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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO. 2 OF 2023
BETWEEN:
TELIKOM LIMITED
Plaintiff
V
DIGITEC COMMUNICATIONS LIMITED
trading as VODAFONE PNG
Defendant
Waigani: Anis J
2023: 2nd & 16th August
2024: 30th September
DECLARATORY RELIEF- Plaintiff complains the defendant trespassed onto its land – whether claim premised on trespass - whether land is owned by the plaintiff – whether tort of trespass established - consideration - ruling
PRACTICE AND PROCEDURES – correct mode of proceeding – whether originating summons proper mode if the intended claim is for trespass – whether declaratory relief sought cover or affect extensive or wide range of matters that are uncertain or contentious – loaded questions or issues – whether mode of proceeding was the correct mode applied – consideration - ruling
Cases Cited:
Papua New Guinean Cases
David Michael v. Dennis Marus (2008) N3374
Tapu Construction Ltd v. Peter Moses and 1 Or (2017) N6588
Wamp Nga Holding Ltd v. Popuna Nau and Ors (2011) N4378
Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (2008) N3440
Oversea Cases:
HM (Iraq) and RM (Iraq) v Secretary of State for the Home Department (2011) EWCA Civ 1536; (2010) UKUT 331 IAC
Counsel:
S Tongela, for the Plaintiff
Z Kamaso, for the Defendant
DECISION
30th September 2024
1. ANIS J: The trial for this matter was conducted on 2 and 16 August 2023. I reserved my decision thereafter to a date to be advised.
2. Parties have been notified so I will rule on it now.
BACKGROUND
3. The plaintiff’s business is in telecommunication. It operates in Papua New Guinea as a domestic company. As part of expansion of its business operations in the country, it identified strategic locations where it has set up communication towers for transmission and reception of telecommunication services to its customers. Its complaint concerns 3 of its tower sites in Central Province, Morobe Province and Madang Province, which are described as follows:
(1) the 5 kilometers access road from Laloki Psychiatric Hospital to Mt. Lawes Repeater Site, Central Province;
(2) the Helipad at Mt. Lawes Site, Central Province;
(3) the 20 meters access road from the Digicel Tower to Kakaini Repeater Site in Bulolo, Morobe Province;
(4) the Helipad at Kakaini Repeater Site in Bulolo, Morobe Province; and
(5) the access road to Kibawadno Repeater Site, Madang Province.
4. The plaintiff complains that the defendant has been setting up its telecommunication towers by using its access roads and helipads at these 3 locations (i.e., Mt. Lawes, Kakaini Site and Kibawadno Site). It complains that it did not grant permission to the defendant to use its access roads and helipads to conduct its business operations.
5. On 31 January 2023, the plaintiff filed this proceeding. Later, and on 29 May 2023, the plaintiff filed a Further Amended Originating Summons (AOS). When the matter was trialed on 2 and 16 August, the plaintiff discarded 4 of the 5 main relief sought in the AOS. The remaining main relief is relief 5, which is sought together with 4 consequential orders. I set them out herein as follows:
(a) the 5 Kilometer Access Road from Laloki Road opposite the psychiatric Hospital to the Mt. Lawes Repeater site in Central Province.
(b) the Helipad at Mt. Lawes Site.
(c) the 20 meters Access Road from the Digicel Tower to the Kakaini Repeater Site in Bulolo, Morobe Province.
(d) the Helipad at Kakaini Repeater Site.
(e) Access Road to Kabawadno Repeater Site in Madang Province.
6, An order for Injunction pursuant to section 12 of the Laws Adoption and Adaptation Act restraining the Defendant, its servants, and agents from trespassing and or encroaching onto or adjacent to the boundaries of the registered lands owned by the Plaintiff and or the land leased by the Plaintiff currently under existing Lease Agreements.
(a) the 5 Kilometer Access Road from Laloki Road opposite the psychiatric Hospital to the Mt. Lawes Repeater site in Central Province.
(b) the Helipad at Mt. Lawes Site.
(c) the 20 meters Access Road from the Digicel Tower to the Kakaini Repeater Site in Bulolo, Morobe Province.
(d) the Helipad at Kakaini Repeater Site.
(e) Access Road to Kabawadno Repeater Site in Madang Province.
6. The defendant operates a similar business like the plaintiff which is in telecommunication. It is in fact one of its competitors. It denies liability and opposes the relief sought in the AOS.
EVIDENCE
7. The parties tendered their evidence without the benefit of cross-examination. The plaintiff tendered a total of 8 exhibits which were marked as exhibits P1 to P8. The defendant tendered a total of 5 exhibits which were marked as exhibits D1 to D5.
ISSUES
8. The issues for trial are, (i), whether this is a claim for the tort of trespass, (ii), if so, whether the plaintiff has met the elements for trespass, and if so, (iii), whether the Court should grant the orders sought in the AOS.
TORT OF TRESPASS
9. The tort of trespass may be sought under 3 main categories, tort of trespass on a person, tort of trespass on goods or chattel (personal property), and tort of trespass on land. See cases: David Michael v. Dennis Marus (2008) N3374, Tapu Construction Ltd v. Peter Moses and 1 Or (2017) N6588, and Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (2008) N3440.
10. The first question I ask is, which category of trespass is the plaintiff suing under? Premised on the plaintiff’s submission, it appears that it is making a claim for alleged trespass on land. The elements for the tort of trespass to land is established in this jurisdiction. I adopt Justice Cannings’s decision in Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (supra) where His Honour identified the elements as follows:
(1) To succeed in an action for trespass to land, a plaintiff must prove five things:
(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 was in lawful possession of the land; and
(e) the plaintiff’s enjoyment of the land was interfered with.
11. But before I proceed to address trespass, the defendant has raised a preliminary issue which is that the plaintiff has adopted a wrong mode of proceeding. The defendant also submits that despite the plaintiff’s submission that its claim is premised on trespass, the AOS, which contains the pleaded relief, do not plead the said cause of action therefore the claim is baseless and must be dismissed.
12. The next question I have is this; Is this claim based on trespass, and if so, whether the plaintiff has used the correct mode of proceeding to make the claim?
13. I note the submissions of the parties.
14. At the outset, I note that that the plaintiff has not sufficiently addressed this preliminary issue.
15. Let me consider the AOS. As stated, the plaintiff has abandoned relief 1 to 4, with relief 5 as the only main relief the plaintiff seeks. There is a matter in relief 5 which must be clarified. During closing submissions, the plaintiff submitted that there was no helipad at Mt. Lawes. It submitted that the helipad that was meant to be included under relief 5(b) was located at Mt. Fala. However, I note that the plaintiff did not formally seek leave of the Court, as required under the National Court Rules (NCR), to amend relief 5(b) prior to the hearing. As such, relief 5(b) shall be discarded as a relief that may be sought. But for certainty, I dismiss the said relief.
16. Relief 6 to 9 are consequential but permanent injunctive relief which are sought in regard or consequential to relief 5. However, I note that they do not all relate to relief 5. Injunctive relief 7 and 8 are sought without any assertion of rights by the plaintiff as pleaded under relief 5. They (i.e., relief 7 and 8) refer to or concern the plaintiff’s interests over at Mt. Fala, which is situated in Oro Province, concerning an access road, a helipad, and the site. The plaintiff has also indicated at the hearing and there was a general consensus between the parties that the plaintiff as abandoned its interest or claim over the Site in Mt. Fala in Oro Province. Given these, I dismiss consequential relief 7 and 8 as relief that may be sought in this proceeding.
17. Having clarified these with my ruling, I now proceed to consider the preliminary issue.
18. I make the following observations:
2. Where writ of summons required. (4/2)
(1) Proceedings shall be commenced by writ of summons—
(a) where a claim is made by the plaintiff for any relief or remedy for any tort; and
34. That is the context within which Mr Fordham's submissions on proper contradictor fall to be considered.
35. The expression "proper contradictor" is drawn from the speech of Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at page 448, where he said this with reference to the ancient Scottish action of declarator:
"The rules that have been elucidated by a long course of decisions in the Scottish courts may be summarized thus: The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought."
36. Mr Staker, on behalf of the Secretary of State, contended that the principle to which the requirement of a proper contradictor gives effect is that a court will not grant a declaration in relation to a theoretical or academic question in respect of which there is no-one having a proper interest to oppose it, and that even in that context the requirement is not an absolute one. That submission derives strong support from observations of Lord Rodger of Earlsferry in Clarke v Fennoscandia Ltd [2007] UKHL 56, [2008] SC (HL) 122, at [29]:
"The absence of a contradictor in an action for declarator will usually matter because it will be an indication that there is no live controversial legal issue which the court could properly spend its time considering and determining. But the Law Hospital case [Law Hospital NHS Trust v Lord Advocate [1996] ScotCS CSIH_2; [1996] SC 301] actually raised a legal issue of acute practical importance to members of the medical profession all over Scotland. Unusually, therefore, despite the fact that the defenders were not opposing the substance of the declarators and so there was no proper contradictor, there was still an important public interest to be served by the Court of Session considering the whole position and, in the end, deciding whether to grant the declarator sought.... In these special circumstances it was competent for decree of declarator to be pronounced. Here, by contrast, the case concerns a dispute which was only ever of concern to the parties. Now that the undertaking has been given, no public interest would be served by the Court of Session hearing evidence and determining what is now an academic point...."
37. It is unnecessary to reach any conclusion on the precise requirements of the Scottish action of declarator, with which we are not directly concerned, but the broad principles underlying it have been drawn on when considering the discretionary power to grant declaratory relief in the English courts. In re F (Mental Patient: Sterilisation) [1991] UKHL 1; [1990] 2 AC 1 concerned the grant of a declaration that a proposed operation was in the best interests of a patient unable to consent because of her mental incapacity. Lord Goff of Chieveley, having referred to the existence of a discretion to grant a declaration under the ordinary rules of civil procedure, observed at page 82D that there are of course some limits which have been established to the exercise of the discretion. He cited the passage quoted above from Lord Dunedin's speech in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd, and continued:
"Subsequently, in Vine v National Dock Labour Board [1957] AC 488, 500, Viscount Kilmuir LC found this Scottish approach to be helpful; and indeed there is authority in the English cases that a declaration will not be granted where the question under consideration is not a real question, nor where the person seeking the declaration has no real interest in it, nor where the declaration is sought without proper argument, e.g. in default of defence or on admissions or by consent. In the present case, however, none of these objections exists. Here the declaration sought does indeed raise a real question; it is far from being hypothetical or academic. The plaintiff has a proper interest in the outcome, so that it can properly be said that she is seeking relief in the broad sense described by Bankes LJ [in Guaranty Trust Co of New York v Hannay & Co [1915] 2 KB 536, 572]. The matter has been fully argued in court, through the intervention of the Official Solicitor, and indeed with the benefit of assistance from an amicus curiae...."
38. Lord Goff's observations that a declaration will not be granted where it is sought "without proper argument", and that full argument had been obtained in that case through the intervention of the Official Solicitor and the assistance of an amicus curiae, strike me as being particularly pertinent to the issue before us. The point is not that, as a matter of law, a declaration cannot be granted in the absence of proper argument, but that the court will generally decline to exercise its discretion to grant a declaration in the absence of proper argument. Since one is concerned with the exercise of a discretion, exceptions are always possible, just as considerations of public interest led to the exceptional grant of a declarator in the Law Hospital case referred to by Lord Rodger in the passage quoted above from Clarke v Fennoscandia Ltd. But the court will always have regard to the importance of proper argument; and the more important and wide-ranging the declaration sought, the more reluctant the court will be to proceed in the absence of proper argument.
19. When I weigh these all up, I am minded to uphold the preliminary argument in favour of the defendant. But before I make any final decision, let me also consider the main issues or arguments.
CONSIDERATION
20. I will address the 3 areas of contentions separately.
(i) Mt. Lawes
21. First, I will deal with the land where Mt Lawes is situated. The plaintiff claims that it owns the land where its telecommunication facilities are situated. It also claims rights over the access road that leads to Mt Lawes. It claims that it had constructed the road.
22. I note the submissions of the parties.
23. I turn to the evidence. The plaintiff attaches Annexure AM-1 to Exhibit P3 copy of the title to the State Lease described as Volume 108, Folio 236, Portion 112, Mt Lawes, Milinch Graville, Fourmil Port Moresby, National Capital District (Portion 112 – Mt Lawes). The land was transferred to the name of the plaintiff on 10 March 2003. This evidence is not disputed. As such, I find as a matter of fact that the plaintiff is the registered proprietor of Portion 112 – Mt. Lawes. So, the plaintiff has established its legal interest or right over the said land. I find that the plaintiff is therefore entitled to assert and also enforce its legal rights over Portion 112 – Mt Lawes.
24. The plaintiff also attaches Annexure AM-2 to Exhibit P3 copy of an agreement called Community Service Package Agreement dated 1 January 2007 (CSPA1). The agreement was signed between the plaintiff, the State and the customary landowners of the area or where Mt. Lawes is situated. This evidence is also not contested. Premised on the CSPA1, the landowners provide security over the plaintiff’s land and facilities at Mt. Lawes.
25. The next consideration is the access road, and I ask myself these questions; Who owns the access road to Mt Lawes? Has it been registered as an easement? Is it customary land? If it is customary land, then did the defendant obtain the permission or consent of the customary landowners to have access to it?
26. When I consider the plaintiff’s evidence, I observe from the map that is attached to the title to Portion 112 – Mt. Lawes, that the property includes drawing of the access road. So, there is confirmation of the access road leading up to Portion 112 – Mt. Lawes. However, I observe that the plaintiff did not, in any of its evidence, depose and expressly state and explain that it was the one that built the access road including the dates and time. It also did not disclose any evidence to say whether the access road was registered as an easement. There is no evidence in that regard to assist me address the issue.
27. The plaintiff has the burden of proof in regard to this issue. I find that the plaintiff has failed to discharge the said burden; that there is insufficient evidence and pleadings adduced by the plaintiffs for me to determine ownership of the access road.
28. Despite the burden of proof not shifting to the defendant, the defendant, on the other hand, has adduced evidence from a landowner which is marked as Exhibit D5. The defendant claims that it had obtained permission from the landowners of Mt. Lawes to use the access road; that the road was on traditional land and was owed by the landowners. The defendant’s assertion is supported with evidence. I note that Exhibit D5 is not challenged by the plaintiff. The adduced evidence before me shows that the access road was constructed over traditional land or land that is owned by the landowners of the surrounding area where Mt. Lawes is situated.
29. The next question that comes to my mind concerns existence of dominant tenement and servient tenement over the land. In Wamp Nga Holding Ltd v. Popuna Nau and Ors (2011) N4378, the National Court sets out the elements of an easement, which I adopt herein, as follows:
28. Further on in the text book Land Law by Peter Butt (supra) at 422, para 1609, the learned author lists four essential requirements of an easement as endorsed by the English Court of Appeal in Re Ellenborough Park [1956] Ch 131 at 140 as follows:
29. In my view, all these essential characteristics of an easement must be present to create an easement. With regards to when to bring an action for interference with an easement, it is said interference with an easement is not actionable unless it is "substantial" or "material". There must be a "real and substantial interference". The reason is that the grant of an easement confers only reasonable enjoyment of the right granted, not the level of enjoyment that a fee simple owner could demand. The servient owner retains all the rights of an owner except those conferred on the dominant owner by the terms of the easement: Peter Butt, Land Law (supra) at 476, para 16112.
30. Based on the adduced evidence, there is no issue of existence of dominant and servient tenements in the present matter over the land area where Mt. Lawes is situated. The dominant tenement is Portion 112 – Mt Lawes, the property that is owned by the plaintiff. The servient tenement is the surrounding land outside of Portion 112 which include the access road, which is owned by the landowners. I find that the present case meets the elements of an easement over Portion 112 – Mt. Lawes, which is the access road. However, I note that the landowners were not sued or named as parties to this proceeding. That said and again, it is not disputed that the plaintiff has an existing easement which is the access road to enter its property which is the dominant tenement.
31. But the real issue here is not whether the plaintiff has been denied access to the easement that it is seeking Court intervention to declare its rights to use the access road, but rather, whether the defendant committed trespass by using the access road to set up its tower site or station.
32. Typically, a complainant who is faced with this type of situation would file for nuisance over proprietary interest or use over an easement. It is, however, not the case here. As a claim for trespass, the plaintiff therefore has the burden to establish the elements of trespass over the land concerned.
33. I refer to the elements of trespass discussed and stated earlier above. There is no issue in regard to elements (a) and (b). In regard to element (c), there is evidence that the defendant has obtained the permission from the landowners, who are the owners of the servient tenement, to use the access road. It is not disputed that the plaintiff does not own the land where the access road is built over. It is also not disputed that the plaintiff only has access or easement rights over the access road. I therefore find that the plaintiff has failed to establish element (c).
34. In regard to element (d), I make these observations. Whilst the plaintiff may be in lawful possession as dominant tenement over Portion 112 – Mt. Lawes, they do not possess or own the easement that exists over the servient tenement, that is, except their usage right over it. The land where the easement is situated is owned and possessed by the landowners who are the servient tenement. The landowners of Mt. Lawes possess and own the servient tenement, not the plaintiff. Thus, I find that element (d) has not been met by the plaintiff.
35. In regard to element (e), I also find that against the plaintiff. The plaintiff presently has enjoyment and use of the easement. As stated, its right to use the easement has not been taken away or interfered with. The plaintiff’s complaint is aimed at the defendant, that is, in trying to stop the defendant from also using the easement when it does not have exclusive right or claim over it. The easement is on the servient tenement which is owned by a third party who are the landowners of Mt. Lawes. And the owners of the servient tenement have given their consent to the defendant to use the access road. The plaintiff could have, for example, sued the defendant for nuisance if there was interference caused by the defendant over the plaintiff’s right to use the easement. But that is not the case here.
(ii) Access Road and Helipad - Kakaini Repeater Site
36 The second areas of contention are the 20 meters Access Road from the Digicel Tower to the Kakaini Repeater Site and the constructed helipad. The sites are situated in Bulolo, Morobe Province. Similarly, there is no issue of usage of the access road or the helipad by the plaintiff. The plaintiff’s complaint is premised on the use of these two amenities by the defendant. The plaintiff claims that it had constructed the road and the helipad for its business purposes.
37. Let me turn to the evidence. I make the following observations. First, there is no issue that the land in question where the 2 amenities were built on is customary land. The land is presently disputed between factions of the landowners within the area. The matter is before the courts. Secondly, the plaintiff asserts that the landowners and itself, in consort with the Bulolo District Affairs Authority, have a verbal agreement in place that had permitted the plaintiff to build the 2 amenities to use for its business purposes. So, this is a claim which is premised on mere verbal arrangements with nothing in writing. It is also a claim that is made over a customary land with no evidence of ownership of the land by the plaintiff. I observe that such allegations ought to have been properly pleaded with detailed particulars, that is, particulars of the agreement or its terms and conditions. I note that these are missing which in turn makes the plaintiff’s assertion vague and weak. The plaintiff’s choice of the mode of proceeding is of concern and relevant in this regard. The proper mode would have been to file a writ of summons and statement of claim where such claims or assertions would have to be properly addressed as issues before the Court. I uphold the submissions made in this regard by the defendant. For example, was it part of the verbal agreement that the plaintiff would have exclusive use of the access road and the helipad? Or was it the term of the agreement that the plaintiff may construct and use the 2 amenities with usage rights only?
38. There is no clear path for a legal or equitable easement that is established by the plaintiff, for the plaintiff to claim trespass or the right to exclusive use, over the 2 amenities. None of the elements for an easement can be met by the plaintiff to claim easement rights over the land area concerned. There is no dispute that there exists an arrangement whereby the plaintiff is permitted access over the customary land of the landowners of the land area in question, that is, to construct a road and helipad to use them in relation to its business purposes. However, there nothing that is proven with concrete evidence by the plaintiff to say that the landowners have conferred to it exclusive right or ownership over the access road and the helipad. Again, the plaintiff appears to have been given usage rights over the access road and the helipad which in fact is not a contested issue before me. It appears that any form of rights that the plaintiff may have over the usage of the land may be premised on verbal or informal arrangements, something which the plaintiff cannot merely establish by filing proceeding in this mode or fashion.
39. None of the elements of trespass is established by the plaintiff for the site.
40. I therefore do not find that the plaintiff has established its claim for this declaratory relief over its interests at the Kakaini Site in Bulolo, Morobe Province. I also do not find the defendant liable for trespass on the said site, and in so doing, I dismiss it.
(iii) Kibawadno Access Road
41. The status of the access road for the Kibawadno Site in Madang Province is similar to that of Kakaini Access Road. The plaintiff is suing for trespass on the access road.
42. I therefore repeat my reasonings given above herein and in so doing, dismiss this claim for trespass or exclusive easement rights. The plaintiff, however, does have usage right of way over the Site as per the existing arrangement it has with the landowners. And I note that the said right is not an issue herein; the plaintiff does have access to the access road.
SUMMARY
43. In summary, I make the following findings: First, despite my ruling that the plaintiff is the registered proprietor of Portion 112 – Mt. Lawes, there is no controversy there that should warrant a declaration to that effect. With that clarity, I therefore dismiss the proceeding. I first find the proceeding to be misconceived and baseless. If I am wrong in that regard, I also dismiss the substantive claim as without merit for the reasonings given herein.
COST
44. An order for cost is discretionary. I will order cost of the proceeding to follow the event, on a party/party basis to be taxed if not agreed.
ORDERS OF THE COURT
45. I make the following orders:
The Court orders accordingly
________________________________________________________________
Jaku: Lawyers for the Plaintiff
Luthers: Lawyers for the Defendant
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