N9646

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO.  1033 OF 2006

BETWEEN:
WILLIAM WAILO
Plaintiff

AND:
NATIONAL CAPITAL DISTRICT COMMISSION
Defendant

Waigani: Tamade AJ
2022: 29th March, 31st May

TRESPASS – claim by plaintiff for encroachment and trespass to property – defendant constructed fence that encroached into plaintiff’s land – plaintiff claims that the defendant’s actions denied him the right to make use of the portion of land covered by the fence - eleven (11) years later fence was realigned at the proper boundary - plaintiff claims for damages as a result of the encroachment and trespass and for loss of opportunity to have developed the land with the portion that was outside the fencing perimeter  - Whether Defendant is liable to Plaintiff for encroachment and trespass - Whether the Defendant’s conduct was intentional and therefore unlawful in the encroachment of the fence being on two-thirds of Plaintiff’s land - Whether the Plaintiff is entitled to the claim for damages as pleaded in the Statement of Claim - Plaintiff has been deprived of the opportunity to have the enjoyment and use of the portion of land that was fenced out due to the error in setting the boundary of the two adjourning properties – plaintiff is entitled to damages for missed opportunities and exemplary damages – other claims are dismissed as speculative and unsupported by evidence – costs awarded to plaintiff

Cases Cited:

The following cases are cited in the judgment:

Papua New Guinea Banking Corporation (PNGBC) v Tole [2002] PGSC 8; SC694
University of Papua New Guinea v Duwaino [2011] PGSC 27; SC1119 
Buna v Independent State of Papua New Guinea [2004] PGNC 88; N2696 
Resena, Gaigo and Oala v The State [1991] PNGLR 174 
Waisime v Auskoa Enterprises Ltd [2019] PGNC 36; N7727 
PNG Ports Corporation Ltd v. Charles Inni (2012) N4717
Covec PNG V Peter Kama [2020] PGSC 9; SC1912
Rimbunan Hijau (PNG) Limited v Enei (2017) SC1605

Counsel:
	
Mr. Jerry Siki, for the Plaintiff
Mr. Timothy Cooper, for the Defendant

31st May, 2022

1. 	TAMADE AJ: The Plaintiff, in this case\ is claiming for encroachment and trespass committed to the property described as Allotment 19, Section 48, Hohola (Waigani), Pitptit Street, National Capital District by the National Capital District Commission, the Defendant. 

2. 	The Plaintiff claims that at the material time, he was the owner of the subject property. At the time when the property was transferred to the Plaintiff, he claimed that he had written to the Defendant and informed them that the adjacent property belonging to the Defendant had their fence encroaching on two-thirds of his property and asked the Defendant to remove the fence so he can have access to two-thirds of his land.

3. 	The Department of Lands & Physical Planning was involved and conducted a survey of the boundary and verified that the Defendant’s fence was encroaching on the Plaintiff’s land. The Plaintiff, therefore, had knowledge when he acquired the property of the encroachment of the fence from the Defendant’s property next to the Plaintiff’s as it was an underdeveloped land at that time.

4. 	After requests for the Defendants to remove the fence failed, the Plaintiff instituted these proceedings. On 11 July 2011, His Honour Justice Kandakasi (as he then was) made orders in this matter for the removal of the fence in which the fence was removed and placed on the correct boundary of both properties.

5. 	The Plaintiff is therefore claiming that the fence that was encroached on his land prevented him to have access to two-thirds of his land from 9 August 2000 up until eleven (11) years later when the fence was realigned at the proper boundary and therefore claims for damages as a result of the encroachment and trespass and for loss of opportunity to have developed the land with the portion that was outside the fencing perimeter.

6. 	The Defendant takes no issue with liability and agrees that it did remove the fence after the Court made orders to do so on 11 July 2011 however the Defendant disputes and challenges the damages claimed by Plaintiff. 

7. 	The Plaintiff has since sold the subject property for K400 000 on or about May of 2015 after the fence was removed.

8. 	There have been attempts to settle the matter out of court however such attempts have not reached any consensus and therefore parties are before the Court for a trial on the matter.

Whether Defendant is liable to Plaintiff for encroachment and trespass?

9. 	The Defendant has conceded to liability and therefore I proceed to decide on the quantum of damages in this regard.

Whether the Defendant’s conduct was intentional and therefore unlawful in the encroachment of the fence being on two-thirds of Plaintiff’s land?

10. 	I accept from the evidence and submissions from parties that the fence encroaching on two-thirds of the Plaintiff’s land was there when the Plaintiff acquired the land and therefore there is no evidence to say that the Defendant deliberately and intentionally placed the fence there to benefit from the two-third portion of land belonging to the Plaintiff.

11. 	The Affidavit of Ms. Beverly Malken of the Defendant filed on 8 September 2011 and tendered as Exhibit D2 states that after the Court made orders on 11 July 2011, the Defendant complied with the Court Orders and removed the fence to realign the boundary. This may have happened sometime between July and 8 September 2011.

Whether the Plaintiff is entitled to the claim for damages as pleaded in the Statement of Claim filed on 21 July 2006?

12. 	The Plaintiff has pleaded the following relief claiming damages in its Statement of Claim as follows:

i)	Damages for occupational fees, an economic rent of K300 per week from 9 August 2000 through to the time of vacant possession by Plaintiff. I will rule that this will be from 9 August 2000 to the time the fence was removed.
ii)	Damages for removal of fixtures
iii)	Damages for reinstatement
iv)	K10 000 as exemplary damages or any greater sum the Court sees fit
v)	Special Damages

13. 	It is settled law that a party is bound by his pleadings and can only claim for what he has pleaded as in the case of Papua New Guinea Banking Corporation (PNGBC) v Tole [2002] PGSC 8; SC694 (27 September 2002).

14. 	Case law in this jurisdiction is well settled that the principle of damages is to restore an applicant to the position he would have been had it not been for the loss or injury as far as possible in monetary terms. 

15. 	An Applicant or the Plaintiff, therefore, has the onus to prove such losses or injury with particularity and certainty.

16. 	In the case of University of Papua New Guinea v Duwaino [2011] PGSC 27; SC1119 (2 August 2011) the Supreme Court held that:

“The question of damages only arises following a determination as to liability. The objective of an award of damages is to put the injured party in the same position as he/she would have been in but for the injury suffered for which he is now getting compensation.
(3) Assuming that the claim for damages was properly before the Court, the onus was on the respondent/ complainant to prove the damages claimed. The plaintiff has an obligation to prove his losses with much certainty and particularity as is reasonable.
(4) It is not sufficient for a plaintiff to simply write down his alleged losses and then request the court to give him back those damages. The plaintiff has an obligation to prove those losses.”

17. 	In the case of Buna v Independent State of Papua New Guinea [2004] PGNC 88; N2696 (11 November 2004), Justice Cannings summarised the principles for the assessment of damages and I adopt these principles as follows:

i)	The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person’s case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)

ii)	Corroboration of a claim is usually required, and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia J.)
	
iii)	The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. (Peter Wanis v Fred Sikiot and The State (1995) N1350, National Court, Woods J.)

iv)	The same principles apply after default judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence. (Yange Lagan and Others v The State (1995) N1369, National Court, Injia J.)

v)	If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, National Court, Injia J.)

vi)	The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the Court must do the best it can. (Jonathan Mangope Paraia v The State (1995) N1343, National Court, Injia J.)

vii)	Where default judgment is granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1992] PNGLR 254, National Court, Woods J; MVIT v Pupune [1993] PNGLR 370, Supreme Court, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, National Court, Injia J.)

viii)	The Court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The Court must only uphold genuine claims. (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274, National Court, Jalina J.)

a)	Damages for occupational fees, an economic rent of K300 per week from 9 August 2000 through to the time of vacant possession by the Plaintiff.

18. 	The Plaintiff relies on the case of Resena, Gaigo and Oala v The State [1991] PNGLR 174 to claim for this heads of damages as pleaded in the Statement of Claim. The facts of the Resena, Gaigo and Oala case are quite distinct from this case though I agree that the principles of law as to damages run in correlation. 

19. 	The Plaintiff has produced in evidence three different valuations in his Affidavit tendered as Exhibit P2. At annexure G of the Affidavit is a Valuation of the subject property which was a vacant land to the value of K400 000 as at 27 April 2012 by the Office of the Valuer General of PNG. The other valuation is by JT Investments Ltd who have valued the subject property in the sum of K300 000 as at 16 April 2012 and the final valuation is by Rima Duana Real Estate which valued the property at K267 400 as at 20 April 2012.

20. 	The Plaintiff has relied on the case of Waisime v Auskoa Enterprises Ltd [2019] PGNC 36; N7727 (28 February 2019) in which Justice Kandakasi (as he then was) explained the concept of mesne profits as:

“The concept of mesne profit has its origins in the feudal times and legal systems of England. Later, the concept became part of the English common law and the English legal system and eventually most of the former British colonies, which includes PNG. Mesne profits normally occurred where a landlord obtains a court order to evict a tenant or where an individual sues to eject a bona fide landlord to whom title was improperly conveyed. Mesne profits represented the value the ejected tenant received from the property between the time the court ordered eviction and the time when the tenant vacated the property. The mesne profits are derived from the land itself without the improvements on it. A good example of that is this. Mesne profits would accrue from crops planted on the land, but a factory built on the land or improvements to the land itself such as removal of unwanted and valueless stones from the land. This is because they add value to the land and become part of the land.”

21. 	His Honour in that case also referred to the case of PNG Ports Corporation Ltd v. Charles Inni (2012) N4717 where the Court discussed the principle of mesne profit to state that where an applicant is unlawfully deprived of land or property, mesne profits is calculated form the time the unlawful occupation commenced to the time vacation of possession was given to the lawful owner. 

22. 	I also adopt this important point from the Supreme Court case of Rimbunan Hijau (PNG) Ltd v Enei [2017] PGSC 36; SC1605 (25 September 2017) as referred to by the Court in Waisime v Auskoa that:

“We agree that, the principle generally is to restore a plaintiff though not exactly to the same position but, as best as money can, to the position he or she would have been had it not been for a defendant’s tortious action. Assessing damages is not matter of mathematical or scientific precision. It however, requires a careful consideration and weighing of all evidence presented before the Court and Court arrives at an award it considers will best compensate a plaintiff who suffers loss or damage on account of a defendant’s tortious actions.”

23. 	 I have stated in the outset in my decision that the Plaintiff has acquired the land when the fence was already there, and I find that the fence was placed as a boundary dividing the two properties owned by the Plaintiff and the Defendant. The Department of Lands was called in to survey the area again and affirmed the boundary where in the fence was removed and placed in the correct boundary.  There is no unlawful occupation of the land to my mind and the Defendant has not benefited from the wrongful allocation of the boundary, there is no evidence to say that.

24. 	The Plaintiff claims that he has missed the opportunity to have benefitted from the two thirds portion of land that the fence had separated from his property. The Plaintiff claims in his Affidavit as Exhibit P2 that he had acquired four other properties when these proceedings were filed and managed to do major improvements and leased it out to various clients. The Plaintiff states that he has been in the real estate business since 1999 and had it not been for the fence withholding two thirds of his land, he would have constructed a duplex house and would have leased it out. He therefore puts in evidence a cash flow statement that projects a monthly income of K10 400 and a yearly income of K124 800. I would take this as mere speculation from the Plaintiff as the only evidence to support these submissions is a cash flow statement of what he could have made and or not evidence such as income ready and available to construct a duplex from a Bank Statement and or a building or architectural design etc. I refuse this submission.

25. 	The Plaintiff further submits that he was collecting rental fees at K300 to K350 per week for the subject land. He submits that from 9 August 2000 to 9 August 2007 for about seven years at K300 per week, he could have earned K109 200. 

26. 	The Plaintiff also states that from 2007 to 2012, PNG experienced an economic boom and therefore the rental could have risen to K600 to K800 per week. He, therefore, submits that from 2007 to 2012 at a rate of K600 per week, he could have earned K124 000. This adds on to K109 200 from the year 2000 to 2007 at a rate of K300 per week, the Plaintiff could have earned a total of K234 000. I find these submissions entirely speculative and without any reasonable foundation. 

27. 	On the one hand the Plaintiff has pleaded in his Statement of Claim an amount of K300 as occupational fee or economic rent from 9 August 2007 through to the time of vacant possession or realignment of the fencing boundary in 2011, there is no evidence of any tenancy agreement and or any bank statement and or particulars and evidence of any rental over the vacant land. 

28. 	The Defendant in response states that an occupational fee is an amount payable under an occupancy agreement by an occupant in respect of a period of the occupancy. The Defendant therefore submits that there is no agreement as to occupancy and that there is no evidence to substantiate the claim under this heading.

29. 	I find the submissions by the Plaintiff as entirely speculative as well and without any evidence and without any corroborated evidence. 

30. 	The Defendant has submitted the case of Leeway Easter Enterprise Ltd t/as Marlow Shipping v Daniel Danaben & Ors (2012) N4951 that the Court in that case did not find any claim for general damages and special damages, the Court ruled that in the interest of justice, the fact that damages cannot be assessed with certainty should not relieve the wrong doer of the necessity to pay damages.

31. 	I uphold this submission that the Plaintiff has been deprived of the opportunity to have the enjoyment and use of the portion of land that was fenced out due to the error in setting the boundary of the two adjourning properties. There is no evidence whether the Defendant has erected this fence to benefit from it and or claim the land however the Defendant is guilty of failing to act swiftly to realign the fence when informed of the issue. I will therefore grant the sum of K50 000 to the Plaintiff on the basis of a missed opportunity to have access to the two thirds of land separated by the fencing that the Defendant has delayed in removing and realigning the fence, this is done so in the interest of justice in this matter.

ii) Removal of fixtures

32. 	Under this heading, the Plaintiff claims for removal of fixtures on the land. The Plaintiff claims that he has obtained three valuations in regard to the subject land and those valuations include the value of two thirds of his land that was outside the fence boundary. The three valuations therefore go to the estimated total value of the subject land. I reiterate the fact that the Plaintiff has sold the land for the price of K400 000 as is the value on one of the valuation reports cited.

33. 	The Plaintiff’s submissions in reference to the Resena, Gaigo and Oala v The State (supra) that the Plaintiff as owner of the property owns the fixtures is a point taken however, again, there were no fixtures on this underdeveloped land. The Plaintiff is essentially seeking for the total value of his own land from the Defendant based on the various valuations he obtained, and he submits this should be in the sum of K400 000 as removal of fixtures. As opposed to the Resena, Gaigo and Oala v The State (supra) where there were actual fixtures that had to be removed on the land, the only fixture on the land in this case is the fence on the land owned by the Defendant. This submission by the Plaintiff is misleading, and I refuse this part of the claim as well. 

iii) Damages for reinstatement

34. 	Under this heading, the Plaintiff claims for actual physical injury to his land and or the diminished value of the land for the costs of reinstating the land to what it was prior to possession by the Defendant. The Plaintiff claims that as the land is located within Port Moresby, the costs of removing concrete slabs, debris, patching up broken soil surface, recollecting stones, sand, recreation work, planting flowers, paints, rebuilding and labour costs, the Plaintiff asks for fair compensation at the price of K25 000. I find no evidence to support this claim. The land is a vacant block of land as submitted by parties. The only thing on the portion of land that belonged to the Defendant which caused the boundary issue is a fence. That fence existed prior to the Plaintiff acquiring the land and was realigned afterwards. 

35. 	The Plaintiff has referred to the case of Resena, Gaigo and Oala v The State (supra), however I reiterate that the facts of the Resena case is distinct from this case. In that case, there were actual fixture or structures on the land that had to be removed due to the State’s encroachment on that land. The actual fixtures actually affected, injured or changed drastically the surface of the land. There is no foundation for this claim in this matter and no evidence to support the claim, I will refuse the claim of K25 000 as there was never any improvement, or fixture and or any change to the land be it a structure or gardens etc to claim for any damage to it to restore it to what it was prior to the possession by the Defendant. This is an undeveloped land that the only fixture removed and placed to realign the boundary was a fence.

iv) K10 000 as exemplary damages or any greater sum the Court sees fit

36. 	The Plaintiff is also seeking exemplary damages against the Defendant in the sum of K10 000 as pleaded in the Statement of Claim. The Plaintiff has relied on the case of Covec PNG v Peter Kama [2020] PGSC 9; SC1912 regarding the principle of exemplary damages which is punitive in nature to punish the offender for their conduct and to deter them from any future conduct which is the subject of the loss or damage occasioned to the Plaintiff.

37. 	In submissions at trial, the Plaintiff is seeking a higher amount than pleaded in the Statement of Claim in the sum of K50 000 that the conduct of the Defendant is reprehensive in not heeding to the numerous warnings, letters, and demands by the Plaintiff for the Defendant to remove the fence and realign the boundary of the subject property. It was only after the Plaintiff came to Court that the Court made orders for the realignment of the fence. 

38. 	The Defendant has argued that the Court should look at the facts of the case in that it was only aware that its fence had encroached on the Plaintiff’s land later and conceded to the fact that it had delayed the time for the removal of the fence. The Defendant has agreed to the sum of K10 000. I would follow the case of Rimbunan Hijau (PNG) Limited v Enei (2017) SC1605 and order exemplary damages against the Defendant for its failure to remove the fence at the time they were notified by the Defendant in the sum of K10 000.

v) Special Damages 

39. 	The Plaintiff is claiming under this heading the sum of K19 950 for special damages for the costs of annual land rent, garbage and sewerage rates for 15 years over the subject property. This claim is unsupported by any evidence at all. Claims for special damages should be proven strictly by evidence material.

40. 	To my mind the Plaintiff at the material time that he owned the property did not lose the property, he had possession of the title however the land was a vacant block, this claim for special damages therefore lacks foundation and evidence. The claim for special damages is therefore denied.

Conclusion

41. 	The Plaintiff is therefore denied specifically heads of damages pleaded and not proven. In the interest of justice, this Court will grant an award of K50 000 for the loss of opportunity to having access to the land outside the boundary fence dividing the property belonging to the Plaintiff and the Defendant during the time he was the registered proprietor of the subject land and an exemplary award in the sum of K10 00 as punitive against the Defendant for failing to act swiftly in realigning the fence.

42. 	The Plaintiff has since sold the subject land which is a vacant block for the sum of K400 000 and this Court finds that the measure of damage awarded herein is aimed at compensating the Plaintiff for the lost opportunity for having access to the land outside the boundary and or a misalignment of the boundary and to punish the conduct of the Defendant in not realigning the fencing over the land at the earliest possible time however the land remained at the material time a vacant underdeveloped land.

43. 	The Court will refuse the submissions by the Defendant on costs of the proceedings that the Defendant should only meet fifty percent of the costs of the proceedings as the Plaintiff has since sold the property. Costs is a discretionary matter to be exercised in the proper manner. This proceeding remained in Court well after the removal of the fence and therefore costs has been incurred by parties until it’s finalisation. The Defendant will meet the Plaintiff’s costs on a party/party basis to be taxed if not agreed.

44. 	I therefore make the following orders:

i.	The Court finds for the Plaintiff the sum of K50 000 for missed opportunity to gain access to the portion of land outside the fencing at the material time based on the reasoning in this decision.
ii.	Exemplary damages in the sum of K10 000 is awarded to the Plaintiff against the Defendant.
iii.	The claims for occupation fees, removal of fixtures, reinstatement, and special damages is denied.
iv.	Interest on the judgment sum of K60 000 at the rate of 8 percent is granted to the Plaintiff.
v.	The Defendant shall meet the Plaintiff’s party/party costs of these proceedings to be taxed if not agreed.

Orders accordingly.
________________________________________________________________
Jerry Siki Lawyers	:	 Lawyers for the Plaintiff
TL Cooper Lawyers:	Lawyers for the Defendant