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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 336 OF 2013
BETWEEN
JAMMARY TOM
Plaintiff
AND
ROMILY KILA PAT
SECRETARY, DEPARTMENT OF LANDS & PHYSICAL PLANNING
First Defendant
AND
HENRY WASA
REGISTRAR OF TITLES, DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Defendant
AND
FRED KINI, OBE
PNG LAND BOARD CHAIRMAN (FORMER)
Third Defendant
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant
Waigani: Makail, J
2022: 3rd May, 24th June & 2nd December
LIABILITY – Breach of statutory duty by public official – Award of State land by PNG Land Board – Land available for leasing – Residential lease – Discovery of land being occupied after grant of State Lease – Error by public official – Whether public official owed duty of care – Whether breach of duty of care gives rise to damages – Duty of public official under statute – Purpose of duty under statute – Liability not established – Proceeding dismissed – Land Act – Section 58 & 68 – Land Registration Act – Section 35
Cases Cited:
Papua New Guinea cases
Mathias Goma & 703 Ors v. Protect Security & Communications Limited [2013] 2 PNGLR 205
Keitinga Limited v. Acting Registrar of Titles, National Capital District Commission & The State (2022) N9479
Overseas cases
X (Minors) v. Bedfordshire [1995] UKHL 9
Counsel:
Mr A. Benny, for Plaintiff
Ms. V. Balio, for Defendants
JUDGMENT
2nd December, 2022
Introduction
3. The pleadings in the statement of claim are vague but on a close examination, the cause of action is one of breach of statutory duty of care by public official. To summarise the allegations, it is alleged that, the defendants owed a duty of care to the plaintiff to ensure that State land available for leasing is vacant. They breached the duty of care when they put out a notice in the National Gazette that a piece of land was available for leasing for residential purpose when it was not vacant. The plaintiff applied for it and was recommended as second choice applicant. He accepted the offer and was registered as leaseholder. He entered the land to build a house and discovered that it was not vacant. It was occupied by a third party. Despite repeated requests to the third party to give vacant possession, the latter refused. Because of this, the plaintiff suffered damages for costs incurred in the sum of K22,884.97 for building material, future loss of value of house and future loss of rental income from the house.
Brief Facts
4. Both parties rely on and refer to the affidavit of the plaintiff sworn and filed 16th July 2014 and affidavit of Romily Kilapat sworn 30th October 2013 and filed 5th November 2013.
5. Based on these affidavits, the uncontested facts which may be briefly stated are, the Papua New Guinea Land Board (“Land Board”) published a notice that a piece of land described as Section 292 Allotment 34, Hohola National Capital District was available for leasing for residential purpose in gazettal notice No. G225 dated 13th November 2009. This piece of land is located at Morata.
6. The plaintiff applied for it. Unbeknown to him, located on it is a low covenant house owned by the National Housing Corporation (“NHC”). The sitting tenants were Horabi Manda and Andako Kerolo. They had done improvements to this piece of land and, also applied for it.
7. In its meeting No 02/2010, the Land Board under the Chairmanship of the third defendant selected the plaintiff as the second-choice successful applicant. By letter dated 10th March 2010 the third defendant advised the plaintiff that the Land Board recommended him as successful applicant. On 2nd April 2010 the decision of the Land Board was published in the National Gazette No. G80 dated 22nd April 2010.
8. On 19th May 2010 the plaintiff acceptance the offer by submitting a notice of acceptance of the State Lease to the Land Board. Subsequently, on 21st June 2010 the plaintiff was registered as the lease holder of the State Lease.
9. When the plaintiff entered this piece of land to build a house, he discovered that Horabi Manda and Andako Kerolo were living on it. He mobilised building materials at a cost of K22,884.97 and stored them at an adjacent vacant land and asked them to leave but they refused. They informed him that they were sitting tenants of the NHC and had also applied for the State Lease for this piece of land. Despite repeated requests and explaining to them that he held an indefeasible title for this piece of land, they refused to give vacant possession. Meanwhile the building material that were stored at the adjacent vacant land were looted by vandals.
10. He returned to the defendants for assistance and to find an alternative solution. He was informed by one of the officers of the Lands Board that the defendants will identify another piece of land and allocate to him. To date, the defendants have not allocated an alternative piece of land to him.
Issues
11. From these undisputed facts, the central issue is whether a public official owed a duty of care to members of the public and if so, whether a breach of the duty of care gives rise to damages.
Duty of Care
12. The general rule is that statute must be expressed to award damages for breach of statutory duty by public official in the discharge of statutory duty. This is because not every case of breach of statutory duty gives rise to a private law cause of action: see X (Minors) v. Bedfordshire [1995] UKHL 9.
13. In Mathias Goma & 703 Ors v. Protect Security & Communications Limited [2013] 2 PNGLR 205 at 236 (per Cannings J) after extensive research of overseas cases from England and Australia including X (Minors) v. Bedfordshire (supra) summarised six basic principles or criteria to establish a tort of breach of statutory duty. These are:
14. Learned counsel for the plaintiff submits that the first to third defendants owed a duty of care to the plaintiff to comply with
the statutory obligations under the provisions of the Land Act, 1996 and Land Registration Act. They owed a duty of care under:
15. Learned counsel further submits that these defendants breached the duty of care imposed by Sections 58 and 68 of the Land Act and Section 35 of the Land Registration Act when they failed to ensure that this piece of land was available for leasing when it was advertised as being available for leasing by publication in the National Gazette.
16. Learned counsel for the defendants submits that the plaintiff has failed to establish the first criterion because the above-mentioned provisions of the Land Act and Land Registration Act which he relies on do not create duties but provide for administrative functions of public officials in dealing with land matters. Because of this, they do not give rise to a private law cause of action if they are breached.
17. Learned counsel further submits that if these provisions were construed as imposing a duty on the defendants, it will lead to chaos and against public policy because any person who has been deprived of State Lease due to an error in the information supplied by public officials that it was available for leasing when it was not, there will be multitude of legal actions against the defendants. On the other hand, the plaintiff’s remedy lies in judicial review.
18. As the plaintiff has not established the first criterion, there cannot be any breach of duty that would warrant award of damages.
19. The other submissions of learned counsel were that no damages for costs of building materials should be awarded because there was no causation between breach of statutory duty of care and damages. The missing link is the absence of a statutory duty of care owed to the plaintiff.
Causation
20. On the other hand, learned counsel refers to the affidavit of Mr Kilapat and submits that according to Mr Kilapat who is the first defendant in this proceeding, it was an error that this piece of land was placed on public tender as being available for leasing to which the plaintiff applied and was awarded. It was supposed to be placed on closed tender because it was occupied by Horabi Manda and Andako Kerolo. They did improvements to it and should have been given first right of refusal. Instead, the Land Board was not aware of this information and placed the subject land on public tender.
Remoteness
21. Finally, an award of damages for same is too remote and untenable because the defendants were not aware that the plaintiff was planning to build a house on the land. Secondly, the plaintiff was asked to surrender the title of the State Lease before he will be allocated an alternative piece of land, but he did not.
22. On a close examination of the provisions which the plaintiff relies on to ground his case that the first to third defendants owed a statutory duty of care to him, the submission of learned counsel for the defendants is upheld. First, these provisions are not expressed in a way that they may be construed as imposing a duty on the defendants. On the other hand, they form part of the provisions in the Land Act and Land Registration Act to regulate and manage State land matters, in particular the tender, allocation, and registration of State Leases.
23. Significantly, they are not expressed to include award of damages as remedy for any breach. To construe them in the way learned counsel for the plaintiff has submitted, would result in chaos and absurdity. There will be multitude of legal actins against public officials in the Department of Lands and Physical Planning for breaches of these provisions and against public policy. The first criterion has not been established. It follows that it is not necessary to consider if there has been a breach of duty by the defendants.
24. The other two criteria are whether the purpose of the statute was to protect a particular class of persons and the plaintiff was a member of the class of persons. In Mathias Goma & 703 Ors v. Protect Security & Communications Limited (supra) the appellants appealed against the decision of the National Court for dismissing an action for breach of statutory duty. At the National Court, the appellants alleged that the respondent as their employer owed a statutory duty under the National Provident Fund Act (“NPF Act”) and Superannuation (General Provisions) Act, 2000 (“Superannuation Act”) to remit a percentage of funds as employer’s contribution to the National Provident Fund (“NPF”) as their life savings and paid to them after they leave employment. The respondent failed to remit these funds and was in breach of its statutory duty.
25. The National Court held that, the appellants failed to establish that the NPF Act imposed a statutory duty on the respondent to remit the contribution to the NPF and gave rise to a private right to a cause of action. The Supreme Court set aside this finding on the ground that the purpose pf the NPF Act was to protect a class of persons, in this case the employees and the appellants were members of this class of persons, they are being employees of the respondent.
26. In the present case, it is difficult to determine if the purpose of the Land Act and Land Registration Act is to protect a class of persons and that the plaintiff is a member of this class of persons. On the other hand, the purpose is to regulate and manage State land in Papua New Guinea. This view is further fortified by the National Court decision in Keitinga Limited v. Acting Registrar of Titles, National Capital District Commission & The State (2022) N9479. In that case, the plaintiffs sued the defendants for breach of statutory duty following a Land Board’s decision to recommend a State Lease for business purpose be allocated to the first plaintiff. Subsequently, the plaintiffs were stopped by the National Capital District to develop the piece of land because the State Lease was issued in contravention of the zoning requirements under the Physical Planning Act in that subject land was reserved for public purpose.
27. The Court dismissed the action. It held that a public official owed no duty of care to the public at large in the discharge of his duties. The Court also observed at [19] of the judgment that until it is set aside, the first plaintiff held an indefeasible title pursuant to Section 33 of the Land Registration Act. It further observed that “If the plaintiffs have been deprived of the possession of the land and right to quiet enjoyment, it is a separate matter for them to pursue”.
28. In the same way, as the plaintiff did not refute the submission that he did not surrender the title of the State Lease, he remains the leaseholder. Where the occupants of the land have deprived him of possession of the land and right to quiet enjoyment, it is open to him to enforce the title but that is a matter for him to take up.
Other matters
29. Given the finding that the plaintiff has failed to establish that the provisions of these statutes under consideration give rise to a statutory duty on the first to third defendants, it is not necessary to address the other submissions of counsel in relation to causation and remoteness of damages.
Conclusion
30. The plaintiff failed to establish a cause of action in tort for breach of statutory duty. It follows that the judgment on liability is refused, the proceeding is dismissed with costs, to be taxed, if not agreed. As liability has not been established, it is not necessary to assess damages.
Order
31. The final orders of the Court are:
1. Judgment on liability is refused.
2. The proceeding is dismissed.
________________________________________________________________
Nuiage Lawyers: Lawyers for Plaintiff
Solicitor General: Lawyers for the Defendants
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