Sam Samoua for and on behalf of himself and 14 Labourers of Milinat Plantation v Aces Venture Limited (2013) N5325

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 16 August 2013
• Court: National Court
• Citation: (2013) N5325
• Docket Number: WS NO 674 OF 2011
• Year: 2013
• Judgement Number: N5325

Full Title: WS NO 674 OF 2011;Sam Samoua for and on behalf of himself and 14 Labourers of Milinat Plantation v Aces Venture Limited (2013) N5325

National Court: Cannings J

Judgment Delivered: 16 August 2013

N5325

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 674 OF 2011

SAM SAMOUA FOR AND ON BEHALF OF HIMSELF

AND 14 LABOURERS OF MILINAT PLANTATION

Plaintiff

V

ACES VENTURE LIMITED

Defendant

Madang: Cannings J

2012: 21 September,

2013: 14 June, 16 August

TORTS – trespass to property – whether defendant authorised police to set fire to plaintiffs’ houses and chattels and destroy food crops

The plaintiffs claimed damages against the defendant for unlawful destruction by Police of their property and for inhuman treatment by the Police. They claimed that they had for 23 years been living and working as labourers on a plantation and that when the defendant took over the plantation it engaged the Police as its agent who without notice or warning or a court order authorising such conduct entered the area in which they were living and burned down their houses, thereby damaging or destroying their personal property, and destroyed their food gardens. The defendant denied liability on the grounds that the plaintiffs’ statement of claim did not disclose any cause of action and that it did not give any orders to the police to execute unlawful eviction of the plaintiffs and that most of the plaintiffs had decided to voluntarily vacate the plantation and it gave them money in good faith to assist them in doing so. A trial was held to determine whether the defendant was liable.

Held:

(1) The statement of claim was not clearly pleaded but nor was it so vague as to fail entirely to disclose a reasonable cause of action.

(2) The statement of claim could fairly be regarded as pleading a cause of action in the tort of trespass to property, the elements of which are:

(a) the defendant interfered with (eg by damaging or destroying)

(b) the plaintiff’s chattels (any property other than freehold land)

(c) the defendant acted intentionally;

(d) the defendant acted without lawful authority; and

(e) the plaintiff had actual possession of the chattels.

(3) Though there was no direct evidence that the defendant engaged the Police to conduct the eviction exercise, there was circumstantial evidence to that effect and the defendant failed to give evidence in support of its denial that it had engaged the Police or to counter the plaintiffs’ evidence that the eviction exercise took place without notice or warning or a court order authorising it. The only reasonable inference was that the defendant had engaged the Police and a finding of fact to that effect was made.

(4) As to the elements of the tort of trespass to property the Court found: that by engaging the Police and authorising them to evict the plaintiffs, the defendant (a) damaged or destroyed the plaintiffs’ property, comprising (b) houses, personal property and food gardens and that (c) the defendant (and the Police) acted intentionally and (d) without lawful authority (no notice or warning being given to the plaintiffs and no court order being in place to authorise the exercise, which resulted in damage to or destruction of property of which the plaintiffs had (e) actual possession.

(5) Four of the 15 plaintiffs established a cause of action in trespass in respect of three types of property: houses, personal property (in or in the vicinity of the houses) and food gardens. Claims for other causes of action and other types of property were rejected. There was no evidence by 11 plaintiffs, so there was no judgment in their favour.

Cases cited

No cases are cited in the judgment:

STATEMENT OF CLAIM

This was a trial on liability.

Counsel

B Tabai, for the plaintiffs

B W Meten, for the defendant

16th August, 2013

1. CANNINGS J: The plaintiffs, Sam Samoua and 14 others, have commenced proceedings against the defendant, Aces Venture Ltd. They claim damages for what they allege was an unlawful eviction exercise carried out against them by the Police, on the request of the defendant, at Milinat Plantation in the Alexishafen area of Madang Province on 8 and 9 December 2010. A trial has been conducted to determine whether the defendant is liable.

2. The plaintiffs are from the Simbai area of Madang Province. They say that they had lived and worked as labourers on Milinat Plantation for 23 years until 2010 when the defendant took over management of the plantation and told them that they were no longer required and that they would have to leave. They say that in November 2010 the defendant gave them a small amount of money (several hundred Kina) each to assist in their repatriation but it wasn’t enough so they and their families continued to stay on the plantation while they worked out a way of returning to Simbai. On 8 December 2010 a Police task force without warning or notice turned up at the plantation and conducted an eviction exercise: the Police forced them out of their houses and burned down their houses and destroyed their food gardens. As a result, their houses, which were made of bush materials, were destroyed together with their personal possessions and they had nowhere to live and no food to eat. They say that they were treated inhumanely as if they were criminals and were left with nothing more than the clothes that they were wearing. They claim that the defendant requested the Police to conduct the eviction exercise and that the Police, who acted on the request, should be regarded as the agents of the defendant, which is liable for damages. They have not joined the Police or the State as defendants. They only claim damages against the defendant. They rely on evidence in affidavits by the lead plaintiff Mr Samoua and seven other persons to support their case.

3. The defendant denies liability. It filed a defence, pleading that “there was never any or any unlawful eviction of any person” and that “it did not make any orders to the Police to execute unlawful eviction and or inhumanely raid” the plaintiffs. It relies on an affidavit by its managing director, Ernesto Bautista, to support its defence. Mr Bautista testifies that each of the 14 people who Mr Samoua claims to represent voluntarily left the plantation after being given money by the defendant to assist with their transportation to their home villages.

4. In his opening submission at the trial the defendant’s counsel Mr Meten argued that the plaintiffs’ statement of claim was very vague and disclosed no cause of action, so the case should be dismissed for that reason alone without going into the facts, the plaintiff’s version of which is denied by the defendant.

5. I will address the issues in this order:

1 Is there a cause of action in the statement of claim?

2 What are the facts?

3 Has liability been established, generally?

4 Which plaintiffs are entitled to damages?

1 IS THERE A CAUSE OF ACTION?

6. I agree with Mr Meten that the statement of claim is vague. The first 16 paragraphs are clear enough as they allege the facts on which the claim is based. But after that, in the part of the document that should clearly articulate the precise cause(s) of action being relied on and the relief being sought, the pleadings become less clear. It is pleaded:

17. The plaintiff and co-workers were treated inhumanely by the defendant’s agents and were forced in an inhumane manner, breaching the Employment Act and the constitutional rights of the plaintiff and co-workers.

18. The defendants did not have respect and have breached sections of the Employment Act and the Constitution and threatened the plaintiff and co-workers who sweat to make money for the Independent State of Papua New Guinea through their labour at Milinat Plantation.

19. Further results of breaches is the Damages Act where all food gardens and houses where life is nourished, were burnt to ashes leaving the plaintiff and 14 others with nothing except their wearing apparels.

AND THE PLAINTIFF CLAIMS:

i. Compensation in the total sum of K42,040.00;

ii. General damages for breach of Employment Act and Damages Act;

iii. Loss of revenue;

iv. Damages for loss of housing and food gardens;

v. Unpaid repatriation fees;

vi. General damages for suffering stress, anguish, anxiety etc for loss of revenue and property;

vii. 8% interest;

viii. Any other orders the Court deems proper.

7. The pleadings are deficient in that:

· the breaches of the Employment Act are not specified;

· the breaches of constitutional rights are not specified;

· there is no legislation called the Damages Act;

· it is unclear what “loss of revenue” is being claimed;

· it is unclear what “unpaid repatriation fees” means;

· it is not immediately clear whether the cause of action is based on the common law or on an Act of Parliament or on the Constitution.

8. Despite these deficiencies the proceedings have continued to trial. No motion to dismiss them has been filed by the...