DC7072
PAPUA NEW GUINEA.
[IN THE DISTRICT COURTS OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]
DCC NO: 07/2019.

IN THE MATTER BETWEEN:

SYLVIA MEVA by her next friend 
and husband Mr. John Biramu.
Complainant.
.
AND.

1.	THE DIRECTOR UNRE
2.	UNIVERSITY OF NATURAL RESOURCES 
AND ENVIRONMENT (UNRE)
Defendants.

Popondetta:	Michael W. Apie’e 

2021: November 11th.

CIVIL PROCEEDINGS. Action seeking compensation for Gardens destroyed by agents of the Defendants. Gardens made on Lands titled and owned by the 2nd Defendant.

CIVIL PROCEEDINGS. Notice of Intention to Claim as per section 5 of the Claims by and against the State Act not served within allowable time. Thus no notice under section 5 of the claims by and against the State Act in existence. No Action therefore is properly before the Court.

Gawi v. PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 72

References:
District Court Act.
Summary Ejectment Act
Claims by and Against the State Act.

Representation:
John Biramu for the Complainant
Mr. Cletus Tepaiyan as Director for the Defendants.

JUDGEMENT ON TRIAL.

Background.

1.	The Complainant Sylvia Meva by her next friend John Biramu files action against the Defendants and seeks the following orders;

i.	Compensation or damages in the sum of K7,274.20 for damage to food crops.

ii.	Other orders the Court deems meet.

2.	The Complainant is aggrieved by the Defendants in that she claims that on the 17/10/2012, between 5.30 to 6.00am at the Golf New Area in Popondetta, the Defendant(s) through its Workers and Agents destroyed various crops the Complainant had cultivated on the State Lands belonging to the Defendant without first notifying her or giving her fair warning.

3.	As a direct result she claims that he sustained loss valuated by Lands Department to K7,274.20 when her food crops were destroyed by the Defendant through its workers and Agents.

4.	Due to ongoing negotiations between Complainant and the Defendants, action on this matter was not initiated due to promises to settle this matter by the Defendants, but when the Delay became protracted, the Complainant filed suit on the 12/04/19 and served the Action on the Defendants.

5.	The Complainant had sought to comply with Section 5 of the Claims by and Against the State Act on the 13/05/2020 more than 8 years after the Incident of 17/10/2012 giving rise to this claim, I will address on this later.

6.	Trial in this matter commenced on the 03/08/21 by way of an Affidavit Trial and the Parries namely Sylvia Meva by her next Friend and husband John Biramu and Mr. Cletus Tepaiyan as Director for the Defendant Institution, University of Natural Resources and Environment (UNRE) for the Defendants. Their various Affidavits are taken stock of and parties invited to consider those and come back for Submissions on the 17/08/21.

7.	The Parties Returned on the 17/08/21 having filed their various documented submissions as follows;

a.	Complainant had her submissions via her next friend Mr. John Biramu filed in court on the 09/08/21.

b.	Defendant(s) had their submission via Mr. Cletus Tepaiyan, dated and filed on the 16/08/21.

8.	The Complainants Submissions raised the following matters for consideration by the Court namely;

a.	There was an agreement for the UNRE to compensate the garden owners when Main Campus in Vudal sent an Investigator to Popondetta after the damages done to these gardens in Popondetta.

b.	There was firstly;

i.	An agreement between the Complainant and the Defendants on 08/12/2014 for them to pay for the loss and damages.

ii.	Guarantee Notice dated 12/12/2014

iii.	Court Order dated 17/03/2015

On the basis of these factors the Complainant submitted for the Orders sought in her originating documents filed on the 12/04/19.

9.	Mr. Cletus Tepaiyan, on the other hand on behalf of the Defendants raised the following relevant matters in their Submission of 16/08/21 as follows;

a.	UNRE has title and Certificate of Occupancy over the Lands on which the Complainants had their gardens and therefore as Land Lord has 100% right to develop the said Land for and on behalf of its Institution and the State.

b.	There was no agreement between the UNRE and the Complainants allowing them to Garden on UNRE Land therefore their activities on these Lands was illegal, and despite the Complainants claims of Agreement between the Gardeners and former /deceased directors to garden there, there is no documentary proof of that presented to verify or confirm such agreements.

c.	Besides, Illegal Gardening was already in existence prior to 2008 the year in which the Claimed Agreement was given by former/deceased director.

d.	Awareness of the intention of UNRE to remove gardens to allow Higaturu Oil Palm Ltd (HOPL) in to plant oil palm was made via Radio Public Service Announcements and also in person by agents of UNRE to the concerned Communities. Thus the Claims of no Warning by the Complainant is rejected by the Defendants.

e.	The List of Damages claimed by the Complainant is claimed as being dubious and unverifiable as no one from Lands Department is able to own up to this List and confirm it.

f.	This claim is further stressed due to the fact that a previous District Court did make orders for the UNRE to compensate their family previously.

g.	Also that in another case by one Julian Meva v. UNRE, Complainant Julian Meva also relies on an identical List of Damaged crops as Sylvia Meva, somehow Valuated less than the current claim.

h.	The Defendants seem to be asking, ‘How then could the same list of damaged crops add up to different amounts namely one for K4000.00 or so and another one for over K7000.00, if both lists come from the Lands Department?’

i.	By submitting thus, the Defendants raise issues with the reliability of the valuation relied on thereby in total the veracity of the claim as a whole.

j.	The Defendant ultimately asked for this claim to be struck out on the following factors that;

i.	There is no Agreement Between UNRE and the Complainants or anyone to garden on UNRE Lands.

ii.	False claim of there being no awareness or the intention to clear the Lands by UNRE.

iii.	No proper verification of the Damages/Losses claimed, and the very real possibility of this case being based on fabricated List of Damages.

10.	The   Parties returned on the 24/08/21 for final rebuttals and the Mr. John biramu for the Complainant made no further submissions or rebuttals while Mr. Cletus Tepaiyan for the Defendants made rebuttals and submitted further that;

a.	There was no Agreement between UNRE and the Complainants for them to garden on UNRE Lands.

b.	The Guarantee note referred to in the Complainants Submission relates to John Biramu’s Scholarship to Wesley College in Mt. Hagen and was related to another case and not the current one.

c.	Court Order dated 17/03/15 was an Exparte Order for K1740.00, and is not evidence of the veracity of the current Claim.

11.	The Trial and all submissions ended on that note and the matter now returns for Ruling. 

OBSERVATIONS:
12.	I make the following Observations regarding the UNRE’s claims over the Lands on which the Complainant had her gardens.

a.	The case of Gawi v. PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 72 deals with the issue of Equitable and Legal Interest over Alienated Lands. In that case Kapi DCJ (Deceased) as he then was, elaborated that when title to a Property is Bona Fide in dispute, the claim of right by once claiming title cannot be enforced, but when title is clear and such claimants have clear and undeniable rights or title over the property in question, they can move for Vacant Possession under Section 6 of the Summary Ejectment Act.

b.	In this Instance, as early as 2012, the UNRE had clear and Undeniable title to the Property/Lands on which the Complainant had her garden, and UNRE therefore in the Language of Late Kapi DCJ had the right to seek vacant Possession as early as October of 2012.

c.	The right to Vacant Possession under Section 6 of the Summary Ejectment Act precludes any and all rights by anyone else, including the person squatting on such land albeit illegally contrary to the interest of the Title holder.

d.	If this issue of Legal rights of the Defendant over the Lands in issue would have come up, I am satisfied that it would be a non-issue as UNRE had and still has Legal Lease and title to the said Lands.

e.	Consequently, they had the right in October of 2012 to require vacant possession and they got that by removing the Gardens on that land, albeit without recourse to Legal avenue’s.

13.	 The next issue I will observe on is the Section 5 Notice under the Claims by and against the State Act which is essential in order to allow actions against State Agencies such as UNRE to remain and continue before the Courts, in Papua New Guinea.

14.	Section 5 of the Claims by and Against the State Act Reads in its entirety as follows;

5. NOTICE OF CLAIMS AGAINST THE STATE. 

(1) No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this section by the claimant to– 

(a) the Departmental Head of the Department responsible for justice matters; or 

(b) the Solicitor-General. 

(2) A notice under this section shall be given– 

(a) within a period of six months after the occurrence out of which the claim arose; or 

(b) where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach; or 

(c) within such further period as– (i) the Principal Legal Adviser; or (ii) the court before which the action is instituted, on sufficient cause being shown, allows. 

(3) A notice under Subsection (1) shall be given by– 

(a) personal service on an officer referred to in Subsection (1); or 

(b) leaving the document at the office of the officer with the person apparently occupying the position of personal secretary to that officer between the hours of 7.45 a.m. and 12 noon, or 1.00 p.m. and 4.06 p.m., or such other hours as may from time to time be declared by or under the Public Services (Management) Act 1995 to be the normal public service hours of duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act 1953.

a.	The Notice relied on by the Complainant to kick-start this Action was served on the Responsible Officer with the Solicitor General’s Office on the 13/05/2020 more than 7 years after the Incident of 17/10/2012 giving rise to this claim.

b.	That is contrary to the express intent of Section 5(2)(a) of the Claims by and Against the State Act in that the Notice must be issued on the Solicitor General within 6 months from the date of the incident giving rise to the Action.

c.	The fact of this So-Called Section 5 Notice of 13/05/20 being over seven years after the fact of the date of the Incident giving rise to the Action of 17/10/12 makes this Notice a Nullity and therefore there is no Section 5 Notice in respect of this case..

d.	That this most probably the reason why the Solicitor General has never bothered looking back at this case after their initially acknowledgement of the Notice of 13/05/20.

e.	This Case is therefore not properly before this court and so the benefit of that fact goes to the Defendants.

15.	In the final Analysis, the Court finds and Rules as follows that;

i.	The Complainant has not established a compellable case against the Defendants.

ii.	The Complainant has not proven her case to the requisite Standard on a balance or Probabilities that her rights were encroached on and also that her activities on the Defendants Titled Lands accorded her with rights she could enforce in Law.

iii.	Complainant has also not established an existence of an Agreement between herself and UNRE to indefinitely or otherwise made gardens on UNRE Titled Lands.

iv.	More Prominently, the Complainant has not fully Complied with the Requirements of Section 5(2) (a) of the Claims by and Against the State Act in that her Section 5 Notice is more than 7 years after the Fact of the incident giving rise to her claims.

16.	Accordingly, the Court Adjudges and will Order as follows;

i.	The Complainants claims are refused in their entirety.

ii.	Since the Parties are unrepresented by Legal Counsel, no orders will be made on costs.
	
John Biramu for the Complainant
Mr. Cletus Tepaiyan as Director for the Defendants.