Gesring Gabing Bob v Stettin Bay Lumber Company Limited, S K Goh, General Manager, SBLC and M R Hii, Financial Controller, SBLC (2008) N3440

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 22 August 2008
• Court: National Court
• Docket Number: WS NO 1064 OF 2004
• Citation: (2008) N3440
• Year: 2008
• Judgement Number: N3440

Full Title: WS NO 1064 OF 2004; Gesring Gabing Bob v Stettin Bay Lumber Company Limited, S K Goh, General Manager, SBLC and M R Hii, Financial Controller, SBLC (2008) N3440

National Court: Cannings J

Judgment Delivered: 22 August 2008

N3440

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1064 OF 2004

GESRING GABING BOB

Plaintiff

V

STETTIN BAY LUMBER COMPANY LIMITED

First Defendant

S K GOH, GENERAL MANAGER, SBLC

Second Defendant

M R HII, FINANCIAL CONTROLLER, SBLC

Third Defendant

Kimbe: Cannings J

2008: 30 May, 18 July,

22 August

JUDGMENT

TORTS – trespass to land – whether plaintiff consented to defendant coming on to his land – whether it is necessary for plaintiff to prove ownership of land to establish cause of action.

DAMAGES – trespass to land – general damages – environmental damage.

The plaintiff was in possession of an oil palm block and while he was absent for several months the defendant came on to the block and built an access road through it. The plaintiff alleged that the defendant did so without lawful authority and committed the tort of trespass. The defendant asserted that authority was given by the plaintiff’s father (now deceased) and that it was performing a community service; and in any event, at the relevant time, the plaintiff was not the owner of the block, so he could not sustain a cause of action in trespass. A trial was conducted on both liability and damages.

Held:

(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.

(2) Elements (a) and (b), entry on the land that was intentional, were undisputed.

(3) As to (c), the plaintiff proved that neither he nor any other person in a position to do so consented to the defendant entering the block and carrying out roadworks.

(4) As to (d), the plaintiff proved that he was in lawful possession of the land; it was inconsequential that he did not have legal title to the block at the time that the roadworks were carried out.

(5) The plaintiff proved that his enjoyment of the land was interfered with by proving that trees had been knocked down and environmental damage incurred.

(6) Liability was therefore established and it was appropriate to assess damages.

(7) Damages were assessed at K20,000.00, plus interest of K11,200.00; the total judgment sum being K31,200.00.

Cases cited

The following cases are cited in the judgment:

Buna v The State (2004) N2696

Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24

Deukari v Kuglam and The State (2006) N3087

Newington v Windeyer (1985) 3 NSWLR 555

Abbreviations

The following abbreviations appear in the judgment:

J – Justice

K – Kina

LBC – Law Book Company

Ltd – Limited

N – National Court judgment

No – number

NGO – Non Government Organisation

NSWLR – New South Wales Law Reports

PNG – Papua New Guinea

PNGLR – Papua New Guinea Law Reports

Pty – proprietary

SBLC – Stettin Bay Lumber Company

v – versus

WS – writ of summons

STATEMENT OF CLAIM

This was a trial on liability and damages for trespass to land.

Counsel

G Linge, for the plaintiff

T Tingnni & T Cooper, for the defendants

22 August, 2008

1. CANNINGS J: Gesring Gabin Bob, the plaintiff, is a 38-year-old man who owns, lives on and earns his living from an 11-hectare oil palm block in the Sarakolok oil palm settlement near Kimbe. He claims that the first defendant, Stettin Bay Lumber Company Ltd, a timber company based at nearby Buluma, trespassed on his block, built an access road through it, destroyed trees and food gardens and committed environmental damage. He is making a claim for damages of K38,000.00 against the company, its general manager, Mr Goh, and its financial controller, Mr Hii.

2. He bases his claim on the tort (civil wrong) of trespass to land, which has been adopted as part of the underlying law of Papua New Guinea (Deukari v Kuglam and The State (2006) N3087). To succeed in an action for trespass to land, a plaintiff must prove five things:

(a) that 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) that the defendant did so by some intentional act;

(c) that the defendant had no lawful authority;

(d) that the plaintiff was in lawful possession of the land; and

(e) that the plaintiff’s enjoyment of the land was interfered with.

(See J G Fleming, The Law of Torts, 9th edition, LBC Information Services, © 1988, chapter 3, Intentional Invasion of Land.)

3. The company, SBLC, is the principal defendant and concedes that it entered Mr Bob’s block, intentionally, but says it did so on the invitation and request of his father and other block-holders in the vicinity, who wanted an access road built so that they could more conveniently transport their harvest to markets. The company also says that at the time of the alleged trespass, July 2001, Mr Bob was not the owner of the block. He did not obtain the title until September 2002, so he is not in a position to sue the company for trespass. In any event, the company says, Mr Bob’s enjoyment of the block was not interfered with, it was actually enhanced by having the road put through it.

4. The company thus concedes elements (a) and (b) but denies (c), (d) and (e). If it fails on those points the company argues that Mr Bob should nonetheless not receive any damages as he has not proven that his land was damaged.

5. The issues to be determined therefore are:

1 Did SBLC lack lawful authority to enter the block and build an access road?

2 Was Mr Bob in lawful possession of the block in July 2001?

3 Was Mr Bob’s enjoyment of the land interfered with?

6. If those issues are answered ‘yes’, Mr Bob will have established liability and the court will ask:

4 What damages is Mr Bob entitled to?

5 Is any interest payable?

1 DID SBLC LACK LAWFUL AUTHORITY TO ENTER THE BLOCK AND BUILD AN ACCESS ROAD?

7. Stettin Bay Lumber Company say that Mr Bob’s father, who they describe as Gabor Gabin, and a number of other blockholders, including a caretaker of Mr Bob’s block, Mr Nok, agreed that the company should construct the road. SBLC was initially reluctant to build the road because of the risk that blockholders would later claim compensation for damage to their land. However, in the end, upon verbal understandings, the road was constructed.

8. That is the version of events put to the court through an affidavit by Reginald Ovasui, the company’s Administration Manager. It is supported by an affidavit of the dozer operator, Joe Namu, who built the road. He says he acted on verbal requests by Mr Bob’s father and by Mr Nok and other blockholders, who undertook not to claim compensation for any damage to their properties.

9. Against that evidence the court has to weigh the oral evidence of Mr Bob who says that at the time the company came on to the block, he was the person in charge of it as his father, Nian Gabing, had died, in 1988. Mr Bob says he was in Port Moresby in 2001, sorting out the question of transmission of title to the block. He was the only person in a position to give the company approval to build the road and he did not give any approval. His mother was living at the block at the time and she has told him that she did not give approval.

10. Mr Bob was the only witness to give oral evidence in this case and I am satisfied that he is telling the truth. The agricultural lease (the title document) shows that Mr Bob’s father, Nian Gabing, died in 1988. It is hard to believe that the company, if it did get the approval of anyone on Mr Bob’s block (including the person they thought was Mr Bob’s father) or any other blockholders, would not have got them to sign some sort of consent document. In any event there is no documentary evidence to support the company’s version of events. Besides that, Mr Ovasui’s affidavit is essentially hearsay as he is only saying what he heard and what he understood as the situation to be. Mr Namu refers to “verbal agreements” but does not say where or when the conversations that gave rise to the agreements took place. The company’s evidence is therefore vague and hard to believe.

11. I am satisfied on the balance of probabilities that the company lacked lawful authority to enter Mr Bob’s block and build an access road through it.

2 WAS MR BOB IN LAWFUL POSSESSION OF THE BLOCK IN JULY 2001?

12. The company points out that Mr Bob did not become the lawful ‘owner’ of the block – the registered proprietor of the agricultural lease – until 18 September 2002. That is the date that title was transmitted to him under Section 125 (transmission to person entitled by custom) of the Land Registration Act. The company submits that a person who does not own land and has not improved (ie developed) it cannot sue for trespass. They rely on a New South Wales case, Newington v Windeyer (1985) 3 NSWLR 555, to support that proposition.

13. I am not convinced that a plaintiff has to prove that he had actually improved the land in order to sustain a cause of action in trespass. But, even if that is a requirement, it is satisfied in this case...