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Kwialu v Dage [2013] PGNC 249; N5388 (24 October 2013)

N5388

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS (HR) NO 372 0F 2008

KANGUAL KWIALU
Plaintiff

V

SENIOR SERGEANT DUMOP DAGE
First Defendant

CONSTABLE BILL MOIHE
Second Defendant

CONSTABLE BOBBY RAZEYE
Third Defendant

CONSTABLE SHATO ADILAWA
Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Madang: Cannings J
2013: 14 June, 15 August, 24 October

HUMAN RIGHTS – enforcement – trial on liability – alleged police raid of business premises – confiscation of property – whether factual allegations have been proven – whether causes of action existed for human rights breaches – Constitution, Section 44 (freedom from arbitrary search and entry), Section 53 (protection from unjust deprivation of property) – vicarious liability.

The plaintiff claimed that members of the Police Force entered premises in which he conducted business as a beer retailer and without lawful authority confiscated 29 cartons of beer and other store goods. The Police charged him with keeping licensed premises open for sale of liquor during restricted hours contrary to the local liquor licensing law. He was convicted and sentenced by the District Court but on appeal to the National Court the conviction and sentence were quashed. The plaintiff commenced proceedings against the four members of the Police Force involved in the operation and the State, claiming damages for breach of two human rights, the right to freedom from arbitrary search and entry under Section 44 of the Constitution and the right to protection from unjust deprivation of property under Section 53 of the Constitution. A trial was conducted to determine whether the defendants were liable for the alleged breaches of human rights.

Held:

(1) The plaintiff presented sufficient evidence for the court to be satisfied on the balance of probabilities that he was not trading liquor during restricted hours. Therefore the beer was confiscated without lawful authority.

(2) The plaintiff's human rights were breached in the manner alleged, viz:

• freedom from arbitrary search and entry (Constitution, Section 44); and
• protection against unjust deprivation of property (Constitution, Section 53(1)).
  

(3) The plaintiff established a cause of action for breach of human rights.

(4) The State was vicariously liable for the breaches as the members of the Police Force were acting within the scope of their police employment and the State failed to discharge the onus of showing that what they did was totally removed from the domain of their authorised actions.

(5) Judgment on liability was entered only against the State as the Court was satisfied that the other defendants acted in good faith and that it would be harsh and oppressive to make them personally liable.

Cases cited

The following cases are cited in the judgment:

Eriare Lanyat v The State [1997] PNGLR 253
Kangual Kwialu v The State, CRA No 1468 of 2005, 26.05.05, unreported
The State v David Wari Kofowei and Others [1987] PNGLR 5
Wama Kints v The State (2001) N2113

APPLICATION

This was a trial on liability to determine the plaintiff's application for enforcement of human rights.

Counsel

T M Ilaisa, for the plaintiff
S Phannaphen, for the defendants

24th October, 2013

1. CANNINGS J: The plaintiff Kangual Kwialu is applying for enforcement of his human rights, which he claims were breached by members of the Police Force who raided his business premises in Madang on the night of Thursday 23 June 2005.

2. Most of the facts are undisputed. The plaintiff was operating a liquor outlet at rented premises in the Ron Albert Rugby League Stadium near Modilon Road. He was licensed to sell liquor from those premises pursuant to an "Occasional Licence" issued by the Madang Liquor Licensing Commission. The Police, led by the first defendant, Snr Sgt Dumop Dage, assisted by the second, third and fourth defendants, were on night patrol and formed the view that the plaintiff was trading in liquor in restricted hours, contrary to the conditions of his licence. They entered the premises without notice and without a search warrant, arrested the plaintiff, seized 29 cartons of beer (each carton containing 24 bottles of SP Lager) and took the plaintiff to Madang Police Station where he and the 29 cartons of beer were detained.

3. The plaintiff was charged by the Police with one count of keeping licensed premises open for sale of liquor during restricted hours contrary to Section 22 of the Madang Provincial Liquor Licensing Act. He was convicted on 25 July 2005 by the Madang District Court and given a three-month suspended sentence. Of the 29 cartons of beer, 10 were returned to the plaintiff and 19 were forfeited to the State. He appealed to the National Court against his conviction and sentence, and on 26 May 2006 Justice Los upheld the appeal and quashed the conviction and sentence (Kangual Kwialu v The State, CRA No 1468 of 2005, 26.05.05, unreported). His Honour held that the District Court erred in law by convicting the plaintiff as there was no finding of fact that he was actually trading in liquor in restricted hours.

4. The plaintiff has commenced proceedings by writ of summons against the four members of the Police Force involved in the operation and the State, claiming damages for breach of human rights. A trial has been conducted to determine whether the defendants are liable for the alleged breach of human rights.

5. There are three issues:

1. Has the plaintiff proven his factual allegations?
   
2. Has the plaintiff established a cause of action for breach of human rights?
   
3. What order should the Court make?
   

1 HAS THE PLAINTIFF PROVEN THE FACTUAL ALLEGATIONS?

6. The plaintiff maintains that he was not selling beer at the time. He had closed for the night. He was asleep, though there were some customers who had not finished their beer who he had allowed to remain on the premises. The Police knocked on the door, walked in and abused him and without showing any papers, arrested him and confiscated the 29 cartons of beer, together with other store goods including nine cartons of cigarettes and six cartons of biscuits.

7. Each of the first four defendants has given evidence that paints a different picture. They were on night patrol on Modilon Road. At 11.15 pm they heard people shouting and loud music coming from Ron Albert Stadium and traced the noise to the plaintiff's liquor outlet. They observed the plaintiff inside his shop entertaining customers, having a beer party with the music at full blast. The shop was open and drunken customers were purchasing beer from the plaintiff. They calmly approached the plaintiff and asked him to produce his liquor licence. As he was unable to do so, they arrested him and confiscated the 29 cartons of beer. They deny removing any other property.

8. I find that the plaintiff has proven that he was not trading in liquor contrary to the conditions of his licence. That is the inevitable conclusion of fact that must be drawn from his successful appeal to the National Court against the District Court conviction. It is not necessary to make any finding as to the conflicting evidence about whether the plaintiff was or was not selling beer when the Police entered the premises, what time it was, whether the Police abused him or whether his customers were drunk. The fact is that the plaintiff was not acting unlawfully at the relevant time. This is borne out by the conditions attached to his licence, which is in evidence. None of the conditions address the hours of trading. They only address the days of trading: there were to be no sales on Fridays, Saturdays, Sundays or any declared Public Holidays.

9. As to the property that was confiscated by the Police I find that it was confined to the 29 cartons of beer. I accept the evidence of Snr Sgt Dage and the other members of the Police Force that they did not confiscate any other property.

2 HAS THE PLAINTIFF ESTABLISHED A CAUSE OF ACTION FOR BREACH OF HUMAN RIGHTS?

10. The plaintiff argues that two of his human rights were breached:

• the right to freedom from arbitrary search and entry under Section 44 of the Constitution; and
  
• the right to protection from unjust deprivation of property under Section 53 of the Constitution.
  

11. Section 44 (freedom from arbitrary search and entry) states:

No person shall be subjected to the search of his person or property or to entry of his premises, except to the extent that the exercise of that right is regulated or restricted by a law—

(a) that makes reasonable provision for a search or entry—

(i) under an order made by a court; or

(ii) under a warrant for a search issued by a court or judicial officer on reasonable grounds, supported by oath or affirmation, particularly describing the purpose of the search; or

(iii) that authorizes a public officer or government agent of Papua New Guinea or an officer of a body corporate established by law for a public purpose to enter, where necessary, on the premises of a person in order to inspect those premises or anything in or on them in relation to any rate or tax or in order to carry out work connected with any property that is lawfully in or on those premises and belongs to the Government or any such body corporate; or

(iv) that authorizes the inspection of goods, premises, vehicles, ships or aircraft to ensure compliance with lawful requirements as to the entry of persons or importation of goods into Papua New Guinea or departure of persons or exportation of goods from Papua New Guinea or as to standards of safe construction, public safety, public health, permitted use or similar matters, or to secure compliance with the terms of a licence to engage in manufacture or trade; or

(v) for the purpose of inspecting or taking copies of documents relating to—

(A) the conduct of a business, trade, profession or industry in accordance with a law regulating the conduct of that business, trade, profession or industry; or

(B) the affairs of a company in accordance with a law relating to companies; or

(vi) for the purpose of inspecting goods or inspecting or taking copies of documents, in connexion with the collection, or the enforcement of payment of taxes or under a law prohibiting or restricting the importation of goods into Papua New Guinea or the exportation of goods from Papua New Guinea; or

(b) that complies with Section 38 (general qualifications on qualified rights).

12. Section 53 (protection from unjust deprivation of property) states:

(1) Subject to Section 54 (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 the Parliament, and unless—

(a) the property is required for—

(i) a public purpose; or

(ii) a reason that is reasonably justified 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 the 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.

(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 Subsection (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 or compensation otherwise than in cash.

(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.

(5) Nothing in the preceding provisions of this section prevents—

(a) the taking of possession of property, or the acquisition of an interest in or right over property, that is authorized by any other provision of this Constitution; or

(b) any taking of possession or acquisition—

(i) in consequence of an offence or attempted offence against, or a breach or attempted breach of, or other failure to comply with a law; or

(ii) in satisfaction of a debt or civil obligation; or

(iii) subject to Subsection (6), where the property is or may be required as evidence in proceedings or possible proceedings before a court or tribunal,

in accordance with a law that is reasonably justifiable in a democratic society that has a proper regard for the rights and dignity of mankind; or

(c) any taking of possession or acquisition that was an incident of the grant or acceptance of, or of any interest in or right over, that property or any other property by the holder or any of his predecessors in title; or

(d) any taking of possession or acquisition that is in accordance with custom; or

(e) any taking of possession or acquisition of ownerless or abandoned property (other than customary land); or

(f) any restriction on the use of or on dealing with property or any interest in or right over any property that is reasonably necessary for the preservation of the environment or of the national cultural inheritance.

(6) Subsection (5)(b)(iii) does not authorize the retention of any property after the end of the period for which its retention is reasonably required for the purpose referred to in that paragraph.

(7) Nothing in the preceding provisions of this section applies to or in relation to the property of any person who is not a citizen and the power to compulsorily take possession of, or to acquire an interest in, or right over, the property of any such person shall be as provided for by an Act of the Parliament.

13. I find that the Police entered the plaintiff's premises and conducted a search unlawfully as they had no search warrant under the Search Act and no authority under any other law for the purposes of Sections 44(a) or (b) of the Constitution to enter and search the premises. The Police expropriated the plaintiff's 29 cartons of beer without lawful authority. The defendants have been unable to point the Court to any provision of the Search Act or any other law that permitted them to seize the beer. The plaintiff has therefore established a cause of action for breach of the two human rights alleged, under Sections 44 and 53 of the Constitution.

3 WHAT ORDER SHOULD THE COURT MAKE?

14. The fifth defendant, the State, is liable, vicariously, as the human rights breaches were committed by members of the Police Force within the scope of their police employment and the State has not discharged the onus of showing that what they did was totally removed from the domain of their authorised actions (The State v David Wari Kofowei [1987] PNGLR 5; Eriare Lanyat v The State [1997] PNGLR 253; Wama Kints v The State (2001) N2113). I decline to order that the first four defendants are liable as I am satisfied that they were acting in good faith. They made mistakes in the discharge of Police duties but it does not follow from that, that they should be personally liable. It would be harsh and oppressive to make them personally liable. Costs will follow the event.

ORDER

(1) The application by the plaintiff for enforcement of human rights is upheld.

(2) The plaintiff has established a cause of action for breach of human rights, in particular the rights in Sections 44 and 53 of the Constitution, against the fifth defendant, the State, in respect of property losses and loss of income caused by members of the Police Force at Madang on 23 June 2005.

(3) The question of assessment of damages shall be determined at a separate trial.

(4) Costs of the proceedings shall be paid by the fifth defendant to the plaintiff on a party-party basis, to be taxed if not agreed.

Judgment accordingly.
_____________________________________________
Thomas More Ilaisa Lawyers: Lawyers for the Plaintiffs
Solicitor-General: Lawyer for the Defendants