Unreported National Court Decisions
N1755
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
MP 302 OF 1994
TITUS TABERKERAN
APPLICANT
AND
CONSTABLE RIMBAO
FIRST RESPONDENT
AND
THE STATE
SECOND RESPONDENT
Lae
Sakora J
8 May 1998
24 June 1998
HUMAN RIGHTS - Fundamental Rights - Special Rights of Citizens - Protection from Unjust Deprivation of Property - Apprehension and confiscation of motor vehicle by police upon complaint laid - Nature of the protection -Release of vehicle to complainant - Sale of vehicle - Constitution s.53.
Counsel
Applicant in person
Mr Saranduo for the Respondent
24 June 1998
SAKORA J: This is an application pursuant to the filing in this court of a formal Application for Enforcement of Human Rights under s.57 Constitution, dated 21 September 1994. The alleged breach of right arose from an incident on 25 October 1993 at 2.45 pm on Huon Road here in Lae.
The particular right alleged to have been breached is one of those special rights accorded all citizens by the Constitution: right to protection from unjust deprivation of property. Section 53 grants this right in the following terms:
53.     Protection from Unjust Deprivation of Property
(1)      Subject to Subsection 54 (sic) (special provision in relation to certain lands) and except as permitted by this section, possession may not be compulsorily taken of any property, and no interest in or right over property may be compulsorily acquired, except in accordance with an Organic Law or an Act of Parliament, and unless:
(a)      the property is required for:
(i)       a public purpose., or
(ii)      a reason that is reasonably justifiable in a democratic society that has a proper regard for the rights and dignity of mankind,
that is so declared and so described, for the purposes of this section, in an Organic Law or an Act of Parliament., and
(b)      the necessity for the taking of possession or acquisition for the attainment of that purpose or for that reason is such as to afford reasonable justification for the causing of any resultant hardship to any person affected.
Though the incident in question arose late October 1993, the application did not come to the official attention of this court until September 1997. And it did not come before myself until March this year when I listed it for hearing in May. At the hearing the applicant appeared in person and represented himself. He moved the court pursuant to his formal application dated 21 September 1994 (supra), and relied on the accompanying statement of facts.
These facts can be conveniently and briefly summarised as follows. On the afternoon of 25 October 1993 the applicant was driving a motor vehicle upon Huon Road when he was stopped by the police outside the Bowling Club about 2.45 pm. He was then approached by the police and ordered out of the vehicle. There were about 4 or 5 policemen who emerged from the police vehicle, all in civilian clothes and armed with guns. These were pointed at him when ordered out of the vehicle.
At the time he had two of his children in the vehicle. He had picked them up from the Coronation International Primary School. The children were aged 6 and 4 years. In the car also was Mr Taberkeran’s brother-in-law. They were ordered out of the vehicle also.
The applicant did not know any of the policemen by name, but later at the police station he learned that the one who had been talking, asking questions and ordering was Constable Rimbao, the first respondent. He appeared to be in charge. The applicant was asked about the registration status of the vehicle, and he explained that registration had expired two (2) months before whilst he had been in Port Moresby, and that he was then on his way to procure a “road worthiness” sticker, showing the police the papers and the money for the very purpose.
Applicant and his children and brother-in-law were then conveyed to the Lae Central Police Station where he was charged with driving an unregistered motor vehicle. He was released on K100.00 cash bail. He was not permitted to take the motor vehicle and drive it away from the station. It was kept at the station, and after many enquiries discovered that it ended up in the physical custody and control of another person, a Mr Jerry Warun. It would appear that there had been an on-going dispute over some commercial business and the ownership of the subject motor vehicle between the applicant and Mr Warun. It later transpired that Mr Warun sold the vehicle.
The police story or version of the incident in question is as follows. A formal complaint was received from Mr Warun to the effect that a company vehicle, the subject vehicle, was being illegally used. Police assistance was requested and sought to locate and take immediate possession of this vehicle and return it to him. And the offender was identified to the police as the applicant. Hence, it has been the contention of the police that what they did was in direct response to a formal complaint laid, and in the proper discharge of their duties.
From the documentation before me, it would appear that Mr Taberkeran had been having problems with Mr Warun over a panel-beating and other motor vehicle repair business and its premises, and the subject motor vehicle. Some aspects of this dispute had gone before the courts in 1994, and certain orders had been made by the courts. And some of these matters had not been resolved at the time of the 25 October 1993 incident.
Under these circumstances, the police ought to have paid more attention to what the applicant was saying, and exercised some patience and inspected the documents he had with him and was offering them. This would have, at least, answered some of their questions about the ownership of the motor vehicle, the subject of the complaint laid by Mr Warun. After all, the complaint was about illegal use of motor vehicle.
Instead, the police, under the leadership of Constable Rimbao, took what seems to have been a one-sided posture or attitude. In the process they went “overboard” with their show of force: four (4) to five (5) able-bodied policemen armed with guns, pointing and ordering menacingly the applicant and his children with the brother-in-law to come out of the vehicle. I find this from the statement of the applicant (filed in support of his application). There is no reason for me to find that he concocted this story. His version of the events is pretty much corroborated by the police (affidavits of Constables Rimbao and Akoko), with the notable exception of being armed.
It is patently obvious to me that Mr Taberkeran’s subsequent problems with Mr Warun concerning the subject motor vehicle would not have eventuated if the police had not been so abrupt and one-sided. Matters would not have gone any further to the eventual detriment of the applicant if the police had listened more rather than ordering and demanding all the time. Police should not, or appear to, take sides in any disputes between private parties. If anything, they should always take the side of the law. In the discharge of their official duties and functions, the members of the Police Force are expected, required, to maintain impartiality at all times. In their dealings with the members of the public, the police are expected, and ought, to act with fairness also.
There is no evidence of Mr Taberkeran resisting the police or anything of the sort. He was in the vehicle with his two young children. To be confronted by armed and aggressive able-bodied men is not such a welcome and pretty sight to any ordinary member of the public, let alone two young children. There is no evidence that Mr Taberkeran was in any way interfering with the police in the execution of their duties. Giving an explanation to questions is not resistance per se. Asking of the police the wheres and whyfores is not against the law, and does not constitute resistance or interference.
Be that as it may, the complaint of the applicant is founded upon the provisions of s.53 Constitution (supra), a complaint of unjust deprivation of property. A proper reading of this provision will or ought to alert one of certain “sign posts”, for example, “possession may not be compulsorily taken of any property”, and “no interest in or right over property may be compulsorily acquired”. And the justifiable reasons for the compulsory acquisition are limited to those set out under sub-sections (I)(a)(i) and (ii) and (5), and the recurring theme here is “public purpose” and “public interest”. Sub-section (5) sets out nine (9) circumstances under which, by the operation of law (and appropriate custom), a citizen’s property can be taken possession of or interest in or right over such property can be acquired. The method of acquisition, which necessarily and directly affects a citizen’s right, is compulsory, and resulting in permanent deprivation of right to ownership.
This is what was envisaged by the Constitutional Planning Committee (see: CPC Report Ch. 5 Part 1, p.14, and recommendations p.29). The right to property as an inalienable, “natural” right of the citizen, immune from interference by government or other individuals was acknowledged by the CPC when considering and deliberating on this aspect. The CPC recognised also that there were and would be circumstances justifying the government to compulsorily acquire private property for the public good. Similarly, dispossession through the operation of law (as per s.53(5) Constitution). The protection given to the citizen in such an eventuality, is of course not without precedent. Certain international and regional organisations or agencies have this protection specifically recognised (see: Article 17 of the Universal Declaration of Human Rights, U.N., Article 1 of the European Convention on Human Rights).
This provision envisages a balancing act performed here in deciding whether or not the State or government should compulsorily acquire some citizen’s property, or some right or interest in that property. A proper balance must be struck between the dictates of or necessity for public good or public interest against protecting private personal rights and interests. Thus, if in the end public interest prevails, this Constitutional provision insists that the deprivation of the right of or to ownership, or possession, must be just and reasonable. Provision is made for this under sub-sections (2) and (3) which are in the following terms:
(2)      Subject to this section, just compensation must be made on just terms by the expropriating authority, giving full weight to the National Goals and Directive Principles and having due regard to the national interest and to the expression of that interest by the Parliament, as well as to the person affected.
(3)      For the purposes of Sub-section (2), compensation shall not be deemed not to be just and on just terms solely by reason of a fair provision for deferred payment, payment by instalments on compensation otherwise than in cash.
This very much reflects the thinking and aspirations of the CPC. In debating the Lands Acquisition Bill in the House of Assembly in 1974, the Chief Minister said this:
I do not think my Government will expropriate property owned by an individual for this is not right. If we see that there is a national interest in a person’s property, we will discuss the matter with him. I can assure all members that people will get fair compensation for their property (referred to the Hansard, and cited by Pratt J. in Minister for Lands -v- Frame [1980] PNGLR 433, at 487-491).
The case of Minister for Lands -v- Frame (supra) considered s.53 Constitution in the course of determining the adequacy of compensation for the Government’s compulsory acquisition of a coffee plantation owned by Frame. And the acquisition and compensation were done under the provisions of the Lands Acquisition Act 1974. Both in the National Court ([1979] PNGLR 626, per Raine ACJ.) and the Supreme Court on appeal (supra), the recurring theme, apart from the discussions on the distinction between the rights of citizens and non-citizens, was compulsory acquisition for a public purpose or interest or reason, and just compensation on fair terms. Sub-section (4) is in the following terms:
(4)      In this section, a reference to the taking of possession of property, or the acquisition of an interest in or right over property, includes a reference to:
(a)      the forfeiture; or
(b)      the extinction or determination (otherwise than by way of a reasonable provision for the limitation of actions or a reasonable law in the nature of prescription or adverse possession), of any right or interest in property.
I have taken time to highlight certain aspects of s.53 in the preceding paragraphs to demonstrate that the circumstances of this case, and more particularly those concerning actions or inactions of the police, do not represent, in my respectful opinion, the situation(s) envisaged by s.53 Constitution.
There was here, in my considered opinion, no compulsory taking of he subject motor vehicle nor an acquiring of an interest in or right over it compulsorily by the police for a public purpose or reason, as envisaged by the Constitutional provision. Whilst what subsequently happened to the motor vehicle had the effect of permanently depriving Mr Taberkeran of his right to ownership and actual physical possession, it was not as a direct result of compulsory acquisition or an act of expropriation as envisaged by s.53 Constitution.
I am satisfied that the police apprehended the subject motor vehicle and Mr Taberkeran in direct response to a complaint laid by another person, a Mr Warun, in good faith initially, believing in the genuineness of the allegation. Whatever disputes Mr Taberkeran and Mr Warun may have been having at the time was for the courts to deal with if properly initiated according to law.
The methods and tactics employed in responding to the complaint of Mr Warun and apprehending the applicant may have been rough, inconsiderate and abrupt, leaving a lot to be desired on the part of the police. Subsequently, certain police personnel may have been less than frank in their responses to the applicant’s queries about the whereabouts of the motor vehicle. Nevertheless, as far as the complaint of breach of a Constitutional right (s.53) is concerned, I am not satisfied that there was a breach here.
As discussed above, the s.53 right is specific. Protection is granted to unjust deprivation. And that unjust deprivation arises directly from compulsory taking or acquisition of property for a public purpose or reason.
It is the judgment of this court that the allegations of the applicant, as demonstrated by the basically uncontested facts (save the police denial of being armed at the time), do not come within the circumstances contemplated or envisaged by s.53 Constitution.
The Court, therefore, declines to grant the application, and dismisses it.
Applicant in person
Mr Saranduo for the Respondent