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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO 1406 OF 2006
FRANCIS FULIVA, BRUNO JOHN, BENEDICT KINURA,
SAM WINGAVI, AWIMBA LUKE & 1,276 OTHERS
Plaintiffs
V
INSPECTOR TONY WAGAMBIE JUNIOR
First Defendant
MADANG PROVINCIAL GOVERNMENT
Second Defendant
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant
Madang: Cannings J
2010: 12 November, 17 December,
2011: 23 September
AGREEMENTS – enforceability – alleged breach of agreement between governmental bodies and groups representative of illegal settlers, sanctioned by order of National Court – whether facts alleged in support of breach of agreement proven.
An agreement was entered into between various governmental bodies and representatives of illegal settlers in a provincial capital regarding eviction and resettlement of the settlers. A distinction was drawn between "genuine settlers" and other illegal settlers. The agreement was sanctioned by the National Court, which ordered that the eviction exercise be undertaken and effected in accordance with the memorandum of agreement. Two years and four months after the making of the court order the police forcibly evicted a number of people from land on which they had unlawfully settled. The plaintiffs commenced proceedings by writ of summons against the officer in charge of the police operation, the provincial government and the State, claiming damages on the ground that the actions of the police were in breach of the agreement and court order and therefore unlawful. A trial was set down to determine the question of liability. The defendants argued that they were not liable as none of the plaintiffs were genuine settlers, only three of the 1,281 plaintiffs gave evidence at the trial, it was not proven that the eviction exercise took place in the manner alleged and in any event the actions of the police were in accordance with the agreement.
Held:
(1) Categorisation of the plaintiffs as genuine or non-genuine settlers was irrelevant to the question of liability as the agreement covered both categories of settlers, so the plaintiffs' standing to enforce the agreement was unaffected by any finding that they were non-genuine settlers.
(2) There was no requirement that each plaintiff provide evidence as this was a trial on liability only, and the court could properly make findings of fact on the evidence put before it by all parties.
(3) There was sufficient evidence that the eviction exercise took place in the manner alleged and that it was a large scale operation that occurred over a period of seven days.
(4) The eviction exercise was carried out in breach of the agreement, in that the process of verification of genuine settlers was not completed, the agreement made no provision for involvement of police and there had been no "dialogue" between the parties to the agreement regarding forced eviction.
(5) The eviction exercise was also conducted in breach of an order of the National Court and was therefore unlawful; and the defendants are accordingly liable in damages.
Cases cited
The following cases are cited in the judgment:
Joe Tipaiza v James Yali (2006) N3178
Joe Tipaiza v James Yali (2008) N3472
John Kameku v Patilius Gamato (2004) N2512
TRIAL
This was a trial on liability for breach of agreement.
Counsel
B W Meten, for the plaintiffs
J Haiara, for the second and third defendants
23 September, 2011
1. CANNINGS J: On 19 May 2000 an agreement was entered into between various governmental bodies and representatives of illegal settlers in Madang town regarding eviction and resettlement of settlers. A distinction was drawn between "genuine settlers" and other illegal settlers. The agreement was sanctioned by the National Court which on 28 July 2000 ordered that the eviction exercise be undertaken and effected in accordance with the memorandum of agreement. In December 2003 the police conducted an eviction exercise, forcibly evicting a number of people from land on which they had unlawfully settled in Madang town. The plaintiffs, Francis Fuliva, Bruno John, Benedict Kinura, Sam Wingavi, Awimba Luke and 1,276 other people, say that they were living in settlements in Madang in December 2003 when the eviction exercise was undertaken. They claim that the police entered the settlements and forcibly evicted them by burning and destroying their houses and damaging or stealing their personal property. They claim that the eviction exercise, which was led by the first defendant, Inspector Tony Wagambie Jnr, and conducted at the request of the second defendant, Madang Provincial Government, was unlawful as it was conducted in breach of the agreement and court order. They have commenced proceedings against Inspector Wagambie and the Provincial Government and the State, claiming damages for breach of agreement and a court order. A trial has been held to determine whether the defendants are liable. The question of damages will only be addressed if liability is established.
2. It is important to appreciate that the cause of action being prosecuted by the plaintiffs is breach of the agreement and the court order that sanctioned the agreement. Though the plaintiffs assert, in effect, that their human rights were breached, breach of human rights and torts such as trespass to property and trespass to the person are not pleaded as causes of action, as such, in the statement of claim. This is a feature of this case that sets it apart from most other eviction exercise cases involving alleged unlawful police conduct (eg John Kameku v Patilius Gamato (2004) N2512, in which a squatter eviction exercise at Yonggo Mountain, Lae, was declared harsh and oppressive, and unlawful under Constitution, Section 41).
3. Before addressing the primary question of whether the agreement was breached there are three threshold issues raised by the defendants that need to be tackled. They argued that they could not be liable as none of the plaintiffs were genuine settlers, only three of the 1,281 plaintiffs gave evidence at the trial and it was not proven that the eviction exercise took place in the manner alleged.
PLAINTIFFS NOT GENUINE SETTLERS
4. The defendants argue that none of the plaintiffs are "genuine settlers", as defined in the agreement, as none of them were issued identification cards and verified by the Provincial Government to be genuine settlers. Therefore they are in no position to maintain an action against the defendants as they should have left Madang on the date that the agreement was sanctioned by the National Court, 28 July 2000.
5. This argument is misconceived. Even if it is accepted that all 1,281 plaintiffs are non-genuine settlers, the fact is that all illegal settlers in Madang town, whether genuine or non-genuine, were, in effect, a party to the agreement. The agreement was intended to regulate what would happen both to genuine and non-genuine settlers. Categorisation of the plaintiffs as genuine or non-genuine settlers is irrelevant to the question of liability as the agreement covers both categories of settlers. The plaintiffs' standing to enforce the agreement is unaffected by any finding that they were non-genuine settlers.
ONLY THREE PLAINTIFFS GAVE EVIDENCE
6. Mr Haiara, for the defendants, submitted that as only three of the plaintiffs (Francis Fuliva, Bruno John and Sam Wingavi) gave evidence at the trial, the claims of the 1,278 other plaintiffs must be summarily dismissed as they did not attend the trial to prosecute their claims. This argument is also misconceived. It confuses the evidentiary requirements that would need to be discharged at a trial on assessment of damages with those to be applied at a trial on liability only, which the present trial is. This is a representative proceeding and there is no rule of law or practice that would require each of the plaintiffs to attend the trial and give evidence. The court is quite able to make findings of fact on the evidence put before it by all parties.
CONDUCT OF THE EVICTION EXERCISE
7. It is the plaintiffs' case that the eviction exercise started on 11 December 2003 at the land area known as Portion 49, which includes settlements known as Handy Mart, Yangoru Compound and Wagol Fikus. On 12 and 13 December 2003 the exercise proceeded at Portion 50, covering Wagol Sawdust, Wagol Paiaman, Lavalava, Bukbuk, Sandaun, Biliau Maus Rot, Old Refuse Dump, Humade and Sisiak 3 settlements. On 14 and 15 December 2003 the eviction exercise proceeded to Portion 51, covering Sisiak 1 and 2, Kandi, Kuaru and Public Tank settlements. On 16 and 17 December 2003 the eviction exercise proceeded to Portion 52, covering Meiro, DCA-Kubalia, MAF-Ramu, Walapat, Lain Banana, Meat Cannery, Stick Masis, Lavuge and 26 Bus Stop settlements.
8. Mr Haiara submitted that based on cross-examination of the three plaintiffs who gave evidence, each of whom testified that they stayed put and did not move around the town in the period in question, the court could not be satisfied that the eviction exercise took place in the manner alleged by the plaintiffs. That the plaintiff witnesses were giving an exaggerated and unreliable account of what happened is borne out, Mr Haiara submitted, by the evidence of the sole defendant witness, Peter Torot, a senior officer of the Madang Provincial Administration, who was a member of the Provincial Government Committee which oversaw the eviction exercise. Mr Torot testified that the eviction exercise was centred on Portion 50 alone and that the only settlements that were 'evicted' were Wagol Sawdust, Sisiak 3, Sandaun Camp, Lapalapa and Wagol Paiaman. Wagol Sawdust was evicted on 15 December 2003 and the other settlements were evicted on 16 December 2003. There was no eviction of any other settlements on any other dates, Mr Torot testified.
9. I prefer the evidence of the plaintiff witnesses. Even though they stayed in their own settlements during the period in question and by their own admission did not see with their own eyes exactly what was happening in other settlements they were in a position to gain a clear sense of what was going on around them. I reject the submission of counsel for the defendants that they were unreliable and dishonest witnesses. I conclude their evidence was credible and sufficient to discharge the plaintiffs' burden of proving on the balance of probabilities that the eviction exercise was conducted in the manner pleaded in the statement of claim. I find that the eviction exercise was not only conducted at the Portion 50 settlements identified by Mr Torot. It might be the case that it was at these settlements that the exercise was most effective, in that all occupants were actually moved out or 'evicted', thus justifying Mr Torot's statement that these were the only settlements evicted. Be that as it may, I find as a fact that the eviction exercise was conducted generally in the manner alleged by the plaintiffs and that people in the settlements identified in the plaintiff witness' evidence were adversely affected by the actions of the police.
THE AGREEMENT OF 19 MAY 2000
10. It consisted of a preamble, eight clauses and an execution section. Its full text is set out below.
MEMORANDUM OF AGREEMENT
ON THE EVICTION OF ILLEGAL SETTLERS
FROM MADANG TOWN
This Memorandum of Agreement is made this 19th day of May 2000.
BETWEEN: THE MADANG PROVINCIAL GOVERNMENT, a duly constituted government body by and under the Organic Law on Provincial Governments and Local-level Governments of PO Box 2108, MADANG, Madang Province (hereinafter referred to as "the Provincial Government") of the one part.
AND: THE MADANG SETTLEMENT COMMITTEE, a body comprised of the representatives of the illegal settlements in and around the Madang Town of PO Box 1118, MADANG, Madang Province (hereinafter referred to as "the MSC") of the other part.
WHEREAS the illegal settlements issue in Madang Town has a long history, going back to the days of the Area Authority in 1973 when noticeable attempts were first made to clear out the illegal settlements.
AND WHEREAS in the recent past, increasing criminal activities perpetrated by the illegal settlers has been cause of very serious concern not only by the authorities but by the local people of Madang Town as well who, after one of their number was killed by settlers in March 1997, petitioned the Provincial Government to evict the illegal settlers.
AND WHEREAS in pursuance of the eviction, the Provincial Executive Council by its two decisions numbered 18/04/97 of 7 May 1997 and 25/97 of 3 September 1997 established its Madang Provincial Government Settlement Committee (otherwise known as "the MPGSC") to spearhead and co-ordinate the eviction exercise which, then, had been set to being in October 1997 but later extended to 30 December 1997 upon the request of the MSC to allow the school children to finish school for the year first.
AND WHEREAS during the period of extension the MSC, through its spokesman Mr John Simbai, instituted Court proceedings to challenge the evictions by way of judicial review but which proceedings were withdrawn later when the eviction notices were withdrawn by the Secretary for Lands.
AND WHEREAS however, the eviction notices were afterwards renewed by the Secretary for Lands thus renewing action by the MPGSC to evict the illegal settlers and which action, in turn, compelled the MSC to seek restraining orders in the National Court.
AND WHEREAS the National Court, presided over by the Chief Justice, His Honour Sir Arnold Amet on 9 January 1998 ordered the State, the Department of Lands & Physical Planning, the Secretary for Lands and the Department of Madang, as defendants, to refrain from carrying out the eviction exercise and directed the parties to enter into dialogue and resolve the matter, with the final outcome being presented to the National Court for judicial sanctioning.
AND WHEREAS in pursuance of the direction of the National Court, the parties finally had a successful dialogue on 15 September 1998 and that such dialogue has laid the foundation of this Memorandum of Agreement.
IT IS HEREBY AGREED as follows-
1. RECOGNITION OF AGENCY.
(1) The Provincial Government recognizes the MSC as the proper agent of all the persons residing in illegal settlements within the township of Madang.
(2) The illegal settlements are as listed in Annexure 1.
2. AFFIRMATION OF STATE OWNERSHIP OF LAND.
The parties, and in particular the MSC, hereby affirm that the lands on which the squatter settlements have been established are owned by the State.
3. DEVELOPMENT REQUIREMENTS OF MADANG TOWN.
(1) The proper and orderly development and expansion plans of the town includes immediate development work on some of the land currently occupied by the illegal settlers and it is realized that immediate eviction of the illegal settlers therefore has to be conducted to make those lands available for proper development.
(2) Currently, development plans for immediate implementation are in place for the areas as identified in Annexure 2.
4. EVICTION AND REPATRIATION.
(1) Eviction of illegal settlers shall commence upon the endorsement by the National Court of this Memorandum of Agreement and conducted in accordance with the schedule for eviction as set out in Annexure 2.
(2) Excepting genuine settlers as defined in Clause 7 the persons who are evicted shall be required to leave Madang Town at their own costs and not again settle illegally elsewhere on land, whether State-owned, customary or otherwise, not belonging to them.
5. BAN ON CERTAIN ACTIVITIES.
(1) The following activities are banned and shall not be conducted or organized in the illegal settlements as from the date of this Agreement-
- (a) bingo games; and
- (b) disco dances; and
- (c) sale of alcohol; and
- (d) dart games for reward; and
- (e) any type or form of gambling.
(2) The construction of new houses or other shelters are also banned.
6. DEADLINE BY WHICH TO CLEAR SETTLEMENTS.
The parties shall endeavour to complete the eviction exercise in respect of all the illegal settlements as identified and listed in Annexure 2 within twelve (12) months (especially those settlements that are occupying land that have already been allocated and are pending development) by the middle of the year 2001.
7. RESETTLEMENT OF GENUINE SETTLERS.
(1) For the purposes of this Clause and the Agreement as a whole, "genuine settlers" are those persons who have acceptable permanent employment or who are operating their own permanent businesses, such businesses being big enough or viable to sustain the needs of the owner and his or her family in the long term, as identified and given identification cards by the MSC and verified by the Provincial Government.
(2) The parties shall do everything possible to resettle the genuine settlers.
(3) Resettlement or allocation of land for resettlement shall be effected in accordance with the relevant laws of the country.
(4) The parties shall invite and/or encourage private companies and other bodies whose employees are affected by the eviction exercise to assist the resettlement programme by providing accommodation for or land to their employees.
8. CONTINUING DIALOGUE
The parties hereby undertake to hold regular dialogue, as and when it becomes necessary, to review tasks and improve the implementation of the eviction exercise.
IN WITNESS WHEREOF the parties have signed this Memorandum of Agreement on the day and year first above-mentioned.
| FOR THE MADANG PROVINCIAL GOVERNMENT | FOR THE MADANG SETTLEMENT COMMITTEE |
| HON JIM KAS MP Governor | MR JOHN SIMBAI Chairman (MSC) |
| MR STEVEN AMENASIK Chairman (MPGSC) | MR AUGUSTINE SAU Deputy Chairman (MSC) |
| MR CLANT K ALOK Provincial Administrator | MR LUKE PETER Member (MSC) |
| | MR LUCAS HAPELLI Member (MSC) |
| | MR SAMSON BARANKUAI Member (MSC) |
THE COURT ORDER OF 28 JULY 2000
11. The National Court order, made by the then Chief Justice, Sir Arnold Amet, was in these terms:
The Court orders, by consent, that-
Dated: 28th July 2000.
| .............................. JOHN SIMBAI Representative Plaintiff | .............................. JOHN KUMURA a/Solicitor-General Lawyer for the First, Second & Third Defendants | .............................. SIMON ALBERIC Principal Legal Officer Lawyer for the Fourth Defendant |
12. That order removed any doubt that might have otherwise arisen as to the status of the MOA. It was and is an agreement that demonstrates an intention by those who are a party to it to create legal relations and, most importantly, the rights it confers and obligations it imposes are legally enforceable (Joe Tipaiza v James Yali (2006) N3178).
WAS THE AGREEMENT BREACHED?
13. This is the critical issue. The plaintiffs argue that the agreement was breached in four respects:
1 Failure to identify and verify genuine settlers
14. The plaintiffs' argument, based on clause 7(1) of the agreement, is that the Provincial Government breached the agreement by not identifying and verifying the genuine settlers. All settlers were waiting for this process to be undertaken, so that they would know whether they would be resettled in Madang town (in the case of genuine settlers) or required to leave town and go to their home villages (in the case of non-genuine settlers). Because the process of identification and verification was never completed, it was unlawful for the Provincial Government to engage the police to effect forced evictions, the plaintiffs argue.
15. The defendants respond by referring to the terms of clause 7(1) and argue that responsibility for initial identification of genuine settlers and giving identification cards to them was the responsibility of the settlers' representative, the Madang Settlement Committee. The Provincial Government's role was to verify the list provided by the Committee. Mr Torot gave evidence that this is what, in fact, happened. The Committee, chaired by Mr John Simbai, prepared a list, which then went to and was verified by the Provincial Government. The atmosphere was turbulent at the time. The settlers would not agree to government officials going into the settlements to conduct a census, so it was part of the agreement that their Committee would compile the list and present it to the Provincial Government.
16. As to the findings of fact necessary to be made to deal with this argument based on clause 7(1) I consider that no proper identification (by the Madang Settlement Committee) and verification process (by the Madang Provincial Government) was carried out. The evidence of the plaintiff witnesses was clear that identification cards were not given out and no verification process was completed by the Provincial Government. Mr Torot's evidence did not adequately rebut those allegations of fact. His affidavit that was admitted into evidence contained a "list of genuine settlers employed" but the pedigree and source of this document was confusing and unclear. I accept that it was the Madang Settlement Committee's responsibility to first identify the genuine settlers and give them identification cards before the process of verification was undertaken; and in that regard the Madang Settlement Committee breached the agreement. However, I conclude that the Provincial Government breached the agreement by not verifying who the genuine settlers were before engaging the police to conduct the eviction exercise.
2 Failure to resettle genuine settlers
17. The plaintiffs argue that the Provincial Government breached the agreement by not resettling the genuine settlers before the eviction exercise was undertaken. I uphold this argument, in spite of the rather loose wording of the resettlement obligations of the Provincial Government in clause 7(2), which requires the parties to "do everything possible to resettle the genuine settlers". The only reasonable inference to be drawn from these words is reasonable efforts would be made by the parties, including the Provincial Government, to resettle genuine settlers before any forced eviction exercise was carried out. Mr Torot conceded under cross-examination by the plaintiffs' counsel, Mr Meten, that no resettlement at all had been effected. I conclude that reasonable efforts were not made to resettle genuine settlers, as required by the agreement, in fact the Provincial Government made no effort at all, and that the agreement was breached in the manner contended for by the plaintiffs.
3 No provision for police involvement
18. The plaintiffs argue that the agreement makes no mention of police involvement in a forced eviction exercise. Therefore what happened in December 2003 was contrary to the terms and spirit of the agreement. The defendants have marshalled no effective argument against this fundamental proposition, which I uphold as correct in law. The agreement indeed makes no mention of police involvement. It is generally silent as to what would happen in the event that land on which the settlers were living was not vacated in a timely manner.
19. The defendants argue that non-genuine settlers were required to leave their settlements by 28 July 2000 pursuant to clause 4(1), but that is not a proper interpretation of that clause, which required only that eviction "commence" upon the National Court's endorsement of the agreement. Clause 4(1) also states that the evictions were to be conducted in accordance with "the schedule for eviction set out in Annexure 2", but none of the versions of the MOA that were adduced in evidence (including the version annexed to Mr Torot's affidavit) contained such an annexure. However, even if the annexure – if it exists – did set out a schedule or timetable showing which settlements had to be vacated at which times, the agreement was silent on the critical question of what sanctions would apply in the event that the settlers did not vacate when required. The only pointer to how non-compliance on the part of the settlers with their obligations under the agreement was to be dealt with is in the clause about dialogue, clause 8, under which the parties undertook "to hold regular dialogue, as and when it becomes necessary, to review tasks and improve the implementation of the eviction exercise".
20. Use of the word "dialogue" is significant. It connotes 'a discussion between two or more persons or groups, especially one directed towards exploration of a particular subject or resolution of a problem' (The New Oxford Dictionary of English, Clarendon Press © 1998). I consider that it is to be reasonably inferred from clause 8 that the police would not be involved unless and until there was either dialogue between the parties, which would result in an agreement for involvement of the police, or an order of the National Court sanctioning the involvement of the police.
21. The role of the National Court in this whole exercise was critical. The proceedings under which the 28 July 2000 order was made – OS No 10 of 1998 – had been commenced by the Chairman of the Madang Settlement Committee, John Simbai, in January 1998. Amet CJ granted an injunction on 9 January 1998 in these terms:
1. Subject to Order 2, an injunction restraining the First, Second, Third and Fourth Defendants action severally or collectively and or by their servants and agents from evicting the Plaintiffs from alleged squatter settlements on State Land described as Government Store, DCA, Bilia Maus Rot, Wagol Plantation, Bundi Section 95, and Portion 511 or on such other State Land as falling within the boundary of Madang Township until the Court otherwise orders.
2. Any persons living on land described in Order One who wishes to and has agreed to voluntarily exercise their rights to return to their village or home district or province may so leave at any time and in whatever manner as might be facilitated by the Defendants.
22. Given the historical and legal context in which the agreement was executed, and then sanctioned by the Court on 28 July 2000, the agreement, in effect, became an order of the National Court. Any use of force by the police to give effect to the agreement, to be lawful, had to be sanctioned by the Court. That did not happen, and in that regard there was a serious breach of the agreement. In fact there is a strong argument to say that the unauthorised police action may have amounted to contempt of court. When the eviction exercise was in full swing, the National Court proceedings commenced by Mr Simbai were still on foot. The reason that the eviction exercise came to a halt on 17 December 2003 is that on that date an injunction was granted by the National Court, in OS No 10 of 1998, in these terms:
... the Defendants, its servants, agents and Police are restrained from evicting the Plaintiff ie John Simbai and 10,000 squatters living in the settlement and around Madang Urban area who are the beneficiary of the Memorandum of Agreement dated 19th May, 2000.
23. I conclude that involvement of the police in the forced eviction exercise was contrary to the agreement and the 28 July 2000 court order and was unlawful.
4 No dialogue between Provincial Government and settlers
24. This argument has largely been dealt with by determination of the last argument. Clause 8 of the agreement required regular dialogue as and when it became necessary to review tasks and improve implementation of the eviction exercise. The plaintiffs have proven that this did not occur. The police could not be engaged to conduct forced eviction in the absence of dialogue. This breach of the agreement is also proven.
CONCLUSION
25. The plaintiffs have established that the defendants breached the agreement in the manner contended for. The eviction exercise was conducted in breach of the agreement, and in breach of an order of the National Court, and was unlawful. The defendants are accordingly liable in damages. These proceedings will now progress to a trial on assessment of damages at which each individual plaintiff will bear the onus of proving his or her entitlement to an award of damages, unless the parties agree on an alternative course of action, such as mediation, or the court orders otherwise. As to how an assessment of damages might be conducted in a case such as this I draw the parties' attention to my decision in Joe Tipaiza v James Yali (2008) N3472, an assessment of damages concerning an unlawful police eviction exercise conducted in November 2002 in Madang.
ORDER
(1) It is declared that the plaintiffs have established a cause of action in breach of agreement against the defendants.
(2) The proceedings shall proceed, unless the parties agree on an alternative course of action or the court orders otherwise, to a trial on assessment of damages.
(3) The defendants shall pay the plaintiffs' costs of the proceedings on a party-party basis, to be taxed if not agreed; and liability for costs shall be apportioned equally between them.
(4) Time for entry of this order is abridged to the date of settlement by the Registrar which shall take place forthwith.
Orders accordingly.
____________________________
Narokobi Lawyers: Lawyers for the Plaintiffs
Steeles Lawyers: Lawyers for the Second & Third Defendants
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