N7197
PAPUA NEW GUINEA
    [IN THE NATIONAL COURT OF JUSTICE]

WS NO 429 OF 2011

MANUEL GRAMGARI
Plaintiff

V

STEVE CRAWFORD, GENERAL MANAGER
First Defendant

PNG TROPICAL WOOD PRODUCTS
Second Defendant

Madang: Cannings J
   2017:  21 July, 21 October, 
2018:  10 April 

DAMAGES – trespass to land – unlawful entry of land subject to timber authority and felling of timber – assessment of damages after trial on liability.

This was a trial on assessment of damages. The plaintiff succeeded at an earlier trial in establishing liability in trespass against the second defendant for its unauthorised entry into an area of customary land owned by a clan, led by the plaintiff, and the unauthorised harvesting of timber from that land, causing environmental damage. At the trial on assessment of damages, the plaintiff claimed K8,647,976.29 general damages for loss of timber cut and exported and loss of royalties + K150,000.00 exemplary damages + K10,000.00 special damages, the total damages claim being K8,807,976.29, ie approximately K8.8 million. The second defendant argued that the plaintiff should, at most, be awarded a notional amount of damages in respect of loss of royalties and nothing for loss of timber cut and exported or exemplary damages or special damages as the factual basis of the judgment on liability had been undermined by evidence at the trial on assessment of damages that the plaintiff was not the owner of the subject land and had misled the court in holding himself out as the owner, and that the plaintiff’s evidence as the volume of timber cut and exported and the extent of environmental damage was not credible.  

Held:

(1)	General principles for assessment of damages include: the plaintiff has the onus of proving his losses, it is not sufficient to rely on assertions in the statement of claim; corroboration of a claim is required; the fact that damages cannot be assessed with certainty does not necessarily relieve the wrongdoer of the necessity of paying some amount of damages.
 
(2)	The plaintiff was entitled to a notional amount of damages only as: (a) the factual basis of the judgment on liability was undermined by evidence which suggested that in fact the plaintiff was not owner of the subject land; (b) the plaintiff’s estimates of the value of the loss of timber cut and exported and for environmental damage and destruction were based on unrealistic assumptions; (c) the plaintiff’s estimates of damage for environmental damage in respect of loss of biodiversity and loss of CO-2 (carbon dioxide) emissions credits were based on unrealistic assumptions as to existence of markets; and (d) the plaintiff had not commenced the proceedings in a representative capacity and was only entitled to an award of damages commensurate with the extent of damage he individually (not his clan collectively) suffered. 

(3)	The appropriate award of damages in circumstances where, though the evidentiary basis of the judgment on liability had been drawn into question, that judgment had not been set aside, and the second defendant had contributed to the confusion, was K50,000.00. No interest was awarded and the parties were ordered to bear their own costs. 

Cases cited:

The following cases are cited in the judgment: 

Graham Mappa v ELCOM (1992) N1093
Gramgari v Crawford & PNG Tropical Wood Products (2012) N4950
Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331
Niugini Civil & Petroleum Ltd v West New Britain Development Corporation Ltd (2008) N3292
PNG Tropical Wood Products Ltd v Manuel Gramgari, SCA 11 of 2013, 18.12.13, unreported
Yooken Paklin v The State (2001) N2212

TRIAL

This was a trial on assessment of damages for trespass to land.

Counsel:

J Nime, for the Plaintiff
J Brooks, for the Defendants

10th April, 2018

1.   CANNINGS J: This has been a trial on assessment of damages for trespass to land. The plaintiff, Manuel Gramgari, succeeded at an earlier trial in establishing liability in trespass against the second defendant, a timber industry participant known as PNG Tropical Wood Products (Gramgari v Crawford & PNG Tropical Wood Products (2012) N4950). 

2.   The court found that:

•	the plaintiff is the leader of Agurai Eringpa clan, which is the owner of an area of customary land, known as “Asau”, in the Lower Ramu area of Bogia District, Madang Province;

•	in the period from late 2008 to early 2011 the second defendant entered the Asau land, harvested timber on it and caused environmental damage, without the consent of the plaintiff, who was the legitimate customary landowner representative; 

•	though the second defendant lawfully harvested timber from the adjacent Akamkus Timber Area in accordance with a timber permit issued by the PNG Forest Authority under the Forestry Act 1991, all forest industry activities on Asau were unlawful; 

•	the second defendant is liable in the tort of trespass and the plaintiff is entitled to damages. 

3.   An appeal by the second defendant against the decision on liability was dismissed by the Supreme Court (PNG Tropical Wood Products Ltd v Manuel Gramgari, SCA 11 of 2013, 18.12.13, unreported).  

EVIDENCE

4.   At the trial on assessment, two witnesses gave evidence for the plaintiff and were subject to cross-examination. First, the plaintiff Manuel Gramgari reiterated that he and his clan are the legitimate customary landowners of Asau land. He engaged an environmental scientist, Dr Yosi, to make an assessment of the value of the timber resources on Asau land and the value of the environmental damage done to the land by the second defendant. Dr Cossey Yosi was the second witness for the plaintiff. He prepared a report on a “Post-Logging Damage Assessment Study of Asau Customary Land …” He estimated total damages had been caused to the value of approximately K103.3 million (comprising value of timber resources, economic value of impaired biodiversity, economic value of CO-2 (carbon dioxide) emission credits and potential penalties under the Forestry Act and the Environment Act 2000). 
  
5.   Four witnesses gave evidence for the second defendant and were subject to cross-examination. Kim Gole is a professional draftsman employed by Tropical Projects Ltd who visited the area of the Akamkus Timber project undertaken by the second defendant and prepared a map showing the actual location of the project. Timothy Ajamba is a leader of Erande clan, which, he testified, is the true customary owner of the land on which the Akamkus Timber project was undertaken, traditionally known as “Andumar 1 and 2”. He claimed that the plaintiff is from Asau village, 15 kilometres upstream from the Akamkus Timber project land and that the plaintiff gave false evidence that he was the landowner at the trial on liability. Emma Daroa is group legal counsel to OM Holdings Ltd, the successor company to the second defendant. She testified that she led a team of scientists to the Akamkus Timber project land in December 2016 for the purposes of responding to Dr Yosi’s report. She met with a number of local people who informed her that they had no problem with the second defendant or its timber operations, but they had a big problem with the plaintiff, who was not an owner of the land and regarded him as an intruder on their land and a thief. Biatus Bito is an environmental consultant, engaged by Chem-Clean Environmental Services Ltd to review the environmental impact of the second defendant’s Akamkus Timber project and respond to Dr Yosi’s report. Mr Bito prepared a report on “Akamkus Timber Authority Damage Assessment and Quantum Review …” He concluded that the damage assessment by Dr Yosi was speculative, not based on genuine evidence and fabricated. Mr Bito’s view, following inspection of the project site, is that the second defendant had conducted its operation strictly in accordance with the law and that there was no evidence of severe environmental damage or harm. 

SUBMISSIONS

6.   The plaintiff’s counsel, Mr Nime, submitted that the plaintiff should be awarded K8,647,976.29 general damages for loss of timber cut and exported and loss of royalties + K150,000.00 exemplary damages + K10,000.00 special damages, the total damages claim being K8,807,976.29, ie approximately K8.8 million.

7.   The second defendant’s counsel, Mr Brooks, submitted that the plaintiff should be awarded nothing or only a notional amount of damages in respect of loss of royalties and nothing for loss of timber cut and exported or exemplary damages or special damages as the factual basis of the judgment on liability had been undermined by evidence at the trial on assessment of damages that the plaintiff was not the owner of Asau land and had misled the court in holding himself out as the owner in the trial on liability, and that the plaintiff’s evidence as the volume of timber cut and exported and the extent of environmental damage was flawed and not credible.

GENERAL PRINCIPLES 

8.  Some general principles for assessment of damages are particularly pertinent in this case: 

•	the plaintiff has the onus of proving his losses, it is not sufficient to rely on assertions in the statement of claim (Yooken Paklin v The State (2001) N2212);

•	corroboration of a claim is required (Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331);

•	the fact that damages cannot be assessed with certainty does not necessarily relieve the wrongdoer of the necessity of paying some amount of damages (Graham Mappa v ELCOM (1992) N1093).

ASSESSMENT 

9.   Having regard to those principles I uphold the submission of Mr Brooks that the plaintiff is not entitled to the amount he is claiming as he has not proven his losses and there is no proper corroboration of the claim. The evidence adduced at the trial on assessment of damages has put a new complexion on this case. 

10.   I find, based on the evidence of the four defence witnesses, that there are reasonable grounds on which to believe that the judgment on liability was given on an incomplete evidentiary evidence. It appears that, in fact, the plaintiff and his clan are not clearly the customary owners of the land on which the Akamkus Timber project land was actually undertaken. It now appears that the second defendant might not have, in the period from late 2008 to early 2011 or at any other time, made an incursion into any land owned exclusively by the plaintiff or his clan or harvest timber on it and do any environmental damage to it. 

11.   It is also significant that the plaintiff did not commence the proceedings in a representative capacity. He is the sole plaintiff. He is therefore only entitled to an award of damages commensurate with the extent of damage he individually (not his clan collectively) suffered. 

12. This does not mean that the judgment on liability is set aside but it makes it virtually impossible for the plaintiff to prove that the extent of the second defendant’s unlawful harvesting of timber is as great as what has been claimed. No new evidence has been forthcoming from the plaintiff which would enable the court to make a finding that would quantify the extent to which the defendant had entered the land and engaged in unlawful harvesting of timber. 

13.   It is significant that in the judgment on liability no finding of fact was made as to the extent to which the defendant had entered the subject land and conducted logging operations on it. It was reasonably to be expected that the evidence which would enable the court to make such findings would be forthcoming at the trial on assessment of damages. However, that has turned out not to be the case. 

14.  On the contrary it is the defendant that has presented extensive and credible evidence, which has undermined the factual basis of the judgment on liability.

15.   The plaintiff did not present reliable evidence on which the court could make findings of fact that would quantify the area of land on which the second defendant unlawfully harvested timber or the quantity of timber harvested and exported. Dr Yosi’s assessment of damage was based on unrealistic assumptions about the area of land on which the second defendant unlawfully conducted logging, the timber harvested by the second defendant and the export price of the timber. Dr Yosi’s estimates of damage by environmental pollution and destruction in respect of loss of biodiversity and loss of CO-2 (carbon dioxide) emissions credits are based on assumptions as to existence of markets, which have no evidentiary basis. 

16.  I uphold Mr Brooks’ submission that all those assumptions are unverified and unsupported by credible evidence. I find the competing evidence of Mr Bito more convincing. Dr Yosi’s evidence is of no probative value. 

17.  The evidence in support of the plaintiff’s claim is therefore properly described as scanty, unreliable and uncorroborated. 

18.   However, it must be considered that the judgment on liability was not, on application or appeal or review, set aside. I also consider that the second defendant contributed to the confusion by a lack of diligence and acumen in defending the trial on liability (when its lawyers were not its present lawyers). It is only now, well after the order for liability has been entered, that the evidence that was required at the earlier trial, has come to light. There is also evidence that the plaintiff was paid some royalties by the second defendant in respect of a few months of its operations. In these unusual circumstances I call upon the third general principle for assessment of damages outlined above: the fact that damages cannot be assessed with certainty does not relieve the wrongdoer – in this case, the second defendant – from liability for something. I have decided to award a notional sum of K50, 000.00. 

CONCLUSION

19.   The plaintiff will be awarded a total sum of K50,000.00, payable in 90 days. The question of whether any interest is payable on that sum is a matter of discretion, as is the question of costs of the proceedings. As there is no clear winner of the case, it is appropriate that no interest be payable on the award of damages and that the parties bear their own costs. 

ORDER

(1)	The second defendant shall pay to the plaintiff total damages of K50,000.00, without interest, being a total judgment sum of K50,000.00, within 90 days after the date of service of the order on the second defendant’s lawyers.

(2)	Subject to any specific costs orders made in the course of the proceedings, the parties shall bear their own costs of the entire proceedings.

Judgment accordingly,

____________________________________________________________
Themis Lawyers:  Lawyers for the Plaintiff			
Ashurst PNG:   Lawyers for the Defendants