Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Jaima v Manning [2024] PGNC 368; N11039 (15 October 2024)

N11039

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO. 18 OF 2023 (IECMS)

BETWEEN:
ROBERT GILL JAIMA, KENNEDY ORERE, JOHN BAPTIST TEIMI, GREG ORIDE, WESTCOTT GOGOBA, DONALD BANABA, PHARBI SAKORA, ALBAN JUWAI, JOHN B. YOUDE & EDDIE LOUIS on their own behalf and on behalf of the PEOPLE OF BEAMA VILLAGE WHOSE NAMES ARE ATTACHED TO THE HUMAN RIGHTS APPLICATION
Plaintiffs

AND:
DAVID MANNING in his capacity as the COMMISSIONER OF POLICE & THE ROYAL PAPUA NEW GUINEA CONSTABULARY
First Defendant

AND:
JULIUS TASION in his capacity as the DIRECTOR OF THE SPECIAL SERVICES DIVISON OF THE ROYAL PAPUA NEW GUINEA CONSTABULARY
Second Defendant

AND:
EWAI SEGI in his capacity as the PROVINCIAL COMMANDER OF ORO PROVINCE & OTHER POLICE OFFICERS NAMED IN THE SCHEDULE ATTACHED OF THE HUMAN RIGHTS APPLICATION
Third Defendants

AND:
TREVOR MAGEI in his capacity as PROVINCIAL ADMINISTRATOR OF ORO PROVINCE
Fourth Defendant

AND:
ORO PROVINCIAL GOVERNMENT
Fifth Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant
Waigani: Carey J
2024: 4^th September & 15^th October

CONSTITUTIONAL RIGHTS – Basic Rights – Enforcement of Basic Rights – Section 57: Enforcement of Guaranteed Rights and Freedoms – National Court shall protect and enforce rights guaranteed by the Constitution.

HUMAN RIGHTS APPLICATION – Breach of Human Rights - Unlawful actions of Police - Powers of National Court to enforce Human Rights.

This is an application by the Plaintiffs against the Defendants for enforcement of their Human Rights under the Constitution of Papua New Guinea. The Sixth Defendant sought to dismiss the proceeding for being an abuse of the Court process.

Held:

1. The Plaintiffs proved that the Defendants were in breach of their human rights.
   
2. The unlawful raid and burning down of the Plaintiffs’ homes and properties by armed policemen and the Third Defendant on 22^nd and 23^rd July 2023 amounts to a direct breach of the Plaintiffs’ Constitutional Rights as outlined in Sections 36, 37(1), 41, 42, 44, 49, 53 and 55 of the Constitution for which the Plaintiffs are entitled to enforcement of their Constitutional Rights under Section 57(1) of the Constitution.
   
3. The unlawful raid and burning down of the Plaintiffs’ homes and properties and purported forceful eviction sanctioned, authorized and conducted by the Third, Fourth, and Fifth Defendants on 23^rd July 2023 amounts to a direct breach of the Constitutional Rights of the Plaintiffs as outlined in Sections 36, 37(1), 41, 42, 44, 49, 51, 53 and 55 of the Constitution for which the Plaintiffs are entitled to enforcement of their Constitutional Rights under Section 57 (1) of the Constitution.
   
4. The Third, Fourth and Fifth Defendants continued actions in forcibly barring the Plaintiffs from returning to their village and from feeding and clothing their families, rebuilding their homes and livelihood including physically restraining the Plaintiffs from seeking medical help and humanitarian assistance from 23^rd July 2023 to date amounts to a direct breach of the Plaintiffs’ Constitutional Rights as outlined in Sections 32, 41, 36, 46, 47, 49, 51, 52, 53, and 55 for which the Plaintiffs are entitled to enforcement of their Constitutional Rights under section 57(1) of the Constitution.
   
5. The Plaintiffs are entitled to compensation under Section 58(2) of the Constitution for breaches of their human rights.
   
6. The proceedings are returnable 12^th November at 930am to hear submissions by the parties as to compensation per term 5 of this court order.
   
7. The Defendants shall pay the Plaintiffs’ costs of and incidental to these proceedings to be taxed, if not agreed.
   
8. The time entry of these Orders to be abridged to the date of settlement by the Registrar which shall take place forthwith.
   

Cases Cited:
Church of Jesus Christ of Latter-Day Saints Inc. v Kima [2022] PGSC 96; SC2280
Farhad Rahmati v The Independent State of Papua New Guinea [2018] N7468
Hon Patrick Pruaitch MP v Chronox Manek, John Nero & Phoebe Sangetari, Comprising the Ombudsman Commission and Jim Wala Tamate, the Public Prosecutor and Hon Deputy Chief Justice Gibbs Salika, Senior Magistrates Peter Toliken & Nerrie Eliakim, Comprising The Leadership Tribunal and The Independent State of Papua New Guinea [2019] SC1884
James Yali v Ben Neneo, Madang Provincial Police Commander and Hon Peter Charles Yama MP, Governor, Madang [2019] N8124
Lai & Others v Backley & Others [2020] N864
Motor Vehicle Insurance (PNG) Trust v James Pupune [1993] PNGLR 370
Supreme Court Reference No 1 of 1979; Ralph Rakhinand Premdas v The State [1979] PNGLR 329
Yakasa v Piso [2014] SC1330

Legislation:
Claims By and Against the State Act
Constitution
National Court Rules

Counsel:
Mr. Copland Selwyn Raurela, for the Plaintiffs
Mr. Benjamin Samiat, for the Sixth Defendant

JUDGMENT

15^th October 2024

1. CAREY J: This is an application by Robert Gill Jaima, Kennedy Orere, John Baptist Teimi, Greg Oride, Westcott Goboba, Donald Banaba, Pharbi Sakora, Alban Juwai & Eddie Louis on their own behalf and on behalf of the People of Beama Village whose names are attached hereto (the Plaintiffs) for the Enforcement of Human Rights against David Manning in his capacity as the Commissioner of Police & The Royal Papua New Guinea Constabulary (the First Defendant), Julius Tasion in his capacity as the Director of the Special Services Division of the Royal Papua New Guinea Constabulary (the Second Defendant), Ewai Sengi in his capacity as the Provincial Police Commander of Oro Province and other Police Officers named in the Schedule A attached hereto (the Third Defendant), Trevor Magei in his capacity as Provincial Administrator of Oro Province, (the Fourt Defendant), Oro Provincial Government (the Fifth Defendant) and The Independent State of Papua New Guinea (the Sixth Defendant) (collectively the Defendants).
   

BACKGROUND

2. On the 22^nd of July 2023, an incident occurred along the Arek Highway, just a few kilometers from Beama Village. Armed men held up and robbed a school truck that had two police officers on board. The two police officers had an issued firearm in their possession at that time.
   
3. The two police officers on the school truck were allegedly intoxicated with alcohol. During the hold-up and robbery, the two police officers were overpowered by the armed robbers and the issued firearm in their possession was stolen. The perpetrators fled the scene after that altercation.
   
4. Other police officers were later informed of the incident, and they proceeded to raid the village of Beama, causing damages to properties belonging to the people of that village. The Plaintiffs possessions were also destroyed in the altercation.
   
5. The Plaintiffs claim their human rights guaranteed under the Constitution were breached.
   

ISSUE (S)

1. Were the human rights of the Plaintiffs breached?
2. If so, what human rights were breached?

100. If the Plaintiffs human rights were breached, what damages are they entitled to?
     

DETERMINATION

6. The Sixth Defendant submits that the proceeding should be dismissed for being an abuse of the Court process.
   
7. Order 12 Rule 40 (1) (c) of the National Court Rules state”
   

“40 Frivolity, etc. (13/5)

(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings —

(a) no reasonable cause of action is disclosed; or

(b) the proceedings are frivolous or vexatious; or

(c) the proceedings are an abuse of the process of the Court,

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

(2) The Court may receive evidence on the hearing of an application for an order under Sub-rule (1).”

8. The Sixth Defendant avers that the proceeding is an abuse of the Court process because of the want of form and incorrect mode of proceeding.
   
12. The case of Farhad Rahmati v The Independent State of Papua New Guinea [2018] N7468, does not have relevance in the submission of the Sixth Defendant as this is an enforcement of Human Rights of the Plaintiffs pursuant to egregious actions by the Defendants which do not pertain to administrative decisions for which the Court’s determination results in the same being quashed.
    
13. The Sixth Defendant further proffers that the mode of proceeding of the Plaintiffs is incorrect and the form used is not compliant with the Human Rights Application (the HRA) proceeding.
    
14. The HRA proceeding was filed with Form 124 of the National Court Rules being used as stipulated in Order 23 Rule 7 (1) (c).
    
15. As such, I reject that argument and it fails as there is no basis in the fact of the documents filed that I reviewed.
    
16. In the Church of Jesus Christ of Latter-Day Saints Inc. v Kima [2022] PGSC 96; SC2280, it states at paragraph 14:
    

“I am also of the view that the learned trial judge’s decision went against another well settled legal position. An expression of that clear legal position is in the National Court Rules Order 1, rr.7 and 8. These provisions empower the Court in appropriate cases to dispense with strict compliance of the rules to do justice on the substantive merits of each case. Relevant decisions of the National and Supreme Court make this position by their clear views that the rules are only a means to an end and not an end in themselves..”

17. Moreover, in Yakasa v Piso [2014] SC1330 at paragraph 60 it states:
    

“..The Rules of the Court are a handmaiden of justice and not its master”.

18. The aforementioned two Supreme Court cases indicate that a court must be deliberate and mindful of how it handles matters in ensuring that the rules of the Court are observed while balancing the need to do justice.
    
19. In Hon Patrick Pruaitch MP v Chronox Manek, John Nero & Phoebe Sangetari, Comprising the Ombudsman Commission and Jim Wala Tamate, the Public Prosecutor and Hon Deputy Chief Justice Gibbs Salika, Senior Magistrates Peter Toliken & Nerrie Eliakim, Comprising The Leadership Tribunal and The Independent State of Papua New Guinea (2019) SC1884 it states at paragraph 22:
    

“22. We agree with those observations and add that when determining whether to exercise its power to prevent an abuse of process, the Court should have regard to the full facts and circumstances of the case, the prejudice to each of the parties and the need for public confidence in the administration of justice. As the authorities above make it clear, this power exists to enable the court to protect itself from abuse and thus safeguard the administration of justice.”

20. Applying the two Supreme Court cases referred to in paragraphs 17 and 19, I am satisfied that there are no grounds for dismissing this proceeding on the basis of it being an abuse of the Court process.
    
21. Therefore, the argument by the Sixth Defendant to dismiss this proceeding because it is an abuse of the Court process does not succeed.
    
22. It should be noted that neither the First to the Fifth Defendant filed a defence to this Human Rights Application.
    
23. It is the blatant disregard by the very organs of the State that are charged with protecting the rights of all citizens, to attend to this Court and present their side of the story that is not only troubling but puzzling insofar as if there is no respect by these organs of the State for the court, what purpose do they ultimately serve if they are carrying out abuse against the very people they are responsible to protect and serve.
    
24. I take note of the fact that this matter commenced on 31^st August 2023 and the First to the Fifth Defendants has every opportunity to come to this Court and for whatever reason only known to them, chose to ignore this Human Rights Application and determined not to file a defence.
    
25. The Constitution of the Independent State of Papua New Guinea in Section 57 states as follows:
    

“57 Enforcement of Guaranteed Rights and Freedoms.

(1) A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.

(2) For the purposes of this section—

(a) the Law Officers of Papua New Guinea; and

(b) any other persons prescribed for the purpose by an Act of the Parliament; and

(c) any other persons with an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of Law such that, in the opinion of the Court concerned, they ought to be allowed to appear and be heard on the matter in question, have an interest in the protection and enforcement of the rights and freedoms referred to in this Division, but this subsection does not limit the persons or classes of persons who have such an interest.

(3) A Court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).

(4) Any Court, tribunal or authority may, on its own initiative or at the request of a person referred to in Subsection (1), adjourn, or otherwise delay a decision in, any proceedings before it in order to allow a question concerning the effect or application of this Division to be determined in accordance with Subsection (1).

(5) Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the Court thinks it proper to do so, be given in cases in which there is a reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.

(6) The jurisdiction and powers of the courts under this section are in addition to, and not in derogation of, their jurisdiction and powers under any other provision of this Constitution.”

26. The Plaintiffs argue that their Human Rights were breached by the Defendants.
    
27. Notice was given to the State per Section 5 of the Claims By and Against the State Act.
    
28. The evidence of Mr. Tau Lao by way of affidavit filed on 31^st August 2023 supports the fact that the State received the required notice.
    
29. In relation to the unlawful raid and burning down of the Plaintiffs’ homes and properties on 22^nd and 23^rd July 2023 by policemen and the Third Defendant the Plaintiff argues that the breaches of their Constitutional Rights as expressed in Section 36, 37 (1), 41, 42, 44, 49, 53 and 55 occurred.
    
30. Further the Plaintiffs contend that they are entitled to enforcement under Section 57 (1) of the Constitution.
    
31. In James Yali v Ben Neneo, Madang Provincial Police Commander and Hon Peter Charles Yama MP, Governor, Madang [2019] N8124 at paragraphs 12 and 13 it states:
    

“12. I follow those Supreme Court decisions and find that what the first defendant did, by deciding that the complaint against the second defendant should not be pursued, despite not taking any action to stop the investigation regarding the two assistant returning officers, was on the face of it a lawful exercise of discretion by the most senior member of the Police Force in the province. I also find, as I did in the recent case of Dorothy Mark v Ben Neneo [2019] N8115, that members of the Police Force are under no general enforceable obligation to investigate a complaint of criminal conduct or to give reasons for their failure to investigate a complaint. Members of the Police Force have a wide discretion in deciding whether to investigate a complaint.

13. It is only in exceptional cases (where for example the complaint was of a very serious nature and the evidence in support of the complaint was compelling and easily accessible) that an enforceable obligation to investigate the complaint would potentially arise.”
32. This case is an exceptional case and the evidence that has been before this Court are compelling for the need for a full and independent investigation into the conduct of the Defendants specifically with regard to their actions which resulted in a breach of the Human rights of the Plaintiffs.

33. In relation to unlawful raid and burning down of the Plaintiffs’ homes and properties and the purported forceful eviction sanctioned, authorized and conducted by the Third, Fourth and Fifth Defendants on 23^rd July 2023 the Plaintiffs argues that the breaches of their Constitutional Rights as expressed in Sections 36, 37(1), 41, 42, 44, 49, 51, 53 and 55 occurred and they are entitled to enforcement of these rights under Section 57 (1) of the Constitution.

34. The rule of law must be observed and in a democracy where there are constant challenges with law and order throughout the length and breadth of the country the Defendants have an obligation to uphold the law.
    
35. When elements of the Executive and Legislative branches of government infringe on the rights of the citizens, the only lawful mechanism to establish through declaratory means, and the process of seeking enforcement of the preservation of those rights of the citizens is through the Courts.
    
36. In relation to the actions of the Third, Fourth, and Fifth Defendants as at 23^rd July to now, forcibly barring the Plaintiffs from returning to their village and from feeding and clothing families, rebuilding their homes and livelihood and physically restraining them from seeking medical help and humanitarian assistance, the Plaintiff argues that their Constitution rights were beached under Sections 32, 41, 36, 46, 47, 49, 51, 52, 53, and 55 and they are entitled to enforcement of these rights under Section 57(1) of the Constitution.
    
37. The evidence submitted by way of affidavit of Kennedy Orere filed on 24^th July 2024 has photographs which show destruction of houses and property.
    
38. The information in the affidavit of Kennedy Orere filed on 24^th July 2024 in relation to what he alleges was said by The Fourth Defendant as to who gave the orders for eviction cannot be corroborated.
    
39. This aspect of the evidence is hearsay evidence which even when considering the principles applied in Motor Vehicle Insurance (PNG) Trust v James Pupune [1993] PNGLR 370 which indicate the proposition that when the evidence is led without objection, a Court is entitled to make findings on the basis of such evidence provided it is within the general ambit of the Plaintiffs, is not able to pass the hurdle of admissibility for this Court to accept.
    
40. However, the unlawful raid and burning down of the houses and properties are clearly evidenced. The photographs are irrefutable.
    
41. The Plaintiffs’ evidence are uncontested.
    
42. The Defendants offer nothing contradicting those claims similarly to Lai & Others v Backley & Others [2020] N864, at paragraph 12 which states:
    

“..I have considered the affidavit material, and I see no reason why they would not be telling the truth. The evidence is also verified by independent sources, so I accept the evidence as deposed to in their affidavits as consisting the necessary facts of this case. I add that the defendants provided no evidence at all to rebut their version of the facts.”

43. I therefore accept the Plaintiffs argument that the Sixth Defendant is vicariously liable for the actions of the First, Second and Third Defendants.
    
44. I restate that it is quite disturbing that the Defendants have shown no interest in providing a defence.
    
45. The absence of a defence promotes to an extent the potential for the opposite of the floodgates principle, which is a legal principle cited in common law jurisdictions in which judges have restricted or put limits on liability.
    
46. The legal maxim fiat justitia ruat caelum, which means let justice be done though the heavens fall if applied in a strict form could result in significant economic liability against a public authority including the government for actions taken by its actors.
    
47. The matter of whether the actions of the Defendants were reasonably justifiable in a democratic society does arise insofar as the applicability to breaches of the human rights of the Plaintiffs. In Supreme Court Reference No 1 of 1979; Ralph Rakhinand Premdas v The State [1979] PNGLR 329, Andrew J states:
    

“The questions referred raise important matters relating to Constitutional Rights and to the interpretation of the Constitution. The division of powers between the Executive and the judiciary are also involved. This is a complex area of the law and the difficulties were predicted by the Final Report of the Constitutional Planning Committee. The report at p. 5/1/18 to 5/1/19 is as follows:

"Enforcement of Rights and Freedoms

...... judges and magistrates at times have to make decisions which they know may be unpopular with the Government in any event, but this is part of their role as independent members of the judiciary. Though the Human Rights Ordinance has been in force for only a relatively short period it has not given rise to any suggestion of conflict between the Executive and the Judiciary in relation to a decision of a court concerning the Human Rights Ordinance during that time.

116. On balance, we have concluded that the human rights provisions should be enforced by the Courts."

48. I am persuaded that the actions of the Defendants were not reasonably justifiable in a democratic society.
    
49. Further, the actions of the Fourth and Fifth Defendants are in breach of the Plaintiffs’ human rights.
    
50. I find the Fifth and Sixth Defendants liable for violating the Plaintiffs’ human rights emanating from the breach of those rights by the Fourth and Fifth Defendants.
    

CONCLUSION

51. The abuse of power by an organ of the state through human actions cannot be condoned.
    
52. It is for the Courts to be the guardian of the Constitution and ensure that the rights of all within the boundaries of the Independent State of Papua New Guinea are protected.
    
53. The Plaintiffs have made their case and established that their human rights were infringed by the Defendants, and they are entitled to relief under Section 58 (2) of the Constitution.
    

ORDERS

1. The Plaintiffs have proven that the Defendants were in breach of their human rights.
   
2. The unlawful raid and burning down of the Plaintiffs’ homes and properties by armed policemen and the Third Defendant on 22^nd and 23^rd July 2023 amounts to a direct breach of the Plaintiffs’ Constitutional Rights as outlined in Sections 36, 37(1), 41, 42, 44, 49, 53 and 55 of the Constitution for which the Plaintiffs are entitled to enforcement of their Constitutional Rights under section 57(1) of the Constitution.
   
3. The unlawful raid and burning down of the Plaintiffs’ homes and properties and purported forceful eviction sanctioned, authorized and conducted by the Third, Fourth, and Fifth Defendants on 23^rd July 2023 amounts to a direct breach of the Constitutional Rights of the Plaintiffs as outlined in sections 36, 37(1), 41, 42, 44, 49, 51, 53 and 55 of the Constitution for which the Plaintiffs are entitled to Enforcement of their Constitutional Rights under Section 57(1) of the Constitution.
   
4. The Third, Fourth and Fifth Defendants continued actions in forcibly barring the Plaintiffs from returning to their village and from feeding and clothing their families, rebuilding their homes and livelihood including physically restraining the Plaintiffs from seeking medical help and humanitarian assistance from 23^rd July 2023 to date amounts to a direct breach of the Plaintiffs’ Constitutional Rights as outlined in Sections 32,41,36, 46,47,49,51, 52, 53, and 55 for which the Plaintiffs are entitled to enforcement of their Constitutional Rights under section 57(1) of the Constitution.
   
5. The Plaintiffs are entitled to compensation under section 58(2) of the Constitution for breaches of their human rights.
   
6. The proceedings are returnable 12^th November at 9.30 am to hear submissions by the parties as to compensation per term 5 of this Court Order.
   
7. The Defendants shall pay the Plaintiffs’ costs of and incidental to these proceedings to be taxed, if not agreed.
   
8. The time entry of these orders to be abridged to the date of settlement by the Registrar which shall take place forthwith.
   

Ordered accordingly.

Raurela Lawyers: Lawyers for the Plaintiffs
Office of the Solicitor General: Lawyers for the Sixth Defendant