Madang Provincial Government [2015] PGSC 68; SC1473 (25 November 2015)

SC1473

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 41 OF 2015

BETWEEN:

MADANG PROVINCIAL GOVERNMENT
First Appellant

AND:

HONOURABLE JAMES YALI – GOVERNOR OF MADANG PROVINCIAL GOVERNMENT
Second Appellant

AND:

DUNSTAN AUGUSTINE – MADANG PROVINCIAL ADMINISTRATOR
Third Appellant

AND:

NEMA MONDIA-MADANG PROVINCIAL POLICE COMMANDER
Fourth Appellant

AND:

JIM NAMORA-MADANG POLICE STATION COMMANDER
Fifth Appellant

AND:

JUNIOR TONY WAGAMBIE-GOROKA MOBILE SQUAD 12 COMMANDER
Sixth Appellant

AND:

INSPECTOR HENRY MONG-COMMANDER TASK FORCE MADANG
Seventh Appellant

AND:

SERGEANT TARIAWI-MEMBER OF RAPID RESPONSE UNIT MADANG POLICE
Eighth Appellant

AND:

JOSHUA KAS-MEMBER OF TASK FORCE MADANG POLICE
Ninth Appellant

AND:

SENIOR SERGEANT PAUL DUMOG, CONSTABLE YAWING ADAM, DAMOG GAGE PATRICK TOWOT, DANIEL KAPEN, ADI LAWA
Tenth Appellants

AND:

SAM INGUBA- POLICE COMMISSIONER
Eleventh Appellant

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA
Twelfth Appellant

AND:

JOHN SIMBAI for himself and for the 692 individuals listed in the schedule attached to this Writ of Summons
Respondents

Waigani: Gavara-Nanu J, Kangwia J & Bona J
2015: 29 October
2015: 25 November

APPEAL - Damages – Claim against Provincial Government and State – Whether State vicariously liable after payment by Provincial Government- Requirements to establish vicarious liability - Payment by Provincial Government was by implication a payment by the State – State not vicariously liable

APPEAL – Damages - Functions of police under the law – State not liable for destruction of property in the course of forceful removal under s 145 of Land Act 1996 to secure land owned by the State;

APPEAL – Damages - Respondents unlawfully on State land – Committed Criminal act under s 145 of Land Act 1996 – Benefitted from free use and occupation of land – Received K3 million for property that should not have been on the land – Further claim unreasonable – Appeal upheld – Entire proceedings dismissed;

Cases cited:
Papua New Guinea Cases

SCR No 1 of 1998; Reservation pursuant to s 16 of the Supreme Court Act (2001) SC 672

Other Cases cited:
Rice v Connolly [1966] 2QB 414

Counsel:
No Appearance, for the 1st, 2nd & 3rd Appellants
P. Nii, for the 4th to 12th Appellants
W. Bigi, for the Respondents

25th November, 2015

1. BY THE COURT: The Appellants appeal against the refusal by the National Court of their application to dismiss proceedings which the respondents brought against them.

2. The background facts are these. The Respondents were settlers on State land in Madang. Police at the direction of the First Appellant (Madang Provincial Government) evicted them. The Respondents claimed damages against the Madang Provincial Government, named Police Officers and the State for alleged unlawful eviction, destruction of properties and breach of Constitutional rights arising out of the eviction exercise.

3. They also claimed exemplary damages against the named Police officers. They claimed that the eviction was carried out by named and unnamed police officers at the specific request, direction and orders of the First, Second and Third Appellants in breach of a MOU between them and the Madang Provincial Government

4. The Madang Provincial Government offered to settle the claim for K3 million which the Respondents accepted. A consent order to that effect was entered and the money was paid.

5. Relying on the settlement between the Madang Provincial Government and the Respondents, the 4th to 12 Appellants by a notice of motion sought to dismiss the proceedings pursuant to Order 12 Rule 1 and 40 of the National Court Rules. They argued in the Court below that since the Madang Provincial Government as the principal tortfeasor settled fully the Respondents' claim there was no cause of action against them. The Respondents countered that by arguing that their claim against the Madang Provincial Government was for breach of a MOU whereas the claim against the State was based on the principle of vicarious liability as pleaded in their statement of claim, for which they claimed that they did have a cause of action against the State.

6. The National Court refused the Appellants motion to dismiss the action and determined that the consent order did not state clearly that the offer by the Madang Provincial Government was in full and final settlement of their claim against all the Appellants. The Court also deemed that the statement of claim was well pleaded and the State was vicariously liable for the actions of the Provincial Government and the police.

7. Two issues arise here:

1. Whether the State is vicariously liable for the actions of the other Appellants
   
2. Whether the Respondents are entitled to a further claim against the 4th to the 12th Appellants after they agreed to accept K3 million from the Madang Provincial Government as full and final settlement of their claim against them.
   

8. We deal with the issues together as they are inter-related.

9. The law is settled that a Provincial Government is included in the term "State" as used in the Claims By and Against the State Act 1996 (Claims Act). In the case of SCR No 1 of 1998; Reservation pursuant to s 16 of the Supreme Court Act (2001) SC 672 the full bench of the Supreme Court said:

"We are of the opinion that a Provincial Government is a "governmental body" making up the Independent State of Papua New Guinea for the purpose of the Claims by and Against the State Act 1996. The power of the people is vested in all governmental bodies which administer and exercise them on behalf of the people. These governmental bodies include the National Government, a Provincial Government, an arm, department, agency or instrumentality of the National Government or a Provincial Government ..."

"In principle therefore the assets and funds administered by the Provincial Government belong to the same people of Papua New Guinea that the Claims By and Against the State Act 1996 protects from execution. The term "State" therefore includes Provincial and Local Level Governments for the purposes of the Claims By and Against the State Act."

10. Even though the above case (SCR No 1 of 1998) arose out of a National Court Referral to the Supreme Court on an issue of enforcement of a judgement debt against a Provincial Government, we are of the opinion that the principles enunciated therein equally apply to proceedings instituted jointly against a Provincial Government and the State.

11. Given the determination in SCR No 1 of 1998 the present proceedings are claims against the State for purposes of the Claims By and Against the State Act 1996. The underlying reason being that the funds to be paid for a successful claim regardless of whether it is paid by a Provincial Government or the National Government would ultimately be funds from the State which belonged to the people of Papua New Guinea.

12. The 4th to 12th Appellants maintained that the Respondents claim against the Appellants were settled through the consent order by the Madang Provincial Government as principal tortfeasor and the Respondents had no cause of action against the State. It was submitted that the further claim would cause the State to make double payment as the Madang Provincial Government is a State or governmental body.

13. The Respondents argued that they still had a claim against the State on vicarious liability for the actions of the Police members even though the Madang Provincial Government paid K3 million in settlement of the claim against them. In the Statement of Claim (SOC), the Respondents pleaded that under the Wrongs (Miscellaneous Provisions) Act Chapter 297 (Wrongs Act) the State was vicariously liable for the acts and omissions of the 4th to 11th Appellants. (See Paragraph 14 of the SOC)

14. We agree that vicarious liability of the State emanates from the Wrongs Act.

15. To invoke the Common Law principle of vicarious liability the following considerations must be established:

1. There must be a master and servant relationship.
   

In the present case we agree that there is a master-servant relationship. The named police officers were employees of the State. However we do not consider that a master servant relationship existed between the State and the Madang Provincial Government, because the Madang Provincial Government is a governmental body making up the Independent State of Papua New Guinea.

2. A tort must have been committed by the servants.
   

The Police Officers destroyed property belonging to the Respondents in the eviction exercise. However we do not agree that the Madang Provincial Government committed a tort when it gave instructions to the Police to execute the eviction exercise. The Provincial Government was entitled to give the instructions to Police to forcefully remove the Respondents pursuant to s 145 of the Land Act 1996. We are also of the view that no tort was committed by Police in circumstances where they destroyed property in the course of forcible removal of the Respondents to take back land owned by the State.

3. The servants must have caused the tort in the course of performing their duties.
   

16. Pursuant to s 1 (a) and s1 (4) of the Wrongs Act the State is subject to all liabilities in respect of torts committed by its servants and agents. The provisions are as follows:

1. General Liability of the State in tort
   

(1) Subject to this Division, the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject-

• (a) In respect of torts committed by its servants and agents
  

17. Under s 1 (4) of the Wrongs Act the State is liable for torts committed by Police Officers in the course of performing their duties to the extent that those duties are conferred or imposed on them by the agencies of the State. Section 1 (4) provides:

Where functions are conferred or imposed on an officer of the State as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government.

18. In relation to land, two specific functions that Police Officers can lawfully perform are provided under s 8 of the Summary Ejectment Act Chapter No 202 and s 145 (3) of the Lands Act 1996. The provisions are as follows;

19. Section 8 of Summary Ejectment Act, provides:

8. Warrant sufficient authority for entering premises

(i) A warrant under the hand of a Magistrate of a District Court directed to a member of the Police Force and requiring him to give possession of premises authorizes him to enter, by force and with assistants if necessary, into the premises named in the warrant and to give possession accordingly.

20. Section 145 of the Land Act, provides:

145. Unlawful occupation of Government Land and Customary land

(3) A person who contravenes subsection (1) and refuses to leave after receiving notice to quit from the Department Head or the Provincial Administrator of the province in which the land is located may be forcibly ejected by a member of the Police Force.

21. By virtue of these provisions the State can only be liable if tort was pleaded and proved that the police officers committed the tort while carrying out their functions as if the functions had been solely conferred or imposed by instructions lawfully directed by the State. The Respondents did not specifically plead that the State instructed the Police to destroy property. Despite the lack of pleading it was arguable whether "forcibly ejected" under s 145 (3) of the Land Act 1996 and "authorises him to enter by force and with assistants if necessary" in the Summary Ejectment Act would entail destruction to property. This issue was not argued before us and we will not delve into it.

22. Generally, the State would be vicariously liable where Police Officers destroyed property in the course of carrying out their functions. However in the present case we do not agree that the State was vicariously liable for destruction to property in circumstances where the Respondents were forcibly ejected to recover land that the State owned.

23. The primary function of the Police Force is to preserve peace and good order and to maintain and as necessary enforce the law in an impartial and objective manner (See s197 of the Constitution).

24. They also have the same powers, duties, rights and liabilities as constables under the underlying Law, except in so far as they are modified by an Act (See s239 of the Police Act 1998).

25. At Common Law, they have same wide powers to take necessary step to keep peace, prevent crime, protect property from criminal injury, detect crime and bring an offender to justice: Rice v Connolly [1966] 2 QB 414.

26. The Respondents also pleaded that the eviction exercise was carried out at the specific request, direction and orders of the Madang Provincial Government and the 2nd and 3rd Appellants (See paragraph 26 of the SOC). We are of the view that the State would be deemed to have given the instructions to Police because the Madang Provincial Government was a government body making up the Independent State of Papua New Guinea.

27. On the same token we are of the view that the Respondents claim was effectively settled by the State when the Madang Provincial Government being a governmental body making up the Independent State of Papua New Guinea paid K3 million. Even though the consent order stated that the settlement was a full and final settlement of the claim against the Madang Provincial Government, by implication the settlement by the Madang Provincial Government was a settlement by the State pursuant to the definition of "State" in SCR No 1 of 1998. Vicarious liability would also not lie under these circumstances as the issue would be res judicata.

28. It is also our view that the payment of K3 million by the Madang Provincial Government was an intervening act that indemnified the State from further liability pursuant to the decision in SCR No 1 of 1998.

29. We also consider that it would be an abuse of process by the Respondents to maintain that the State was still liable in the same claim after accepting K3 million in full and final settlement of their claim from a governmental body making the Independent State of Papua New Guinea.

30. We further consider that since the source of funding would ultimately be from the State it would again be an abuse of process and against public policy to compartmentalise the one claim to each government body with the ultimate aim of securing separate payments.

31. Finally we observe from the Statement of Claim (See paragraph 16 of SOC) that the Respondents unlawfully occupied the State land. They committed a criminal act pursuant to s 145 of the Land Act 1996. By unlawfully occupying State land the Respondents benefitted free use and occupation of the land prior to the eviction. They then received K3 Million as compensation from the State for property that should not have been there in the first place. Under those factual considerations we consider the further claim as abjectly unreasonable and is aimed only at securing a third bite at the cherry.

31. We uphold the appeal and dismiss the entire proceedings with costs. The Respondents shall also pay for the costs of and incidental to the proceedings in the National Court.

______________________________________________________
Greg Manda Lawyers: Lawyers for the Appellants
Henaos Lawyers: Lawyers for the Respondents