SC1164

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCA NO 47 0F 2004

MOROBE PROVINCIAL GOVERNMENT
First Appellant

MANASUPE ZURENUOC, MOROBE PROVINCIAL ADMINISTRATOR
Second Appellant

PATILIUS GAMATO,
LAE URBAN LOCAL-LEVEL GOVERNMENT COUNCIL MANAGER
Third Appellant

V

JOHN KAMEKU FOR HIMSELF AND ON BEHALF OF
YONGGO MOUNTAIN SETTLERS
Respondent

Waigani: Cannings J, Manuhu J, Kassman J
2012: 27 February, 1 March

APPEALS – whether appellant permitted to argue points of law that have not been argued in trial court – appeals against findings of fact – onus on appellant to show error of law in findings of fact.

PRACTICE AND PROCEDURE – claims against the State – representative proceedings.

CONSTITUTIONAL LAW – proscribed acts under Constitution, Section 41 – appeal against declaration by National Court that eviction of settlers was harsh and oppressive.

This was an appeal by a provincial government and related parties against a decision of the National Court declaring under Section 41 (proscribed acts) of the Constitution that an eviction exercise carried out by the appellants in a provincial capital, which gave only 30 days notice to quit to settlers who had lived on government land without objection for up to 50 years and erected permanent buildings and engaged themselves in small scale commercial ventures on it, was harsh and oppressive, inhuman and not reasonably justifiable in a democratic society having regard to the inherent dignity of the human person. The appellants raised eight grounds of appeal.

Held:

(1)	Half of the grounds of appeal were dismissed because they raised points of law that were not argued before the National Court, and leave had been neither sought nor granted to argue them.

(2)	Other grounds of appeal were dismissed as they challenged findings of fact by the primary Judge without demonstrating that the primary Judge erred in any respect.

(3)	The primary Judge's determination as to unlawfulness for the purposes of Section 41 of the Constitution was made on the basis of evidence before the court, following a proper process of reasoning and involved no error of law.

(4)	The appeal was accordingly dismissed.

Cases cited

The following cases are cited in the judgment:

Agoara Kebo and Karunai Uraki v The State (1981) SC198
Brian John Lewis v The State [1980] PNGLR 219
Glen Otto Kapahi v The State (2010) SC1023
John Anis Pok v The State (1983) SC254
John Kameku for himself and on behalf of Yonggo Mountain Settlers v Patilius Gamato, Manasupe Zurenuoc and Morobe Provincial Government (2004) N2512
Migi Barton v The State SC213 (M)
Papua Club Inc v Nusaum Holdings Ltd (2005) SC812
Petrus and Gawi v Telikom PNG Ltd (2008) N3373
Simon Mali v The State (2002) SC690
Tigam Malewo v Keith Faulkner (2009) SC960
Wahgi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185

APPEAL

This was an appeal against a decision of the National Court to declare acts of the appellants unlawful under Section 41 (proscribed acts) of the Constitution.

Counsel

M Kambao, for the appellants
G Anis, for the respondent

1 March, 2012

1. BY THE COURT: This is an appeal against a decision of the National Court to declare acts of the appellants unlawful under Section 41 (proscribed acts) of the Constitution.

2. In January 2002 the Morobe Provincial Government conducted an eviction exercise at Yonggo Mountain settlement in Lae. The settlers, led by the respondent, John Kameku, did not dispute that the land on which they had been living for up to 50 years was government land, but claimed that they had been treated harshly and oppressively. They commenced proceedings by originating summons in the National Court, seeking declarations that they had an equitable interest in the land and that the conduct of the Provincial Government and related parties (the appellants) was harsh and oppressive and therefore unlawful. The matter went to trial before Jalina J who refused to declare that the settlers had any equitable interest in the land but granted a declaration under Section 41 (proscribed acts) of the Constitution that the eviction carried out by the appellants, which gave only 30 days notice to quit to settlers who had lived on the land without objection for up to 50 years and erected permanent buildings and engaged themselves in small scale commercial ventures on it, was harsh and oppressive, inhuman and not reasonably justifiable in a democratic society having regard to the inherent dignity of the human person. Though damages were sought at the trial, his Honour refused to award any; holding that, as damages had not been sought in the originating summons, any claim for damages would have to be the subject of separate proceedings. The relief granted was confined to the declaration of unlawfulness (John Kameku for himself and on behalf of Yonggo Mountain Settlers v Patilius Gamato, Manasupe Zurenuoc and Morobe Provincial Government (2004) N2512). The appellants appeal against that declaration on eight grounds.

GROUND 1: ABSENCE OF NOTICE UNDER SECTION 5 OF THE CLAIMS BY AND AGAINST THE STATE ACT

3. The appellants argue that the primary Judge erred by permitting the proceedings to be commenced in the absence of a notice by the respondent under Section 5 of the Claims By and Against the State Act of an intention to make a claim against the State.

4. This argument was not raised in the National Court and the appellant did not seek the leave of the Supreme Court to argue it. An appellant cannot argue a point of law in the Supreme Court that was not argued before the National Court without the leave of the Supreme Court (Papua Club Inc v Nusaum Holdings Ltd (2005) SC812). We therefore decline to entertain this argument. Ground No 1 is dismissed.

GROUND 2: BREACH BY THE RESPONDENT OF ORDER 5, RULE 3 OF THE NATIONAL COURT RULES

5. The appellants argue that the primary Judge erred by permitting the National Court proceedings to be commenced by the respondent on behalf of other persons, who were unidentified, which is not permitted by Order 5, Rule 3 of the National Court Rules. The appellants highlighted that the National Court proceedings were commenced by "John Kameku for himself and on behalf of Yonggo Mountain Settlers". The originating summons did not name the other settlers and there was no evidence of consent and authority by any such persons to the commencement of the proceedings.

6. This argument was not raised in the National Court and the appellant did not seek the leave of the Supreme Court to argue it. An appellant cannot argue a point of law in the Supreme Court that was not argued before the National Court without the leave of the Supreme Court (Papua Club Inc v Nusaum Holdings Ltd (2005) SC812). We therefore decline to entertain this argument. Ground No 2 is dismissed.

GROUND 3: ERROR OF LAW IN PERMITTING APPELLANT TO COMMENCE PROCEEDINGS ON BEHALF OF OTHER PERSONS WHO WERE NOT NAMED

7. The appellants argue that the primary Judge erred by permitting the National Court proceedings to be commenced by the respondent who purported to act in a representative capacity on behalf of other Yonggo Mountain settlers, without requiring the respondent to comply with the procedural requirements for commencement of representative proceedings that were clarified by the Supreme Court in Simon Mali v The State (2002) SC690, which are that:

•	all intended plaintiffs must be named in the originating process;

•	each and every intended plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them;

•	any person in whose name proceedings are commenced and who claims to represent other intended plaintiffs must produce an authority to the court to show that he was authorised by them to file proceedings as a class representative.

8. It appears that those requirements were not complied with in this case. They are important procedural requirements that should ordinarily be complied with (Tigam Malewo v Keith Faulkner (2009) SC960). If an appropriate application had been made before the appropriate court at the appropriate time, the argument may well have stood a good chance of success. The matter might not have proceeded to trial in the way that it did. But this ground of appeal must suffer the same fate as the previous ones. This argument was not raised in the National Court and the appellant did not seek the leave of the Supreme Court to argue it. An appellant cannot argue a point of law in the Supreme Court that was not argued before the National Court without the leave of the Supreme Court (Papua Club Inc v Nusaum Holdings Ltd (2005) SC812). We therefore decline to entertain this argument. Ground No 3 is dismissed.

GROUND 4: ERROR OF FACT AND LAW BY REFERRING TO "NUMEROUS PLAINTIFFS" WHEN THERE WAS ONLY ONE PLAINTIFF

9. The appellants argue that the primary Judge erred by finding that there were numerous plaintiffs when there was only one plaintiff.

10. This argument was not raised in the National Court and the appellant did not seek the leave of the Supreme Court to argue it. An appellant cannot argue a point of law in the Supreme Court that was not argued before the National Court without the leave of the Supreme Court (Papua Club Inc v Nusaum Holdings Ltd (2005) SC812). We therefore decline to entertain this argument. We dismiss ground No 4.

GROUND 5: ERROR OF FACT AND LAW BY CONCLUDING THAT PLAINTIFFS HAD LIVED ON THE LAND FOR 50 YEARS
11. The appellants argue that the primary Judge erred by finding that the respondent and other settlers had lived on the land for 50 years when the evidence of the respondent showed only 35 years.

12. Amongst the evidence considered by the National Court was an affidavit by Samson Bapori who deposed that he was 28 years old, from Manam Island, Madang Province, married to a woman from Chuave, had built a house, worth K6,000.00 to K7,000.00 for his family on the land and that his parents-in-law had lived there since 1952. The trial was held in 2002, so this was evidence that the settlement had existed for 50 years. The respondent, John Kameku, deposed in his affidavit that some settlers had been living there for 50 years. There was no contrary evidence so we consider it was open to the primary Judge to conclude that people had been living there for 50 years. If we were inclined to agree with the appellant's argument that there was no basis for such a finding, there was evidence that the respondent or other settlers had been living on the land for at least 35 years, which is a substantial period. Ground No 5 is dismissed.

GROUND 6: ERROR OF FACT AND LAW BY FINDING THAT THE PLAINTIFFS WERE UNABLE TO REMOVE STORES, PIGGERIES AND OTHER FIXTURES WITHIN A MONTH
13. The appellants argue that the primary Judge erred by finding that the respondent and other settlers were unable to remove stores, piggeries and other fixtures when there was no evidentiary material to show that there were numerous plaintiffs or that there were stores, piggeries and other fixtures and that there were substantial developments on the land.

14. There are two problems with this argument. First, it misstates the primary Judge's findings. His Honour did not say that the settlers "were unable to remove" property. What he said was:

Having regard to the fact that the plaintiffs had lived at varying periods totalling almost 50 years and had even erected permanent dwellings and engaged 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 month from the date of the notice to quit [emphasis added].

15. It behoves lawyers who draft a notice of appeal to be careful to quote or summarise accurately the part of a judgment that is to be made the subject of appeal. Misstatement of what a primary Judge has said will often be sufficient reason to dismiss a ground of appeal. That is the approach we take here. Ground No 6 is dismissed for this reason alone.

16. The other problem with the argument that there was no evidentiary material to support the primary Judge's findings of fact is that there was, in fact, evidence placed before the court on which his Honour was able to base his findings of fact. John Kameku, for example, deposed in an affidavit that he had lived at the settlement since 1967, he had erected a semi-permanent dwelling house made of timber and iron roofing worth K5,000.00 to K6,000.00, that approximately 1200 people lived at the settlement and there were five trade stores in the area as well as an elementary school classroom.

Ground No 6 is dismissed for those two reasons.

GROUND 7: ERROR OF FACT AND LAW BY FINDING THAT THERE WERE TRADE STORES AND DWELLINGS ON THE LAND
17. The appellants argue that the primary Judge erred by finding that there were trade stores and dwellings on the land as the evidence of the respondent was untested and uncorroborated by, for example, evidence of the remains of a trade store or photographic evidence of the existence of trade stores or business records of the alleged trade stores.

18. There are several points to be made here. First, there was affidavit evidence before the court to support the primary Judge's findings of fact as to the existence of trade stores and dwellings. It lay within his Honour's discretion, as the tribunal of fact, to regard that evidence as sufficient for the respondent to prove his case on the balance of probabilities. Secondly, there is no rule of law that says that affidavit evidence must be tested or corroborated before it can be acted on. Thirdly, the fact that the respondent's evidence was untested is due, it seems, to the appellants not exercising their right at the trial to cross-examine the deponents of the affidavits tendered by the respondent. The appellants are not submitting that they were denied that right, so they cannot justifiably complain about the evidence being untested.

19. Finally the appellants' submissions fail to accommodate some basic principles about challenging, in an appeal, findings of fact made by a trial judge. Whenever the Supreme Court is asked to disturb the findings of fact of a trial judge, it must hesitate to stand in the shoes of the trial judge and make fresh findings of fact. It must be alert to the superior position of the trial judge, who has heard and seen the evidence at first hand (Brian John Lewis v The State [1980] PNGLR 219). The appellant bears the onerous burden of convincing the Supreme Court that a trial judge's finding of fact is wrong before the Supreme Court can substitute its own finding of fact. And to convince the Supreme Court of error the appellant must demonstrate where and how the trial judge went wrong (Migi Barton v The State SC213(M), Wahgi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185, Agoara Kebo and Karunai Uraki v The State (1981) SC198, John Anis Pok v The State (1983) SC254, Glen Otto Kapahi v The State (2010) SC1023). The appellants have failed to show to us where and how the trial judge erred in making any of the findings of fact that his Honour made for the purposes of the declarations of unlawfulness made under Section 41 of the Constitution. Ground No 7 is dismissed.

GROUND 8: ERROR OF FACT AND LAW BY FINDING THAT THE 30-DAY NOTICE TO QUIT WAS UNREASONABLE OR INSUFFICIENT

20. The appellants argue that the trial Judge erred in law and fact by finding that the 30-day notice to quit served on the respondent was unreasonable or insufficient, given that: (a) the evidence and common position of the parties was that there had been numerous meetings and discussions over a long period prior to service of the notices to quit; (b) the evidence was that the respondent had semi-permanent dwellings, which could easily be dismantled; (c) the plaintiff did not put forward reasons that he could not comply with the notice to quit; and (d) there was sufficient time for compliance with the notice to quit.

21. As to (a) we cannot see the sort of evidence referred to. This part of ground No 8 is based on a false premise.

22. As to (b) there was no evidence before the trial judge that the respondent's semi-permanent dwellings could be easily dismantled. So this part of ground 8 is also based on a false premise.

23. As to (c) the appellants' argument again misses the point. The trial judge did not conclude that the notice to quit could not physically be complied with. His Honour was concerned about the reasonableness of the 30-day period, given that the settlement had existed for 50 years and the settlers had been living there without any objection by the appellants or other government authorities and established homes and business there under an honest but mistaken belief that they would reside there permanently. His Honour concluded by saying:

I am satisfied, on the balance of probabilities, that the plaintiffs have discharged the onus imposed upon them by Constitution, s 41[2]. 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.

24. As to (d) the appellants have failed to demonstrate any error on the part of the trial judge. And again the appellants have misconstrued or misunderstood what his Honour was saying. His Honour was not focussed on whether it was physically possible to comply with the 30-day notice to quit but rather on the reasonableness and fairness of the appellants' conduct and whether their actions were harsh or oppressive or reasonably justifiable in terms of Section 41 of the Constitution. Section 41 is placed, significantly, amongst the human rights provisions in Division III.3 of the Constitution. It is instructive to quote it in full:

(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.

25. Section 41 proscribes (ie prohibits) and gives protection against seven sorts of acts (Petrus and Gawi v Telikom PNG Ltd (2008) N3373). 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:

•	harsh; or

•	oppressive; or

•	not warranted by the requirements of the particular circumstances; or

•	disproportionate to the requirements of the particular circumstances; or

•	not warranted by the requirements of the particular case; or

•	disproportionate to the requirements of the particular case; or

•	otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.

26. His Honour declared that the acts of the appellants were unlawful in three respects: harsh, oppressive and not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind. His Honour stated that the respondent had discharged the burden of proof imposed by Section 41(2). We consider that his Honour's determination as to unlawfulness for the purposes of Section 41 of the Constitution was made on the basis of evidence before the court, following a proper process of reasoning and involved no error of law. Ground No 8 is dismissed.

CONCLUSION

27. We have dismissed all the grounds of appeal. The first half of them were dismissed as they raised points of law that were not argued before the National Court, and leave had been neither sought nor granted to argue them. The other grounds of appeal were dismissed as they challenged findings of fact by the primary Judge without demonstrating that the primary Judge erred in any respect. It follows that the appeal must be dismissed. Costs will follow the event except that the costs that would normally be awarded to the respondent will be discounted by 50% due to the failure of the respondent's lawyers to comply with a direction for filing of a written extract of argument and the insufficient assistance provided by the respondent's counsel to this court on important points of law.

ORDER

(1)	The appeal is dismissed in its entirety.

(2)	The appellants shall pay 50 per cent of the respondent's costs of these proceedings on a party-party basis, which shall, if not agreed, be taxed.

Judgment accordingly.
_____________________
Steeles Lawyers: Lawyers for the Appellants 
Gamoga & Co Lawyers: Lawyers for the Respondent