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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO 1064 OF 2004
GESRING GABING BOB
Plaintiff
V
STETTIN BAY LUMBER COMPANY LIMITED
First Defendant
S K GOH, GENERAL MANAGER, SBLC
Second Defendant
M R HII, FINANCIAL CONTROLLER, SBLC
Third Defendant
Kimbe: Cannings J
2008: 30 May, 18 July, 22 August
JUDGMENT
TORTS – trespass to land – whether plaintiff consented to defendant coming on to his land – whether it is necessary for plaintiff to prove ownership of land to establish cause of action.
DAMAGES – trespass to land – general damages – environmental damage.
The plaintiff was in possession of an oil palm block and while he was absent for several months the defendant came on to the block and built an access road through it. The plaintiff alleged that the defendant did so without lawful authority and committed the tort of trespass. The defendant asserted that authority was given by the plaintiff’s father (now deceased) and that it was performing a community service; and in any event, at the relevant time, the plaintiff was not the owner of the block, so he could not sustain a cause of action in trespass. A trial was conducted on both liability and damages.
Held:
(1) To succeed in an action for trespass to land, a plaintiff must prove five things:
- (a) the defendant entered land, either directly (in person) or indirectly (eg by propelling an object or a third party on to the land); and
- (b) the defendant did so by some intentional act;
- (c) the defendant had no lawful authority;
- (d) the plaintiff was in lawful possession of the land; and
- (e) the plaintiff’s enjoyment of the land was interfered with.
(2) Elements (a) and (b), entry on the land that was intentional, were undisputed.
(3) As to (c), the plaintiff proved that neither he nor any other person in a position to do so consented to the defendant entering the block and carrying out roadworks.
(4) As to (d), the plaintiff proved that he was in lawful possession of the land; it was inconsequential that he did not have legal title to the block at the time that the roadworks were carried out.
(5) The plaintiff proved that his enjoyment of the land was interfered with by proving that trees had been knocked down and environmental damage incurred.
(6) Liability was therefore established and it was appropriate to assess damages.
(7) Damages were assessed at K20,000.00, plus interest of K11,200.00; the total judgment sum being K31,200.00.
Cases cited
The following cases are cited in the judgment:
Buna v The State (2004) N2696
Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24
Deukari v Kuglam and The State (2006) N3087
Newington v Windeyer (1985) 3 NSWLR 555
Abbreviations
The following abbreviations appear in the judgment:
J – Justice
K – Kina
LBC – Law Book Company
Ltd – Limited
N – National Court judgment
No – number
NGO – Non Government Organisation
NSWLR – New South Wales Law Reports
PNG – Papua New Guinea
PNGLR – Papua New Guinea Law Reports
Pty – proprietary
SBLC – Stettin Bay Lumber Company
v – versus
WS – writ of summons
STATEMENT OF CLAIM
This was a trial on liability and damages for trespass to land.
Counsel
G Linge, for the plaintiff
T Tingnni & T Cooper, for the defendants
22 August, 2008
1. CANNINGS J: Gesring Gabin Bob, the plaintiff, is a 38-year-old man who owns, lives on and earns his living from an 11-hectare oil palm block in the Sarakolok oil palm settlement near Kimbe. He claims that the first defendant, Stettin Bay Lumber Company Ltd, a timber company based at nearby Buluma, trespassed on his block, built an access road through it, destroyed trees and food gardens and committed environmental damage. He is making a claim for damages of K38,000.00 against the company, its general manager, Mr Goh, and its financial controller, Mr Hii.
2. He bases his claim on the tort (civil wrong) of trespass to land, which has been adopted as part of the underlying law of Papua New Guinea (Deukari v Kuglam and The State (2006) N3087). To succeed in an action for trespass to land, a plaintiff must prove five things:
(a) that the defendant entered land, either directly (in person) or indirectly (eg by propelling an object or a third party on to the land); and
(b) that the defendant did so by some intentional act;
(c) that the defendant had no lawful authority;
(d) that the plaintiff was in lawful possession of the land; and
(e) that the plaintiff’s enjoyment of the land was interfered with.
(See J G Fleming, The Law of Torts, 9th edition, LBC Information Services, © 1988, chapter 3, Intentional Invasion of Land.)
3. The company, SBLC, is the principal defendant and concedes that it entered Mr Bob’s block, intentionally, but says it did so on the invitation and request of his father and other block-holders in the vicinity, who wanted an access road built so that they could more conveniently transport their harvest to markets. The company also says that at the time of the alleged trespass, July 2001, Mr Bob was not the owner of the block. He did not obtain the title until September 2002, so he is not in a position to sue the company for trespass. In any event, the company says, Mr Bob’s enjoyment of the block was not interfered with, it was actually enhanced by having the road put through it.
4. The company thus concedes elements (a) and (b) but denies (c), (d) and (e). If it fails on those points the company argues that Mr Bob should nonetheless not receive any damages as he has not proven that his land was damaged.
5. The issues to be determined therefore are:
1 Did SBLC lack lawful authority to enter the block and build an access road?
2 Was Mr Bob in lawful possession of the block in July 2001?
3 Was Mr Bob’s enjoyment of the land interfered with?
6. If those issues are answered ‘yes’, Mr Bob will have established liability and the court will ask:
4 What damages is Mr Bob entitled to?
5 Is any interest payable?
1 DID SBLC LACK LAWFUL AUTHORITY TO ENTER THE BLOCK AND BUILD AN ACCESS ROAD?
7. Stettin Bay Lumber Company say that Mr Bob’s father, who they describe as Gabor Gabin, and a number of other blockholders, including a caretaker of Mr Bob’s block, Mr Nok, agreed that the company should construct the road. SBLC was initially reluctant to build the road because of the risk that blockholders would later claim compensation for damage to their land. However, in the end, upon verbal understandings, the road was constructed.
8. That is the version of events put to the court through an affidavit by Reginald Ovasui, the company’s Administration Manager. It is supported by an affidavit of the dozer operator, Joe Namu, who built the road. He says he acted on verbal requests by Mr Bob’s father and by Mr Nok and other blockholders, who undertook not to claim compensation for any damage to their properties.
9. Against that evidence the court has to weigh the oral evidence of Mr Bob who says that at the time the company came on to the block, he was the person in charge of it as his father, Nian Gabing, had died, in 1988. Mr Bob says he was in Port Moresby in 2001, sorting out the question of transmission of title to the block. He was the only person in a position to give the company approval to build the road and he did not give any approval. His mother was living at the block at the time and she has told him that she did not give approval.
10. Mr Bob was the only witness to give oral evidence in this case and I am satisfied that he is telling the truth. The agricultural lease (the title document) shows that Mr Bob’s father, Nian Gabing, died in 1988. It is hard to believe that the company, if it did get the approval of anyone on Mr Bob’s block (including the person they thought was Mr Bob’s father) or any other blockholders, would not have got them to sign some sort of consent document. In any event there is no documentary evidence to support the company’s version of events. Besides that, Mr Ovasui’s affidavit is essentially hearsay as he is only saying what he heard and what he understood as the situation to be. Mr Namu refers to "verbal agreements" but does not say where or when the conversations that gave rise to the agreements took place. The company’s evidence is therefore vague and hard to believe.
11. I am satisfied on the balance of probabilities that the company lacked lawful authority to enter Mr Bob’s block and build an access road through it.
2 WAS MR BOB IN LAWFUL POSSESSION OF THE BLOCK IN JULY 2001?
12. The company points out that Mr Bob did not become the lawful ‘owner’ of the block – the registered proprietor of the agricultural lease – until 18 September 2002. That is the date that title was transmitted to him under Section 125 (transmission to person entitled by custom) of the Land Registration Act. The company submits that a person who does not own land and has not improved (ie developed) it cannot sue for trespass. They rely on a New South Wales case, Newington v Windeyer (1985) 3 NSWLR 555, to support that proposition.
13. I am not convinced that a plaintiff has to prove that he had actually improved the land in order to sustain a cause of action in trespass. But, even if that is a requirement, it is satisfied in this case as Mr Bob’s block was at the relevant time, in July 2001, a piece of improved land. It was a family oil palm block and it was transmitted to Mr Bob a little over a year later. He had clearly contributed to the improvement of the land and he was the person in lawful possession of it. So this element of the tort of trespass is satisfied.
3 WAS MR BOB’S ENJOYMENT OF THE LAND INTERFERED WITH?
14. Though one aspect of Mr Bob’s enjoyment of the land may have been enhanced – the road made his block more accessible to arterial roads in Sarakolok – his enjoyment of the block was interfered with, as the area of arable land on his block was reduced and his options as to what to do with the land were reduced.
15. This element of the tort of trespass has been established, which means that Mr Bob has succeeded in establishing a cause of action. I will now proceed to assess damages.
4 WHAT DAMAGES IS MR BOB ENTITLED TO?
16. The court is faced with two competing bodies of evidence.
17. On the one hand, the affidavits of Mr Ovasui and Mr Namu assert that there was no damage done at all. "Everything was perfectly normal as the construction was supervised by our expert engineers on site", says Mr Ovasui. Furthermore, the company’s environmental officer, Douglas Wut, reported to Mr Ovasui, in May 2004, that the area that was cleared has been revegetated and returned to its normal state. Mr Namu deposes that he is the company’s most experienced dozer operator and is always careful in his work and that no damage was done to the land.
18. On the other hand, Mr Bob claimed, through an affidavit and in oral testimony, that the following damage was caused:
19. In support of his claim of damage to waterways, he provided a report prepared in September 2005 by Job Opu of the Mahonia Na Dari environmental centre of West New Britain. This report asserts that several years after the road was built there was still evidence of interference with the water flow in the permanent stream that runs through the block, caused by soil and tree buttresses being dumped into it. Also freshwater marine fauna had disappeared.
20. The company submits that I should ignore this report as it is hearsay and the person who prepared it has not given direct evidence and his qualifications are unknown. I agree that I should exercise caution when making findings of fact on the basis of such a report as the author has not been subjected to cross-examination and his credentials are unclear. However, I do not think it would be right to ignore it as I am satisfied that Mr Bob obtained the report in good faith in the course of pursuing his claim against the company over a number of years. He has involved the PNG Forestry Authority and the Oil Palm Industry Corporation and the evidence suggests that those bodies have supported the claim. He also involved an environmental NGO; and, through Mr Opu’s report, they have also supported the claim. In these circumstances the report has probative value.
21. I find the company’s claim that no damage was done as very difficult to believe as valuable topsoil would inevitably have been removed by building the road.
22. I am satisfied that the general nature of the findings in the Opu report are genuine and provide sufficient evidence, when combined with Mr Bob’s oral evidence and his affidavit, of damage to his block of the sort that he has claimed.
23. As to putting a money value on the damage caused, this is difficult to determine. I do not think the evidence justifies making an award of K38,300.00, the amount claimed by Mr Bob. In Buna v The State (2004) N2696 I assessed damages for damage to 2.5 hectares of the plaintiff’s land, caused by negligence of a provincial works department. The defendant excavated a river, causing it to change course and flood the plaintiff’s land, washing away topsoil and destroying food gardens. I assessed damages at K33,800.00. Comparing that case (where the damage was more serious and better documented) with the present, I will assess general damages at K20,000.00.
5 IS ANY INTEREST PAYABLE?
24. In the statement of claim the plaintiff claimed interest under the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Section 1 is the appropriate provision. It states:
(1) Subject to Section 2, in proceedings in a court for the recovery of a debt or damages the court may order that there be included in the sum for which judgment is given interest, at such rate as it thinks proper, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.
(2) Where the proceedings referred to in Subsection (1) are taken against the State, the rate of any interest under that subsection shall not exceed 8% yearly.
25. As Bredmeyer J pointed out in Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24, this section confers a four-fold discretion on the Judge: (1) whether to grant interest at all; (2) to fix the rate; (3) to grant interest on the whole or part of the debt or damages for which judgment has been given; and (4) to fix the period for which interest will run.
26. I exercise that discretion in the following way:
1 A plaintiff should in the normal course of events receive interest. There is nothing that takes this case out of the ordinary in that regard. The Court will order that interest be included in the sum for which judgment is given.
2 The rate of interest commonly used is 8%. In view of current economic conditions in the country I think 8% is the proper rate of interest.
3 Interest should be payable on the whole of the sum of damages for which judgment is given.
4 The appropriate period is the whole of the period between the date on which the cause of action arose and the date of the judgment. For the sake of mathematical convenience, and as the specific date on which the road was built is unclear, I will deem the cause of action to have accrued on 22 August 2001. The date of judgment is 22 August 2008. The appropriate period is therefore seven years.
27. I calculate the amount of interest by applying the following formula:
Where:
Thus:
COSTS
28. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-party basis. The question of costs is a discretionary matter. There are no special circumstances in this case that warrant departure from the general rule.
ORDER
29. I will make the following order:
(1) damages payable by the defendants to the plaintiff of K20,000.00;
(2) interest payable by the defendants to the plaintiff of K11,200.00;
(3) being a total of K31,200.00;
(4) in the event that the total judgment lump sum for the plaintiff is not paid within 30 days after the date of entry of this judgment interest shall be payable at the rate of 8% yearly from the date of entry of the judgment on so much of the total judgment lump sum as is from time to time unpaid;
(5) costs to be paid by the defendants to the plaintiff on a party-party basis, to be taxed if not agreed.
Orders accordingly.
Linge & Associates: Lawyers for the plaintiff
Rageau Manua & Kikira Lawyers: Lawyers for the defendant
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