 2011
SOLOMON MOFU FOR HIMSELF AND 82 OTHER WEST PAPUAN REFUGEES NAMED IN THE SCHEDULE TO THE WRIT
Plaintiffs
V
CONSTABLE ANDREW KUMBIA
First Defendant
JOSEPH KONDOP, METROPOLITAN SUPERINTENDENT, NCD
Second Defendant
TOM KULUNGA, COMMISSIONER OF POLICE
Third Defendant
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant
Waigani: Cannings J
2022: 19th August, 7th, 8th, 25th November,
2023: 4th January
HUMAN RIGHTS – enforcement – trial on liability – forced demolition of houses and other properties of long-term occupiers of government land – eviction exercise – whether reasonable notice given – whether actions of Police harsh and oppressive for purposes of Constitution, s 41 – whether other human rights of occupiers breached in eviction exercise – Constitution, ss 37 (protection of the law), 53 (protection from unjust deprivation of property).
TORTS – assault – negligence – whether Police owed duty of care to long-term occupiers of government land – whether Police were negligent in carrying out eviction exercise– trespass.
The plaintiffs were long-term occupants of two portions of government land covered by State Leases. Various court proceedings regarding the land resulted in orders that required them to vacate it and, if they did not comply, authorising the Police and authorised agents to take possession of it. The police entered the land and assisted persons engaged by the registered proprietor (the owner of the land) in conducting an eviction exercise, involving forced ejectment of the plaintiffs and destruction of houses and other structures and properties including trees and food gardens. The plaintiffs originally commenced proceedings in the National Court against the registered proprietor, the member of the Police Force alleged to oversee the police squad involved in the exercise, the Metropolitan Superintendent, the Commissioner of Police and the State. Later, with the leave of the Court, the registered proprietor was removed as a defendant and the proceedings continued against the others. The plaintiffs sought damages and orders that would require the defendants to provide for their resettlement. Various causes of action were pleaded: the torts of assault, negligence and trespass, and breaches of human rights under Constitution, ss 36 (freedom from inhuman treatment), 37 (protection of the law), 41 (proscribed acts), 42 (liberty of the person), 44 (arbitrary search and entry), 49 (right to privacy) and 53 (unjust deprivation of property). The resettlement orders were sought on the basis that the plaintiffs were West Papuan refugees and the fourth defendant, the State, was responsible under various international treaties for their well-being and welfare. Some of the 83 plaintiffs swore affidavits that were adduced in evidence. The defendants provided no evidence. They argued that the eviction exercise was conducted in accordance with orders of the National Court by persons engaged by the registered proprietor with the police playing such a limited role as to exclude them and the State from any liability. A trial was conducted on the question of liability. Four issues were identified by the Court: (1) what are the proven facts? (2) have the plaintiffs proven any cause of action in tort? (3) have the plaintiffs proven any cause of action in breach of human rights? (4) what orders should the Court make?
Held:
(1) Orders of the National Court required the plaintiffs to vacate the property but the date by which they were required to vacate was not expressly stated; nor was how they could be forced to vacate. The plaintiffs were not given formal notice of the eviction exercise. A police squad supervised by the first defendant was actively involved in the exercise. The police were not passive onlookers. The exercise was conducted as alleged by the plaintiffs and involved their forced ejectment and destruction of houses and other structures and properties including trees and food gardens, on land which had been their home for 28 years. However, their claims for refugee status under international treaties was not proven.
(2) None of the claims in tort were proven as evidence in support of the assault claim was lacking; and essential elements of the torts of negligence and trespass were not proven.
(3) The eviction exercise was not authorised by orders of the National Court,. 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. They were not given proper notice due to the lack of clarity as to the date that they were required to vacate the land and the way the eviction exercise could lawfully be conducted. The heavy-handed actions of the police involved a breach of human rights under Constitution, ss 37 (protection of the law), 41 (proscribed acts), 44 (freedom from arbitrary search and entry) and 53 (unjust deprivation of property). Those who committed the breaches were the first defendant and other members (unidentified) of the Police Force.
(4) As no claims were proven against the second or third defendants, the proceedings against them were dismissed. The first defendant was liable for breach of human rights. The fourth defendant, the State, was vicariously liable for the breaches of human rights committed by the first defendant and other members of the Police Force who assisted the first defendant in conducting the eviction exercise. A trial on assessment of damages was ordered in respect of liability established against the first and fourth defendants.
Cases Cited
The following cases are cited in the judgment:
Amaiu v Yalbees (2020) SC2046
Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74
Konori v Jant Ltd [2015] 1 PNGLR 190
Lome v Sele, Wagambie & The State (2017) N6854
Maku v Maliwolo [2012] 1 PNGLR 52
Namah v Pato, National Executive Council and the State (2016) SC1497
Philip Nare v The State (2017) SC1584
Singadan v Telfer (2018) N7072
Yalbees v Amaiu (2018) N7393
Counsel:
T Yai, for the Plaintiffs
P T Ohuma, for the Defendants
4th January, 2023
1. CANNINGS J: This case is brought by Solomon Mofu and 82 other persons of West Papuan origin who fled their traditional homes in the West Papua province of Indonesia in 1982 and settled on customary land in the Nine Mile area of the National Capital District. They established a settlement, which they called Waikiki and it became home to more than 800 people. In the 1990s the land was converted to government land. State Leases were issued for portions 2152 and 2153. The registered proprietor was the then member for Maprik in the National Parliament, Sir Pita Lus.
2. In the years 2009 and 2010, various court proceedings regarding the land resulted in orders that required some of the occupiers to vacate it and, if they did not comply, authorising the Police and authorised agents to take possession of it.
3. On 29 November 2010 the police entered the land and assisted persons engaged by the registered proprietor (the owner of the land) in conducting an eviction exercise, involving forced ejectment of the plaintiffs and destruction of houses and other structures and properties including trees and food gardens to make way for development of the land. The eviction exercise took three days to complete and is the subject of these proceedings.
4. The plaintiffs originally commenced proceedings in the National Court against the registered proprietor, the member of the Police Force alleged to oversee the police squad involved in the exercise, the Metropolitan Superintendent, the Commissioner of Police and the State. Later, with the leave of the Court, the registered proprietor was removed as a defendant and the proceedings continued against the others.
5. The case has taken a very long time to get to trial. The reasons for the delay are unclear. Neither side made an issue of it, so the case has been dealt with on its merits.
6. The plaintiffs seek damages and orders that would require the defendants to provide for their resettlement. Various causes of action are pleaded: the torts of assault, negligence and trespass, and breaches of human rights under Constitution, ss 36 (freedom from inhuman treatment), 37 (protection of the law), 41 (proscribed acts), 42 (liberty of the person), 44 (arbitrary search and entry), 49 (right to privacy) and 53 (unjust deprivation of property). The resettlement orders are sought on the basis that the plaintiffs are refugees and the fourth defendant, the State, is responsible under various international treaties for their well-being and welfare.
7. Some, not all, of the 83 plaintiffs have sworn affidavits that were adduced in evidence. The defendants provided no evidence. They are represented by the Solicitor-General. They argue that the eviction exercise was conducted in accordance with orders of the National Court by persons engaged by the registered proprietor and the police played such a limited role, they and the State are excluded from liability.
8. A trial has been conducted on the question of liability. Four issues arise:
(1) what are the proven facts?
(2) have the plaintiffs proven a cause of action in tort?
(3) have the plaintiffs proven a cause of action in breach of human rights?
(4) what orders should the Court make?
9. In making findings of fact, I have only the plaintiffs’ evidence to go by. The defendants adduced no evidence at all. I am not of course obliged to accept the plaintiffs’ evidence. They still have the burden of proving the facts on which they rely, especially in regard to those that the defendants deny.
10. I find that the plaintiffs are from West Papua and came to settle on customary land at Nine Mile in 1982. They established a settlement, which they called Waikiki and it became home to more than 800 people. In the 1990s the land was converted to government land and was covered by portions 2152 and 2153 and State Leases were issued for them. The registered proprietor was the then member for Maprik in the National Parliament, Sir Pita Lus.
11. The plaintiffs call themselves “refugees”. However, they adduced no evidence that they have formally been conferred refugee status under any international treaties or conventions and I refrain from finding that they have any formal or legal status as refugees.
12. In the years 2009 and 2010, various court proceedings regarding the land resulted in orders that required the plaintiffs to vacate it and, if they did not comply, authorising the Police and authorised agents to take possession of it.
13. Sir Pita Lus commenced proceedings in the District Court centred on portions 2152 and 2153, presumably under the Summary Ejectment Act, applying for an eviction order against some of the plaintiffs. The District Court on 18 December 2007 refused the application.
14. Sir Pita Lus appealed to the National Court against the District Court’s refusal of his application, in proceedings described as:
CIA NO 7 OF 2008
BETWEEN:
SIR PITA LUS
Appellant
AND:
MARTHINUS KAMBU, JOSEPH OVE AND SAMUEL INGGAUER
Respondents
15. The appeal was successful and the National Court on 31 July 2009 made this order:
16. Marthinus Kambu, who was one of the respondents in CIA 7 of 2008, then commenced fresh proceedings in the National Court, described as:
OS NO 518 OF 2009
BETWEEN:
MARTHINUS KAMBU for and on
behalf of other 946 West Papuas [sic]
Plaintiffs
AND:
SIR PITA LUS
First defendant
AND:
INDEPENDENT STATE OF
PAPUA NEW GUINEA
Second defendant
17. The National Court on 7 October 2009 made an interim order, entered on 28 October 2009, in the following terms:
18. It is not clear whether there was a trial in OS 518 of 2009, but the proceedings were determined a year later when on 12 October 2010 the National Court made this order, entered on 13 October 2010:
19. I infer and find from the evidence presented by the plaintiffs in the present case that the order of 12 October 2010 in OS 518 of 2009 was served on their then lawyers, Kange Lawyers.
20. I accept the evidence of the plaintiffs and find that no further written or official notice was given of the eviction exercise, which commenced on 29 November 2010.
21. The police entered the land and assisted persons engaged by the registered proprietor. The eviction exercise involved forced ejectment of the plaintiffs and destruction of houses and other structures and properties including trees and food gardens. It took three days to complete.
22. I accept and find, based on details provided by the lead plaintiff, Solomon Mofu, in his affidavit sworn and filed on 8 July 2013 and admitted into evidence as exhibit P1 (which evidence is reflected in similar accounts of the events in the affidavits of other plaintiffs), that the eviction exercise was conducted in the manner he describes at paragraphs 10 to 21 of his affidavit:
On Monday 29th November 2010 at around 10.00 am the civilian servants and agents of Sir Pita Lus under the leadership of [name provided] and uniformed police personnel led by Constable Andrew Kumia surprisingly arrived at Waikiki settlement on three ten-seater vehicles and a police bus.
The policemen pointed guns at the plaintiffs including myself and our families and commanded us to get out of our place.
They started cutting down my banana trees, mango trees, coconut trees, guava trees, plants, using bush knives, axes and chainsaw. They also chopped down plants and crops belonging to the other plaintiffs.
With the help of a bulldozer they destroyed gardens (peanut, corn, kaukau gardens etc). The other plaintiffs’ gardens were also destroyed in the same way.
Mothers and children were crying and watching helplessly at their properties being destroyed.
Evening came and the plaintiffs including myself and our families had a sleepless night wondering where to go.
The plaintiffs including myself and my family were caught by surprise as we were not served any eviction notice or any other notices.
On Tuesday 30 November 2010 the police and servants and agents of Sir Pita Lus came in the morning and continued the destruction of properties belonging to the plaintiffs including myself.
The police forced us to vacate the area and our community leaders made unsuccessful attempts to delay the eviction on humanitarian grounds.
Evening came and it was the second time that the plaintiffs including myself and my family had a sleepless night. Our children were missing classes as their homes were destroyed.
On Wednesday 1st December 2011 at around 8.40 am as we were mourning over our properties, the police and agents of Sir Pita Lus came back on hire cars with a bulldozer and completely destroyed the houses and canteens and gardens belonging to the plaintiffs including myself.
23. I find that the police involved in the eviction exercise were under the control of the first defendant. The police were actively involved in the exercise.
24. I find that none of the claims in tort have been established. Evidence in support of the assault claim is lacking as there is no evidence of actual physical harm being done to any of the plaintiffs. As to negligence, it is always difficult for plaintiffs to prove negligence against members of the Police Force due to the restrictive approach taken to the element of duty of care, championed by the Supreme Court in Maku v Maliwolo [2012] 1 PNGLR 52. I uphold the submission of Ms Ohuma for the defendants that negligence cannot be established in this case. As to the tort of trespass, this was not clearly pleaded and has not been proven.
25. The plaintiffs claim that their human rights were breached under the following provisions of the Constitution:
s 36 (freedom from inhuman treatment),
s 37 (protection of the law),
s 41 (proscribed acts),
s 42 (liberty of the person),
s 44 (arbitrary search and entry),
s 49 (right to privacy) and
s 53 (unjust deprivation of property).
26. I summarily dismiss the claims under ss 36, 42 and 49. The plaintiffs were not tortured or treated as less than human in the sense intended by s 36 (Konori v Jant Ltd [2015] 1 PNGLR 190) so their rights under s 36 was not breached. They were not arrested or detained or otherwise deprived of their personal liberty in a manner that would warrant a finding that their human rights were breached under s 42 (Namah v Pato, National Executive Council and the State (2016) SC1497). Section 49 confers the right to reasonable privacy on all persons in Papua New Guinea in respect of their private and family life, their communications with other persons and their personal papers and effects (Singadan v Telfer (2018) N7072). I am not satisfied that the plaintiffs’ rights under s 49 were infringed.
27. The plaintiffs’ claims under ss 37, 41, 44 and 53 require deeper consideration. Before assessing them I need to determine two related questions. The way in which they are determined has a bearing on whether the plaintiffs have proven a breach of human rights under any of those provisions of the Constitution. The two questions are:
(i) Was the eviction exercise authorised by the orders of the National Court?
(ii) Were the plaintiffs given reasonable notice that they had to vacate the land?
(i) Was the eviction exercise authorised by the orders of the National Court?
28. Ms Ohuma submitted that the combined effect of the order of 31 July 2009 in CIA 7 of 2008 and the order of 12 October 2010 in OS 518 of 2009 was to authorise the eviction exercise. She argues that the order of 31 July 2009 gave the plaintiffs two months to vacate the land, so they should have left by 30 September 2009. They did not obtain the order in OS 518 of 2009 that set aside the order of 31 July 2009 until 7 October 2009, by which time the order for them to vacate the land had expired. When the order of 12 October 2010 was made in OS 518 of 2009 and those proceedings were dismissed, it was abundantly clear that the time for the plaintiffs to vacate the land had expired. The eviction exercise did not commence until six weeks later, which means that it was entirely authorised by the orders of the National Court, Ms Ohuma submitted.
29. An alternative interpretation of the orders is advanced by Mr Yai, for the plaintiffs. He points out that the order of 7 October 2009 in OS 518 of 2009 “set aside”, and did not just stay, the order of 31 July 2009 in CIA 7 of 2008. So when on 12 October 2010 the Court set aside the order of 7 October 2009, the effect was to reinstate the order of 31 July 2009 in CIA 7 of 2008, which allowed the plaintiffs two months to vacate the land, which period commenced the next day, on 13 October 2010. This meant that the plaintiffs were in lawful occupation of the land until 13 December 2010 and no eviction exercise could lawfully commence before that date. However, the exercise commenced on 29 November 2010, which was in breach of the orders, Mr Yai submitted.
30. Neither of the competing interpretations of the orders is unreasonable. The meaning and effect of the orders are inherently ambiguous. When interpreting and applying court orders that are ambiguous and arguably authorise an eviction exercise, the benefit of the doubt should be given, in my view, to those people who are the subject of the exercise, in this case, the plaintiffs.
31. For that reason I prefer the interpretation of the orders advanced by Mr Yai. I find that the eviction exercise was conducted prematurely, and unlawfully.
32. I am fortified in that view by what I consider is another principle that should be applied when the legality of a purported court-sanctioned eviction exercise is called into question: court orders should spell out the specific date that the exercise can take place, who is authorised to do what, the land that is to be subject of the exercise and who is to be evicted.
33. The orders failed to meet those requirements. The order of 31 July 2009, which the defendants rely on to authorise the eviction exercise, was vague in its meaning and limited in its operation as it only applied to the three persons named as respondents in CIA 7 of 2008 – Marthinus Kambu, Joseph Ove and Samuel Inggauer – and “their servants and agents”. Were the hundreds of other people occupying portions 2152 and 2153, including the plaintiffs in the present case, the servants and agents of those three respondents? Clearly, no. This is another reason I find that the eviction exercise was not authorised by the orders of the National Court.
(ii) Were the plaintiffs given reasonable notice that they had to vacate the land?
34. The plaintiffs had equitable interests in the land arising from their long-term occupation without active opposition from any lawful authority. They occupied the land without opposition from 1982 until 2007, when I estimate the District Court proceedings for their eviction were commenced, a period of 25 years. They had no right to permanently occupy the land but they had the right to be given reasonable notice to leave (Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74, Amaiu v Yalbees (2020) SC2046).
35. The defendants argue that the plaintiffs were in fact given plenty of notice as they knew about the order of 12 October 2010 in OS 518 of 2009. It can reasonably be presumed (even though there is no direct evidence of it) that the plaintiffs knew about that order, but I have already determined that that order did not authorise the eviction exercise, and it could not amount to reasonable notice.
36. ‘Reasonable notice’ means clear and absolute notice that a person has to vacate land by a certain date. It must give them sufficient time to vacate. It must clearly state the consequences if the recipients of the notice do not vacate by the time given. I find that no such notice was given in this case.
37. My determination of the two questions is that the orders of the National Court did not authorise the eviction exercise and that the plaintiffs were not given reasonable notice that they had to vacate the land.
38. Based on that determination and my findings of fact as to the heavy-handed manner in which the exercise was conducted, I find that the first defendant, Const Kumbia, who supervised the police involvement in the eviction exercise, and other members of the Police Force who took part, breached the human rights of the plaintiffs under the following provisions of the Constitution:
s 37 (protection of the law),
s 41 (proscribed acts),
s 44 (arbitrary search and entry), and
s 53 (unjust deprivation of property).
39. In drawing that conclusion , I have considered the decision of the Supreme Court in Amaiu v Yalbees (2020) SC2046. That was an appeal against my decision in Yalbees v Amaiu (2018) N7393, which concerned an eviction exercise conducted by members of the Police Force and personnel engaged by the registered proprietor of land at Waigani, National Capital District. The facts were very similar to the present case in that the exercise was conducted in a heavy-handed manner by the police and civilian personnel and involved forcing people out of their homes and destruction of their houses and other properties. A court order was claimed to authorise the eviction exercise, but it turned out that the order had been, just as in the present case, misinterpreted.
40. I determined that human rights breaches were committed by members of the Police Force and personnel engaged by the registered proprietor under Constitution, ss 36 (freedom from inhuman treatment), 37 (protection of the law), 41 (proscribed acts), 44 (arbitrary search and entry) and 53 (unjust deprivation of property). The appeal was by and on behalf of the registered proprietor, and it was upheld in relation to my findings under ss 36 and 53 in relation to the registered proprietor. The Supreme Court’s preservation of my determinations regarding ss 37, 41 and 44 provides authority for my making similar determinations in the present case, as follows:
41. The first order will be that the plaintiffs have established liability, for damages, against the first defendant for breach of human rights under Constitution, ss 37 (protection of the law), 41 (proscribed acts), 44 (freedom from arbitrary search and entry) and 53 (protection from unjust deprivation of property), as pleaded in the amended writ of summons and statement of claim filed 19 May 2021.
42. That order will be extended to include the fourth defendant, the State, which is vicariously liable for the breaches of human rights committed by the first defendant and other members of the Police Force who assisted the first defendant in conducting the eviction exercise. The vicarious liability of the State is pleaded sufficiently (albeit barely adequately) in paragraph 27 of the statement of claim.
43. I draw upon my discussion of the vicarious liability of the State in Yalbees v Amaiu (2020) N7393 and rely on the decision of the Supreme Court in Philip Nare v The State (2017) SC1584. In Nare the Supreme Court decision in Linda Kewakali v The State (2011) SC1091 was overruled. In Kewakali the Court held that if a plaintiff is suing the State on the basis of vicarious liability for a tort or other civil wrong committed by members of the Police Force, the member of the Police Force who is alleged to have done wrong must be named as a party to the proceedings and named in the pleadings and must be identified in the evidence.
44. As I pointed out in Lome v Sele, Wagambie & The State (2017) N6854, as well as settling the law on the question of whether the actual alleged police wrongdoers have to be named as parties, named in the statement of claim and identified by name in the evidence, the Court in Nare also dealt with the question of whether it is necessary for a plaintiff to prove that the police officer was acting within the lawful scope of his duties. It was held that this is not necessary. It is sufficient to prove that the police officer was acting or purporting to act in the course of his duties.
45. The decision in Nare is very significant. It stands as authority for the following propositions in any case in which a person sues the State, claiming that it is vicariously liable for the torts or other civil wrongs including human rights breaches committed by members of the Police Force or any other employee of the State:
46. In light of the approach to the issue of vicarious liability of the State in Nare, I find that all the elements have been proven and that the State is vicariously liable for the breaches of human rights committed by members of the Police Force in the course of the eviction exercise.
47. The other claims against the first and fourth defendants (for tort and for other human rights breaches) will be dismissed.
48. I refuse to make orders requiring the State to provide for resettlement of the plaintiffs. I pointed out earlier that the plaintiffs call themselves refugees but have presented no evidence that that is a proper description of their legal status. If they are properly regarded as refugees, the obligations of Papua New Guinea to look after them, has been inadequately pleaded. If there had been careful pleading of these matters, the Court would still be hard-pressed to make any orders due to s 117(7) (treaties etc) of the Constitution, which provides that international treaties to which Papua New Guinea has consented to be bound do not form part of the municipal law unless given the status of municipal law by or under a Constitutional Law or Act of the Parliament.
49. The proceedings against the second and third defendants (the Metropolitan Superintendent and the Commissioner of Police) will be dismissed as it was neither pleaded nor proven that they had any personal involvement in the eviction exercise. They bear no vicarious liability due to their positions in the Police Force.
50. There will be a trial on assessment of damages.
ORDER
(1) Liability has been established by all plaintiffs, for damages, against the first and fourth defendants in breach of human rights under Constitution, ss 37 (protection of the law), 41 (proscribed acts), 44 (freedom from arbitrary search and entry) and 53 (protection from unjust deprivation of property), as pleaded in the amended writ of summons and statement of claim filed 19 May 2021.
(2) Other claims against the first and fourth defendants are dismissed.
(3) The proceedings against the second and third defendants are dismissed.
(4) There shall be a trial on assessment of damages in relation to the liability established against the first and fourth defendants.
________________________________________________________________
Bristle Lawyers: Lawyers for the Plaintiffs
Solicitor-General: Lawyer for Defendants
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2023/1.html