N9260
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 256 OF 2016

BETWEEN:
YAMBARAN PAUSA SAKA BEN LIMITED
Plaintiff

AND:
JEFFREY KENNEDY
First Defendant

AND:
NETT HOLDINGS LIMITED
Second Defendant

AND:
LUTHER SIPISON, THE ACTING SECRETARY, DEPARTMENT OF LANDS
Third Defendant

AND:
LUTHER SIPISON, THE ACTING SECRETARY, DEPARTMENT OF LANDS
Fourth Defendant

Waigani: Narokobi J
2021: 24th September

HUMAN RIGHTS – claim on behalf of employees and for damages to property - whether alleged breach of human rights were proven on the evidence.

FRAUD – whether events have superseded necessity of claim.

LEGITIMATE EXPECATATION – whether plaintiff had legitimate expectation-requirements considered. 

The Plaintiff claims breach of human rights in respect of the alleged assault against its employees and properties and for fraud in respect of a portion of land it also has an interest over, that the second defendant at the time had title over. It also says that it had legitimate expectation and should be awarded the property. The party in which the claim was made against, at the relevant time had a title to the property but its purported title has since expired, but nevertheless submits that the plaintiff is a mere busy-body and has no standing to make a claim against the property.

Held:

(1)	The claim for breach of human rights of the plaintiff’s employees lacked evidentiary basis and is dismissed.
(2)	The claim for breach of the plaintiff’s vehicles and tractor was made out on the balance of probability and was in the circumstances harsh and oppressive.
(3)	Default judgment has been obtained for trespass against the plaintiff by the first and second defendants/cross-claimants, there shall be a trial on assessment of damages for trespass.
(4)	 There is strong suggestion to say that the title to the property the subject of the proceedings was obtained by the second defendant fraudulently, but since that purported title has expired, it is not necessary to determine this issue.
(5)	The plaintiff has a legitimate expectation and should be allowed to conclude the process it commenced to obtain title to the property the subject of the proceedings.

Cases Cited:

Helifix  Group of Companies v Papua New Guinea Lands Board (2012) SC1150
Mosoro v Kingswell (2011) N4450

Statutes Cited

Constitution
Land Act 1996

Counsel:

Mr. B. Lomai, for the Plaintiff/Cross Defendant
Mr. A. Serowa, for the First and Second Defendant/Cross-Claimants
Mr. J. Bakaman, for the Third and Fourth Defendant

JUDGEMENT

24th September, 2021

1.	NAROKOBI J: The Plaintiff alleges that its human rights and freedom were breached.  It further says that the land described as Portion 172, Erima Wild Life, National Capital District, in which it had applied for rezoning but at the time was within Portion 3254 was fraudulently granted to the Second Defendant.

2.	The Plaintiff has filed a Writ of Summons pleading its claim, and seeks the following orders:

1.	A declaration that was and is still the legal owner or occupier of Sub-Divide Part Portion 172, Erima, Wild Life, National Capital District.
2.	An order that the Third and Fourth Defendant facilitate the issuance of the title of the property currently described as Sub-Divide Part Portion 172, Erima, Wild Life, National Capital District to the Plaintiff forthwith.
3.	A declaration that the First and Second defendants with the assistance of the employees, servants or agents of the Third and Fourth Defendants fraudulently acquired the State Lease Volume 64 Folio 50 Portions 2354 and 2221.
4.	An  order that the Third and Fourth Defendants revoke the title(s) issued to the First and Second Defendants for the properties described as State Lease Volume 64 Folio 50 Portions 2354 and 221 forthwith.
5.	A declaration that pursuant to Section 57 of the Constitution, the First and Second Defendants breached the constitutional rights of the named persons referred to in paragraph 35 of the statement of claim.
6.	An order that pursuant to Section 58 of the Constitution, the First and Second Defendants pay reasonable compensation and exemplary damages to the Plaintiffs servants and employees and that such compensation and damages are to be assessed.
7.	An order that the first and second defendant pays for the damages that the Plaintiff sustained to its vehicles, particulars of which are referred to in paragraph 35v of the Statement of Claim and that such damages is to be assessed.
8.	Any such further orders the court deems just and necessary in the circumstances of this case or in the interests of justice.
9.	Costs be borne by all the defendants to be paid jointly and severally.
10.	The time be abridged to the date of settlement by the Registrar which shall take place forthwith.   

3.	To support its claim, it tendered the following affidavits:

•	Affidavit of Saka Ben Wia filed on 01 September 2016;
•	Affidavit of Ria Minau filed on 27 February 2017; and
•	Affidavit in Support of Saka Ben Wia filed on 20 October 2017.

4.	The first and second defendants deny the claim and has filed a Defence and Cross-claim against the Plaintiff. The cross-claim is for trespass.  Default judgement was entered on 21 April 2017 against the Plaintiff with damages to be assessed.    

5.	The first and second defendant relies on the following affidavits to support its case:

•	Affidavit of Jeffrey Dean Kennedy filed on 10 October 2016;
•	Affidavit of Jeffrey Dean Kennedy filed on 14 December 2016;
•	Affidavit of Felix Lasou filed on 20 December 2016; and
•	Affidavit of Jeffrey Dean Kennedy filed on 5 May 2017.

6.	The background to the case is not so much in dispute, and I note it in brief as follows.

7.	The Plaintiff is a company known as Yambaran Pausa Saka Ben Limited. On 31 July 2013, it applied to the NCD Physical Planning Board for planning permission to sub-divide part Portion 172, Erima, Wildlife, NCD.

8.	The application to sub-divide Portion 172 Erima, Wildlife was however rejected by the NCD Physical Planning Board on 6 October 2014.

9.	The reason for the rejection was among other things, the area was reserved for public utility (Aerodrome). It is in the site of landing planes.

10.	Unknown to the plaintiff and the NCD Physical Planning Board, and as it appears, the Lands Department, Portion 172 is actually within Portion 3254, GRANVILLE, PORT MORESBY, NCD and was already allocated to the second defendant for a period of 3 years, 42 days commencing on 23 May 2014, and ending on 2 July 2017. 

11.	On 16 March 2015, the plaintiff appealed to the NCD Physical Planning Tribunal against the decision of the NCD Physical Planning Board.

12.	The plaintiff’s appeal was upheld by the PNG Physical Planning Appeals Tribunal on 24 November 2015.

13.	In the letter of 24 November 2015, from the Office of the Chief Physical Planner to the Managing Director of Yambaran Pausa Saka Ben Ltd (Plaintiff), Mr. Saka Ben Wia, it was stated:

“However, the PNG Physical Planning Appeals Tribunal at its meeting No 01/2015 held on the 4th of November 2015 did recommend that your appeal application be Allowed by the Minister for Lands and Physical Planning. This means that the Physical Planning Appeals Tribunal has supported your application to subdivide and rezone part of Portion 172 REM, Granville – NCD to Subdivision Zone to facilitate an Urban Development Lease (UDL) over the concerned site.

Hence, the final decision on the recommendation by the PNG Physical Planning Appeals Tribunal on your appeal application will have to be made by the Minister for Lands and Physical Planning before survey works can take place for new description of site you are allowed to rezone to Subdivision Zone is given or granted by the office of the Surveyor General.”

14.	The Office of the Chief Physical Planner in the same letter then provided the following advice to the plaintiff:

“However, to ease your pains and concerns on the matter, I advise you to put up a Temporary Fence around the subject site to safe guard the area until the Minister for Lands and Physical Planning makes a final decision.”

15.	Following this advice, the plaintiff attempted to erect fences around Portion 172.  This was met with confrontation by the first and second defendant’s servants and or agents, resulting in injuries suffered by employees of both parties and damage to the plaintiff’s equipment’s and vehicles.  This occurred on or about 18 August 2016. 

16.	I consider the issues to be as follows:

•	What is the consequence of orders made on 21 April 2017 on the current proceedings?
•	Has the plaintiff proven the factual allegations in relation to the breach of Human rights?
•	If so, what rights were breached and if so, who is liable?
•	Whether the plaintiff has proven the allegation if found against the first and second defendants?
•	What should eventuate if fraud is found or is not found?
•	What orders should the court make?

17.	The parties make the following submissions.

18.	Firstly, the plaintiff submits in essence that the human rights of its servants and agents were breached as they were assaulted.

19.	Secondly, the first and second defendants are liable for the damages caused to its vehicles.

20.	Thirdly, the plaintiffs says that it has complied with all relevant laws and it should be awarded title to sub-divide Portion 172 Erima, Wildlife, NCD. 

21.	The first and second defendant submits that the plaintiff is a mere busy body and does not have standing to come to court and is not entitled to any of the reliefs sought.

22.	I note that the third, fourth and fifth defendants did not file a defence nor any affidavits but made oral submissions at the conclusion of the trial. They seem to be suggesting that the processes were not complied with to the awarding of Portion 3254 to the second defendant.

23.	On the first issue, I determine that an order has been made of default judgement for trespass and there should be a trial on assessment of damages in respect of that.  The important question is whether that prevents me from dealing with the question of fraud. To my mind, the issue of trespass arose at a specific period of time that the second defendant had the title.  The substantive issue of fraud was not considered by the court.  
It is therefore open to me to determine the issue. However, there is another important consideration, and that is in relation to the expiry of the State Lease over Portion 3254. This in my view will affect the determination of the issue of fraud.

24.	The next issue relates to the allegation of breach of human rights.  There are two aspects of this claim.  The first relates to the breach of the rights of the following persons when they were allegedly assaulted:

•	William Kandao.
•	Kela Londe.
•	Kenny Kos.
•	Newman Leo.
•	Noah Ben.
•	Chris Wia.

25.	The second aspect relates to the damages to the vehicles described as:

•	CAS 627 – Toyota Landcruiser white.
•	BDQ 646 – Toyota Landcruiser brown.
•	BDX 010 – Toyota Landcruiser blue.
•	BDW 164 – Backhoe.

26.	On the first aspect, there is no evidence from each of the those named persons to support the claim.  All I have is the affidavit of Saka Ben Wia and Rea Minao.  The claim of breach of human rights of each of these persons is therefore dismissed.

27.	With respect to the second aspect, it is a claim of damages to the plaintiff’s vehicles and equipment.  I have considered the affidavit of Saka Ben Wia who attaches details of the damages.  I note that the first and second defendants have not categorically denied this allegation from the evidence tendered. I therefore find on this balance of probability, that the factual allegation has been made out.

28.	 On the third issue, in relation to what rights have been breached, I have found that the plaintiff has not proven the allegation of assault to its employees but has proven the allegation of damages to his property.  I determine that these actions are harsh and oppressive, contrary to s 41(1) of the Constitution. The persons who committed the breach were servants and or agents of the first and second defendant/cross claimants, so I find them liable to the plaintiff for the damages done to the vehicle and equipment, and such damages are to be assessed. 

29.	In relation to the issue of fraud, I determine that since the second defendant no longer holds title to the property, it will be an academic exercise to decide this issue. Although there is some strong suggestion of fraud, because the letter from the Chairman of the NCD Physical Planning Board appears not to know that title has already been issued to a land earmarked for public use, I decline to determine this issue any further.

30.	The issue now is what should eventuate?

31.	In order for the plaintiff to challenge the title issued to the second defendant, it must satisfy the court that it is not a “mere applicant”. After considering the case of Helifix  Group of Companies v Papua New Guinea Lands Board (2012) SC1150, I determine that the question I must ask myself is whether the applicant had a legitimate expectation.  In my view that question is answered by the fact that the office of the Chief Physical Planner in their letter of 24 November 2015 asked the plaintiff to erect a fence while waiting for the Minister of Lands and Physical Planning to make a final decision on the appeal.  In my view the plaintiff is not a mere busy body.

32.	Considering that the State Lease over Portion 3254 was current at the time the PNG Physical Planning Appeals Tribunal made its decision on 4 November 2015 to rezone the land, what should the court do? A legitimate state agency has made its decision. Do I say that there was a title already and declare that process illegal? Or do I order that the title be awarded to the plaintiff?  In my view, I propose to do neither.  What should follow is for the plaintiff to conclude the process it began. I refer to the letter of the Chief Physical Planner dated 24 November 2015.  I take this course for the reason that, had the title not lapsed, there are strong grounds for fraud. This is occasioned by the fact that there is no evidence that the land was advertised under s 68 of the Land Act 1996, nor any evidence that it was exempted from advertisement under s.69 of the Land Act.  In Mosoro v Kingswell (2011) N4450, title to a portion of land was quashed for non-compliance with ss 68 and 69 of the Land Act. In such circumstances, the plaintiff should be allowed to continue the process it commenced and have the Minister for Lands deliberate on its application as indicated in the letter of 24 November 2015. 

33.	The final question now is that considering my findings, what order should I make? I answer this question by making the following orders:

1)	The plaintiff/cross-defendant is liable to the first and second defendants/cross-claimants for trespass and a trial shall ensue for assessment of damages.

2)	The first and second defendants/cross claimants are vicariously liable to the plaintiff/cross-defendant for damages to his vehicles and backhoe, such damages to be assessed at trial on assessment of damages.

3)	The plaintiff/cross-defendant shall re-commence its rezoning application to the Minister for Lands as indicated by the letter from the Office of the Chief Physical planner to the plaintiff dated 24 November 2015.

4)	All other reliefs claimed by the plaintiff/cross defendant and the first and second defendant/cross-claimants are refused.

5)	Except for any specific order for costs made in the proceedings, all costs up until today are to be met by each party.

6)	The matter shall be adjourned to 4 October 2021 at 9.30am for Directions hearing for purposes of trial on assessment of damages.  

7)	Time is abridged.

Orders accordingly
________________________________________________________________
Lomai & Lomai Attorneys: Lawyers for the Plaintiff
Jema Lawyers: Lawyers for the First and Second Defendant
Solicitor General: Lawyers for the Third and Fourth Defendant