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Nanguan v Chairman, Board of Directors, PNG Maritime College [2017] PGNC 88; N6711 (10 May 2017)

N6711

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 123 OF 2012

BETWEEN

LEVI NANGUAN
First Plaintiff

AND
KNIAMBU RESOURCES LIMITED
Second Plaintiff

AND
CHAIRMAN, BOARD OF DIRECTORS, PNG MARITIME COLLEGE
First Defendant

AND
BERNARD ALVIN LANGE, PROVINCIAL ADMINISTRATOR
Second Defendant

AND
MADANG PROVINCIAL GOVERNMENT
Third Defendant

AND
ANTHONY WAGAMBIE, PROVINCIAL POLICE COMMANDER
Fourth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Madang : Cannings J

2014: 3^rd December

2015: 10, 14 March

2016: 2, 3 March
2017: 10^th May

LAND – government land – whether provincial administrator has power to instruct provincial police commander to evict unauthorised occupant from land – whether provincial police commander has power to direct police station commander to evict unauthorised occupant – whether provincial administrator is a lawful authority to order eviction of unauthorised occupants –whether a person’s occupation of government land is rendered lawful by acquiescence from provincial administrator – equitable interests in government land.

The plaintiffs occupied government land in a town area and established a business and a residence on it. They did not have title, but claimed a permissive occupancy existed and an equitable interest in the land by virtue of permission granted to them by the provincial administrator and their planning proposals being approved. After the plaintiffs had occupied the land for four years, the provincial administrator (second defendant), acting on requests by a neighbouring occupier (first defendant), issued an instruction to the provincial police commander (fourth defendant) to evict the plaintiffs. The provincial police commander then directed the local police station commander to evict them. An eviction exercise was substantially carried out before the National Court granted an interim injunction to restrain further eviction. The plaintiffs by originating summons sought six remedies: (1) a declaration that the provincial administrator’s instruction to the provincial police commander was illegal; (2) a declaration that the provincial police commander’s direction to the police station commander was illegal; (3) a declaration that the provincial administrator is not a lawful authority for determining who should be evicted from government land; (4) a declaration that the plaintiffs are lawful occupiers of the land; and (5) and (6) an interim and permanent injunction to restrain the defendants from interfering with the plaintiffs’ peaceful occupation of the land.

Held:

(1) The provincial administrator’s instruction to the provincial police commander was properly regarded as a request for police assistance and was not illegal.

(2) The provincial police commander’s direction to the police station commander was a direction given within the normal chain of command within a disciplined force and was not illegal.

(3) A provincial administrator is authorised by the Land Act to issue notices to quit to unauthorised occupiers of government land and is a lawful authority regarding use and occupation of government land.

(4) The plaintiffs are not lawful occupiers of the land and have no right to maintain long-term occupation, as the permission originally granted to them to occupy and develop the land was revoked.

(5) The plaintiffs have an equitable interest in the land arising from their original occupation pursuant to permission granted to them by a lawful authority. However that interest does not confer any right to long-term occupation, it only confers a right to reasonable notice to vacate the land.

(6) In the circumstances reasonable notice was a period of three months. Injunction granted, restraining defendants from evicting the plaintiffs in that period, subject to the proviso that if the plaintiffs do not vacate the land by the end of that period, the police are authorised to forcibly evict them.

Cases cited:

The following cases are cited in the judgment:

Gawi v png Ready Mixed Concrete Pty Ltd [1984] PNGLR 74
Lelete Plantation Ltd v Paul Rame (2007) N5020
Re powers, functions, duties and responsibilities of the Commissioner of Police (2014) SC1388
Tony Yagon & Settlers of Dylup Plantation v Nowra No 59 Ltd (2008) N3375

ORIGINATING SUMMONS

This was a trial in which the plaintiffs sought declarations and orders to protect their occupation of government land.

Counsel:

B B Wak, for the Plaintiffs
B W Meten, for the first Defendant

10^th May, 2017

1. CANNINGS J: The plaintiffs, Levi Nanguan and Kniambu Resources Ltd, apply by originating summons for declarations and orders concerning government land in Madang town that they have occupied since 2008.
   

FACTS

2. The land is in Gol Street, a road reserve that runs off Kusbau Road in the Nabasa area, between Madang Technical College and PNG Maritime College. The land was unoccupied before the plaintiffs occupied it in 2008. Mr Nanguan is the owner and manager of Kniambu Resources Ltd, which is a timber company.
   
3. In 2009 the then Provincial Administrator, Joseph Dorpar, approved and encouraged the plaintiffs’ occupation of the land and their establishment of various businesses on the land and its use for residential purposes.
   
4. The plaintiffs do not have title over the land but they claim a permissive occupancy. They claim that they have an equitable interest in the land by virtue of the permissions granted to them by the Provincial Administrator in 2009 and their planning proposals being approved.
   
5. In 2010 a new Provincial Administrator, Bernard Alvin Lange (the second defendant) assumed office and took a different view to that of his predecessor regarding the plaintiffs’ occupation of the land. Mr Lange issued the plaintiffs with a notice to quit on 13 July 2010. It was not complied with.
   
6. On 10 May 2011 Mr Lange wrote to the plaintiffs issuing an “official revocation” of the 2009 approval by Mr Dorpar of the plaintiffs’ occupancy of the land and advising that the land was intended to be a public access road and should be vacated. The plaintiffs, however, continued to occupy the land.

7. In March 2012 there was an altercation on the land between Mr Nanguan and students of PNG Maritime College. That led the College, which had over a long period voiced its concerns about the plaintiffs’ occupation of the land, to ask Mr Lange to get the plaintiffs removed from the land.
   
8. On 6 March 2012Mr Lange gave a written instruction to the Provincial Police Commander, Superintendent Anthony Wagambie Junior (the fourth defendant) to remove the plaintiffs from the land. Superintendent Wagambie on the same day directed the Madang Police Station Commander to evict them.
   
9. An eviction exercise was substantially carried out on 6 and 7 March 2012 before the National Court on 8 March 2012 granted an interim injunction to restrain further eviction.
   

RELIEF SOUGHT

10. A trial has been conducted on the originating summons in which the plaintiffs seek six remedies:
    

(1) a declaration that the Provincial Administrator’s instruction to the Provincial Police Commander was illegal;

(2) a declaration that the Provincial Police Commander’s direction to the Police Station Commander was illegal;

(3) a declaration that the Provincial Administrator is not the lawful authority for government land;

(4) a declaration that the plaintiffs are lawful occupiers of the land; and

(5) and (6) interim and permanent injunctions to restrain the defendants from interfering with the plaintiffs’ peaceful occupation of the land.

1. DECLARATION THAT PROVINCIAL ADMINISTRATOR’S INSTRUCTION TO PROVINCIAL POLICE COMMANDER WAS ILLEGAL
   
11. It is correct that Mr Lange’s letter to the Provincial Police Commander of 6 March 2012 was expressed as an instruction. Mr Lange wrote:
    

I am officially instructing you to evict the above-named person [Mr Nanguan] out of the current location immediately today before 4.06 pm.

12. It is also correct that a provincial administrator has no power to issue instructions to a provincial police commander regarding land matters or any other matters. The Police Force is a disciplined force. By virtue of Divisions 7.4 (special provisions in relation to the Police Force) and 7.6 (special provisions relating to disciplined forces) of the Constitution, no persons outside the Force, including ministers and provincial administrators, have power or authority to give its members instructions on Police powers, functions, duties or responsibilities.
    
13. However, Mr Lange’s instruction is properly regarded as a request for police assistance. It was treated as such by the Provincial Police Commander. Viewed in those terms, it was not illegal. The application for a declaration of illegality is refused.
    
2. DECLARATION THAT PROVINCIAL POLICE COMMANDER’S DIRECTION TO POLICE STATION COMMANDER WAS ILLEGAL
   
14. The Provincial Police Commander’s direction to the Police Station Commander was a direction given within the normal chain of command within the Police Force (Re powers, functions, duties and responsibilities of the Commissioner of Police (2014) SC1388). The application for a declaration of illegality is refused.
    
3. DECLARATION THAT PROVINCIAL ADMINISTRATOR IS NOT A LAWFUL AUTHORITY FOR GOVERNMENT LAND
   
15. A provincial administrator is authorised by Section 145 (unlawful occupation of government land and customary land) of the Land Act to issue notices to quit to unauthorised occupiers of government land. Section 145 states:
    

(1) A person who, without authority, enters, occupies or uses Government land or customary land, is guilty of an offence.

Penalty: For a first offence—a fine not exceeding K500.00 or imprisonment for a term not exceeding 6 months.

For a second or subsequent offence—a fine not exceeding K1,000.00 or imprisonment for a term not exceeding 12 months.

(2) It is not a defence that the entry, use or occupation of the land was under a claim of right.

(3) A person who contravenes Subsection (1) and refuses to leave after receiving notice to quit from the Departmental Head or the Provincial Administrator of the province in which the land is located may be forcibly ejected by a member of the Police Force. [Emphasis added.]

16. The Provincial Administrator Mr Lange was authorised to form the view that the plaintiffs’ occupation of the land was unauthorised. He formed that view on reasonable grounds, having been satisfied that the original authority given to the plaintiffs by Mr Dorpar in 2009 had been revoked. Mr Lange acted within his powers by issuing a notice to quit (in 2010) and by requesting the Provincial Police Commander (in 2012) to forcibly eject the plaintiffs from the properly. A provincial administrator is clearly a lawful authority regarding use and occupation of government land. The application for a declaration that a provincial administrator is not such an authority is refused.
    
4. DECLARATION THAT PLAINTIFFS ARE LAWFUL OCCUPIERS OF THE LAND
   
17. The plaintiffs are not lawful occupiers of the land, as they have no right or legitimate expectation of long-term occupation of the land. Neither plaintiff is the registered proprietor of the land. Neither plaintiff has a legal interest in the land. The permission originally granted to them in 2009 to occupy the land has long since been revoked.
    
18. The permission was granted ex gratia. It was a general and informal authority to occupy and develop the land, not granted under any specific law. It was capable of being revoked in the same informal way, which is what happened in 2011 when Mr Lange wrote to the plaintiffs issuing an “official revocation” of the 2009 approval by Mr Dorpar. The application for a declaration that the plaintiffs are lawful occupiers of the land is refused.
    

5 & 6 INTERIM AND PERMANENT INJUNCTIONS TO RESTRAIN DEFENDANTS FROM INTERFERING WITH PLAINTIFFS’ PEACEFUL OCCUPATION OF LAND

19. I uphold the plaintiffs’ argument that they have an equitable interest in the land arising from their original occupation and use of it, with the knowledge and permission of the then Provincial Administrator, Mr Dorpar (Gawi v png Ready Mixed Concrete Pty Ltd [1984] PNGLR 74, Tony Yagon & Settlers of Dylup Plantation v Nowra No 59 Ltd (2008) N3375). However that interest does not confer any right to long-term occupation, it only confers a right for reasonable notice to be given to vacate the land (Lelete Plantation Ltd v Paul Rame (2007) N5020).
    
20. In the circumstances of this case, where it has been clearly known to the plaintiffs since 2011 that their occupation of the land was opposed and was unauthorised, where they have nevertheless continued to occupy and develop the land, and where they have been involved in litigation that has proceeded for five years, reasonable notice is a period of three months from the date of judgment. I will grant an injunction restraining the defendants from evicting the plaintiffs in that period, subject to the proviso that if the plaintiffs do not vacate the land by then, the police are authorised to forcibly evict them.
    

COSTS

21. The plaintiffs have partially succeeded in that they have obtained an injunction restraining their eviction for a further period of three months. In these circumstances the parties will bear their own costs.
    

ORDER

(1) The relief sought in paragraphs 1 to 4 of the originating summons is refused.

(2) The relief sought in paragraphs 5 and 6 of the originating summons is partially granted in that:

• (a) the order of 8 March 2012, by which the defendants are restrained from interfering in any way, by eviction, harassment, threats, intimidation, assaults or in any other manner adverse to the plaintiffs’ peaceful occupation and use of the vacant State land between PNG Maritime College and Madang Technical College, at Gol Street, Madang (“the subject land”), is extended to 12 noon on 10 August 2017;
  
• (b) the plaintiffs and all other persons in occupation of the subject land shall vacate the subject land, removing all their properties and possessions, by 12 noon on 10 August 2017, leaving the land in good order and condition;
  
• (c) if the plaintiffs and other persons in occupation of the subject land fail to comply with order (2)(b), the defendants and the Police are authorised, from 12 noon on 10 August 2017, to take all reasonable steps necessary to remove the plaintiffs and other persons in occupation of the subject land, from the land, including the use of reasonable force, and to seize and destroy their properties and possessions, provided that such steps are taken under the supervision and control of the most senior member of the Police Force available at that time in the vicinity of the subject land.
  

(3) The parties shall bear their own costs of the proceedings.

(4) Time for entry of the order is abridged to the date of settlement by the Registrar.

(5) The file is closed.

Judgment accordingly,

_______________________________________________________
Kunai & Co Lawyers: Lawyers for the Plaintiffs
Meten Lawyers: Lawyers for the First Defendant