Madang Provincial Government and Honourable James Yali – Governor of Madang Provincial Government and Dunstan Augustine – Madang Provincial Administrator and Nema Mondia-Madang Provincial Police Commander and Jim Namora-Madang Police Station Commander and Junior Tony Wagambie-Goroka Mobile Squad 12 Commander and Inspector Henry Mong-Commander Task Force Madang and Sergeant Tariawi-Member of Rapid Response Unit Madang Police and Joshua Kas-Member of Task Force Madang Police and Senior Sergeant Paul Dumog, Constable Yawing Adam, Damog Gage Patrick Towot, Daniel Kapen, Adi Lawa and Sam Inguba- Police Commissioner and Independent State of Papua New Guinea v John Simbai for himself and for the 692 individuals listed in the schedule attached to this Writ of Summons (2015)

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanu J, Kangwia J & Bona J
• Judgment Date: 25 November 2015
• Court: Supreme Court
• Citation: (2015) SC1473
• Docket Number: SCA 41 of 2015
• Year: 2015
• Judgement Number: SC1473

Full Title: SCA 41 of 2015; Madang Provincial Government and Honourable James Yali – Governor of Madang Provincial Government and Dunstan Augustine – Madang Provincial Administrator and Nema Mondia-Madang Provincial Police Commander and Jim Namora-Madang Police Station Commander and Junior Tony Wagambie-Goroka Mobile Squad 12 Commander and Inspector Henry Mong-Commander Task Force Madang and Sergeant Tariawi-Member of Rapid Response Unit Madang Police and Joshua Kas-Member of Task Force Madang Police and Senior Sergeant Paul Dumog, Constable Yawing Adam, Damog Gage Patrick Towot, Daniel Kapen, Adi Lawa and Sam Inguba- Police Commissioner and Independent State of Papua New Guinea v John Simbai for himself and for the 692 individuals listed in the schedule attached to this Writ of Summons (2015)

Supreme Court: Gavara-Nanu J, Kangwia J & Bona J

Judgment Delivered: 25 November 2015

SC1473

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 41 OF 2015

BETWEEN:

MADANG PROVINCIAL GOVERNMENT

First Appellant

AND:

HONOURABLE JAMES YALI – GOVERNOR OF MADANG PROVINCIAL GOVERNMENT

Second Appellant

AND:

DUNSTAN AUGUSTINE – MADANG PROVINCIAL ADMINISTRATOR

Third Appellant

AND:

NEMA MONDIA-MADANG PROVINCIAL POLICE COMMANDER

Fourth Appellant

AND:

JIM NAMORA-MADANG POLICE STATION COMMANDER

Fifth Appellant

AND:

JUNIOR TONY WAGAMBIE-GOROKA MOBILE SQUAD 12 COMMANDER

Sixth Appellant

AND:

INSPECTOR HENRY MONG-COMMANDER TASK FORCE MADANG

Seventh Appellant

AND:

SERGEANT TARIAWI-MEMBER OF RAPID RESPONSE UNIT MADANG POLICE

Eighth Appellant

AND:

JOSHUA KAS-MEMBER OF TASK FORCE MADANG POLICE

Ninth Appellant

AND:

SENIOR SERGEANT PAUL DUMOG, CONSTABLE YAWING ADAM, DAMOG GAGE PATRICK TOWOT, DANIEL KAPEN, ADI LAWA

Tenth Appellants

AND:

SAM INGUBA- POLICE COMMISSIONER

Eleventh Appellant

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA

Twelfth Appellant

AND:

JOHN SIMBAI for himself and for the 692 individuals listed in the schedule attached to this Writ of Summons

Respondents

Waigani: Gavara-Nanu J, Kangwia J & Bona J

2015: 29 October

2015: 25 November

APPEAL - Damages – Claim against Provincial Government and State – Whether State vicariously liable after payment by Provincial Government- Requirements to establish vicarious liability - Payment by Provincial Government was by implication a payment by the State – State not vicariously liable

APPEAL – Damages - Functions of police under the law – State not liable for destruction of property in the course of forceful removal under s 145 of Land Act 1996 to secure land owned by the State;

APPEAL – Damages - Respondents unlawfully on State land – Committed Criminal act under s 145 of Land Act 1996 – Benefitted from free use and occupation of land – Received K3 million for property that should not have been on the land – Further claim unreasonable – Appeal upheld – Entire proceedings dismissed;

Cases cited:

Papua New Guinea Cases

SCR No 1 of 1998; Reservation pursuant to s 16 of the Supreme Court Act (2001) SC 672

Other Cases cited:

Rice v Connolly [1966] 2QB 414

Counsel:

No Appearance, for the 1st, 2nd & 3rd Appellants

P. Nii, for the 4th to 12th Appellants

W. Bigi, for the Respondents

25th November, 2015

1. BY THE COURT: The Appellants appeal against the refusal by the National Court of their application to dismiss proceedings which the respondents brought against them.

2. The background facts are these. The Respondents were settlers on State land in Madang. Police at the direction of the First Appellant (Madang Provincial Government) evicted them. The Respondents claimed damages against the Madang Provincial Government, named Police Officers and the State for alleged unlawful eviction, destruction of properties and breach of Constitutional rights arising out of the eviction exercise.

3. They also claimed exemplary damages against the named Police officers. They claimed that the eviction was carried out by named and unnamed police officers at the specific request, direction and orders of the First, Second and Third Appellants in breach of a MOU between them and the Madang Provincial Government

4. The Madang Provincial Government offered to settle the claim for K3 million which the Respondents accepted. A consent order to that effect was entered and the money was paid.

5. Relying on the settlement between the Madang Provincial Government and the Respondents, the 4th to 12 Appellants by a notice of motion sought to dismiss the proceedings pursuant to Order 12 Rule 1 and 40 of the National Court Rules. They argued in the Court below that since the Madang Provincial Government as the principal tortfeasor settled fully the Respondents’ claim there was no cause of action against them. The Respondents countered that by arguing that their claim against the Madang Provincial Government was for breach of a MOU whereas the claim against the State was based on the principle of vicarious liability as pleaded in their statement of claim, for which they claimed that they did have a cause of action against the State.

6. The National Court refused the Appellants motion to dismiss the action and determined that the consent order did not state clearly that the offer by the Madang Provincial Government was in full and final settlement of their claim against all the Appellants. The Court also deemed that the statement of claim was well pleaded and the State was vicariously liable for the actions of the Provincial Government and the police.

7. Two issues arise here:

1. Whether the State is vicariously liable for the actions of the other Appellants

2. Whether the Respondents are entitled to a further claim against the 4th to the 12th Appellants after they agreed to accept K3 million from the Madang Provincial Government as full and final settlement of their claim against them.

8. We deal with the issues together as they are inter-related.

9. The law is settled that a Provincial Government is included in the term “State” as used in the Claims By and Against the State Act 1996 (Claims Act). In the case of SCR No 1 of 1998; Reservation pursuant to s 16 of the Supreme Court Act (2001) SC 672 the full bench of the Supreme Court said:

“We are of the opinion that a Provincial Government is a “governmental body” making up the Independent State of Papua New Guinea for the purpose of the Claims by and Against the State Act 1996. The power of the people is vested in all governmental bodies which administer and exercise them on behalf of the people. These governmental bodies include the National Government, a Provincial Government, an arm, department, agency or instrumentality of the National Government or a Provincial Government …”

“In principle therefore the assets and funds administered by the Provincial Government belong to the same people of Papua New Guinea that the Claims By and Against the State Act 1996 protects from execution. The term “State” therefore includes Provincial and Local Level Governments for the purposes of the Claims By and Against the State Act.”

10. Even though the above case (SCR No 1 of 1998) arose out of a National Court Referral to the Supreme Court on an issue of enforcement of a judgement debt against a Provincial Government, we are of the opinion that the principles enunciated therein equally apply to proceedings instituted jointly against a Provincial Government and the State.

11. Given the determination in SCR No 1 of 1998 the present proceedings are claims against the State for purposes of the Claims By and Against the State Act 1996. The underlying reason being that the funds to be paid for a successful claim regardless of whether it is paid by a Provincial Government or the National Government would ultimately be funds from the State which belonged to the people of Papua New Guinea.

12. The 4th to 12th Appellants maintained that the Respondents claim against the Appellants were settled through the consent order by the Madang Provincial Government as principal tortfeasor and the Respondents had no cause of action against the State. It was submitted that the further claim would cause the State to make double payment as the Madang Provincial Government is a State or governmental body.

13. The Respondents argued that they still had a claim against the State on vicarious liability for the actions of the Police members even though the Madang Provincial Government paid K3 million in settlement of the claim against them. In the Statement of Claim (SOC), the Respondents pleaded that under the Wrongs (Miscellaneous Provisions) Act Chapter 297 (Wrongs Act) the State was vicariously liable for the acts and omissions of the 4th to 11th Appellants. (See Paragraph 14 of the SOC)

14. We agree that vicarious liability of the State emanates from the Wrongs Act.

15. To invoke the Common Law principle of vicarious liability the following considerations must be established:

1) There must be a master and servant relationship.

In the present case we agree that there is a master-servant relationship. The named police officers were employees of the State. However we do not consider that a master servant relationship existed...