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Bai as Representative of Lae Squatters Settlement v Morobe Provincial Government and The State [1992] PGLawRp 581; [1992] PNGLR 150 (4 May 1992)

Papua New Guinea Law Reports - 1992

[1992] PNGLR 150 - Amos Bai as Representative of Lae Squatters Settlement v Morobe Provincial Government and The State�

[1992] PNGLR 150

N1100

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

AMOS BAI AS REPRESENTATIVE OF LAE SQUATTER SETTLEMENT

V

MOROBE PROVINCIAL GOVERNMENT AND

INDEPENDENT STATE OF PAPUA NEW GUINEA

Lae

Doherty J

21 February 1992

4 May 1992

ESTOPPEL - State land occupied by squatters - Nature of 'proprietary estoppel'.

EVIDENCE - Notice to quit in file is admissible as 'business' record - Evidence Act.

REAL PROPERTY - Eviction of squatters - Two weeks notice to quit harsh and oppressive - Considerations which determine length of notice for squatters to quit land.

CONSTITUTIONAL LAW - Protection of squatters on State land - Enforcement of constitutional right by extension of notice to quit - Constitution ss 41, 57.

CONSTITUTIONAL LAW - Eviction of squatters on State lands - Notice being harsh and oppressive - Length of notice extended.

STATUTES - Interpretation - "Department Head" and "District Officer" - Land Act.

Facts

The plaintiff brought a representative action on behalf of himself and other squatters on State lands in 22 locations in Lae. They claimed rights of occupation and title in the land. Due to the loss of their properties destroyed by bulldozing done by agents of the state, they also claimed damages as a means of enforcing their constitutional right to property. It was established that the squatters' occupation varied time-wise and the eviction notices served on them by the District Secretary uniformly gave them 14 days notice to quit.

Held

N1>1.������ The notices to quit contained in the files kept in the Department of Lands are "business records" and, therefore, admissible under the Evidence Act.

N1>2.������ Where squatters have been occupying State land without objections by the State, the State would be estopped from insisting on its full legal rights and the occupiers would acquire a limited equitable interest in the land.

N1>3.������ Section 53 of the Constitution (guarantee against deprivation of property) does not apply to interests such as equitable ones acquired by long possession of land or rights acquired by estoppel due to the state's acquiescence.

N1>4.������ Although the State has a right to evict squatters on State land, the length of the notice would vary depending on the length of occupation of the squatter.

N1>5.������ The two weeks notice to quit did not take into account the varying periods during which the squatters occupied the land with the State's acquiescence.

Cases Cited

Jivetuo, John v The Independent State of Papua New Guinea [1984] PNGLR 174.

Kerua v The Independent State of Papua New Guinea [1981] PNGLR 357.

png Ready Mixed Concrete Pty Ltd v Independent State of Papua New Guinea and others [1981] PNGLR 396.

Raz v Matane [1985] PNGLR 329.

Counsel

The plaintiff in person.

D Sawong, for the first defendant.

L Manua, for the second defendant.

4 May 1992

DOHERTY J: The plaintiff brings an action for declarations that:

N2>1.������ The notices to quit dated 1 May 1991 and 17 May 1991 are unlawful. (The originating summons does not state who the notices were issued to, who issued them, or in respect of what properties).

N2>2.������ The actions taken by the first defendant in execution of the notices to quit pursuant to s 113(2) of the Land Act Ch 185 are unlawful;

N2>3.������ An order that the two defendants jointly and/or severally recognize the plaintiff's occupation of land and effect title;

N2>4.������ An order that the defendants jointly and/or severally be restrained from invoking powers under section 113(2) the Land Act Ch 185 until a resettlement scheme is established - (this may be the same land title as in 3 above or another - the originating summons does not make this clear);

N2>5.������ Damages pursuant to s 58 of the Constitution;

No affidavits setting out the grounds for these applications, or explaining the parties concerned, the land in question, or the events leading up to the action were filed, nor as can be seen from the above, there was no indication where the land in question was located.

The plaintiff had originally been represented by counsel, but as counsel had no practicing certificate the plaintiff proceeded on his own.

He informed the court that he was vice chairman of the Lae Squatters Association and vice president of Papua New Guinea Committee of Urban Settlers. He did not make clear if he was appearing in a class action for these two bodies or if he represented a group of squatters in Lae only.

Preliminary points were raised by Mr Sawong on these procedural matters and an application was made to strike out the action for want of supporting affidavits. After argument, a ruling was made pursuant to Order 8 Rule 36 of the National Court Rules that affidavits and supporting information be filed.

This was duly done. They included affidavits by Amos Bai himself saying that he represented more than 20,000 squatters. He then goes on to state the names of 22 settlements in Lae which he says are relevant to the application. These are named as Wabag Settlement, Jawani Street, P.H.D. Compound, Mosquito Compound, Buimo Road Compound, Sawdust, 3 Mile Compound, Boundary Road, Tent City (8 Mile), Dry Wara, 2 Mile Het Wara, Dousett Flat, Menyamya Camp, Scout Camp, Tapiok Compound (Tent City), Hunter Street, 4 Mile, Voco Point, 6 Mile, 7 Mile, Kapiak Street.

His representation is not challenged by the defendants and, accordingly, under O 5, r 13 of the National Court Rules, any judgment or order of this Court is binding on all the persons he represents. No names have been given, and I cannot specify by name who is represented. It appears that it is not in issue that he represents the occupants of the 22 settlements named.

Parts of the affidavit were deleted on application because they were opinion evidence.

The hearing proceeded and the plaintiff called four witnesses. At the very end in his submission, he said that he could have called more but did not, hence, I have no indication of what facts they would have adduced.

Stress throughout the hearing was put on the role of the first defendant, but in evidence it became apparent that, though the plaintiff may have thought the first defendant was the political instigator of the evictions, the land is the property of the second defendant.

The evidence adduced by the plaintiff related to different areas and was as follows:

N2>1.������ Wabag Settlement. Michael Kundi gave evidence that he lived in Wabag Settlement since 1974. It is located near the market in Lae. A total of 300 persons occupied the area. He said that he had been resident there 20 years. It was originally occupied by his parents. He received notice to quit the land on the 21 May 1991 and said that the first defendant came and gave the eviction notice stating that he had 14 days in which to vacate the premises. He said he did not understand this. This is in variance with the evidence of Alfred Pogo, who stated that he personally visited the premises and explained the implications of the notice. On 15 (presumably 15 June), the police and others came to the settlement and bulldozed the buildings on it. Mr Kundi also mentions meeting with the Premier of Morobe Provincial Government (first defendant) and conversations at a public meeting at which he and the premier were present. The witness considered that the land is his. He said so quite categorically in cross examination. He does not say on what legal or other basis he acquired the land. It is clear he did not remove his personal possessions or buildings from the land, and the buildings were destroyed by the bulldozing. Evidence of his occupation and the period of that occupation were not rebutted or challenged.

N2>2.������ Paul Kaumi said he lived at Five Mile and that it had been set up in 1983 following flooding. He lived on part of a piece of land which was customary land in dispute between two traditional land owners; but land on the other side of the main highway was government land and he gave evidence that it was bulldozed. He says that he himself did not receive notice to quit, but he was not residing on the government land side of the road and his evidence is unsatisfactory as to who exactly did get notice to quit. From his direct eye evidence, I find as a fact that some people resided from 1983 or thereabouts on land belonging to the government at Five Mile and that their accommodation was removed following some form of notice. I am unable to ascertain who or what number of persons was affected. He says the people have felt "that it was their land". Since he was not a resident, I cannot make a finding of fact on the feelings of other people.

N2>3.������ Jack Kura lived at Jawani Street and had resided in Lae since 1979; 13 years or thereabouts. He said 300 people approximately occupied Jawani Street and he came to live there in 1989. Apparently, there were others there earlier, but from his evidence I understand him to say there were not very many in 1989. He got a "government paper" and it is not disputed that this was a notice to quit. It gave him 14 days notice and this was due to expire on 30 May 1991. No action was taken on 30 May 1991 and, from what he says, this appears to have lulled him into a false sense of security, but on the 6 July he was told by "kiaps" that he would be removed, and on 7 July all the buildings on Jawani Street were burnt. He said there were 27 houses in the area, his own being of permanent material. Mr Pogo confirms that notice to quit was given to occupiers at Jawani Street and that he personally went on 6 July and explained that the houses would be eradicated and if people wanted to save their belongings they should remove them. He said there was only one house of permanent to semi-permanent material and most were kunai houses and some were "kapa", which I understand to mean corrugated iron or similar metals.

N2>4.������ Simon Ambu lived at Voco Point. It is not clear exactly how long people have been living in that particular part but he says he was there from 1987. He received 14 days notice to quit the land pursuant to s 113(2) of the Land Act. This was received on 22 May 1991. The land was subsequently bulldozed; he did not give a precise date. He had not removed his goods before the bulldozing. Eleven houses and their contents were destroyed. He says they were good houses with corrugated iron.

No evidence was adduced in regard to the other settlements listed by the plaintiff in his affidavits and statements of fact. However, the defendants adduced evidence that:

N2>1.������ All the areas referred to in the plaintiff's particulars were on government land; and

N2>2.������ No notices to quit were given in respect of 17 named settlements.

This evidence has not been challenged and, accordingly, I find that the other 17 settlements named in the particulars lodged by the plaintiff have not been subject of notice to quit and that these 17 settlements are on government land. Since no notices to quit were given I can give no declaration that hypothetical notices were legal. However, if notices are to be issued, they will be affected by the general legal principles to which I will refer.

In the case of the established settlements, the State has called Paul Rawai, who has informed the Court that he is the Provincial Land Manager in the Morobe Province and he was so appointed in 1988. Prior to that he was in the valuation section. As the Provincial Land Manager, he has control over the records of the Department of Lands within the Lae area and was able to give evidence concerning the records therein. He made it clear that he was not actually working in the department responsible for notices to quit in 1985 or later periods which were referred to in his evidence.

He adduced evidence of notices to quit found on the files under his control. I consider that these records were business records following the ruling of National Court in Kerua v The Independent State of Papua New Guinea [1981] PNGLR 357 and, accordingly, admit them as business records under the Evidence Act. Whether they were ever served or not is unclear. There is no direct evidence in cross examination of plaintiff witnesses if they received these documents during the 1980s and none from the defence witnesses that they were actually served. I consider that the highest that they can be put is to show an intent on the part of the government to issue notices to quit pursuant to s 113 of the Land Act in 1985 and thereafter by giving notices to persons occupying and living on Portion 212 Lae.

I find from it that there has been no previous legal action to remove the plaintiffs from the land.

Alfred Pogo gave evidence on behalf of the second defendant. I consider him the most impressive of the witnesses. He advised the court that he was the District Secretary for Lae District. He is employed by the National Government of Papua New Guinea and said he had functions delegated under the Land Act to give notices to quit under s 113 of the Land Act.

He gave evidence that, following an instruction (it was not clear exactly who from), he talked with the Department of Lands and the Provincial Manager of Department of Lands and other government officials and gathered from the files which land in Lae was occupied without authority of the State. He said that "there were plenty such areas identified and, after consideration, I decided to concentrate on Town, viz in the Lae City Centre and other business districts."

They identified ten such places. After making these identifications, notices to quit were drawn up. I note that no names were named on and in notices to quit submitted in his evidence. No submission has been made whether general notices of this nature can be made or not, and I make no ruling on that aspect of the law. He said that, having served them personally to the occupiers, he returned and explained the import of the notices and returned the day prior to the bulldozing that was due to take place. I find him convincing in this, and it coincides with evidence by plaintiffs' witnesses that "kiaps" went to the land and talked to them and gave them notices to quit. I find that he did serve the notices and, in doing so, he did not shirk from his duty or send a junior officer.

I accept his evidence, as borne out by the plaintiff, that he gave 14 days notice to quit to several of the settlements at Voco Point, Jawani Street, Wabag, Five Mile and Speybank, Mosquito.

The notices state that the land is government land which they are occupying without right and two weeks or 14 days are given for the occupants of these areas to vacate the land.

The provisions of s 113 of the Land Act provide as follows:

N2>"113.�� Unlawful occupation of certain land

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

Penalty: A fine not exceeding K400.00

(2)����� A person who contravenes subs (1) and refuses to leave after receiving notice to quit from the Departmental Head or a District Officer may be forcibly ejected."

As has been pointed out by Bredmeyer J in Jivetuo v The Independent State of Papua New Guinea [1984] PNGLR 174, the wording of the Land Act prior to its being revised made a mandatory provision that the person shall not without authority occupy Administration Land or Native Land. That wording has been changed. There is no provision in the Land Act for any minimum period of notice to be given to illegal occupants.

This was also considered in Jivetuo v The Independent State of Papua New Guinea [1984] PNGLR 174. From the history it is clear that it was the intention of legislature that occupation of government land without authority would be a criminal offence. The intent of the legislature here differs from other jurisdictions where trespassing is considered a civil wrong, but not always a criminal wrong. This reflects some traditional attitudes to trespass; perhaps the legislature intended to reflect those attitudes. It has not been argued whether or not a person can acquire an equitable right based on a criminal wrong, as opposed to a civil wrong. Without argument, I can make no definite ruling on this point, however, it is relevant since the plaintiffs claim that they should receive title to the land in question.

There is no doubt from the evidence before me from both plaintiff and defence that this is government land, and I consider that, before I can make an order declaring that the occupants have a right to have the title transferred to them, it has to be proved to me that they have acquired a title that is recognized in law. They have clearly not followed any of the procedures laid down for the acquisition of land under the Land Act Ch 185 that would enable a court to declare a right. It has to be shown that either proper procedures under the Land Act have been followed and land allocated or they have acquired a right recognized under another statute or by the underlying law enforceable in a court.

I find that the government can order persons off the land if it is customary or government land.

This is borne out by the legislation and confirmed by the case of Jivetuo v The Independent State of Papua New Guinea (supra).

There is no set procedure provided in the act or regulations for effecting eviction except that notice has to come from the "Department Head" or a "District Officer".

Department Head is defined in the Land Act Ch 185 but "District Officer" is not.

One must look at the Interpretation Act Ch 2 for the interpretation of District Officer. I have raised this matter in the course of argument. The plaintiff did not. Mr Sawong on behalf of the first defendant submits that since the plaintiffs have not raised it, the court should not raise it. However, this is an important issue in which people claim rights, and it must be shown that the defendant followed the right procedure. The District Officer is defined in the Interpretation Act as follows:

"District Officer" includes a person occupying one of the following offices in the Department of the Prime Minister and Development Administration:

(a)����� Secretary; and

(b)����� First Assistant Secretary; and

(c)����� Provincial Commissioner; and

(d)����� Assistant Secretary (District Services); and

(e)����� Principal Officer (Lands); and

(f)����� Deputy Provincial Commissioner; and

(g)����� Assistant District Officer; and

(h)����� Patrol Officer.

It will be noted that the department then referred to was the Department of the Prime Minister and the Development Administration. These positions have been transferred to provincial governments.

The most recent National Gazette I have been able to find with Determination of Titles and Responsibilities of Ministers, Gazette G80 of 12 September 1991, does not make any distinction between responsibility for s 113 of the Land Act and any other provisions of the Act. As a result of this lack of clarity on the status of a "District Officer", I have some doubt if Mr Pogo is a person entitled to sign. I am unclear if he is a District Officer within the meaning of the Interpretation Act. He described himself as the "District Secretary for the Lae District."

The second question which arises in the evidence before me is whether the plaintiffs had built up an equitable right to remain that should be protected and recognized by the Court. In PNG Ready Mixed Concrete Pty Ltd v The Independent State of Papua New Guinea [1981] PNGLR 396, it was said that the State, having failed to raise objections to the presence of occupiers on its land, was estopped from denying full legal title and the occupiers (in that particular case) were regarded as acquiring a limited equitable interest. That decision makes it clear that rights to protection of property in s 53 of the Constitution do not apply to interests such as those equitable ones acquired by long possession of land or rights acquired by estoppel by acquiescence. It must follow that, since no constitutional rights have been infringed, the courts' powers under s 58 of the Constitution are inapplicable.

The PNG Ready Mixed Concrete and the Jivetuo cases make it clear that occupiers, in particular those who may have acquired equitable rights, are entitled to reasonable notice, notwithstanding that s 113 of the Land Act is silent on the question of notice.

From the evidence before me, it appears that the persons giving evidence who were represented by the plaintiff could have built up equitable rights by estoppel and that the court should consider periods of residence on the land and other factors in determining whether the actions of the defendants were oppressive. Mr Sawong said that the ruling in Jivetuo v The Independent State of Papua New Guinea (supra) does not apply as the actions were done under a valid law. He refers me to the case of SCR No 5 of 1985; Re Raz v Matane [1985] PNGLR 329 dealing with s 41 of Constitution and submits the actions were legally taken and were not "harsh" and "oppressive" hence, could not be protected by s 41 and 57(1) of the Constitution. The notices to quit all gave two weeks to vacate the land. No regard was had to the varying periods during which the plaintiffs occupied the land and, through the inaction of the defendants, may have acquired rights by that acquiescence. The precedents I have referred, particularly Jivetuo v The Independent State of Papua New Guinea (supra), make it clear that while two weeks notice may be legal and valid, it may still be harsh and oppressive. As Bredmeyer J said (at 178):

"Assuming then that the notices to quit are valid, on the facts before me the plaintiff has been on the land for 12 years and has a house there and many others of the class he represents have also been there for a long time and live there. It is not easy to get other land in Papua New Guinea and I can take it that many of the plaintiff's class are poor and cannot easily buy a property elsewhere. The notices to quit which were served gave about fourteen days to quit. I consider that, although done under a valid law, it is harsh and oppressive to the plaintiff to leave within two weeks and I consider that that contravenes s 41 of the Constitution. I propose to enforce and protect that fundamental right under s 57 of the Constitution."

With respect I adopt that ruling.

I consider a longer period of notice should have been given.

I consider that the State had a right in law to make the orders provided they gave reasonable notice. I am not prepared to give declarations 1 and 2 in the form applied for but say that notice given was oppressive. Declaration 3 seeks title - presumably full legal ownership. I have already considered the best the plaintiffs may have is a limited equitable right amounting to a licence and, therefore, I have no power in law to order a legal title to be conferred on them. Further, there is insufficient evidence to show what rights, if any, were acquired by all the occupants.

Declaration 4 is refused as I am not aware of any law giving a right of resettlement and, therefore, I have no power under any law to order the government to settle the persons on other land.

As there is insufficient evidence before me as to loss incurred by lack of proper notice, I will hear any relevant applications accordingly if the matter cannot be settled between the parties.

Plaintiff in person.

Lawyer for the first defendant: Sawong & Associates.

Lawyer for the second defendant: State Solicitor.