Ten v Alu [2024] PGSC 84; SC2620 (30 August 2024)

SC2620

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 167 OF 2021

WILSON TEN
Appellant

AND
LESLIE ALU as CITY MANAGER OF NATIONAL CAPITAL DISTRICT COMMISSION
First Respondent

AND
NATIONAL CAPITAL DISTRICT COMMISSION
Second Respondent

AND
MINISTER FOR LANDS AND PHYSICAL PLANNING
Third Respondent

AND
SECRETARY FOR LANDS AND PHYSICAL PLANNING
Fourth Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

Waigani: Mogish, Murray and Berrigan JJ
2024: 28^th May & 30^th August

APPEAL – COMPULSORY ACQUISITION – Whether deed of release executed under duress – Whether appellant was denied his right to protection of the law under s 37(1), Constitution, or was unjustly deprived of his land under s 53, Constitution, or executed the deed in circumstances which were proscribed under s 41, Constitution – Appeal dismissed.

Cases Cited:
Papua New Guinean Cases

Sir Mekere Morauta v Aloysius Eviaisa (2002) SC685

Overseas Cases

Hingst v Construction Engineering (Aust) Pty Ltd (No 3) [2018] VSC 136
Pakistan International Airline Corporation v Times Travel (UK) Ltd [2021] UKSC 40

Legislation Cited

Sections 37, 53, 41, Constitution
Sections 12, 13, 14, 20, 22 Land Act 1996

Counsel:

D. Kipa, for the Appellant
H. Mukwesipu and M. Tusais, for the First and Second Respondents

30^th August 2024

1. BY THE COURT: This is an appeal against the decision of the National Court refusing the appellant’s claim on liability and damages in relation to the compulsory acquisition of land by the State to build the Kookaburra Flyover from Jacksons International Airport at Erima to Waigani in the city of Port Moresby.
   

Background

2. The appellant was the registered proprietor of two State Leases located at Kookaburra Street, Erima, which he purchased in March 2012 for K350,000 and K365,000, respectively. He put up improvements on the properties to the value of K109,600.31 by building units for accommodation. Each unit was put up for rent of K6000 per month for a period of 3 years.
   
3. On 5 December 2013 the fourth respondent, the Secretary for Lands and Physical Planning, and a Delegate of the Minister for Lands and Physical Planning, served a Notice to Treat pursuant to s 13(1)(2) of the Land Act 1996 on the appellant on behalf of the second respondent, the National Capital District Commission (NCDC), to acquire the properties to allow for the construction of the Flyover. The notice required the appellant to state the interests claimed by him in the land and the amount for which he was agreeable to sell the interests.
   
4. On 22 January 2014 Jema Lawyers on behalf of fourteen property owners along Kookaburra Street, including the appellant, submitted a response to the Secretary for Lands, claiming, amongst others: payment of compensation according to the valuation to be provided by him; together with an option to choose where he would be relocated; new State Leases before relocation took place, complete with all public utilities and new three bedroom homes; costs of resettlement to be met by the State; and interim accommodation to be provided in the meantime. On 28 January 2014 Jema Lawyers sent a further letter in response to the notice to treat (copy of which does not appear to be on the appeal book).
   
5. On 24 February 2014 the Secretary rejected the proposal and offered the appellant the purchase price of his property at the value determined by the Valuer General plus a payment equivalent to 6 months’ rent at K650 per week.
   
6. On 3 March 2014 Jema Lawyers wrote to the Secretary rejecting the terms of the settlement and proposing an alternative settlement (the terms of which appear to be missing from the appeal book).
   
7. On 7 March 2014 the Secretary again refused the appellant’s settlement proposal and provided a counter-offer of settlement, being that offered on 24 February 2014 together with the provision of two vacant unserviced allotments of land. The land was to be vacated upon execution of the deed and payment.
   
8. On 25 June 2014 the appellant signed a Deed of Settlement and Release with the State and received payments in the sums of K1,598,913.42 for the land and K52,000 for rental accommodation equivalent to 12 months’ rent at K1000 per week pending the transfer of two blocks of unused land of about 900 square metres in total, which were to be provided upon registration of the State Leases for the new land. A further K65,086.58 and K42,386.60 was paid to Kina Finance Ltd and ANZ Bank for mortgage repayment.
   
9. On 12 March 2018 the appellant filed a writ of summons seeking to have the deed of release set aside for being “unreasonable and unfair” and claimed special damages in the sum of K4,991,386.60 (being for loss from valuation of K4,027,386.60 and loss of past and future rent), together with compensation for human rights abuses, general damages, and exemplary damages to be assessed, and orders directing NCDC to transfer title in two serviced blocks of land to him.
   

Grounds of Appeal

10. There are numerous grounds of appeal. In summary, the appellant contends that the learned trial judge erred in: a) refusing to set aside the deed of release for being null and void on the ground of duress; and b) failing to grant the compensation, damages, two blocks of serviced land and other orders sought.
    

Deed of Settlement and Release

11. As the trial judge observed, the deed of release was central to the action at the lower court and its resolution.
    
12. For the reasons set out below, there was no error in the trial judge’s refusal to set aside the deed for duress, economic or otherwise.
    
13. The pleadings in the lower court did not refer to duress expressly, nor did any of the allegations of fact nor the evidence at trial establish the elements of the cause of action, namely that: there was illegitimate pressure to compel the appellant to enter into the deed; which did cause him to execute the deed; in circumstances where the appellant had no reasonable alternative to giving in to the pressure or threat. See Sir Mekere Morauta v Aloysius Eviaisa (2002) SC685 generally, and Hingst v Construction Engineering (Aust) Pty Ltd (No 3) [2018] VSC 136 at [172] and Pakistan International Airline Corporation v Times Travel (UK) Ltd [2021] UKSC 40, which whilst not binding, provide a useful discussion of the elements to be established.
    
14. There was no illegitimate pressure or unlawful threat in this case. The land was compulsorily acquired in accordance with the Land Act, s 22. The Minister, through the Secretary, gave a notice to treat to the owner of the land as required and a period of two months lapsed following service of the notice: s 12(1)(a) and 13(1) to 13(5) of the Land Act. Once acquired, the land vested in the State and was freed and discharged from all interests: s 12(2), Land Act. The interest of the appellant (and every person in that land) was converted into a right to compensation: s 14, Land Act; Smith v Minister for Lands (2009) SC973 at [12] to [13].
    
15. The Minister was not obliged to accept the appellant’s proposals for settlement and his rejection of them did not constitute illegitimate or unlawful pressure. Moreover, the appellant was not “forced” or compelled to accept the terms of the deed.
    
16. As the trial judge observed, if the appellant believed he was entitled to more than was offered to him, he was entitled to claim compensation pursuant to the Land Act. He was informed of that right by the Secretary. He was offered rental accommodation for 6 months at the rate of K650 per week in the event that he chose to proceed in that manner. The appellant was represented by a lawyer. The appellant was aware of his right under the Act but chose not to exercise it.
    
17. For similar reasons the appellant has failed to show any error on the part of the trial judge in rejecting claims that the appellant was denied protection of the law or that he was unjustly deprived of his land pursuant to s 37(1) and s 53 of the Constitution, or that the deed was executed in circumstances which were proscribed under s 41 of the Constitution.
    
18. As above, the deed was executed on 25 June 2014 by the appellant. Upon receipt of the payments described under it the appellant agreed to “unconditionally and irrevocably release the State from all actions, suits, claims, demands and causes of action whatsoever at law, in equity and by statute which he may have or which but for this Deed would or might at any future time have had against the State, including its respective agents, heirs or assignees, arising out of the matters referred to in this Deed”.
    
19. It is the case that the registration of the title of the two pieces of land promised to the appellant under the deed took longer than anticipated due to unrelated legal proceedings brought in relation to those properties by a third party. Ultimately the matter was resolved by the State and the titles were transferred to the appellant. Nevertheless, if the appellant was dissatisfied about the delay, he was at liberty to commence proceedings pursuant to the deed in relation to that matter. Again, he did not do so.
    
20. In summary, by executing the deed and receiving the payments under it the appellant released the State from any claims he might have had in relation to the compulsory acquisition. He cannot complain now that he is entitled to further compensation.
    
21. In the circumstances it is not necessary to consider the other grounds of appeal.
    
22. We make the following orders.
    

ORDER

1. The appeal is dismissed.
2. The orders of the National Court on 16 February 2023 are affirmed.
3. The appellant shall pay the First and Second Respondents’ costs of the appeal on a party-party basis to be taxed if not agreed.

___________________________________________________________
Wang Dee Lawyers: Lawyers for the Appellant
Mukwesipu Lawyers: Lawyers for the First and Second Respondents