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Kagl v Kora [2022] PGNC 537; N10046 (25 November 2022)

N10046

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 2 OF 2016

TONY KAGL FOR AND ON BEHALF OF HIMSELF & 377 OTHERS
Plaintiffs

V

SERGEANT H KORA
First Defendant

ANDY BAWA, METROPOLITAN SUPERINTENDENT
Second Defendant

GARI BAKI, COMMISSIONER OF POLICE
Third Defendant

ROYAL PAPUA NEW GUINEA CONSTABULARY
Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

BLUEGRASS LIMITED
Sixth Defendant

Waigani: Cannings J
2022: 29^th August, 17^th October, 25^th November

HUMAN RIGHTS – enforcement – trial on liability – forced demolition of houses of long-term occupiers of government land in urban centre – land subject to State Lease – eviction exercise conducted by Police Force – whether occupiers had valid interests in the land – whether reasonable notice given – whether actions of Police harsh and oppressive for purposes of Constitution, Section 41 – whether human rights of occupiers breached in eviction exercise.

The plaintiffs were unauthorised but long-term occupiers of government land in the National Capital District and had established a settlement. The sixth defendant was the registered proprietor of the State Lease over the land. In August 2015 armed police personnel under the command and control of the first defendant entered the land and conducted an eviction exercise, involving forced ejectment of the occupiers and destruction of houses and other structures. The plaintiffs commenced proceedings against the first defendant and other members of the Police Force and the State and the sixth defendant, seeking damages for breaches of human rights.

Held:

(1) The plaintiffs had equitable interests in the land arising from their long-term occupation without active opposition from any lawful authority. They had to be given reasonable notice to leave.

(2) The plaintiffs were given reasonable notice as: (a) on two occasions, in 2006 and 2009, the District Court ordered, following proceedings commenced by the sixth defendant, that they be ejected from the land; and (b) the NCD Building Board issued a demolition notice regarding all structures on the land five weeks before the eviction exercise occurred. There was sufficient evidence that the court orders and the Building Board notice were served on the plaintiffs.

(3) The eviction exercise was in principle a lawful activity. There was insufficient evidence that it was conducted in a way that infringed the plaintiffs’ human rights.

(4) The proceedings were dismissed, subject to those plaintiffs and other persons who are still occupying the land being given six weeks further notice to vacate the land.

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
Levi Nanguan v PNG Maritime College (2017) N6711
Tony Yagon & Settlers of Dylup Plantation v Nowra No 59 Ltd (2008) N3375

Counsel:

F Bando, for the Plaintiffs
N Aiwara, for the First to Fifth Defendants
D Kints, for the Sixth Defendant

25^th November, 2022

1. CANNINGS J: In August 2015 a police squad led by the first defendant, Sergeant Kora, entered a settlement in the Boroko area of the National Capital District, at Section 477 Lots 11-14, and conducted an eviction exercise, which continued over several days. Many of the houses and other structures on the land were demolished. The land on which the settlement stood is government land, held under a State Lease, the registered proprietor of which is Bluegrass Ltd.

2. The plaintiffs, Tony Kagl and 377 others, had been living on the land for many years. In 2016 they commenced these proceedings, seeking damages for infringement of their human rights. They named Sgt Kora as first defendant and have named other senior members of the Police Force and the Royal Papua New Guinea Constabulary and the State as the second to fifth defendants. Bluegrass Ltd is the sixth defendant.

3. The plaintiffs argue that the eviction exercise was unlawful and that the defendants breached their human rights and that the sixth defendant’s title in the land is defective and that the true status of the land is ‘vacant State land’. For those reasons, it is argued, the Court should find all defendants liable in damages.

4. I now address the issues arising from those arguments.

WAS THE EVICTION EXERCISE UNLAWFUL?

5. The plaintiffs have no legal interest in the land. However, they had equitable interests in the land arising from their long-term occupation of it and the lack of opposition over a long period to them being there and establishing a settlement (Gawi v PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 74, Tony Yagon & Settlers of Dylup Plantation v Nowra No 59 Ltd (2008) N3375).

6. Such interests did not confer any right to long-term occupation, but it gave them a right to be given reasonable notice to vacate the land (Lelete Plantation Ltd v Paul Rame (2007) N5020, Levi Nanguan v PNG Maritime College (2017) N6711).

7. I find that they were given reasonable notice to vacate the land for two reasons:

(a) on two occasions, in 2006 and 2009, the Port Moresby District Court ordered, following proceedings commenced by the sixth defendant, DC No 1694/06 under the Summary Ejectment Act, that the plaintiffs vacate and deliver up possession of the land, and authorised members of the Police Force, with the aid of the owner, Bluegrass Ltd, to enter the land by force if necessary and “to eject any person, and deliver full and peaceful possession of the premises to Bluegrass Ltd”; and

(b) the NCD Building Board five weeks before the eviction exercise occurred, having decided at its meeting held on 25 June 2015 that the “squatter settlement” on the subject land was illegal, issued a demolition order under the Building Act regarding all structures on the land, which gave the occupiers 14 days to demolish their structures on the land, failing which the Building Board may itself or its employees or agents demolish the “illegal structures”.

8. There was sufficient evidence that the District Court orders and the Building Board order were served on the plaintiffs soon after the orders were made. The plaintiffs had a reasonable opportunity to dismantle and preserve their structures and to vacate the land in an orderly manner.

9. The lead plaintiff, Tony Kagl, lodged a caveat with the Registrar of Titles under the Land Registration Act on 28 December 2006, which was registered on 2 March 2007. All that this did was to prevent any amendment to the certificate of title for the period of the caveat, which in this case was, by virtue of s 91(1) of the Land Registration Act, three months. The caveat is irrelevant to the issues in this case.

10. I find that the eviction exercise was not unlawful. It was in principle a lawful exercise of power and authority on the part of the first defendant and other members of the Police Force.

DID ANY OF THE DEFENDANTS BREACH THE PLAINTIFFS’ HUMAN RIGHTS?

11. The plaintiffs pleaded in the amended statement of claim that two lives were lost as a direct result of the eviction exercise, that the plaintiffs were verbally and physically assaulted by police and were treated inhumanely, harshly and oppressively and that this gave rise to infringement of their human rights under s35 (right to life), s 36 (freedom from inhuman treatment), s 41 (proscribed acts) and other provisions of the Constitution. They plead also that their rights under s53 (protection from unjust deprivation of property) have been infringed.

12. I have no difficulty in accepting the proposition that though the eviction exercise was in principle lawful, that did not authorise breaches of human rights to occur in the course of conducting that exercise. However, the evidence of the plaintiffs as to how the exercise was conducted and how their human rights were actually breached is vague and scanty. It is the plaintiffs’ case and they have not proven it. I find that the plaintiffs have failed to establish a cause of action in breach of human rights against any of the defendants.

WHAT IS THE STATUS OF THE LAND?

13. There is an abundance of evidence before the Court to demonstrate that the sixth defendant is the registered proprietor. It holds a State Lease over the subject land and has done so since 6 May 2005. The plaintiffs have alleged, since these proceedings commenced, that the sixth defendant’s title is questionable. However, they have not come close to obtaining a declaration that the title is defective. The sixth defendant is registered proprietor and holds an indefeasible title subject only to the exceptions provided in s 33 of the Land Registration Act, including in a case of fraud. The onus rested with the plaintiffs to prove fraud, actual or constructive. They failed to plead a case of fraud in accordance with the National Court Rules and they have failed to prove actual or constructive fraud.

The land is not vacant State land. It is government land, held under a registered State Lease, the registered proprietor of which is Bluegrass Ltd.

ARE ANY OF THE DEFENDANTS LIABLE IN DAMAGES?

14. As no breaches of human rights have been proven by the plaintiffs, none of the defendants are liable.

WHAT ORDERS SHOULD THE COURT MAKE?

15. The proceedings must be dismissed. As to costs, this has been a long-drawn-out case extending well over six years, and both sides share responsibility for it taking so long to be resolved. It is appropriate that the parties bear their own costs, subject to any specific costs orders made in the course of the proceedings.

16. An injunction was granted on 22 December 2017 to restrain any further eviction of the plaintiffs, as what happened after the eviction exercise in August 2015 was that some people found their way back on to the land and were living there when a further attempt was made in late 2017 to evict them. That interim order will be dissolved.

17. To ensure that there is no misunderstanding by anyone and to allow for a peaceful and orderly transition of occupation from the plaintiffs to the sixth defendant, I will order that the plaintiffs and other persons in occupation of the land be given a set time by which they must vacate. If they don’t vacate by that time, the police will be authorised to use reasonable force to evict them. All these orders are made under s 155(4) of the Constitution which authorises the National Court to make such orders as are necessary to do justice in the particular circumstances of this case.

ORDER

(1) The proceedings are, subject to and in accordance with this order, dismissed.

(2) Pursuant to s 155(4) of the Constitution, the plaintiffs and all other persons in occupation of Section 477 Lots 11-14 Boroko, National Capital District, being the subject land, shall vacate the subject land, and remove all their structures, goods and possessions, by 12 noon on 9 January 2023, failing which the first, second and third defendants and other members of the Police Force are authorised without further order to use reasonable force to enter the subject land and evict the plaintiffs and all other persons in occupation of the subject land and remove, dismantle or destroy any structures, goods or possessions remaining on the subject land.

(3) The interim order of 22 December 2017 will dissolve at 12 noon on 9 January 2023.

(4) The parties will, subject to any specific costs orders made in the course of the proceedings, pay their own costs of the proceedings.

(5) The proceedings are thereby determined and the file is closed.

________________________________________________________________
Gibson Bon Lawyers: Lawyer for the Plaintiffs
Solicitor-General: Lawyers for the First to Fifth Defendants
Jema Lawyers: Lawyer for the Sixth Defendant