Francis Fuliva, Bruno John, Benedict Kinura, Sam Wingavi, Awimba Luke & 1,276 Others v Inspector Tony Wagambie and Junior Madang Provincial Government and The Independent State of Papua New Guinea (2011) N4397

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Cannings J
• Judgment Date: 23 September 2011
• Citation: (2011) N4397
• Judgment Number: N4397
• Year: 2011
• Docket Number: WS No 1406 of 2006

Full Title: WS No 1406 of 2006; Francis Fuliva, Bruno John, Benedict Kinura, Sam Wingavi, Awimba Luke & 1,276 Others v Inspector Tony Wagambie and Junior Madang Provincial Government and The Independent State of Papua New Guinea (2011) N4397

National Court: Cannings J

Judgment Delivered: 23 September 2011

N4397

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1406 OF 2006

FRANCIS FULIVA, BRUNO JOHN, BENEDICT KINURA,

SAM WINGAVI, AWIMBA LUKE & 1,276 OTHERS

Plaintiffs

V

INSPECTOR TONY WAGAMBIE JUNIOR

First Defendant

MADANG PROVINCIAL GOVERNMENT

Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Madang: Cannings J

2010: 12 November, 17 December,

2011: 23 September

AGREEMENTS – enforceability – alleged breach of agreement between governmental bodies and groups representative of illegal settlers, sanctioned by order of National Court – whether facts alleged in support of breach of agreement proven.

An agreement was entered into between various governmental bodies and representatives of illegal settlers in a provincial capital regarding eviction and resettlement of the settlers. A distinction was drawn between “genuine settlers” and other illegal settlers. The agreement was sanctioned by the National Court, which ordered that the eviction exercise be undertaken and effected in accordance with the memorandum of agreement. Two years and four months after the making of the court order the police forcibly evicted a number of people from land on which they had unlawfully settled. The plaintiffs commenced proceedings by writ of summons against the officer in charge of the police operation, the provincial government and the State, claiming damages on the ground that the actions of the police were in breach of the agreement and court order and therefore unlawful. A trial was set down to determine the question of liability. The defendants argued that they were not liable as none of the plaintiffs were genuine settlers, only three of the 1,281 plaintiffs gave evidence at the trial, it was not proven that the eviction exercise took place in the manner alleged and in any event the actions of the police were in accordance with the agreement.

Held:

(1) Categorisation of the plaintiffs as genuine or non-genuine settlers was irrelevant to the question of liability as the agreement covered both categories of settlers, so the plaintiffs’ standing to enforce the agreement was unaffected by any finding that they were non-genuine settlers.

(2) There was no requirement that each plaintiff provide evidence as this was a trial on liability only, and the court could properly make findings of fact on the evidence put before it by all parties.

(3) There was sufficient evidence that the eviction exercise took place in the manner alleged and that it was a large scale operation that occurred over a period of seven days.

(4) The eviction exercise was carried out in breach of the agreement, in that the process of verification of genuine settlers was not completed, the agreement made no provision for involvement of police and there had been no “dialogue” between the parties to the agreement regarding forced eviction.

(5) The eviction exercise was also conducted in breach of an order of the National Court and was therefore unlawful; and the defendants are accordingly liable in damages.

Cases cited

The following cases are cited in the judgment:

Joe Tipaiza v James Yali (2006) N3178

Joe Tipaiza v James Yali (2008) N3472

John Kameku v Patilius Gamato (2004) N2512

TRIAL

This was a trial on liability for breach of agreement.

Counsel

B W Meten, for the plaintiffs

J Haiara, for the second and third defendants

23 September, 2011

1. CANNINGS J: On 19 May 2000 an agreement was entered into between various governmental bodies and representatives of illegal settlers in Madang town regarding eviction and resettlement of settlers. A distinction was drawn between “genuine settlers” and other illegal settlers. The agreement was sanctioned by the National Court which on 28 July 2000 ordered that the eviction exercise be undertaken and effected in accordance with the memorandum of agreement. In December 2003 the police conducted an eviction exercise, forcibly evicting a number of people from land on which they had unlawfully settled in Madang town. The plaintiffs, Francis Fuliva, Bruno John, Benedict Kinura, Sam Wingavi, Awimba Luke and 1,276 other people, say that they were living in settlements in Madang in December 2003 when the eviction exercise was undertaken. They claim that the police entered the settlements and forcibly evicted them by burning and destroying their houses and damaging or stealing their personal property. They claim that the eviction exercise, which was led by the first defendant, Inspector Tony Wagambie Jnr, and conducted at the request of the second defendant, Madang Provincial Government, was unlawful as it was conducted in breach of the agreement and court order. They have commenced proceedings against Inspector Wagambie and the Provincial Government and the State, claiming damages for breach of agreement and a court order. A trial has been held to determine whether the defendants are liable. The question of damages will only be addressed if liability is established.

2. It is important to appreciate that the cause of action being prosecuted by the plaintiffs is breach of the agreement and the court order that sanctioned the agreement. Though the plaintiffs assert, in effect, that their human rights were breached, breach of human rights and torts such as trespass to property and trespass to the person are not pleaded as causes of action, as such, in the statement of claim. This is a feature of this case that sets it apart from most other eviction exercise cases involving alleged unlawful police conduct (eg John Kameku v Patilius Gamato (2004) N2512, in which a squatter eviction exercise at Yonggo Mountain, Lae, was declared harsh and oppressive, and unlawful under Constitution, Section 41).

3. Before addressing the primary question of whether the agreement was breached there are three threshold issues raised by the defendants that need to be tackled. They argued that they could not be liable as none of the plaintiffs were genuine settlers, only three of the 1,281 plaintiffs gave evidence at the trial and it was not proven that the eviction exercise took place in the manner alleged.

PLAINTIFFS NOT GENUINE SETTLERS

4. The defendants argue that none of the plaintiffs are “genuine settlers”, as defined in the agreement, as none of them were issued identification cards and verified by the Provincial Government to be genuine settlers. Therefore they are in no position to maintain an action against the defendants as they should have left Madang on the date that the agreement was sanctioned by the National Court, 28 July 2000.

5. This argument is misconceived. Even if it is accepted that all 1,281 plaintiffs are non-genuine settlers, the fact is that all illegal settlers in Madang town, whether genuine or non-genuine, were, in effect, a party to the agreement. The agreement was intended to regulate what would happen both to genuine and non-genuine settlers. Categorisation of the plaintiffs as genuine or non-genuine settlers is irrelevant to the question of liability as the agreement covers both categories of settlers. The plaintiffs’ standing to enforce the agreement is unaffected by any finding that they were non-genuine settlers.

ONLY THREE PLAINTIFFS GAVE EVIDENCE

6. Mr Haiara, for the defendants, submitted that as only three of the plaintiffs (Francis Fuliva, Bruno John and Sam Wingavi) gave evidence at the trial, the claims of the 1,278 other plaintiffs must be summarily dismissed as they did not attend the trial to prosecute their claims. This argument is also misconceived. It confuses the evidentiary requirements that would need to be discharged at a trial on assessment of damages with those to be applied at a trial on liability only, which the present trial is. This is a representative proceeding and there is no rule of law or practice that would require each of the plaintiffs to attend the trial and give evidence. The court is quite able to make findings of fact on the evidence put before it by all parties.

CONDUCT OF THE EVICTION EXERCISE

7. It is the plaintiffs’ case that the eviction exercise started on 11 December 2003 at the land area known as Portion 49, which includes settlements known as Handy Mart, Yangoru Compound and Wagol Fikus. On 12 and 13 December 2003 the exercise proceeded at Portion 50, covering Wagol Sawdust, Wagol Paiaman, Lavalava, Bukbuk, Sandaun, Biliau Maus Rot, Old Refuse Dump, Humade and Sisiak 3 settlements. On 14 and 15 December 2003 the eviction exercise proceeded to Portion 51, covering Sisiak 1 and 2, Kandi, Kuaru and Public Tank settlements. On 16 and 17 December 2003 the eviction exercise proceeded to Portion 52, covering Meiro, DCA-Kubalia, MAF-Ramu,...