Ibi Enei on his behalf and on behalf of Oga Clan of Loupon Island, Abau v Rimbunan Hijau Limited (2011) N4402

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanu J.
• Judgment Date: 28 September 2011
• Court: National Court
• Docket Number: WS No. 1115 of 1998
• Citation: (2011) N4402
• Year: 2011
• Judgement Number: N4402

Full Title: WS No. 1115 of 1998; Ibi Enei on his behalf and on behalf of Oga Clan of Loupon Island, Abau v Rimbunan Hijau Limited (2011) N4402

National Court: Gavara-Nanu J.

Judgment Delivered: 28 September 2011

N4402

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS No. 1115 OF 1998

Between:

IBI ENEI ON HIS BEHALF AND ON BEHALF OF OGA CLAN OF LOUPON ISLAND, ABAU

Plaintiff

And:

RIMBUNAN HIJAU LIMITED

Defendant

Waigani: Gavara-Nanu J.

2007: 10 & 11 December

2008: 24 & 30 October

2009: 16 April

2011: 28 September

DAMAGES – Trespassing – Continuous trespassing - Customary land - Logging company occupying customary land illegally for eight years – Land used as a log pond and a port to export logs– Access road into the customary land – Use of heavy machinery such as trucks and a giant crane – Use of tug boats and pontoons to carry logs to load on ships – Types of damages discussed – Damages awarded based on the total benefits received by the logging company from the illegal use of the land – Logging company acting in breach of the Land Act, 1996.

DAMAGES – Local Land Court declaring a wrong clan as the owner of the land - Logging company paying rental fees for the land to the wrong clan – Memorandum of Understanding signed between the logging company and the clan – Logging company being fully aware of the dispute over the ownership of the land – Reckless disregard of the interests and rights of the true landowner by the defendant- Local Land Court decision quashed on appeal – Memorandum of Understanding having no legal effect.

EVIDENCE – Admissions made by the defendant in the pleadings binding – Newspaper cuttings accepted as credible evidence – Damages assessed by environmental science groups engaged by the plaintiff – Rate and formula used by the environmental science groups to assess damages adopted as fair and reasonable.

Cases cited:

Papua New Guinea Cases

Central Province Forest Industries Pty Limited v. Rainbow Holdings Pty Limited N321

Commissioner General of Internal Revenue Commission v. Julian Paul Leach (1988)

Eva Aglum & Ors v. MVIL (1988) N678

Helen Jack v. The Independent State of Papua New Guinea [1992] PNGLR 391

Inabari v. Sapat and Independent State of Papua New Guinea [1991] PNGLR 427

Kolaip Palapi v. Independent State of Papua New Guinea (2001) N2274

Madaha Resena & Ors v. The Independent State of Papua New Guinea [1990] PNGLR 22

Mark Hosea Sinai Custormary Legal Representative of Buekau clan v. Kei Buseu Kampani Pty Ltd & Ors – N935

Mauga Logging Company Pty Ltd v. South Pacific Oil Palm Development Pty Ltd (No.1) [1977] PNGLR 80

Mumukrui Kopil v. John Wakon [1992] N2065

Pike Dambe v. Augustine Peri & The Independent State of Papua New Guinea [1993] PNGLR 4

Rainbow Holdings Pty Ltd v. Central Province Forest Industries Pty Ltd [1985] PNGLR 34

Reference by the Public Prosecutor under s.27(2) of the Organic Law on Duties and Responsibilities of Leadership and In the Matter of General Sigulogo [1988-89] PNGLR 384

Robert Brown v. MVIL [1980] PNGLR 409

Roselyn Cecil Kusa v. MVIL (2003) N2328

Susanna Undapmaina v. Talair Pty Ltd [1981] PNGLR 559

Toglai Apa & Ors v. The Independent State of Papua New Guinea [1995] PNGLR 43

Trevor Yaskin v. Wallya Abilio (2006) N3108

United Timber (PNG) Ltd v. Mussau Timber Development Pty Ltd N645

Other cases cited

Storm Bruks Aktie Bolag v. Hutchison [1905] AC 515

Counsel:

L. Yandaken, for the plaintiff

B. Frizzel, for the defendant

28 September, 2011

1. GAVARA-NANU J: The plaintiff claims damages against the defendant for trespass, continuous trespass and illegal use of his customary land known as Mogubo foreshore, including a site known as Magubo log pond (‘the land’), which is situated at Loupom Island in the Abau District of the Central Province.

2. The land is recorded in the Department of Lands and Physical Planning as Portion 249C in Survey Plans Cat Nos. 53/136 and 53/137.

3. The plaintiff claims that in or around 1988, the defendant while engaged in logging activities, entered and occupied the land without seeking his prior approval or agreement and used the land to store logs for loading onto the log ships which were berthed not far from the shore for export overseas. The plaintiff says the defendant continuously used and occupied the land while carrying out logging operations in the project area until 1996 when it ceased logging operations.

4. The plaintiff claims that he repeatedly asked the defendant to pay and compensate him for the use of his land or to vacate it, but the defendant refused those requests and continued to use and occupy the land illegally to carry out its commercial logging activities without paying him any money at all.

5. The plaintiff says the actions of the defendant in entering the land without his approval, consent or agreement amounted to trespass, continuous trespass and illegal use of the land which he says was also in breach of the Land Act, 1996.

6. As a result of such illegal entry, use and occupation of his land by the defendant, the plaintiff says he suffered injury as a result of the destruction caused to the land, including damage done to the foreshore area, especially the seabed, marine and other aquatic life by barges, tug boats and pontoons carrying logs from the log pond to the log ships berthed not far from the shore.

7. The plaintiff claims the defendant exported round logs of hardwood in excess of 252,000 cubic meters during the period it used and occupied the land. The actual volume of logs exported is not pleaded but the ‘Shipments Checks’ which are records of logs exported annexed to the plaintiff’s affidavit show that about 297,241.451 volumes of hard wood logs were exported in 1991, 1992, 1993 and 1994. There are no records of volumes of round logs exported in 1989, 1990, 1995 and 1996.

8. The plaintiff claims general, exemplary and special damages and claims interest and costs.

9. In its amended Defence filed on 11 May, 2006, in paragraph 4 (b), (c) and (e), the defendant admits that it did not seek approval or agreement from the plaintiff before entering the land and using it as log pond, it further admits that it has not paid any rental fees at all to the plaintiff for the use of the land.

10. The defendant in paragraph 4 (d) of its amended Defence denies receiving any requests from the plaintiff for payment for the use of the land or to vacate it.

11. In paragraph 1.1 of the Statement of Agreed and Disputed Facts and Legal Issues, the parties agreed that the plaintiff is the customary landowner, apart from this concession by the defendant and the admissions it made in its amended Defence, other evidence indicate clearly that the defendant has conceded that the plaintiff owned the land. For instance, at one stage an attempt was made by the defendant to pay the plaintiff K6,000.00 for the use of the land which the plaintiff refused, then in the second attempt, the defendant in the presence of the member for Abau, Sir Puka Temu, offered to pay K36,000.00 to the plaintiff, which the plaintiff again refused as inadequate for the cost of damages done to the land. This evidence appears in paragraph 23 of plaintiff’s affidavit. The defendant has not denied or disputed this evidence and the Court accepts the evidence.

12. At the hearing the following documents were tendered:-

i. Affidavit sworn by Ibi Enei on 28 June, 2006, Exhibit ‘A’;

ii. Affidavit sworn by Ibi Enei on 26 November, 2007, Exhibit ‘B’;

iii. Memorandum of Understanding (MOU) dated 24 May, 1994, between Warata clan of Laruoro Island, Amazon Bay, Central Province and Magarida Timbers Pty Ltd, the holder of Permit – TRP 3 – 28 and Rimbunan Hijau (PNG) Pty Ltd, the Contractor to Magarida Timbers Pty Ltd, Exhibit ‘C’;

iv. Letter to the General Manager of Rimbunan Hijau (PNG) dated 18 November, 1994, by W.L. Noki, Senior Provincial Magistrate, to which the Kwikila Local Land Court Order of 4 November, 1994, was attached, Exhibit ‘D’;

v. Letter to the General Manager of Rimbunan Hijau (PNG) Pty Ltd dated 9 November, 1994, by Pepi Kimas, then Regional Manager, Southern Region, Department of Lands and Physical Planning, to which Acting Valuer General’s report dated 4 November, 1994 was attached, Exhibit ‘E’;

vi. Letter to Rimbunan Hijau (PNG) Pty Ltd by Blake Dawson Waldron dated 6 October, 1993, Exhibit ‘F’; and

vii. A photostat copy of the Infrastructure Account, Exhibit ‘G’.

13. The issues raised by the parties in the Statement of Agreed and Disputed Facts and Legal Issues are:-

i. Whether the defendant’s actions amounted to trespass and continuous trespass;

ii. Whether the defendant should pay compensation to the plaintiff for the use of the land for which the defendant has already made payments to Warata clan pursuant to the MOU and the Order made by the Kwikila Local Land Court;

iii. Whether the defendant should pay damages to the plaintiff and if so, what should be the amount payable when the defendant has already paid Warata clan for the use of the land;

iv. Whether the plaintiff has a cause of action against the defendant when the...