SC1851
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 75 OF 2016

BETWEEN:
MICHAEL KUMAN for and on behalf of himself and 
158 other members of Aura Gunua Clan
First Appellants

AND:
STEVEN DAMA for and on behalf of himself and
416 other members of Aura Toisinowai Clan
Second Appellants

AND:
DIGICEL (PNG) LTD
Respondent

Waigani: Yagi, Frank & Shepherd JJ.
2017:  1st November
2019:  6th September

CIVIL APPEAL –appeal against judgment after trial judge dismissed the proceeding for lack of jurisdiction

APPEALS – grounds of appeal – threshold issue whether National Court had jurisdiction to determine the customary land dispute in the proceeding – claims for negligence, trespass and breach of Constitutional rights–construction of communications tower on customary land – dispute over ownership rights and interests in customary land – tribal fight between two clan groups resulting in loss of human lives, personal injuries and loss of property. 

HELD:
(1) Where there is a judicial finding that a document tendered in evidence is not authentic, proof of the facts sought to be established by that document will fail.
(2) The primary judge did not err when he reviewed and rejected the authenticity of a document which purported to be a mediated settlement agreement between the appellants alleged by them to have been approved by a Local Land Court under s.19 of the Land Disputes Settlement Act Ch. No. 45.
(3) The first appellants failed to avail themselves of the opportunity given to them by the primary judge to resolve pursuant to the Land Disputes Settlement Act their grievance with a clan member who had leased a small portion of customary land in his possession to the respondent.
(4) The primary judge did not err when he accordingly found that the National Court had no jurisdiction to determine the appellants’ claims against the respondent, especially in circumstances where the appellants’ dispute with the clan member of the first appellant remained unresolved under the Land Disputes Settlement Act at the time of trial. 
(5) The appellants failed to establish on the evidence their claims against the respondent based on the torts of negligence and trespass and breach of Constitutional rights.
(6) The appeal was refused.
Cases Cited
Papua New Guinea Cases

Application of Philemon Toizik of the Katronmolan Clan (2004) N2657
Application by Lamius Niligur for Judicial Review, Joachim v Linge (2001) N2165
Andrew Moka v. Motor Vehicles Insurance (PNG) Limited (2004) SC729
Catholic Diocese Wabag Board of Trustees v Enga Provincial Government (2011) N4562
Edward Etape & Ors v Gari Baki &Ors SCA No. 50 of 2014 – Unreported Judgment dated 2nd December 2014
Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (2008) N3440
Ibi Enei v Rimbunan Hijau Ltd (2011) N4402
James Gunambo v Sergeant Thomas John Upaiga (2010) N3859
Michael Kuman v Digicel (2013) SC1232
Members of Pyain Tribe v John Anawe (2010) N3911
Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC 694
Rupundi Maku v Steven Maliwolo (2011) SC 1171
Ronny Wabia v BP Exploration Operating Co. Ltd [1998] PNGLR 8
Simon Awaria & Ors v Sam Inguba & Ors (2006) N3044
Stettin Bay Lumber Co. Ltd v S. K. Goh (2011) SC1096
Siu v Wasime Land Group Incorporated (2011) SC 1107
Tender Wak v John Wia (2008) N3356
Victor Golpak v Patrick Alongerea and Ors [1993] PNGLR 491

Overseas Cases

Donoghue v Stevenson [1932] AC 562
Georgeski v. Owners Corporation [2004] NSWSC 1096

Legislation:

Constitution
Criminal Code Ch. No. 262
Evidence Act Ch. No. 48
Land Disputes Settlement Act Ch. No. 45

Counsel:

C. Gagma, for the Appellants
R. Bradshaw, for the Respondent
DECISION
6th September, 2019
1.	BY THE COURT: The first appellants and second appellants (appellants) are two separate clans from Gunorobaro village in the Chuave District of Simbu Province. The first appellant claims “ownership rights” whilst the second appellants claims “usage rights” over customary land known as “Mononotu Digicel Tower PG 564” within Gunorobaro village (disputed land).The two clans have an on-going dispute with the respondent regarding this communication tower.  The area of the disputed land on which the respondent has constructed its communications tower is approximately 15 x 15 meters. 
2.	In 2007 the respondent entered into an agreement with a person named John Maina Munom (Mr. Munom) to erect its communications tower on the disputed land.  Consequently, the two clans engaged in a serious tribal fight over the disputed land in September 2008 where both clans suffered in terms of loss of lives and personal injuries as well as loss and damage to properties. 
3.	In August 2011 the two clans joined forces and instituted proceeding WS No. 961 of 2011in the National Court (this proceeding), claiming damages against the respondent. They claim that the respondent is liable to them in damages for negligence, trespass and breach of constitutional rights as a result of the tribal fight which occurred between them and for the consequential losses and damage they suffered.
4.	On 14 May 2012 the National Court presided by Hartshorn J dismissed this proceeding under Order 12 Rule 40 of the National Court Rules for having disclosed no reasonable cause of action.  His Honour determined that the appellants’ claim based on negligence was untenable in law and bound to fail. The dismissal order was made following an application by the respondent. 
5.	The appellants then appealed successfully to the Supreme Court where this proceeding was reinstated through its decision in Michael Kuman v Digicel (PNG) Ltd (2013) SC1232. 
6.	Upon reinstatement of the case, the appellants prosecuted their claims in this proceeding before Kariko J (primary judge).
7.	The respondent made a second application to have this proceeding dismissed by raising a threshold jurisdictional issue under provisions of the Land Disputes Settlement Act Chapter No. 45(LDSA). On 27 September 2013 the primary judge, although having determined that there was merit in the argument for dismissal made by the respondent, did not dismiss this proceeding but rather ordered a stay of the case “pending the determination pursuant to the Lands Disputes Settlement Act Ch. No. 45 of the dispute between the First Plaintiff [first appellants] and John Maina Munom in relation to the ownership of and the rights and interests over that part of the land known as Mononotu at Gunoroboro Village, Chuave District, Simbu Province”. 
8. 	The appellants then took steps to apply to the Local Land Court at Kundiawa for approval of a mediated agreement which they claimed they had entered into. The Local Land Court purported to grant that approval on 16 July 2014.
9. 	Following the purported grant of approval by the Local Land Court at Kundiawa, the appellants returned before the primary judge in this proceeding.  His Honour vacated the stay order of 27 September 2013 and set the case down for trial. The trial was conducted on 15 February 2016 by affidavit evidence presented by the appellants and the respondent. His Honour then adjourned the case for decision after having heard submissions from the respective lawyers representing the parties.
10.	On 09 May 2016 the primary judge determined that the National Court was devoid of jurisdiction to deal with this case because the appellants’ claims involved a dispute over customary land. In reaching that conclusion His Honour refused to accept the mediated agreement purportedly approved by the Local Land Court at Kundiawa on the basis that the document was not authentic or genuine.  His Honour found that as customary ownership of the disputed land remained unresolved, the National Court did not have jurisdiction to hear and determine the claims in the proceeding.
11.	In dismissing the proceeding the primary judge relied on the case authorities in Victor Golpak v Patrick Alongerea and Ors [1993] PNGLR 491 and Ronny Wabia v BP Exploration Operating Co. Ltd [1998] PNGLR 8.
12.	As regards the claims for negligence, trespass and breach of constitutional rights, the primary judge found the claims were not proven and rejected them.
13.	The primary judge found on the evidence that the respondent could not be held liable in the tort of negligence for the tribal fight which had taken place between the first appellants and the second appellants. 
14.	As for the action for alleged trespass, the primary judge found that the respondent did not commit trespass in circumstances where Mr. Munom had the right to possession of the disputed land and that Mr. Munom had at all material times allowed the respondent to enter and construct its communications tower on that land.
15.	As for the claim for breach of constitutional rights, the primary judge rejected this because the claim had been pleaded in very general terms and lacked sufficient particulars. 
16.	The appellants now appeal to this Court to overturn the order of the primary judge dismissing the proceeding.

Grounds of appeal
17.	On 7 June 2016 the appellants filed a notice of appeal challenging the subject decision of the National Court. The notice of appeal contained 16 grounds. However, four of the grounds (grounds 2, 4, 7 and 14) were struck out or dismissed by the Supreme Court (per Kandakasi J (as he then was), Manuhu J and Logan J) on 31 August 2017 following a competency hearing. The remaining grounds of appeal that were argued before this Court are grounds 1, 3, 5, 6, 8, 9, 10, 11, 12, 13, 15 and 16.
18.	We set out hereunder the relevant grounds of appeal:
“1.	His Honour erred in fact and law when he reviewed and or questioned the authenticity of the approval of the settlement agreement granted by the Local Land Court at Kundiawa in relation to the Settlement Order made by Simbu Provincial Land Mediators dated 16th July 2014 as contained in paragraphs 20 to 23 of the judgment in that:
a)	His Honour erroneously assume[d] the role of the Provincial Land Court in reviewing and questioning the decision of the Local Land Court which approved the settlement agreement in relation to land ownership dispute contrary to the provisions of the Land Dispute Settlement Act 1975, Chapter 45 when the National Court lacks jurisdiction to do so but for all purposes must accept the form and manner of the approval by virtue of Section 19(6) of the Land Dispute Settlement Act 1975, Chapter 45 which reads: “An agreement approved ……. has effect as an order of a Local Land Court made under this Act”; and
b)	There was no objection or dispute lodged with the Local Land Court in relation to the settlement agreement and the approval and Jacob Yansuan gave evidence in his Affidavit filed on 21st September 2015 confirming authenticity of the Approval of settlement agreement dated 16th July 2014 which was not objected to or contested to by the Defendants, hence an undisputed fact for purposes of the Brown & Dunn Rule; and
c)	The settlement agreement dated 05th October, 2008 that was approved by the Local Land Court on 16th July 2014 is evidence of the rights and interests of the parties to the agreement in the customary land in dispute at the date of the agreement where all courts should take judicial notice pursuant to Section 20(a) of the Land Dispute Settlement Act 1975, Chapter 45 which reads that until the agreement is approved, “an agreement is, in any legal proceedings, evidence of the interests of the parties to the agreement in the land in dispute as at the date of the agreement”.
2.	……………
3.	His Honour erred in fact and law when he stated that “the mediated agreement does not cover the dispute between the Aura Gunua Clan and Munom regarding the ownership of Mononotu” (paragraphs 25 of the judgment) when in fact the Appellant’s pleadings and evidence in affidavits disclosed that:
a)	There was no dispute in relation to Mononotu land, and the dispute was for Gunorobaro land where the tower was erected and that dispute was settled through a mediated agreement which was approved by the Local Land Court at Kundiawa; and
b)	The secret negotiations and execution of the agreement between the Respondent and one Maina Munom was for tower to be constructed on Mononotu land; and
c)	The construction site at Mononotu land was moved or relocated to Gunorobaro village due to unknown reasons and without consent and authority of the land owners of Gunorobaro, hence there was no agreement signed between the Appellants and the Respondents for the construction of tower on Gunorobaro; and
d)	The tower located on Gunorobaro was named “Mononotu Digicel Tower PG 564” when in fact there was no tower at Mononotu, Gogo rest house as per the agreement executed between the respondent and one John Maina Munom.
4.	……………
5.	His Honour erred in fact and law when he failed to consider, deliberate and make a finding that the Gunorobaro land is communally owned and used by both Appellants as it is a ceremonial ground where all traditional ceremonies are held wherein the land is owned by clans and any other person [h]as usage rights and interest as such the respondent ought to have negotiated with the entire clan to establish land owners identification and beneficiaries prior to execution of Agreement and subsequent construction of tower and not individuals.
6.	His Honour erred in concluding that “the Plaintiffs claims involve the question of ownership of and usage rights over customary land, and this Court does not have the jurisdiction to deal with that issue” and consequently stated that “in the circumstances, I dismiss the proceedings” (paragraph 28 of judgment); when in fact:
a)	The Plaintiffs claim was based on negligence trespass and breach of constitutional rights as affirmed to be so in the Supreme Court decision involving the same proceeding and same parties, referred to as Michael Kuman &Ors v Digicel (PNG) Limited (2013) SC1232, per Sakora, Cannings and Collier JJ which is and ought to be binding on His Honour’s deliberations without having to review and or question the approval of settlement agreement granted by the Local Land Court which eventually led to the refusal of the approval order under Form 10; and
b)	The Appellants disputed Gunorobaro land where the communications tower is located which was settled through approval of the settlement agreement by the Local Land Court and not Mononotu land where the agreement was executed between John Maina Munom and Digicel.
7.	……………
8.	His Honour misapprehended and or misinterpreted the pleadings on negligence therefore erred in law and fact when his Honour stated that “it was not Digicel’s duty to settle the dispute” paragraph 31 of the judgment basing his reasons strictly and arbitrarily on common law principles of negligence; when the appellants particularly pleaded negligence and supported by overwhelming affidavit evidence and as already affirmed in the Supreme Court case of Michael Kuman &Ors v Digicel (PNG) Limited (2013) SC 1232. His Honour failed to consider and analyze overwhelming evidence in affidavits by the Plaintiffs/Appellants’ witnesses before him including the said Supreme Court decision referred to herein to which is binding on him as the inferior Court to consider and apply alongside the evidence in arriving at or drawing inferences from in order to make proper findings of facts.
9.	His Honour erred in law and fact when he stated that “the proximate cause of the loss and damage was the actions of the clansmen who participated in the tribal fight, and not the alleged failure of Digicel to identify the correct owner of the disputed land. There is no nexus between Digicel and the fight as the defendant was not involved in the fight” paragraph 34 of the judgment when failed to consider and make a finding based on Appellants’ pleadings and evidences that the Appellants and the respondents have a commercial or business relationship wherein the Appellants land is used by the respondent for its commercial interest and in return Appellants were to benefit in terms of royalties and spin off business.
10.	His Honour misconstrued and misapprehended the Appellants’ pleadings and failed to consider and analyze evidence on negligence, therefore, erred, when His Honour arrived at the view that there is no connection with the Respondents’ duty of care and that the alleged damage sustained by the Appellants were caused by independent acts of the Appellants (paragraph 34 of the judgment), when in fact the respondent owed a duty of care to diligently conduct enquiries and investigates land owner identification and beneficiaries in consultation with clan leaders, ward councilor and government officials for purposes of identifying genuine beneficiaries of customary land at Gunorobaro, subsequent execution of the land lease agreement between parties prior to construction of the tower. As such the Respondent did not properly the customary land and constructed the tower.
11.	His Honour erred in law and fact when he failed to consider and make a finding based on Appellants pleadings and evidences in affidavits filed by Michael Kuman, Steven Dama, Joseph Kaupa and Joe Apio Kegemo that the tribal fight that erupted and caused damages arose out of the circumstances surrounding the Respondent’s conduct and trespass to customary land is reasonable to foresee that such conduct of the Respondent complained off would lead to such consequence when dealing with customary land in PNG and particularly in the Highlands.
12.	His Honour had misconstrued and misapprehended the Plaintiff’s pleadings, and therefore, erred, in arriving at the view that the tribal fight is an illegal act, therefore, the Appellants cannot substantiate their claim against the Respondent on an illegal act (paragraph 36 of the judgment). His Honour failed to consider that tribal fights in the highlands of Papua New Guinea are commonly connected to customary land disputes when one deal with or enter without authority or consent. The Appellants pleaded customary law and the tradition of tribal fights as a result of disputes contained in paragraphs 3, 4, 5, 6 of the Plaintiffs/Appellants’ Statement of Claim and paragraphs 2 and 4 of the Plaintiff’s reply to defence; these facts were supported by affidavit evidence by Michael Kuman, Steven Kama and Joseph Kaupa. Therefore, His Honour should not have deemed the tribal fight that occurred as an illegal act per se but as a consequential act resulting from the Respondents acts or omission complained of.
13.	His Honour had misconstrued and misapprehended the facts in relation to negligence (paragraphs 32, 33 and 34 of judgment) therefore erred in relying on irrelevant case law relating to tribal fights occasioned by disputes over conduct of polling during election period and further parties involved have no connection and relationship with the Police or State. Those cases relied on where tribal fights independently instigated by warring tribes or clans and not involving business entities or commercial or business relationship and State entities. The Appellants and respondents have a commercial or business relationship, where the act and omissions of the defendant under that relationship give rise to disputes.
14.	……………
15.	His Honour erred in law and fact when he concluded that the Appellants right have not been breached (paragraph 38 of the judgment) when made the observations that the rights have been generally pleaded and not set out particulars of breach when in fact his Honour failed to consider and draw inferences from overwhelming evidences produced by the Appellant that as a consequence of respondents conduct of trespassing on their land in the construction of the tower at Gunorobaro without any form of agreement, consent, licence or authority is in fact a breach of right to privacy and peaceful enjoyment of their ceremonial ground, either under common law or the Constitution.
16.	His Honour erred in law and fact when he failed to consider, deliberate on and make a finding based on Appellants’13 affidavits of witnesses that were tendered as exhibits in court when at the material time of the trial the court’s file containing the court documents went missing or could not be located hence failed to analyze and test the Appellants’ evidence and draw inferences in light of the kind of weight and reliance the Court is placed at on the evidence before judicially determining the issues relevant to the Appellants’ cause of action pleaded and supported by affidavit evidence. The court file went missing for the third time and supplementary copies of documents were filed and also at trial all copies of pleadings and affidavits relied on were provided to the court. In the circumstances, the Appellants were denied a fair and just hearing contrary to Section 59 of the Constitution.
Determination of the Appeal
Ground 1 – Authenticity of the mediated agreement purportedly approved by the Local Land Court 
19.	Ground 1 of the appeal raises the issue of authenticity of the mediated agreement and Local Land Court order. The appellants submit the primary judge was wrong in law and fact when he reviewed and questioned the authenticity of the agreement. 
20.	As regards to the authenticity of the agreement, the primary judge found that there were irregularities manifested in the agreement which caused him to question its authenticity. The specific irregularities are highlighted in paragraphs 20 to 22 of His Honour’s judgment as follows:
20.	Later when this Court issued the stay order of 27th September 2013, the Aura Gunua and the Toisinowai Clans took steps to apply to the Local Land Court to approve their mediated agreement. That approval was granted by the Local Land Court at Kundiawa on 16th July 2014. The relevant evidence confirming this is contained in Exhibits P4 and P7, and in particular the following:
•	Local Land Court Form 10 (Page 1) – Application for Approval of Agreement
This Page is divided into two parts. The first part is the application to the Local Land Court for approval of a mediated agreement under Section 19 Land Disputes Settlement Act Ch. No. 45. It is meant to be signed by the disputing parties but in this instance, it is only dated 16th July 2014 and is unsigned. The second part is the certification by the mediator(s) of the mediated agreement submitted for approval. This part is seemingly signed by Mediator named Joe and dated 16th July 2014.
•	Local Land Court Form 10 (Page 2) – Application for Approval of Agreement
This Page provides for the decision of the Local Land Court regarding the application and it appears to have been completed in the same handwriting as that found in page 1. It is however signed in different ink by the lead plaintiffs Michael Kuman and Steven Dama. It is then purportedly signed under the District Court Seal by the Local Land Court Magistrate Seri W Seneka. One thing that sticks out is that the signature is in different ink to the ink used in completing the two pages of Form 10.
21.	I note some irregularities in the document that I consider questions the authenticity of this Form. Firstly, this Local Land Court Form is endorsed under the seal of the District Court. It is supposed to be signed by Seri W Seneka as the Local Land Court Magistrate but I am aware that Mr Seneka was then the Principal Magistrate of the District Court, Kundiawa. Thirdly, the application is dated 16th July 2014, the same day the approval was given. This is a highly unlikely scenario. There is usually an investigation process before approval is considered. The date of the application also appears to contradict the evidence of the plaintiffs that between 6th and 15th July 2014 they were frequenting the Kundiawa District Court to have their application approved. Fourthly, one must ask why the lead plaintiffs Michael Kuman and Steven Dama were required to sign the approval with the Magistrate.
22.	All these matters raise doubts in my mind regarding the genuineness of this Form 10 and I refuse to accept it as authentic.”
21.	At trial the appellants contended that following the “stay orders” issued by the primary judge, they had resolved their inter-clan dispute, and that pursuant to that resolution the Local Land Court at Kundiawa recognized the first appellants’ clan (Arua Gunua) as the customary owner of the disputed land,  with the second appellant’s clan (Toisinowai) having customary usage rights over the land. To support this assertion the appellants produced Form 10 – Application for Approval under LDSA which was dated 16 July 2014 as evidence of the approval of the mediated agreement by the Local Land Court, which approval it was submitted by the appellants had the effect of converting, in accordance with s. 19(6) of the LDSA, the terms of the mediated agreement into an order of the Local Land Court. It is not in contention that the primary judge rejected this Form 10, the mediated agreement, as not being authentic.
22.	At the hearing before this Court the appellants argued that when the primary judge questioned and rejected the genuineness or authenticity of the Form 10. His Honour wrongly assumed the role of the Provincial Land Court and that he thereby fell into error by ruling he was devoid of jurisdiction.
23.	The powers of the Provincial Land Court on appeal are set out in s. 59(1) of the LDSA, which relevantly provide:
“(1)	In determining an appeal under this Division, a Provincial Land Court may—
(a)	affirm the order; or
(b)	quash the order and—
(i)	make such other order as, in the opinion of the Court, will dispose of the appeal and the dispute; or
(ii)	where, in the opinion of the Court, justice demands that the matter or part of the matter of the appeal be remitted to the Local Land Court, remit the matter, or that part of the matter to the Local Land Court.
(2)	In remitting a matter to a Local Land Court under Subsection (1)(b)(ii), a Provincial Land Court may give such instructions, directions or guidelines to the Court as to the manner in which the matter remitted is to be dealt with as it thinks proper.”
24.	It is abundantly obvious from the judgment of the primary judge that His Honour did not exercise any of the powers under s. 59 of the LDSA. His Honour did not affirm or quash the Local Land Court order based on the mediated agreement, nor did His Honour remit the matter back to the Local Land Court. In this instance the primary judge merely refused to accept the authenticity of the Form 10, which document purported to show the approval of the Local Land Court of the mediated agreement. His Honour did not make any orders that altered the actual terms of the mediated agreement or the Local Land Court order.
25.	We reject the appellants’ argument that under s. 19(6) of the LDSA it was mandatory for His Honour to accept the Form 10 as being an order of the Local Land Court in the form of a mediated agreement. Section 19 of the LDSA states:  
“19.	Approval of agreements.
(1)	The parties to an agreement may apply to a Local Land Court to have the agreement approved.
(2)	On receiving an application under Subsection (1), the Court shall make such inquiries as it thinks necessary to ensure that—
(a)	the terms of the agreement are fully understood by the parties; and
(b)	where a party to the agreement consists of more than one person, a substantial majority of the persons comprising the party concur with the terms of the agreement; and
(c)	the agreement is not in breach of any law, or contrary to natural justice or public policy.
(3)	Where the Court is not satisfied as to any matter specified in Subsection (2), it may—
(a)	mediate between the parties in order to reach a satisfactory agreement; or
(b)	by order direct the Land Mediator who mediated the dispute or another Land Mediator specified in the order to conduct further mediation, with, if it thinks fit, a direction as to how any defect in the original agreement might be overcome.
(4)	Where further mediation has been carried out under Subsection (3)(b) and an agreement has been reached and recorded, the parties may re-apply to the Court to have the agreement approved in accordance with this section.
(5)	Where the Court is satisfied as to the matters specified in Subsection (2), it may approve the agreement.
(6)	An agreement approved under Subsection (5) has effect as an order of a Local Land Court made under this Act.”
[emphasis supplied]
26.	The effect of s. 19(6) is that the terms of a mediated agreement, when approved by a Local Land Court, becomes an order of that Court. However, subsection (6) does not, as the appellants contend, require another court to automatically accept a Form 10 (mediated agreement) as conclusive evidence of such. Nor does it provide that a Form 10 is prima facie evidence of approval. Section 19(6) merely states the effect. In our view the Form 10 was before the primary judge as evidence of certain facts and it was within the primary judge’s power to deal with such evidence as he saw fit, in terms of whether such evidence should be accepted or rejected. In our considered opinion where there is a judicial finding that a document that is tendered into evidence is not accepted as authentic, it will invariably lead to the conclusion that proof of the facts sought to be established by that document has failed.
27.	As regards the balance of the contentions in ground 1, we reject them for the reasons that follow.
28.	The appellants submit that no objection was made before the Local Land Court as to the authenticity of the mediated agreement, which agreement was approved by the Local Land Court, and for that reason the primary judge erred in rejecting the document. 
29.	In our view the fact that no objection was made in respect of the mediated agreement before the Local Land Court could not have altered the appellants’ case because irrespective of whether objection was taken of the document, there is no law which prevented the primary judge from exercising his power in the manner he did.
30.	The appellants further argued that the evidence of Jacob Yansuan confirmed the authenticity of the Local Land Court’s approval of the mediated agreement. We have perused Mr. Yansuan’s affidavit. His affidavit evidence is set out at pages 726 to 727 of the appeal book. Mr. Yansuan’s evidence can be summarized as follows –
(a)	Mr. Yansuan was at all material times a District Patrol Officer and also a District Customary Lands and Peace Mediation Officer for Chuave District in the Simbu Province;
(b)	from October 2013 onwards representatives of the appellants attended Mr. Yansuan’s office to follow up on the mediation of their dispute under the LDSA;
(c)	Mr. Yansuan assisted the appellants to pursue their application under the LDSA for approval of the mediated agreement;
(d)	before the Local Land Court at Kundiawa approved the mediated agreement, Mr. Yansuan witnessed all the parties to the mediated agreement attend at the Local Land Court on various occasions during July 2014;
(e)	after the Local Land Court orders were made on 16 July 2014, as the officer responsible for the Local Land Court file Mr. Yansuan was aware “of the minutes of the Application for Approval”. 
31.	It is patently clear from the evidence of Mr. Yansuan that he deposed to facts which relate to events that took place prior to and after the date the mediated agreement was approved by the Local Land Court on 16 July 2014. Mr. Yansuan’s evidence did not go to the authenticity of the mediated agreement.  Mr. Yansuan only stated that he became aware of the minutes of the Application for Approval by virtue of his office. Mr. Yansuan’s evidence in this respect is irrelevant as regards the issue of authenticity.
32.	As to the contention by the appellants that the mediated agreement is evidence of the rights of the two clans in the disputed land, we find this contention to be misconceived and unfounded. The decision of the primary judge did not question the existence nor the terms of the mediated agreement per se. The primary judge merely refused to accept the Form 10 as being the mediation agreement and consequently the Local Land Court order as not being authentic.
33.	In any event the Form 10, being the purported approved mediated agreement, which is said by the appellants to have effect as an order of the Local Land Court, clearly fails to satisfy the requirements of s. 44 of the Evidence Act Chapter No. 48. This provision provides:
“44.	Judicial Proceedings
Evidence of –
(a)	a judgment, decree, rule, order or other judicial proceeding of
(i)	a court of Papua New Guinea, the High Court or a Federal Court of Australia or a court of a State or Territory of Australia; or
(ii)	a Judge, justice or magistrate of any such court; or
(b)	an affidavit, pleading or legal document filed or deposited in any such court,
may be given in a court by production of a document purporting to be a copy of it, and –
(c)	proved to be an examined copy of it; or
(d)	purported to be sealed with the seal of the court; or
(e)	purporting to be certified as a true copy by a registrar or chief officer of the court.”
[emphasis supplied]
34.	In this case there is no evidence that the Form 10 (mediated agreement) has satisfied any of the requirements of s. 44 of the Evidence Act. There is no evidence that it had been examined or certified by the Clerk of the Local Land Court at Kundiawa nor does it bear the seal of the Local Land Court.
35.	In our view the absence of this evidence goes directly to the issue of authenticity of the Form 10. The primary judge was entirely justified when he queried and declined to accept the genuineness or authenticity of that document. 
36.	The respondent raised further concerns in its submissions regarding the issue of authenticity of the Form 10. The respondent’s concerns mirrored those of the primary judge and included the same-day timing involved in securing the Local Land Court’s purported approval, discrepancies in the handwriting on the document, the use of the District Court seal as opposed to the seal of the Local Land Court, the signatures of the lead appellants on the documents and more significantly non-compliance with s. 71 of the LDSA. 
37.	But even if the Form 10 were to have been accepted by the primary judge as being authentic or genuine, the fact remains that the mediated agreement, purportedly converted into an order of the Local Land Court, did not resolve the dispute between the appellants and Mr. Munom regarding the customary ownership and usage rights pertaining to the disputed land. 
38.	For these reasons we find no merit in this ground and therefore dismiss ground 1 of the appeal.
Ground 3 – Parties to the approved mediated agreement
39.	In ground 3 the appellants take issue with the finding by the primary judge that “the mediated agreement does not cover the dispute between the Aura Gunua clan (first appellant) and Mr. Munom regarding the ownership of Mononotu”. The appellants submitted four reasons why the primary judge erred in law and fact in making that finding. We say at the outset that we find no substance at all in the arguments by the appellants.
40.	The answer to ground 3 is self-evident. The Form 10 adduced in evidence by the appellants speaks for itself. The mediated agreement between the first appellants and the second appellants is dated 8 October 2008 and it was said to have resolved issues between them concerning customary ownership and usage rights for the land known as Gunorobaro.  The disputed land which is the subject of this appeal, being the site for the defendant’s communication tower having a land area of only 15 x 15 meters, is a very small fraction of Gunorobaro. The surface area of the disputed land is much less than one-quarter of the size of a rugby football field. The mediated agreement reflected in the Form 10 did not relate to the dispute which later erupted between the first appellant and their clan member Mr. Munom.  It did not resolve issues between the first appellants and Mr. Munom concerning customary ownership and usage rights for the site where the Digicel tower had been constructed with the permission of Mr. Munom. The mediated agreement between the appellants dated 8 October 2008 regarding the much larger portion of village land known as Gunorobaro was concluded long before 27 September 2013, the date on which the primary judge stayed proceeding WS No. 961 of 2011.  The stay order made by His Honour directed the appellants and Mr. Munom to resolve their competing claims under the LDSA. The mediated agreement, reached as it was on or about 8 October 2008, had nothing to do with resolution of the ongoing disagreement between the first appellants and Mr. Munom regarding the disputed land.
41.	When giving reasons for finding that the mediated agreement did not cover the dispute between the first appellants’ clan and Mr. Munom regarding the ownership of Mononotu, the primary judge observed at paragraphs 25 to 26 of his decision delivered on 09 May 2016:
“25.	… The Court Order of 27th September 2013 directed that the dispute between Aura Gunua Clan and Munom[be] resolved and did not refer to the previous dispute between the Aura Gunua and the Toisinowai.
26.	It is clear that the dispute between John Maina Munom and his clan concerning Monomotu remains unresolved. The plaintiffs were given the opportunity to settle the dispute so they could proceed with their claims. To the date of the trial, the plaintiffs had 2 years 5 months to have the dispute properly decided but they failed to do that.”
42.	The need for the appellants to mediate and resolve their competing claims as to the ownership rights and interest in the disputed land stems directly from the stay order made by the primary judge on 27 September 2013. The terms of that order were plain, explicit and specific. The first appellants were to mediate and resolve their dispute with Mr. Munom, and no one else. 
43.	In this case the first appellants provided evidence at the trial on 15 February 2016 that mediation was conducted and that the dispute was resolved between the first appellants and the second appellants. However, Mr. Munom was not a party to that mediation and its resolution. The end result is that the dispute between the first appellant and Mr. Munom had not been mediated or resolved when the matter went back for trial before the primary judge in February 2016.  The earlier order made by the primary judge on 27 September 2013 was not complied with. If anything, the conduct of the appellants in this regard was verging on contempt of the primary judge’s earlier order of 27 September 2013. 
44.	In our view the primary judge correctly found on the evidence that the mediated agreement of 8 October 2008 said by the appellants to be reflected in the purported approval order dated 16 July 2014 of the Local Land Court at Kundiawa in Form 10 of the LDSA did not cover the dispute between the first appellants and Mr. Munom regarding the ownership of the disputed land. It follows that this dispute between the appellants and Mr. Munom as to Mr. Munom’s denial that the first appellants have any customary ownership over the disputed land and Mr. Munom’s denial that the second appellants have any usage rights over that land continues to exist. 
45.	Ground 3 is unmeritorious and is therefore dismissed. 
Ground 5 – Findings of fact and error of jurisdiction
46.	With reference to ground 5, the principal contentions by the appellants are that the primary judge erred in fact and in law when he failed to find that –
(a)	Gunorobaro land is communally owned and used by both appellants; and
(b)	the respondent ought to have negotiated with each appellant clan to identify the owners and beneficiaries of Gunorobaro land before executing the lease agreement with Mr. Munom.
47.	The appellants rely on two case authorities: Application of Philemon Toizik of the Katronmolan Clan (2004) N2657 and Application by Lamius Niligur for Judicial Review, Joachim v Linge (2001) N2165 to support their argument.
48.	With respect, in our view, this ground is fundamentally flawed and misconceived. The net effect of these two contentions would be that the primary judge is required to inquire into and determine rights and usage interests in customary land whereas only the Local Land Court has jurisdiction to determine those rights and usage interests under the LDSA.
49.	The ownership of Gunorobaro was not a disputed fact between the parties in this appeal or between the appellants and Mr. Munom. The dispute was (and is) only in relation to that small parcel of customary land on which the respondent’s communications tower stands, the size of which we have already noted according to the evidence is approximately 15 meters x 15 meters or 225 square meters (225m2). These concerns of the appellants in ground 5 have already been addressed by us in our deliberation of the issues raised in ground 3 of this appeal. However, for completeness we reiterate that we concur with the primary judge that the National Court cannot transcend into an arena of customary land dispute law which is exclusively within the domain of the Local Land Court and the appellate jurisdiction of the Provincial Land Court under the LDSA.
50.	We accept the submissions of the respondent in this regard.  The law as to the jurisdiction of the Local Land Court and the Provincial Land Court to deal with disputes between contenders for ownership and rights in customary land to the exclusion of all other courts in Papua New Guinea, including the National Court in its original jurisdiction, is well settled.  We refer in particular to the Supreme Court decision in Louis Lucian Siu v Wasime Land Group Incorporated (2011) SC 1107. See also Tender Wak v John Wia (2008) N3356, Victor Golpak v Patrick Alongerea and Ors (supra) and Ronny Wabia v BP Exploration Operating Co. Ltd (supra). 
51.	The Supreme Court made the point crystal clear in the Siu case with the following statement of the law:
“We do hold that the phrase “a dispute as to an interests in land” as used in Section 26 and other provisions of the Land Dispute Settlement Act means a property interests or proprietary interests or a legal or equitable interests or any financial and monetary interests arising out of one’s ownership of such customary lands or over the use of such traditional lands and includes financial benefits and any other benefits derived from the use of such lands.
It also means any monetary or financial benefits arising from or associated with or in connection with the use of or with one’s ownership of such customary land and includes financial payments and benefits paid to land owners.”
[emphasis supplied]
The Court in the Siu case went on to reconfirm that the National Court has no jurisdiction to inquire into or deal with issues relating to disputes over ownership or interests in customary land. 
52.	The two cases cited by counsel for the appellants, namely Philemon Toizik (supra) and Lamius Niligur (supra), do not assist the appellants’ case. These cases, among other things, discuss the notion of traditional or customary belief, attachment and connection of people to their land. The two cases are not relevant to the fundamental issue of the Court’s jurisdiction.
53.	In Talibe Hegele v Tony Kila (2012) SC1180 the Supreme Court endorsed the decision in the Siu case and stated: 
“15.     If the cause of action requires the Court to determine ownership of customary land the Court will lack jurisdiction as it is a well settled principle that the National Court (and also the Supreme Court) has no jurisdiction to hear or determine disputes about ownership of customary land (The State v Lohia Sisia [1987] PNGLR 102; Sioti Bauf and Lavoi Nodai v Poliamba Pty Ltd [1990] PNGLR 278; Golpak v Kali [1993] PNGLR 491; Siaman Riri v Simion Nusai (1995) N1375; Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8; Soso Tomu v The State (2002) N2190).”
54.	For all these reasons we are satisfied that the submissions by the appellants lack substance and hence we also dismiss this ground of appeal.
Ground 6 – Supreme Court decision in SC1232
55.	As regards ground 6 of the appeal, the contention of the appellants in a nutshell is that their claim based on negligence was affirmed by the Supreme Court in Michael Kuman v Digicel (2013) SC1232 and was thus binding on the primary judge and precluded him from questioning the mediated agreement purportedly approved by the Local Land Court in Kundiawa. It was submitted by the appellants that the primary judge was bound to observe and follow the Supreme Court’s decision in SC1232 by virtue of Schedule 2.9(1)of the Constitution.
56.	With respect, this contention is misconceived and without basis. The issue which the Supreme Court considered and determined in Michael Kuman v Digicel (supra) was whether the statement of claim in the proceeding appealed from disclosed a reasonable cause of action. A careful perusal of that decision reveals that the Supreme Court did not conclusively affirm the substantial merit of the causes of action in the appellants’ pleadings in the National Court.  The Supreme Court found that although there was failure on the part of the appellants to “unequivocally and specifically claim that the respondent owed them a duty of care”, nevertheless the statement of claim when read as a whole could not be described as “obviously almost incontestably bad” to the extent that it did not disclose a reasonable cause of action in negligence.
57.	As to the claim for trespass and breach of constitutional rights the Supreme Court took the view that the National Court had paid more attention to the cause of action in negligence when the Court summarily dismissed the proceedings without proper or sufficient regard to the claims for trespass and breach of constitutional rights.
58.	Contrary to what was argued for the appellants in ground 6, the Supreme Court did not make any determinative findings as regards the claims for negligence, trespass and breach of constitutional right and in particular whether the claims had been proven on the requisite civil standard on balance of probabilities. The Supreme Court was in no position to determine those claims because the Court was not deliberating on evidence before it to reach substantive conclusions of fact and law.  What the Supreme Court was dealing with were purely issues of pleading, Therefore the submission by the appellants that their claims in this present appeal had been pre-determined by the procedural rulings of the Supreme Court in the Michael Kuman case (involving the same parties as are now in this present appeal) and that the primary judge was bound to follow those Supreme Court rulings  cannot possibly be sustained. 
59.	We are therefore satisfied this ground 6 has no merit and is accordingly dismissed.
Grounds 8, 9, 10, 12 and 13 – Claim for Negligence
60.	Grounds 8, 9, 10, 12 and 13 concern the appellants’ claim based on negligence. It is convenient to address these grounds together.
61.	The primary judge concluded at paragraphs 31 and 32 of his decision that the obligation to deal with and resolve the dispute as to the traditional rights and interest in the disputed land rested squarely with the first appellant and the second appellant. Both appellants failed to discharge their obligations in this regard within reasonable time.  When they eventually did, it was only after they had engaged in a tribal fight. The primary judge’s conclusion was premised on the following considerations:
(a)	the dispute resulted from competing claims between the first appellants and the second appellants over their customary rights to the disputed land; 
(b)	the dispute existed before the respondent arrived on the scene; 
(c)	the dispute between the first appellant and the second appellant escalated into a serious tribal fight after the respondent’s communications tower had been constructed on the disputed land;
(d)	the appellants themselves, in the course of their tribal fight, caused their own losses and damage which they now claim against the respondent.
62.	We note that the appellants do not identify with any degree of precision the evidence which they say the primary judge did not consider and so this point of contention arising from their grounds 8, 9, 10, 12 and 13 is vague.
63.	The tort of negligence is an English common law claim founded on the principle of duty of care. This principle has long been adopted and applied in our jurisdiction. It has its genesis in the much-celebrated English Court of Appeal case Donoghue v Stevenson [ 1932] AC 562.
64.	To establish a cause of action based on negligence, a plaintiff is required to prove four elements –
1.	duty of care;
2.	breach of the duty;
3.	causation of the injury or harm;
4.	damages or loss suffered.
65.	Generally speaking, when a person is injured as a result of the careless or negligent act of another, the careless or negligent person will be legally liable for any resulting harm or injury sustained by the other person. 
66. 	To succeed in a claim of negligence, the plaintiff must prove that the defendant acted carelessly or negligently by adducing credible evidence showing that -
1.	the defendant owed a legal duty of care to the plaintiff in the circumstances of the case;
2.	the defendant breached that legal duty by acting or failing to act in a certain way;
3.	it was the defendant’s action, inaction or omission to act that in fact caused the plaintiff’s injury; and 
4.	the plaintiff was harmed or injured as a result of the defendant’s action.
67.    In this case the appellants appear to have pleaded their cause of action in negligence in paragraphs 9 to 14 and 20 of their statement of claim. It is asserted in the particulars of negligence recited in paragraph 21 of the statement of claim that the respondent was allegedly negligent because it:
(a)	failed to carry out a due diligence study and/or investigation to ascertain the true landowners and beneficiaries of the site of the communications tower;
(b)	ignored, failed and/or refused to utilize existing government protocols and/or consult officers from the Simbu Provincial Government, land administrators, land mediators and/or local level government officials to ascertain proper authorisation in the process of carrying out the construction of the communications tower; and
(c)	neglected, ignored, failed and/or refused to address the claimants’ dispute with Digicel over customary ownership of the subject land and to allow that dispute to be settled before constructing the communications tower.
68.	The appellants filed a number of affidavits in the National Court in support of their various claims against the respondent. Among these are the affidavits of Michael Kuman and Steven Dama, the two principal claimants. The evidence presented by the appellants in the trial court established that the tribal fight between the Arua Gunua clan and Toisinowai clan was due to their dispute as to their customary rights and interests in connection with the disputed land. The respondent was paying Mr. Munom rent for the site of the communications tower on the disputed land under a lease which the respondent had signed with Mr. Munom.  Mr. Dama and his clan objected to that lease and to Mr. Munom receiving rent for the disputed land. It was these objections that led to the tribal fight. This is the gist of the underlying cause of the tribal fight between the appellants as established by the affidavit material of all parties to this appeal, including the affidavit material of the respondent. 
69.	We accept as a fact that the respondent did not carry out any intensive study or investigation as to the customary ownership of the disputed land. However, we fail to appreciate the argument that the failure by the respondent to undertake any such study or investigation necessarily gave rise to a legal duty of care which was owed by the respondent to the appellants in the circumstances of this case. There is no law that specifically required the respondent to undertake any such study or investigation, although we agree that it would have been prudent for the respondent to have done so. Even if, for arguments sake, such a legal duty of care did exist, which we do not accept, there is still the serious issue of causation and nexus.  A plaintiff must be able to prove not only that a legal duty of care exists in the circumstances complained of, but that there was a breach of that duty by the defendant and that the resultant injury or harm suffered by the plaintiff was caused by that breach of duty. Causation is one of the key elements in a claim for negligence. A plaintiff must be able to demonstrate by credible evidence that the actions of the defendant were the reasonably foreseeable cause of the injury or harm suffered by the plaintiff. In our view the evidence in this case fell far short of establishing on balance of probabilities that the losses and injuries sustained by the appellants as a result of their tribal fight were caused by the respondent not having undertaken investigation or studies into the customary ownership of the disputed land. The appellants were obviously aggrieved that Mr. Munom was receiving rental benefits from the respondent for the use of the disputed land.  But their dispute was with Mr. Munom, which dispute they then decided post-tribal fight to transfer to the respondent by the artifice of the 2008 mediated agreement which they attempted to convert into an order of the Local Land Court at Kundiawa but which the primary judge refused to accept as not being genuine or authentic. Whatever grievance the appellants may have had with Mr. Munom, it was illegal for the appellants to have engaged in a tribal flight over the issue. Moreover it was in our considered opinion an abuse of process for the appellants to then commence this proceeding alleging negligence on the part of the respondent after they had decided to pursue the respondent for damages when their dispute with Mr. Munom over customary ownership and rights in the disputed land remained (and still remains) unresolved. The appellants should have taken appropriate steps to deal with their issues with Mr. Munom and the respondent in an acceptable and non-violent manner. For instance, the appellants did not elect to resolve their dispute with Mr. Munom and the respondent by mediation as was suggested by the primary judge. The appellants did not apply to the Local Land Court at Kundiawa for resolution of their dispute with Mr. Munom under the LDSA but instead decided to endeavor to slant liability for the injuries and losses each appellant clan had sustained to the respondent.  Tribal fighting is not an acceptable means in law of settling inter-clan land disputes.  In our view this was the underlying reason why the primary judge rejected the appellant’s claim in negligence against the respondent. His Honour cited the tribal fight cases in Edward Etepa & Ors v Gari Baki & Ors (SCA No. 50 of 2014 – Unreported Judgment dated 2nd December 2014), Catholic Diocese Wabag Board of Trustees v Enga Provincial Government (2011) N4562 and Simon Awaria & Ors v Sam Inguba & Ors (2006) N3044 to emphasize the point that tribal fighting cannot justify a causation link in a negligence suit. The primary judge also stated at paragraph 36 of his judgment that:
“Participation in a tribal fight amounts to a criminal offence under the Inter-Group Fighting Act. Ch. No. 344. The unlawful killing of a person and unlawful damage of property are crimes under the Criminal Code Ch. No. 262. It makes no sense that Digicel should be held responsible for the human deaths and the wanton destruction of properties caused by persons who decided for themselves to engage in criminal conduct. This Court cannot sanction the criminal conduct nor should this Court transfer legal liability for that conduct to an innocent third party. That would simply make no sense, be wrong morally but more importantly, [be] contrary to the law.”
70.	The same rationale was expressed by the Supreme Court in Rupundi Maku v Steven Maliwolo (2011) SC 1171 where at p. 39 of the judgment it was said:
“In the present case, the destruction and looting of the appellants’ property was done by the enemy tribe.  The police were not the ones who destroyed and looted the appellants’ property.  The allegation that the police owed them a duty of care to protect their lives and property and should have attended and stopped the tribal fight does not exist in law because the police owe no [such] duty of care to the public at large and it is against public policy.  As the appellants have failed to establish the existence of a duty of care, there cannot be a breach of that duty by the respondents.  It follows the respondents cannot be liable for the damages caused by the enemy tribe.”
71.	We therefore fully concur with the ruling made by the primary judge when he rejected the appellants’ claim in negligence against the respondent.  
72.	For these reasons we dismiss grounds 8, 9, 10, 12 and 13 of this appeal. 
Ground 11 – Trespass Claim
73.	Ground 11 of the appeal appears to raise a mixture of issues in respect to claims based on negligence and trespass. We have already addressed the issue of negligence and so the claim for trespass will be the focal point of our deliberation. 
74.	The appellants submitted that the respondent entered the disputed land allegedly customarily owned by the first appellants and not by Mr. Munom and that the respondent intentionally constructed its communication tower there without the consent and authority of the first appellants as there was no lease agreement between the first appellants and the respondent. It was alleged that the respondent thereby disturbed or interfered with the ownership rights and peaceful enjoyment of the disputed land by the first appellants and that the respondent correspondingly prevented the second appellants from exercising their communal rights of usage of that small portion of customary land.
75.	The appellants rely on the case Ibi Enei v Rimbunan Hijau Ltd (2011) N4402 for the proposition that where there have been clear and unequivocal admissions made by a defendant in its pleadings that it has entered onto land which the defendant knows is the subject of a customary land dispute and where the defendant has offered to pay compensation to one of the disputing landowner clans, then that is proof of trespass.  The passage in the judgment of Gavara-Nanu J specifically relied upon in the Enei case (with the underlining and emphasis denoted by the appellants) is as follows:
“23.There is in my view overwhelming evidence that [the] plaintiff is the owner of the land, this view is based on the clear and unequivocal admissions made by the defendant in its amended Defence and the steps it took on two occasions when it tried to pay the plaintiff for the use of the land. So the only determinative issue left really is whether the use and occupation of the land by the defendant amounted to trespass and continuous trespass or was the use and occupation of the land by the defendant justified by the MOU and the decision of the Kwikila Local Land Court, as claimed by the defendant? In this regard it is quite plain that the defendant cannot rely on the Order or the decision made by the Kwikila Local Land Court because that decision was subsequently quashed on appeal. It is also plain that the defendant cannot rely on the MOU because the MOU is void of any legal effect because when [the] Warata clan signed the MOU, it was not the owner of the land [and] as such it had no legal capacity and authority to sign the MOU. The defendant’s use and occupation of the land was as a result unlawful and it amounted to trespass and continuous trespass. This conclusion in my view effectively resolves all the other issues before the Court, including the issues raised in the Statement of Agreed and Disputed Facts and Legal Issues.”
76.	In our view the facts in the Enei case (supra) are clearly distinguishable from the facts in the present case. In the Enei case the defendant entered the customary land and used it for a commercial purpose, namely logging of timber and related activities. The logging activities had been going on for over 10 years. The defendant admitted in its amended defense that the plaintiff was the customary owner of the land and that it had endeavored on two occasions to try to pay the plaintiff for its use of the land. Moreover, there was no agreement at all between the plaintiff and the defendant for the defendant’s use of the land.
77.	Trespass onto land is an English common law tort adopted into PNG law that is committed when a person either directly or indirectly enters land of another person without lawful authority. 
78.	It was held in Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (2008) N3440 that for a plaintiff to successfully establish a claim for trespass to land it must be shown (from the head notes) that -
“(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.”
79.	The Supreme Court when determining an appeal in Stettin Bay Lumber Co. Ltd v S. K. Goh (2011) SC1096 considered the issue of trespass to land and expressly approved the following principles as stated by the New South Wales Supreme Court in Georgeski v. Owners Corporation [2004] NSWSC 1096 -
“… trespass to land entails interference with possession and is maintainable only by someone who has a right to possession.” 
	“A right of possession of the kind enjoyed by a lessee will support an action in trespass. Possession in fact may also be sufficient, at least as against a defendant having no right to possession.”
80.	It is clear, based on the case law, that the right to possession of land by the plaintiff is a key element when establishing a claim for trespass. The plaintiff must, among other things, show that at the time of the defendant encroaching upon the land in question the plaintiff had the right to possession of the land.
81.	In this case the primary judge dismissed the claim for trespass for two reasons: firstly because the respondent’s entry onto the disputed land was with the consent of Mr. Munom who asserted he was the customary owner of the land, and secondly because at the time of the entry Mr. Munom was in possession of the land.
82.	In this case the facts clearly showed that the respondent entered onto the disputed land with the consent and approval of Mr. Munom. There is no dispute that Mr. Munom is a member of the first appellant and that he was at the material time in possession of the disputed land. In our view this is not a case of intentional trespass. The facts indicate that the appellants were well aware that the respondent had been allowed onto the disputed land by Mr. Munom because the respondent’s communication tower was not constructed overnight but over a lengthy period of 12 months. During the construction phase the appellants did not seriously object to the presence of the respondent and its communications tower on the land. The objection from the appellants only surfaced when benefits started to flow in favour of Mr. Munom under his lease arrangements with the respondent. 
83.	In the circumstances we are satisfied that the primary judge did not commit any error either in law or in fact in dismissing the appellants’ claim for trespass. His Honour was entitled on the evidence before him to reach the conclusion that Mr. Munom was in possession of the disputed land and that he had given his consent to the respondent to enter that small area which then became the disputed land for the purposes of the appellant’s litigation against the respondent.  We accordingly dismiss ground 11 of this appeal.
Ground 15 – Breach of constitutional rights
84.	The appellants submit that their claim for breach of constitutional rights as pleaded in their statement of claim is overwhelmingly supported by the evidence that the appellants’ right to protection from unjust deprivation of property has been violated by the respondent. It was further submitted that the Supreme Court in its decision in Michael Kuman v Digicel (supra) was satisfied that the appellant had properly pleaded a cause of action in WS No. 961 of 2011 in the National Court based on protection from unjust deprivation of property, customary land being property within the meaning of s.53 of the Constitution.
85.  The appellants say that the evidence showed that the proposed site for the construction of the communications tower was at Gogo rest house at Mononotu village, that Mr. Munom and the respondent negotiated and signed a lease agreement for  a site at Mononotu but not Gunorobaro village; that the proposed site for the tower was moved to Gunorobaro village and that the respondent’s communications tower was constructed without the consent, authority or agreement of the appellants. It was submitted by the appellants that they were not consulted by the respondent during the negotiation, construction and completion phases of the tower and that they were deprived of any monetary benefits thereafter deriving from the respondent’s use of the disputed land. This formed the basis for the appellants’ contention that the primary judge erred in law and in fact when dismissing their claim based on breach of their constitutional right to protection against unjust deprivation of property.
86.	The claim by the appellants for alleged breach of this constitutional right is pleaded in paragraph 31 of their statement of claim in these terms:
“In addition to or in the alternative, the conduct of the employees, servants or agents of the Defendant are in breach of the constitutional rights of the Plaintiffs as citizens of Papua New Guinea
PARTICULARS OF CONSTITUTIONAL RIGHTS BREACHED
(a)	Section 49 – Right to Privacy
(b)	Section 53 – Protection from unjust deprivation of property
(c)	Section 54 – Special provisions in relation to certain lands”
87. 	The primary judge’s reasons for denying the appellants their claim for alleged breaches of the constitutional rights are these -
•	the pleading was too general and lacked particulars of alleged breaches
•	the facts in the case did not support a breach of right founded on s. 49 of the Constitution in respect to the four key elements namely, private life, family life, communications with others and personal papers and effects
•	the facts in the case fell short of satisfying the circumstances envisaged by s. 53(1) of the Constitution
•	section 54 of the Constitution is inapplicable to the facts and circumstances of the case.
88.  	The primary judge’s reasoning is captured in paragraphs 38 to 41 of his judgment. It is not necessary for us to recite His Honour’s reasons in full. We have already provided a summary which in our view is sufficient. 
89.  	The appellants relied on two decisions of Makail J in James Gunambo v Sergeant Thomas John Upaiga (2010) N3859 and Members of Pyain Tribe v John Anawe (2010) N3911 to argue that the Court has a discretion to award damages for breach of constitutional rights.
90.  We agree with the statement of the principle by Makail J.  However, we concur with the finding of the primary judge that the appellants’ pleading of breaches of constitutional rights is too general, vague and lacked material particulars. The particulars pleaded in the statement of claim were inadequate. In our respectful opinion sufficient particulars must always be pleaded by a plaintiff to properly inform a defendant of the case the defendant needs to meet.  Just as important is the need for full particulars to be pleaded if a plaintiff seeks to persuade the Court to exercise a discretion accorded to the Court by law.  The Court cannot exercise its discretion in a vacuum. In similar vein the appellants cannot without leave of the Court give evidence on matters that have not been pleaded or ask the Court to make inferences on matters which were not pleaded.  By the same token there is no obligation on a defendant to seek clarification by way of further and better particulars of a plaintiff’s claim for damages where clarification could enlarge the quantum of the appellant’s claim. The duty is on a plaintiff to properly plead each cause of action on which it relies with sufficient particulars: see Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC 694.
91.	We agree with the submission of the respondent that the nature and scope of the alleged breaches of constitutional rights said to have been suffered by each of the appellants, a total of 576 appellants in all, at the hands of the respondent cannot be ascertained from the appellants’ statement of claim.  It is a well established principle of procedural law that pleadings drive the evidence. Without proper pleading a claimant cannot lead evidence. In this instance the appellants cannot rely on the evidence in their affidavit material without having pleaded sufficient or adequate particulars: see Papua New Guinea Banking Corporation v. Jeff Tole (supra) and Andrew Moka v. Motor Vehicles Insurance (PNG) Limited (2004) SC729.
92.	The net result is that ground 15 of this appeal must fail and is accordingly dismissed.
Ground 16 – denial of a just and fair hearing
93.	This is the appellants’ final ground of appeal. It was submitted by the appellants that they were denied a just and fair hearing by the primary judge because court files containing certain documents went missing on three occasions. However the appellants conceded in ground 16 and in their written submissions that “supplementary copies of documents were filed and also at trial all copies of pleadings and affidavit relied were provided to the court.”  Despite this concession, the appellants then argued that the primary judge ignored 13 affidavits filed by the appellants and that the appellants were therefore denied a fair and just hearing contrary to s.59 of the Constitution.
94.	This ground is inexplicably vague.  It is not supported by the transcript of the trial. This ground was based on unfounded conjecture and surmise on the part of the appellants.  The appellants did not point to any specific affidavit which it was alleged the primary judge overlooked in his deliberations. 
95.	It is apparent to us on a reading of the transcript and our perusal of His Honour’s reasons for judgment that the primary judge carefully considered all affidavit evidence which was before him at trial.  His Honour in his judgment clearly identified the issues raised in this proceeding and in our opinion gave proper consideration to the pleadings and affidavit evidence adduced by all parties. 
96.	The appellants have failed to demonstrate any error in law or fact alleged against the primary judge in ground 16 of the appeal. We dismiss this ground as well.
Conclusion
97.	We have considered all of the grounds pursued by the appellants in this appeal and have found each ground wanting and unmeritorious. Consequently, the appeal shall stand dismissed with costs.
Order
98.	The Order of the Court is as follows:
1.	The appeal is dismissed in its entirety.
2.	The appellants shall pay the respondent’s costs of the appeal and in the lower court on a party-party basis, such costs to be taxed if not agreed.
________________________________________________________________
Gagma Legal Services: 	Lawyer for the Appellants
Bradshaw Lawyers:  	Lawyer for the Respondents