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Helalo v National Housing Corporation [2024] PGNC 115; N10783 (18 April 2024)

N10783

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO. 243 OF 2017

BETWEEN:
NOU HELALO
-Plaintiff-

AND:
NATIONAL HOUSING CORPORATION
-First Defendant-

AND:
CHRIS MANDA, In His Capacity as the Surveyor General of Department of Lands & Physical Planning
-Second Defendant-

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
-Third Defendant-

Waigani: Narokobi J
2023: 4th August
2024: 18th April

NEGLIGENCE – Assessment of damages – economic losses – claim not pleaded – claim refused.

NEGLIGENCE – Assessment of damages – general damages considered and awarded based on comparable awards.

HUMAN RIGHTS – Assessment of compensatory damages – Damages Awarded for Each Occasion of Breach.

The plaintiff succeeded in proving liability for negligence and breach of human rights on the part of the first defendant for redrawing the boundaries to his property without consulting him and obtaining his consent. The court made the following orders on liability:

1. The first defendant is liable to the plaintiff for damages for negligence.
2. The first defendant is liable to the plaintiff for compensation under s58(3) of the Constitution for breach of the plaintiff’s rights under ss37(1), 41(1) and 53 of the Constitution.

This is the court’s decision on assessment of damages following liability.

Held:

(1) The claim for economic loss is refused as it was not pleaded in the statement of claim.

(2) Having regard to comparable cases such as Areng v Babia (2008) N3469, where the negligence of the defendant disentitled the plaintiff from his just dues for 16 years, a comparable sum in general damages for K30,000.00 is awarded for the 17 years odd years the plaintiff endured suffering and distress occasioned by the first defendant’s negligence.

(3) An amount of K6,000.00 is awarded for each occasion of the breach of the plaintiff’s rights under ss 37(1), 41(1), and s 53 of the Constitution, giving a total of K18,000.00.

(4) As a result, the plaintiff is entitled to a total judgment sum of K48,000.00 (K30,000.00+ K18,000.00) with interest at 2% on the judgment sum from the date of filing of the proceeding to the date of judgment, and a fixed costs of K10,000.00 was allowed.

Cases Cited
Areng v Babia (2008) N3469
Boas v Gelen (2014) N5649
Kanda International Ltd (trading as Kanda International Insurance Brokers) v Emeck (trading as Emeck Lawyers) (2020) N8700
Koa v Kula Oil Palm Ltd (2021) N9377
Kolokol v Ambuarapi (2009) N3571

Statutes Cited
Constitution
Judicial Proceedings (Interest on Debts and Damages Act) 2015

Counsel

Ms M Burain, for the Plaintiff
No appearance for the First Defendant

DECISION

18th April 2024

1. NAROKOBI J: Liability was entered against the first defendant on 21 September 2021. It has taken some time for the matter to come for trial on assessment of damages. This has been done and I now give my decision on assessment of damages.
   
2. The first defendant has not shown any interest in defending the proceedings. They have not appeared for the trial on assessment of damages, nor have they filed any affidavits to rebut the three affidavits filed by the plaintiff himself on 20 December 2017, 8 October 2020, and 18 August 2021.
   
3. The orders of the court made on the issue of liability are as follows:
   
   3. The first defendant is liable to the plaintiff for damages for negligence.
   4. The first defendant is liable to the plaintiff for compensation under s 58(3) of the Constitution for breach of the plaintiff’s rights under ss 37(1), 41(1) and 53 of the Constitution.
      
4. The background of the matter is as follows. The case concerns a property originally described as Crown Lease 26, Folio 6378, under the name of the first defendant. The first defendant was directed by the relevant authorities to surrender title to the property, that is Crown Lease 26, Folio 6378, and then separate allotments would be created. This was done, and the new description of the property became section 48, allotment 50, 51, 52, 53 and 60. The plaintiff was allocated allotment 50, and he holds the title as the registered proprietor. Unknown to him, allotment 50, and allotment 51 were resurveyed, and part of what used to be under his property in allotment 50, now is part of allotment 51. The registered proprietor of allotment 51 Mr Raga Vera has since then gone ahead and arranged with the first defendant and done another survey of the property and the plaintiff was given allotment 82 and Mr Raga Vera was allocated allotment 83, both in section 48. The illegality of the latest subdivision was confirmed by the Secretary for the Department of Lands, Mr Benjamin Samson. Based on Mr Samson’s evidence, I have made orders for these anomalies to be corrected in my decision on liability. The plaintiff has since then gone through considerable trouble to correct these errors, as he has at no time been informed that his property was going to be affected. He has also been paying for utilities with the Lands Department and Water PNG based on his original title, that is allotment 50, section 48.
   
5. The plaintiff submits that he should be entitled to damages for negligence, for K10,400.00. The plaintiff relies on the cases of Kanda International Ltd (trading as Kanda International Insurance Brokers) v Emeck (trading as Emeck Lawyers) (2020) N8700 (Kanda), Boas v Gelen (2014) N5649 (Boas), and Areng v Babia (2008) N3469 (Areng). In Kanda, the court cited the long-held view from English cases such as Livingstone v Rawyards Coal Co (1880) App Cas 25 that damages is awarded to monetarily restore the plaintiff to the position they were in prior to the negligence. Boas was an example of the application of the general principles of damages where the amount lost in sale of property transaction gone wrong was ordered to be repaid. The plaintiff then placed much reliance on Areng. In Areng the plaintiff was ordered damages for economic loss after the defendant, National Housing Corporation failed to transfer the title to the property for 16 years. An amount of K18,000 was awarded for economic loss. I also note from Areng that general damages was awarded separately in the sum of K30,000.00.
   
6. The relevant facts the plaintiff has highlighted for me to consider are that in 1989 the property was valued at K44,600.00, being land at K13,400.00 and improvements at K31,200.00. The redesignation of the property resulted in the loss of half of his property. He has been paying land rentals at K1,750.00 instead of the reduced amount at K970.00 to reflect his new portion. There was also property, a semi-permanent “house-boi,” that he built on the land and some trees that he no longer owns because of the new apportionments. He says that K10,400.00 is a reasonable amount to claim, relying on the case of Areng. I have considered the evidence, the case authorities and the submission of the plaintiff. The plaintiff has not pleaded a claim for economic loss. So I reject this claim.
   
7. The plaintiff has claimed general damages. He relies on cases Koa v Kula Oil Palm Ltd (2021) N9377 which held that “General damages are intangible, non-monetary losses that do not have an exact monetary value and include mental anguish and distress.” The plaintiff submits that K10,000.00 is appropriate. In Areng, the plaintiff was denied use of the property for 16 years, and the court awarded K30,000.00 for the inconvenience and distress suffered. In this case the illegal subdivision occurred in 2001, and this has caused the plaintiff much trouble and distress with his neighbour as well as the inconvenience of following up with the relevant authorities to rectify the problem. I would think that this case is comparable to Areng, and I should award K30,000.00 for general damages.
   
8. For breach of human rights the plaintiff relies on the case of Kolokol v Ambuarapi (2009) N3571 (Kolokol) which held that a breach of human right or constitutional right is properly regarded as a discrete cause of action. This case stands for the proposition that there are at least two ways of assessing damages in human rights cases. The first is to identify the different causes of action and award damages or compensation for each cause of action. An alternative approach is to award just one, global sum of damages or compensation for all causes of action. The plaintiff submits that K6,000.00 should be awarded for each occasion of the breach, that is for ss 37(1), 41(1), and s 53 of the Constitution. Having regarded to the circumstances of the case, that is the long period he faced inconvenience, that he was denied the use of half of his property, and he was paying land rates and water use for much of it without the benefit of access to it, the claim of K6,000.00 for each occasion is fair, and following Kolokol, I award a sum for each occasion of the breach, being a total of K18,000.00 for breach of human rights.
   
9. The total sum I award to the plaintiff is therefore K48,000.00, being K30,000.00 for general damages and K18,000.00 for breach of human rights.
   
10. The plaintiff claims interest at 2% from the date of filing of the proceeding to the date of judgment. Having regard to the Judicial Proceedings (Interest on Debts and Damages) Act 2015, I accept the claim, and award interest on the judgment sum of K48,000.00 from the date of filing of the proceeding to the date of judgment on damages.
    
11. The plaintiffs claims costs in the fixed sum of K10,000.00. I note that the plaintiff has submitted that he basically wants a closure to his matter, as he has been relying on the Public Solicitor for legal aid and cannot afford to carry on. He is also getting on in age. The normal rule is that costs follow the event. The proceeding has gone on for some time, and if he went to taxation he would probably get more. Having considered all these factors, I award costs in the fixed sum of K10,000.00 to be paid by the first defendant.
    
12. Having regard to my discussions and my consideration of this matter, the final orders I make are as follows:
    
    1. The first defendant pays the plaintiff a judgment sum of 48,000.00.
    2. The first defendant pays the plaintiff interest on the judgment sum from the date of filing of the proceeding to the date of judgment at 2%.
    3. The first defendant pays the plaintiff’s costs in the fixed sum of K10,000.00.
    4. Time is abridged.
       

Judgment and orders accordingly.

Public Solicitor: Lawyers for the Plaintiff