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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS No. 201 OF 2020
SOGO LULU BUA
Plaintiff
AND
RADHO PIGGERY LIMITED
First Defendant
AND
MASO SAMAI
Second Defendant
AND
SIRINUMU DEVELOPMENT COMPANY LIMITED
Third Defendant
AND
PARADISE BREWERIES LIMITED
Fourth Defendant
Waigani: Linge AJ
2022: 30th August
LAND – grant of State Lease under s92 of Lands Act 1996 – trespass on property – no easement – no excision from State Lease
The registered proprietor of State Lease Volume 67, Folio 152 Portion 2706, Granville, Moresby, Central Province sued the defendants for unauthorized installation and operation of two (2) Water Pumps by the first defendant located on his property. The two (2) water pumps are the primary source from which water is harnessed and transported by pipes to a large storage tank built and owned by the first defendant next to its piggery farm from which water is distributed for its use and to the other defendants. Upon taking occupation of his property the plaintiff requested the first defendant to make payments for the continued hosting of the water pumps, but the latter refused to make any payments and so he commenced this proceeding seeking to exercise his rights for breach of agreement, trespass, and nuisance.
Held
Cases Cited:
Papua New Guinean Cases
Medaing v Ramu Nico Management (MCC) Ltd [2011] PGSC; SC1144
Kitchepak v Imanau [2014] PGNC 189; N5678
Overseas Cases
Bamford v Turnley [1860] EngR 1082; [1860] 3 B & S 62
League Against Cruel Sports v Scott [1985] 2 All ER 489
Counsel:
Mr. S Douglas Uyassi, for the Plaintiff
Mr. Jimmy D Lyipita, for the First Defendant
Mrs. Belinda Sinen, for the Fourth Defendant
DECISION
12th September, 2022
1. LINGE A J: This is my decision following trial of the cause of action on the 30 August 2022. The first and fourth defendants were represented and contested the hearing. The second defendant filed its defence but did not make any appearance whereas the third defendant did not file any defence.
Facts
2. The plaintiff became the registered proprietor of State Lease Volume 67, Folio 152 Portion 2706, Granville, Moresby (15 Mile, Sogeri Road), Central Province in 2005 on which located are two (2) Water Pumps the subject of rental dispute herein.
3. The two (2) water pumps had been installed and operated by the first defendant prior to the plaintiff becoming the registered proprietor.
4. The water pumps are the primary source from which water is harnessed and transported by pipes to a large storage tank built and owned by the first defendant next to its piggery farm from which water is distributed for its use and to the other defendants.
5. The plaintiff alleges that upon taking occupation of his property he requested the first defendant to make payments for the continued hosting of the water pumps, but the latter refused to make any payments.
6. Consequently, the plaintiff filed this proceeding wherein the pleadings seem to allege breach of agreement, nuisance and trespass and his claim is for rental payments against the first defendants for operating two water pumps on his private land, and against the second, third and fourth defendants as beneficiary or users of the water.
Evidence
7. The primary evidence to be relied on by the plaintiff are his affidavit evidence filed on the 13 September 2021and the other filed on the 6 December 2021.
8 The first defendant relies on the following affidavits on which notice under Evidence Act had been given:
(i) Affidavit of Rex R Rasaka filed 18 November 2021.
(ii) Affidavit of Rex R Rasaka filed 24 June 2022.
(iii) Affidavit of Rex R Rasaka filed 3 August 2022.
9. The fourth defendant relies on the affidavit of Carolyn Blacklock filed on the 11 February 2022 marked as Exhibit “D4”.
10. The second and third defendants filed no affidavits and did not make any appearance.
Submissions
For the plaintiff
11. Mr. Uayssi for the plaintiff contends that the first defendant owns a piggery adjacent to the plaintiff’s land. It collects the pumped water in and stored it in a big tank built next to its piggery. From there the water is distributed to its office, residence and the piggery. The water is also pumped to the second, third and fourth defendant.
12. Counsel for the plaintiff submits that in respect of the location of the water pump, the sketch map attached to the title deed
clearly show that the riverside border of the plaintiff’s property is at the high-water map, the Laloki river being the natural
boundary. The water pump therefore is within the plaintiffs’ State Lease: Volume 67 Folio 152, Portion 2706, Granville, Moresby
(15 Mile, Sogeri Road), Central Province.
13. Counsel also submits that the first defendant has not denied ownership of the two (2) water pumps installed and operating out
of the plaintiff’s property.
14. Counsel further submits that because water from the first defendant’s storage facility is distributed to the second, third and fourth defendants, to the extent that they are all beneficiary and users of the water, they all must be liable to pay rent.
15. Mr. Uyassi submits that the plaintiffs currently receive K12, 000 per month for water usage from Hugo Canning Company Ltd after signing an agreement with the plaintiff to pay the water rental. Something the first, second, third and fourth defendants refused and continue to refuse hence this proceeding.
For the first defendant
16. Mr. Lyipita for the first defendant submits that the plaintiff’s Amended Writ of Summons seeking rental fee of K10, 000.00 per month is not supported by evidence as to how the rental fee amount was reached.
17. He also submits that the pleading is bad and that the evidence led by the plaintiff in his affidavits relates to matters not pleaded and should be disallowed.
18. Counsel also submits that the filing of this proceeding on the 12 March 2020 is fifteen years (15) out of time to when the plaintiff became the registered proprietor in 2005. It is time barred under Section 16 (1) of the Frauds and Limitations Act and should be dismissed as a matter of law.
19. Counsel submits that there is no agreement between the first defendant and the plaintiff in relation to the two (2) water pumps and as such there is no breach of agreement.
For the fourth defendant
20. Ms. Sinen for the fourth defendant submits the law as, he who asserts must prove and the standard of proof to be applied is on the balance of probabilities. Accordingly, the burden of proof is on the party who asserts to prove his claim.
21. Counsel submits that the plaintiff failed to provide any evidence to prove that the fourth defendant benefits from the water tank owned by the first defendant which stores water pumped into it from the two water pumps allegedly installed on the plaintiff’s land by the first defendant.
22. She contends that in determining whether a matter should be dismissed for failing to disclose a reasonable cause of action, the test is to look at the document filed to see if it is so vague as to leave a reasonable reader of the document guessing as to what the cause of action is, and whether it will disclose a reasonable cause of action.
23. Ms. Sinen submits that the plaintiff fails to plead any actionable cause of action against the fourth defendant either in the tort of nuisance or trespass with relevant particulars upon which the claim is based.
24. On the issue of time limitation, Counsel supports the submission by Mr. Lyipita for the first defendant that the alleged causes of action in tort (trespass) or contract is time barred by virtue of section 16 of the Frauds and Limitation Act 1988 as it was commenced after a period of 6 years from the date his cause of action arose.
25. Counsel contends that the fourth defendant is not a party to any alleged agreement between the plaintiff and the first defendant nor does it benefit from the water pump allegedly installed on the plaintiff’s property by the first defendant. Accordingly, she submits that the relief being sought by the plaintiff cannot be enforced against the fourth defendant.
Findings
26. The Plaintiff was issued the title under Section 92 of the Land Act 1996 over the portion of land being State Lease Volume 29 Folio 22 Portion 2241 Milinch of Granville, Moresby, Central Province on the 13 January 2005.
27. The portion was later resurveyed and given a new description as State Lease (Residential) Volume 67 Folio 152 otherwise Portion 2706 Milinch Granville Fourmil, Moresby, Central Province over the same portion on the 21 June 2015.
28. The two (2) water pumps are located within portion 2706. The water pipes are laid and running through the boundaries of portion 2241/2706. Any access for maintenance and repairs of the pumps is available through portion 2241/2706.
29. The water pumps were constructed prior to conversion of the land into State Lease in 2005. The first defendant has not relocated the two (2) water pumps after the grant of lease to the plaintiff in 2005.
30. Hugo Canning Co Ltd, meat canning factory adjacent to the fourth defendant has agreed to pay rental for water pump located in the plaintiff’s property. It had signed a Water Pump Agreement with the plaintiff on the 9 December 2020 for payment of a monthly rent of K12, 000.00 to the plaintiff.
Considerations
31. The claim by the plaintiff is based on breach of agreement, trespass, and nuisance. I will analyze each of the three (3) possible heads of claim.
Agreement
32. The Amended Writ of Summons does not plead the existence of an agreement. It merely states that the”. “Plaintiff did not want the water pumps to continue operating on his land so asked the first defendant to pay rental to him so that he can allow the pumps to remain and operate on his land. Despite the first defendant agreeing to this he has failed to pay rent since 2005
33. In his affidavit the plaintiff deposes that there was an understanding that the first defendant would pay him as landlord rental payments of K20,000.00 per month for each water pump. However, he admits that the understanding never materialized.
34. In his Amended Defence the first defendant pleads that he never entered into any agreement with the plaintiff. In his affidavit he denies the existence of any agreement between it and the plaintiff.
35. The fourth defendant depose that it is not a party to any agreement and sys that it does not benefit from the water pump.
36. From the pleadings and evidence, I conclude that water is pumped from the two water pumps located in the plaintiff’s property by pipes to the water storage facility located in the first defendant’s property. However, there is no agreement between the plaintiff and the first defendant nor with the second, third and fourth defendants.
37. I have accepted that the two (2) water pumps were constructed prior to conversion and grant of State Lease to the plaintiff in 2005. The first defendant does not deny the location of his two (2) water pumps at the plaintiff’s property and did not relocate them after that date but continue to benefit from them. He failed to undertake independent survey to verify the location otherwise, even after the Court had allowed time for him to do so.
38. While there is no agreement between the plaintiff and first defendant, the fact is, water is harnessed by the first defendant and stored for its use without any costs paid to the land on which the water pumps are located.
39. The Water Pump Agreement with Hugo Canning Co Ltd is an example of what could be agreed to in appreciation of using the plaintiff’s land as a conduit for water use. That agreement signed on the 9 December 2020 for payment of a monthly rent of K12, 000.00 to the plaintiff.
Trespass
40. Trespass to land is defined as the intentional and wrongful invasion of another’s real property. It involves the unjustifiable interference with land which is the immediate and exclusive possession of another. It is actionable per se without the claimant necessarily proving that he suffered harm: League Against Cruel Sports v Scott [1985] 2 All ER 489.
41. The owner of the property can maintain an action against any person who interferes with the right of ownership or possession, whether the invasion is by a person or by something that person has set in motion.
42. Here the plaintiff had not specifically pleaded trespass in the Amended Writ of Summons. The reference to trespass is in relation to the water pumps installed by the first defendant in the plaintiff’s land and by inference the first defendant and other defendants as beneficiaries are liable to the plaintiff for trespass.
43. It is trite learning that pleadings require the parties to plead facts in support of a claim or defence. Facts must be specifically alleged so that the opposite party is not surprised. What was pleaded is that the water pumps were installed by the first defendant in the plaintiff’s land. The evidence by the plaintiff is that he wants them removed by the first defendant who refuses and is not inclined to remove them.
44. The first defendant has not entered into an easement agreement over the area to protect its pumps. Also, there is no proof of the site having been excised from State Lease portion 2706 granted to the plaintiff.
Nuisance
45. Nuisance is a common law tort and is either public or private nuisance. Private nuisance was defined in Bamford v Turnley [1860] EngR 1082; [1860] 3 B & S 62 as “any continuous activity or state of affairs causing a substantial and unreasonable interference with a [claimant’s] land or his use or enjoyment of that land”
46. A claimant in private nuisance must show that the defendant’s action (s) caused damage or discomfort and inconvenience.
47. In Medaing v Ramu Nico Management (MCC) Ltd [2011] PGSC; SC 1144 in a majority decision, the Supreme Court held:
“An essential element of the cause of action of private nuisance is that there has been interference with the occupiers in the beneficial use of his land and for public nuisance an essential element is interference with a public or common right”
48. The plaintiff pleads in the Amended Writ of Summons that he and family members have continued to suffer daily from the continuous nonstop hum of these two pumps on 24 hours 7 days a week basis developing into a frustrating and bothersome nuisance year in year out.
49. The plaintiff has not adduced evidence to support the purported pleadings on nuisance.
Conclusion
50. The pleading rules guide the Courts when it sits to determine each case. In Kitchepak v Imanau [2014] PGNC 189; N5678 it states that each case must be determined in accordance with the law of pleadings: the parties are confined to bringing evidence and asserting arguments that are raised in a statement of claim (in the case of the plaintiff) or a defence (in the case of the defendants). Sakora AJ, as he then was, made this clear in Mond v Okoro [1992] PNGLR 501:
“The purpose of pleadings in civil actions is to ensure that the scope of the dispute between the parties is defined with some precision. Every party is thereby made aware of the case to be made by his opponent, and his preparation for the trial can be directed to the actual controversy. They are intended to inform each party of the case he will have to meet at the trial, and to inform the court of the issues for adjudication. And pleadings require the parties to plead facts in support of a claim or defence. Facts must be specifically alleged so that the opposite party is not surprised. Certain rules of pleadings such as notices and time limits come into play also to ensure parties do not attempt” trial by ambush”.
51. This principle has been reinforced by numerous decisions of the Supreme Court, including Cresseri v Halla Resources Corporation [1985] PNGLR 294, MVIT v Pupune [1993] PNGLR 370, MVIT v Etape [1994] PNGLR 596, MVIT v Waige [1995] PNGLR 202, PNGBC v Tole (2002) SC694, Raim v Korua (2010) SC1062 and Pundari v Niolam (2011) SC1123.
52. The test is to look at the document filed and to ascertain if it is so vague as to leave a reasonable reader of the document guessing as to what the cause of action is, and whether it has disclosed a reasonable cause of action.
53. In this case the plaintiff has acted reasonably and diligently in prosecuting his case. He filed the notice to set down for trial. While he may not have pleaded the cause of action clearly, it sufficiently discloses a cause of action based on contract, trespass and nuisance. The evidence adduced by the plaintiff did not prove the existence of an agreement and consequential breach. There is no evidence to establish nuisance. I am clear as to what the plaintiff claims in respect of trespass and there is evidence against the first defendant.
54. I find no actionable cause of action against the second, third and fourth defendant either in contract, nuisance, or trespass.
55. I am required to exercise my judicial power under Section 158 of the Constitution, to dispense justice. Secondly, I am bound by Section 155 (4) of the Constitution, to do justice in the circumstances of a particular case.
56. It seems to me that the plaintiff’s claim deserve consideration in equity. Equity follows the law. The plaintiff’s indefeasible title and right to his property which is being affected by the unauthorized use by the first defendant cannot be ignored. Clearly the two water pumps owned and operated by the first defendant are located within the plaintiff’s property. The two water pumps are connected by pipes that brings water to the tank reservoir located in the first defendant property. The plaintiff is restricted and prevented from having access to those areas of land the water pumps are installed and located.
57. In the end, it is my view that the plaintiff is entitled to a form of restitution for the usage of his property by the first defendant. He must also protect his property from unauthorized use by the first defendant which is continuing and to that extent Section 16 of the Frauds and Limitations Act 1988 does not apply.
Order
58. The order of the Court:
5 Parties to pay their own costs.
6 Time is abridged to time of entry of the order.
_________________________________________________________
S. Douglas Uyassi Lawyers: Lawyers for the Plaintiff
Asia Pacific & Co. Lawyers: Lawyers for the First Defendant
Pacific Legal Group Lawyers: Lawyers for the Fourth Defendant
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