Morobe Provincial Government v John Kameku

• Jurisdiction: Papua New Guinea
• Judge: Cannings J, Manuhu J, Kassman J
• Judgment Date: 01 March 2012
• Citation: (2012) SC1164
• Court: Supreme Court
• Year: 2012
• Judgement Number: SC1164

Full Title Sca No 47 of 2004; Morobe Provincial Government and Manasupe Zurenuoc, Morobe Provincial Administrator and Patilius Gamato,Lae Urban Local-Level Government Council Manager v John Kameku for Himself and on Behalf of Yonggo Mountain Settlers (2012) SC1164

Supreme Court: Cannings J, Manuhu J, Kassman J

Judgment Delivered: 1 March 2012

SC1164

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 47 0F 2004

MOROBE PROVINCIAL GOVERNMENT

First Appellant

MANASUPE ZURENUOC, MOROBE PROVINCIAL ADMINISTRATOR

Second Appellant

PATILIUS GAMATO,

LAE URBAN LOCAL-LEVEL GOVERNMENT COUNCIL MANAGER

Third Appellant

V

JOHN KAMEKU FOR HIMSELF AND ON BEHALF OF

YONGGO MOUNTAIN SETTLERS

Respondent

Waigani: Cannings J, Manuhu J, Kassman J

2012: 27 February, 1 March

APPEALS – whether appellant permitted to argue points of law that have not been argued in trial court – appeals against findings of fact – onus on appellant to show error of law in findings of fact.

PRACTICE AND PROCEDURE – claims against the State – representative proceedings.

CONSTITUTIONAL LAW – proscribed acts under Constitution, Section 41 – appeal against declaration by National Court that eviction of settlers was harsh and oppressive.

This was an appeal by a provincial government and related parties against a decision of the National Court declaring under Section 41 (proscribed acts) of the Constitution that an eviction exercise carried out by the appellants in a provincial capital, which gave only 30 days notice to quit to settlers who had lived on government land without objection for up to 50 years and erected permanent buildings and engaged themselves in small scale commercial ventures on it, was harsh and oppressive, inhuman and not reasonably justifiable in a democratic society having regard to the inherent dignity of the human person. The appellants raised eight grounds of appeal.

Held:

(1) Half of the grounds of appeal were dismissed because they raised points of law that were not argued before the National Court, and leave had been neither sought nor granted to argue them.

(2) Other grounds of appeal were dismissed as they challenged findings of fact by the primary Judge without demonstrating that the primary Judge erred in any respect.

(3) The primary Judge’s determination as to unlawfulness for the purposes of Section 41 of the Constitution was made on the basis of evidence before the court, following a proper process of reasoning and involved no error of law.

(4) The appeal was accordingly dismissed.

Cases cited

The following cases are cited in the judgment:

Agoara Kebo and Karunai Uraki v The State (1981) SC198

Brian John Lewis v The State [1980] PNGLR 219

Glen Otto Kapahi v The State (2010) SC1023

John Anis Pok v The State (1983) SC254

John Kameku for himself and on behalf of Yonggo Mountain Settlers v Patilius Gamato, Manasupe Zurenuoc and Morobe Provincial Government (2004) N2512

Migi Barton v The State SC213 (M)

Papua Club Inc v Nusaum Holdings Ltd (2005) SC812

Petrus and Gawi v Telikom PNG Ltd (2008) N3373

Simon Mali v The State (2002) SC690

Tigam Malewo v Keith Faulkner (2009) SC960

Wahgi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185

APPEAL

This was an appeal against a decision of the National Court to declare acts of the appellants unlawful under Section 41 (proscribed acts) of the Constitution.

Counsel

M Kambao, for the appellants

G Anis, for the respondent

1 March, 2012

1. BY THE COURT: This is an appeal against a decision of the National Court to declare acts of the appellants unlawful under Section 41 (proscribed acts) of the Constitution.

2. In January 2002 the Morobe Provincial Government conducted an eviction exercise at Yonggo Mountain settlement in Lae. The settlers, led by the respondent, John Kameku, did not dispute that the land on which they had been living for up to 50 years was government land, but claimed that they had been treated harshly and oppressively. They commenced proceedings by originating summons in the National Court, seeking declarations that they had an equitable interest in the land and that the conduct of the Provincial Government and related parties (the appellants) was harsh and oppressive and therefore unlawful. The matter went to trial before Jalina J who refused to declare that the settlers had any equitable interest in the land but granted a declaration under Section 41 (proscribed acts) of the Constitution that the eviction carried out by the appellants, which gave only 30 days notice to quit to settlers who had lived on the land without objection for up to 50 years and erected permanent buildings and engaged themselves in small scale commercial ventures on it, was harsh and oppressive, inhuman and not reasonably justifiable in a democratic society having regard to the inherent dignity of the human person. Though damages were sought at the trial, his Honour refused to award any; holding that, as damages had not been sought in the originating summons, any claim for damages would have to be the subject of separate proceedings. The relief granted was confined to the declaration of unlawfulness (John Kameku for himself and on behalf of Yonggo Mountain Settlers v Patilius Gamato, Manasupe Zurenuoc and Morobe Provincial Government (2004) N2512). The appellants appeal against that declaration on eight grounds.

GROUND 1: ABSENCE OF NOTICE UNDER SECTION 5 OF THE CLAIMS BY AND AGAINST THE STATE ACT

3. The appellants argue that the primary Judge erred by permitting the proceedings to be commenced in the absence of a notice by the respondent under Section 5 of the Claims By and Against the State Act of an intention to make a claim against the State.

4. This argument was not raised in the National Court and the appellant did not seek the leave of the Supreme Court to argue it. An appellant cannot argue a point of law in the Supreme Court that was not argued before the National Court without the leave of the Supreme Court (Papua Club Inc v Nusaum Holdings Ltd (2005) SC812). We therefore decline to entertain this argument. Ground No 1 is dismissed.

GROUND 2: BREACH BY THE RESPONDENT OF ORDER 5, RULE 3 OF THE NATIONAL COURT RULES

5. The appellants argue that the primary Judge erred by permitting the National Court proceedings to be commenced by the respondent on behalf of other persons, who were unidentified, which is not permitted by Order 5, Rule 3 of the National Court Rules. The appellants highlighted that the National Court proceedings were commenced by “John Kameku for himself and on behalf of Yonggo Mountain Settlers”. The originating summons did not name the other settlers and there was no evidence of consent and authority by any such persons to the commencement of the proceedings.

6. This argument was not raised in the National Court and the appellant did not seek the leave of the Supreme Court to argue it. An appellant cannot argue a point of law in the Supreme Court that was not argued before the National Court without the leave of the Supreme Court (Papua Club Inc v Nusaum Holdings Ltd (2005) SC812). We therefore decline to entertain this argument. Ground No 2 is dismissed.

GROUND 3: ERROR OF LAW IN PERMITTING APPELLANT TO COMMENCE PROCEEDINGS ON BEHALF OF OTHER PERSONS WHO WERE NOT NAMED

7. The appellants argue that the primary Judge erred by permitting the National Court proceedings to be commenced by the respondent who purported to act in a representative capacity on behalf of other Yonggo Mountain settlers, without requiring the respondent to comply with the procedural requirements for commencement of representative proceedings that were clarified by the Supreme Court in Simon Mali v The State (2002) SC690, which are that:

· all intended plaintiffs must be named in the originating process;

· each and every intended plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them;

· any person in whose name proceedings are commenced and who claims to represent other intended plaintiffs must produce an authority to the court to show that he was authorised by them to file proceedings as a class representative.

8. It appears that those requirements were not complied with in this case. They are important procedural requirements that should ordinarily be complied with (Tigam Malewo v Keith Faulkner (2009) SC960). If an appropriate application had been made before the appropriate court at the appropriate time, the argument may well have stood a good chance of success. The matter might not have proceeded to trial in the way that it did. But this ground of appeal must suffer the same fate as the previous ones. This argument was not raised in the National Court and the appellant did not seek the leave of the Supreme Court to argue it. An appellant cannot argue a point of law in the Supreme Court that was not argued before the National Court without the leave of the Supreme Court (Papua Club Inc v Nusaum Holdings Ltd (2005) SC812). We therefore decline to entertain this argument. Ground No 3 is dismissed.

GROUND 4: ERROR OF FACT AND LAW BY...