N4441

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 975 OF 2004

JOHN SIMI
Plaintiff

V

WENI & MANIDOL INVESTMENT LIMITED
First Defendant

ANTON AREKA
Second Defendant

Madang: Cannings J
2011: 13 May, 3 June, 11 November

TORTS – trespass to land – whether defendants lacked lawful authority to occupy land – whether plaintiff in lawful possession of land – time at which purchaser of land has sufficient interest in it to support a claim for trespass.

The plaintiff entered into a contract with the registered proprietor for purchase of a block of land in June 1998, at which time the defendants were in occupation of it. The plaintiff asked the defendants to vacate the land but they did not do so until November 1999, in accordance with an ejectment order granted by the District Court. Title to the property was transferred to the plaintiff in September 1999. The plaintiff commenced proceedings against the defendants, claiming damages for trespass, constituted, he claimed, by the defendants being in unlawful possession of the land for a period of 17 months from June 1998 to November 1999. A trial was conducted on liability.

Held:

(1)	To succeed in an action for trespass to land a plaintiff must prove:

(a)	the defendant entered land;
(b)	the defendant did so by some intentional act;
(c)	the defendant had no lawful authority;
(d)	the plaintiff had a right to lawful possession of the land; and
(e)	the plaintiff's enjoyment of the land was interfered with.

(2)	Elements (a), (b) and (e) were self-evident. As to (c), the plaintiff failed to prove that prior to the date of transfer of title to him the defendant lacked lawful authority to be on the land; but proved that on and from the date of transfer until the date of vacation of the land the defendants lacked lawful authority. As to (d), the plaintiff proved that he had a right to lawful possession of the land on and from the date of transfer.

(3)	The plaintiff established a cause of action in trespass in respect of the period from the date of transfer until the date of vacation of the land by the defendants.

Cases cited

The following cases are cited in the judgment:

Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (2008) N3440
Stettin Bay Lumber Company Ltd v Gesring Gabing Bob (2011) SC1096

STATEMENT OF CLAIM

This was a trial on liability for trespass to land.

Counsel

J Maingu, for the plaintiff
P Wariniki, for the defendants

11 November, 2011

1. CANNINGS J: The plaintiff, John Simi, commenced proceedings against the defendants, Weni & Manidol Investment Ltd and Anton Areka, claiming damages for trespass. A trial has been conducted to determine liability. If the plaintiff succeeds the matter will proceed to an assessment of damages.

2. At the centre of the case is a block of land in Wewak, Section 3, Allotment 5, which is the subject of a State Lease. The plaintiff claims that in June 1998 he entered into a contract with the then registered proprietor, Lus Development Corporation Ltd, to purchase the land. At that time the land was occupied by the defendants, who were using it for both residential and business purposes pursuant to an arrangement with a person who told them he owned it. Upon entering into the contract the plaintiff asked the defendants to vacate the land but they did not do so until November 1999, in accordance with an ejectment order granted, on application by the plaintiff, by the District Court. Title to the property was transferred to the plaintiff in September 1999.

3. The plaintiff claims that the defendants were in unlawful possession of the land and deprived him of his enjoyment of it for a period of 17 months from June 1998 to November 1999. The defendants deny liability. The plaintiff bases his claim on the tort (civil wrong) of trespass to land, which, as I pointed out in Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (2008) N3440, consists of five elements:

(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 had a right to lawful possession of the land; and
(e)	the plaintiff's enjoyment of the land was interfered with.

4. The parties agree that the defendants were in occupation of the land from June 1998 to November 1999 and that in that period the plaintiff was prevented from using the land for the purposes for which he wanted to use it: to live on it and run a trade store. Elements (a), (b) and (e) are therefore self-evident and non-contentious. Elements (c) and (d) are not. The issues to be determined are:

1 	Did the defendants lack lawful authority to occupy the land?

2 	Did the plaintiff have the right to lawful possession of the land?

If both those issues are answered in the affirmative the plaintiff will establish liability.

1 	DID THE DEFENDANTS LACK LAWFUL AUTHORITY TO OCCUPY THE LAND?

5. The plaintiff argues that as soon as he entered into the contract with the then registered proprietor, Lus Development Corporation Ltd, in June 1998, he was given permission to move in, and he immediately gave notice to the defendants that they had to vacate the land. They refused to leave and continued to refuse until he obtained under the Summary Ejectment Act an ejectment order against them, granted by the Wewak District Court on 17 November 1999, which they complied with on 19 November 1999. They were therefore in unlawful possession of the land for the 17-month period from June 1998 to 19 November 1999.

6. There is insufficient evidence to support all those assertions. The contract of sale is not in evidence and there is no evidence other than a bald assertion in an affidavit by the plaintiff that he was given permission by the registered proprietor to move in before the State Lease was transferred to him. The plaintiff has not adduced any evidence to refute the defendants' assertion that they were in lawful possession of the land pursuant to an arrangement with a person (not Lus Development Corporation Ltd) who held himself out as the owner. There is no evidence that Lus Development Corporation Ltd, which remained the registered proprietor until the date of transfer of the State Lease to the plaintiff, 10 September 1999, at any time gave notice to the defendants to vacate the land, so that the plaintiff could move in. In fact the only evidence of how and when the defendants were requested to leave the land appears in the eviction warrant issued by the District Court, which states that a notice to quit (presumably issued by the plaintiff) was given to the defendants on 2 June 1999. However, that pre-dates the date of transfer, 10 September 1999, which is the critical date: the date on and from which the plaintiff was lawfully entitled to require the defendants to leave, and on and from which the defendants were obliged to leave. I conclude that the defendants lacked lawful authority to occupy the land, but only from 10 September 1999 onwards.

2 	DID THE PLAINTIFF HAVE THE RIGHT TO LAWFUL POSSESSION OF THE LAND?

7. To satisfy this element the plaintiff must prove that he had a right to possession of the land (Stettin Bay Lumber Company Ltd v Gesring Gabing Bob (2011) SC1096). In the absence of evidence that the registered proprietor conferred on him a right to occupy the land prior to transfer of title it must be concluded that the plaintiff obtained the right to lawful possession on the date of transfer, 10 September 1999. The defendants have argued that the transfer of title is suspicious and defective for a number of reasons, none of which I find in any way persuasive. The plaintiff has introduced into evidence a copy of the State Lease that sufficiently proves that title was transferred to him on 10 September 1999. That is the date on which he obtained a right to possession of the land and on which he held a sufficient interest in the land to sustain an action in trespass.

CONCLUSION

8. The critical date is the date of transfer of title, 10 September 1999. That was the date on which the defendants lost, in relation to the plaintiff, lawful authority to occupy the land, and on which the plaintiff acquired the right to possess the land. It was the date on which the two contentious elements, (c) and (d), were satisfied, and on which the plaintiff's cause of action in trespass accrued. The trespass continued to be committed by the defendants until the date that they vacated the land, 19 November 1999. The defendants are therefore liable in trespass to the plaintiff in respect of the period from 10 September 1999 to 19 November 1999.

COSTS

9. As both sides have had a victory of sorts it is appropriate that the parties bear their own costs.

ORDER

10. The court orders that:

(1)	The defendants are liable in trespass to the plaintiff in respect of the period from 10 September 1999 to 19 November 1999;

(2)	The parties shall bear their own costs.

Orders accordingly.
____________________________
Thomas More Ilaisa Lawyers & Attorneys: Lawyers for the Plaintiff
Wariniki Lawyers & Consultants: Lawyers for the Defendants