SCA NO 118 OF 2018; Simon Wama for Himself and 42 Others of Erima, NCDC whose names appear on Schedule A to this Writ v Hon. Powes Parkop – Governor of National Capital District and National Capital District Physical Planning Board and National Capital District Commission and Independent State of Papua New Guinea and Dekenai Contructions Limited (2020) SC1977

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 24 July 2020
• Court: Supreme Court
• Citation: (2020) SC1977
• Year: 2020
• Judgement Number: SC1977

Full Title: SCA NO 118 OF 2018; Simon Wama for Himself and 42 Others of Erima, NCDC whose names appear on Schedule A to this Writ v Hon. Powes Parkop – Governor of National Capital District and National Capital District Physical Planning Board and National Capital District Commission and Independent State of Papua New Guinea and Dekenai Contructions Limited (2020) SC1977

Supreme Court: Makail, J

Judgment Delivered: 24 July 2020

SC1977

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 118 OF 2018

BETWEEN

SIMON WAMA for Himself and 42 Others of Erima, NCDC whose names appear on Schedule A to this Writ

Appellants

AND

HON. POWES PARKOP – Governor of National Capital District

First Respondent

AND

NATIONAL CAPITAL DISTRICT PHYSICAL PLANNING BOARD

Second Respondent

AND

NATIONAL CAPITAL DISTRICT COMMISSION

Third Respondent

AND

INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Respondent

AND

DEKENAI CONTRUCTIONS LIMITED

Fifth Respondent

Waigani: Makail, J

2020: 16th & 24th July

SUPREME COURT – PRACTICE & PROCEDURE – Application for leave to appeal – Leave sought to appeal questions of fact – Whether proposed grounds raised questions of fact – Supreme Court Act – Sections 14(3)(b)

SUPREME COURT – PRACTICE & PROCEDURE – Application for leave to appeal – Leave sought to appeal questions of fact – Proposed grounds raised questions of mixed fact and law – Leave not required but sought – Whether application for leave to appeal can be converted or treated as notice of appeal – Sections 14(3)(b)

Cases Cited:

Henganofi Development Corporation v. Public Officers Superannuation Fund Board (2010) SC1025

Timothy & Peter Neville v. The Independent Public Business Corporation & 2 Ors (2012) SC1193

Paul Bari v. John Raim (2004) SC768

PNGBC Limited v. Timothy and Peter Neville and the Privatisation Commission: SCA No 1 of 2002 (Unnumbered & Unreported Judgment of Hinchliffe, Sevua and Kirriwom JJ)

Rea Joseph v. Manu Sereva (2011) SC1152

Punangi v. Pacific Plantation Timber Ltd (2011) SC1153

Boyepe Pere v. Emmanuel Niningi (2003) SC711

Oio Aba v. Motor Vehicle Insurance Limited (2005) SC779

The Independent State of PNG v. John Tekwie (2006) SC843

Niuslik Holding v. Yapao Lawyers (2003) SC703

Counsel:

Mr. J. Kumura, for Appellants

Mr. M. Mukwesipu, for First, Second & Third Respondents

Mr. T. Mileng, for Fourth Respondent

Mr. N. Pilamb, for Fifth Respondent

RULING

24th July, 2020

1. MAKAIL, J: Pursuant to powers conferred on a single Judge of the Supreme Court under Section 14(3)(b) of the Supreme Court Act, the Appellants have asked me to grant leave to them to appeal the decision of the National Court on two proposed grounds which they say raised questions of facts and leave is required.

2. The appellants have also filed a notice of appeal raising three separate grounds of appeal which raised questions of mixed fact and law.

3. In this application, the proposed grounds are:

“1. The Court failed to consider the overwhelming evidence showing that the NCD Physical Planning Board had knowledge about the Appellants’ occupation of the subject land, Portion 279, for over 20 to 30 years, and more particularly by or before 1997 and had allowed them to erect buildings on it well before 12 months prior to the date of the Demotion Notice. Therefore, the Demotion Notice dated 18th February 2014 was supposed to be declared defective within the meaning of section 99 (3) of the Physical Planning Act and the demotion carried out pursuant to that notice unlawful.

The Court erred when it held that there was no direct evidence showing that the NCD Physical Planning Board had knowledge about the buildings on the land.

2. The Court erred further when it held that the Appellants’ constitutional rights/human rights were not breached when evidence presented by the Appellants in their affidavits was overwhelmingly clear that the following constitutional rights/human rights were breached:

a. The Appellants were treated harshly or oppressively, and not treated fairly (sections 41 and 36 of the Constitution).

b. The Appellants homes were entered arbitrarily or unlawfully. (section 44 of the Constitution).

c. The Appellants’ privacy was unlawfully breached (section 49 of the Constitution).

d. The Appellants’ properties were compulsory acquired. (section 55 of the Constitution).”

4. These proposed grounds arose from a human rights proceeding in the National Court whereby the appellants alleged that they were long-time occupants of a piece of land located at Erima in the National Capital District.

5. They were served with a Demotion Notice in breach of Section 99(3) of the Physical Planning Act which states that a Demolition Notice must be served within 12 months of the date when the operation (occupation) was first brought to the notice of the Physical Planning Board.

6. Thereafter, the respondents demolished and removed their dwelling houses, trade stores and other buildings from the land.

7. The appellants sought, amongst other orders, a declaration that the Demotion Notice was unconstitutional, and defective and damages. The trial judge held that the Demotion Notice was not defective, no constitutional rights were breached and dismissed the proceeding.

8. Mr Kumura of counsel for the appellants submitted that proposed ground one raised a pure question of fact because the appellants tendered affidavits to establish their claim that they had been long-time occupants of the land, having moved onto it some 20 to 30 years ago and put up structures including dwelling houses, trade-stores, liquor shops and others. These activities would and should have brought to the attention or knowledge of the respondents of the appellants’ occupation prior the issuance of the Demotion Notice.

9. It follows, he submitted, the finding by the trial judge that there was no direct evidence to show that the respondents had knowledge of the buildings on the land is contrary to the evidence of the appellants and raised a question of fact for the Supreme Court to consider.

10. Counsel further submitted that the finding of knowledge is a question of fact and is pivotal to the question of whether the Demotion Notice is valid and enforceable against the appellants where the second respondent is bound by Section 99(3) of the Physical Planning Act to give notice within twelve months of the knowledge of the appellants’ occupation of the land.

11. As to proposed ground two, Mr Kumura submitted that it is dependent on the first. When the trial judge held that the Demotion Notice was not defective but in order, he dismissed the proceeding despite evidence by way of affidavits including attached photographs showing loss and damages suffered by the appellants as a result of the respondents’ actions and or omissions.

12. Counsel for the respondents took one position led by counsel for the first, second and third respondents that the proposed grounds of appeal raised questions of mixed fact and law and leave is not required.

13. In any event, they submitted that the proposed grounds are captured in the notice of appeal and it would be unnecessary for the appellants to obtain leave to rely on them at the appeal proper. They went on to submit that the application for leave is misconceived and should be dismissed in its entirety, regardless of whether leave is not required.

14. I accept the respondents’ submission that the proposed grounds do not raise questions of fact alone but mixed fact and law. The question of fact which is intertwined with the question of law is this, the finding by the trial judge that there is no direct evidence to establish that the respondents had knowledge of the appellants’ occupation and buildings on the land did not require the trial judge’s assessment and evaluation of the evidence and decision to accept which version.

15. All he was required to consider and find and, find as he did, was whether the evidence tendered by the appellants by way of affidavits established that the second respondent had knowledge of their occupation and building of structures on the land prior to the issuance of the Demotion Notice.

16. The evidence which the trial judge was looking for and not forthcoming from the appellants was some form of written notice or communication by and from either themselves or someone to the second respondent in relation to their occupation and activities on the land. This evidence was crucial but missing.

17. If the finding was in favour of the appellants, then the legal question is whether the Demotion Notice was compliant of Section 99(3) of the Physical Planning Act. This question will require a construction of Section 99(3).

18. As rightly submitted by Mr Kumura, proposed ground two is dependent on the first one. The question of loss and damages is one of mixed fact and law because it would require the trial judge and the Appellate Court to consider evidence based on the rules of evidence such as hearsay, relevance and corroboration and principles of assessment of damages including the current trend on awards for general damages, special damages and exemplary...