N10977

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1542 OF 2018

BETWEEN:
MODI IGAN of Bolea Clan of Garim Village, Ambenob in Madang Province
-Plaintiff -

AND:
FRANCIS WONG as the Operations Manager of Timber PNG Limited
-First Defendant-

AND:
TIMBERS PNG LIMITED
-Second Defendant-

Madang: Narokobi J
2024: 13th March
2024: 3rd September 

ASSESSMENT OF DAMAGES FOR TRESPASS – Relevant Principles Considered and Applied – Appropriate Award Made.

DAMAGES – Damages for Distress in Trespass – Damages Considered and Awarded. 

EXEMPLARY DAMAGES FOR TRESPASS – Whether Exemplary Damages Should be Awarded – Relevant Principles Considered and Applied- Appropriate Award Made for Exemplary Damages.

The plaintiff who is the clan leader of Bolea Clan of Garim Village, Ambenob Local Level Government in the Madang District of Madang Province filed proceedings against the defendants claiming breach of contract, deprivation of property, and trespass to land. The first defendant is an employee of the second defendant. The second defendant is a logging company. The issue for determination is the appropriate amount of damage the defendant should pay the plaintiff for trespass for the use of the access road that runs through the plaintiff’s clan after the plaintiff had established a cause of action for trespass.

Held:

1.	The plaintiffs is entitled to damages assessed against the pleadings and the evidence for:  a) trespass in the sum of K50,000.00; b) distress in the sum of K5,000.00; and c) exemplary damages for K150,000.00, giving a total judgment sum of K205,000.00 against the defendants.

2.	Exemplary damages was awarded on the basis that: a) the defendants showed total disregard of the customary landowner; b) exploited the power imbalance between the plaintiff and defendant by ignoring him despite his legitimate claim; and c) did not meaningfully engage in settlement negotiation as ordered by the court after liability was ordered against the defendants and it was not disputed that the defendants were using the plaintiffs land, and over the period exceeding 5 years, had paid only K200 to the plaintiff for the use of his customary land.

3.	Costs and interests were also ordered against the defendants.

Cases Cited:

Albert Tomba v The State (1997) SC518
Gramgary v Crawford (2018) N7197
Mel v  Pakalia  (2005) SC790 
Rimbunan Hijau (PNG) Ltd v Enei (2017) SC1605 
Waisame v Auskoa Enterprises Ltd (2019) N7727

Legislation:

Judicial Proceedings (Interest on Debts and Damages) Act 2015

Counsel:

Mr C Momoi, for the Plaintiff
Mr R Mannrai, for the Defendants

JUDGMENT

3rd September 2024

1.	NAROKOBI J: The plaintiff filed proceedings against the defendants on 5 December 2018 claiming breach of contract, deprivation of property, and trespass to land.

2.	The plaintiff is the clan leader of Bolea Clan of Garim Village, Ambenob Local Level Government in the Madang District of Madang Province.

3.	The first defendant is an employee of the second defendant. The second defendant is a logging company.

Issues

4.	The issue for determination is the appropriate amount of damage the defendant should pay the plaintiff for the use of the access road that runs through the plaintiff’s clan land. This is the sole issue before me, after the plaintiff had established a cause of action for trespass on 6 December 2019.

General Principles on Assessment of Damages

5.	Under the general issue of the appropriate amount of damage, the plaintiff claims damages for trespass, general damages for distress and exemplary damages. In my view these claims for damages arise from the findings of trespass, and considering comparable cases on trespass, I consider that they are proper categories of claims for damages. The more contentious issue is whether I should also award exemplary damages because of the conduct of the defendants.

6.	The plaintiff relied on his own affidavit tended into evidence, that is the affidavit of Modi Igan, filed 5 December 2018. The defendants on the other hand tendered 3 affidavits. This is the affidavit of the following deponents:

•	Junas Elevar Bacaron, filed 8 August 2019;
•	Francis Wong, filed 21 July 2019; and
•	David Kan Kuin Phek, filed 8 August 2019.

7.	The relevant principles I consider in determining the quality and sufficiency of the evidence supporting the claim for damages is from the case of Mel v Pakalia (2005) SC790:

•	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.)

•	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.)

•	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.)

•	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.)

•	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.)

•	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.)

•	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.)

8.	I apply these principles in considering the evidence of the plaintiff and the defendants.

Damages for Trespass

9.	The evidence relied on to prove damages for trespass is the affidavit of the plaintiff himself. He says that initially the defendants entered into an agreement on 25 March 2008 with his Garim clan to be allowed access to use his clan land to transport logs. From his follow-up letters with the defendants for payment for the use of his land, it appears that the land is 3.5km long. The plaintiff also says that the defendants used water from a creek on his land.

10.	The defendants do not dispute that they use the plaintiff’s land as “access road.” They instead argue that they have paid monthly rent for the use of the land as access road. The total that has been paid was K200, paid on 31 March 2015. There has been no other payment. In the plaintiff’s affidavit he also says that he has received a total of K200 for the use of his road. The agreement was signed on 25 March 2008.

11.	Whilst the plaintiff has not corroborated his evidence, nor filed any recent evidence, the defendants’ evidence corroborates his claim. I find that this is not a false or spurious claim, but a legitimate one. I will therefore consider the plaintiffs affidavit to determine an appropriate damages.    

12.	I now turn to the question of assessment of damages in the context of trespass. The plaintiff says that the award for damages for trespass should be assessed at K50,000. The plaintiff relies on the case of Waisame v Auskoa Enterprises Ltd (2019) N7727 to support the claim. The defendant submits that the plaintiff should be awarded nothing, as the plaintiff failed to provide any evidence to support its claim for trespass. If the plaintiff was to be awarded anything it should be a notional amount of K15,000 as this was what the plaintiff claimed in his affidavit. The submission on payment of a notional amount is based on the case of Gramgary v Crawford (2018) N7197.

13.	In Waisame, the facts of the case is as follows. The plaintiffs legally obtained title to a property in Port Moresby. Unknown to them, the first defendant secured a fraudulent title to the property and began conducting business on the land with the second and third defendants over the property. This led the plaintiffs to evict the defendants and sue for trespass. The court awarded K69,222.99 in mesne profits, K50,000 for trespass with additional awards for expenses, K86,692.00 for diminution of value and costs of restoration, and K10,000 for distress.

14.	In Gramgary, the basis for the award of notional damages was that (from the headnotes):

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.

15.	Here the plaintiff is the owner of the land. I am persuaded by the plaintiff’s reliance on the case of Waisame. In that case the court awarded K50,000 as damages for trespass in the absence of proper pleadings and evidence. There is no dispute that the defendants have trespassed onto the plaintiff’s land. The land is 3.5km long. There is suggestion from Counsel of the plaintiff that the defendants continue to use the land. Factoring in the criticism of the defendants of the plaintiff’s evidence, I will award the claim of K50,000 for trespass as being reasonable and comparable to similar cases on trespass, principally Waisame.

General Damages for Distress

16.	The next question is whether the plaintiff should be entitled to damages for distress. The plaintiff claims K5,000.00. In Waisame, damages for distress was awarded for K10,000.00 after a claim for K30,000.00 was reduced due to the claim not being sufficiently proven. In this case, the plaintiff was given a runaround for a substantial period of time. The claim for distress of K5,000.00 is reasonable. I award K5,000.00.

Exemplary Damages

17.	The final question is whether I should award exemplary damages. In Rimbunan Hijau (PNG) Ltd v Enei (2017) SC1605 the court adopted the principles in Albert Tomba v The State (1997) SC518 on whether a case warrants an award for exemplary damages. If the defendant’s action is sufficiently outrageous it warrants punishment. The objective is to punish and to deter the wrongdoer from conducting the action again. It is usually at the discretion of the court, what amount to award. There was no dispute as to the ownership of the land. The defendants paid a pittance (K200.00) to the plaintiff for using his land since 2008 and thought that was sufficient. They also used water from his creek without his consent. There was therefore total disregard and disrespect for the customary landowners as in Rimbunan Hijau (PNG) Ltd. Trespass by nature is a criminal matter. The access road is about 3.5km. Following Waisame, the plaintiffs could have legitimately claimed mesne profits, loss of use of land, loss of value of the land and expenses pursuing the claim. In my view K150,000.00 in exemplary damages is appropriate giving my considerations, to penalize the defendants, as they have taken advantage of the plaintiff’s villager status to conduct business. The defendants have exploited the power imbalance between them and the plaintiff to their benefit, ignoring the plaintiff’s legitimate claims.

18.	Another factor which stands against the defendants for punitive damages to be awarded is that the court had ordered the parties to enter into meaningful dialogue to settle the matter. The defendants have not availed themselves of this opportunity to settle this matter amicably, given that there is no dispute that they are using the plaintiffs land and have not adequately compensated him.

Interests and Costs

19.	I will also award costs as the general principle is that costs follow the event and interest on the judgment sum, as there is no factor preventing me from granting the award. I will order interest at 8% pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015 from the date the proceedings were filed to the date of judgment as the general rule.

20.	 The damages, interests and costs will be paid by the defendants jointly and severally as liability was established against both defendants on 6 December 2019. 

Orders

21.	The formal orders of the court are as follows:

1.	The defendants shall pay the plaintiff a judgment sum of K205,000.00.
2.	The defendants shall pay the plaintiff interest at 8% on the judgment sum of K205,000.00 from the date the proceeding was filed to the date of judgment.
3.	The defendants shall pay the plaintiffs costs to be taxed, if not agreed.
4.	Matter is considered determined, and the file is closed.
5.	Time for the entry of the orders is abridged to the date of settlement which shall take place forthwith before the Acting Assistant Registrar.

Judgment and orders accordingly.
________________________________________________________________
Public Solicitor: Lawyer for the Plaintiff
Mannrai Lawyers: Lawyers for the Defendants