Fugaman Gau v G & S Ltd

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 22 January 2016
• Citation: (2016) N6169
• Court: National Court
• Year: 2016
• Judgement Number: N6169

Full : WS No 1606 of 2011; Fugaman Gau, for himself and members of Songumbe-Marumbe and Boimbe Clans v G & S Limited (2016) N6169

National Court: Cannings J

Judgment Delivered: 22 January 2016

N6169

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1606 OF 2011

FUGAMAN GAU, FOR HIMSELF AND MEMBERS OF

SONGUMBE-MARUMBE AND BOIMBE CLANS

Plaintiff

V

G & S LIMITED

Defendant

Madang: Cannings J

2015: 21 April and 17th June

2016: 22 January

TORTS – Trespass to property – Land boundaries – Question of fact – Whether plaintiff proved that the defendant entered his land – Proof of damage to land.

The plaintiff, a customary landowner, alleged that the defendant entered two areas of customary land owned by two clans and without authority harvested timber and engaged in other forest industry activities on the land, causing environmental harm. He commenced representative proceedings (acting on behalf of members of his clan and the other clan) against the defendant, seeking declarations and injunctions and damages for the tort of trespass to property. The defendant had lawful authority (under a logging and marketing agreement with the holder of the timber permit) to conduct forest industry activities in a neighbouring timber rights purchase area. It denied entering the two areas of land. It maintained it only conducted logging and other forest industry activities within the timber rights purchase area. A trial was conducted on the issue of liability.

Held:

(1) The tort of trespass to land consists of five elements:

(a) the defendant entered land, either directly or indirectly,

(b) the defendant did so by some intentional act,

(c) the defendant had no lawful authority,

(d) the plaintiff had a right to lawful possession of the land, and

(e) the plaintiff’s enjoyment of the land was interfered with (Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (2008) N3440).

(2) The only uncontentious element was that the plaintiff and persons he represented had lawful possession of the two areas of land. All other elements were contentious and turned on determination of a question of fact: did the defendant enter those two areas of land and conduct logging there?

(3) The plaintiff proved on the balance of probabilities that the answer was in the affirmative. It was proven that the defendant directly entered the land, by intentional act, without lawful authority and that the plaintiff’s enjoyment of it was interfered with.

(4) The plaintiff proved that the tort of trespass to property was committed by the defendant. The declarations and injunctions sought by the plaintiff were generally granted and a further trial was ordered on the question of damages.

Cases cited

The following cases are cited in the judgment:

Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (2008) N3440

Helen Jimmy v Paul Rookes (2012) N4705

Ibi Enei v Rimbunan Hijau Ltd (2011) N4402

Kuberi Epi v Turama Forest Industries Ltd (1998) N1761

Madang Cocoa Growers Export Co Ltd v Noilai Gunar (2012) N4703

Manuel Gramgari v Steve Crawford & PNG Tropical Wood Products (2012) N4950

Rabaul Shipping Limited v Peter Aisi (2006) N3173

Rafflin v Richard Gault Industries Pty Ltd [1998] PNGLR 394

Re Fisherman’s Island [1979] PNGLR 202

STATEMENT OF CLAIM

This was a trial on liability for the tort of trespass.

Counsel

G Pipike, for the plaintiff

T Anis & B W Meten, for the defendant

22nd January, 2016

1. CANNINGS J: The central issue in this case is whether the defendant, G & S Ltd, has committed the tort of trespass to property. The plaintiff, Fugaman Gau, argues that it has, by unlawfully entering two areas of customary land in Rai Coast District and logging timber on that land and causing environmental harm. The two areas of land are:

(a) “Songum” land, in the vicinity of Mt Kubari, owned by the plaintiff’s Songumbe-Marumbe Clan; and

(b) “Wel” land in the vicinity of Mt Banaga, owned by the Boimbe clan

2. Those areas are adjacent to the southern boundary of the Rai Coast Timber Rights Purchase Area. The defendant lawfully conducts logging and other forest industry activities in that TRP area pursuant to a registered logging and marketing agreement with the holder of the timber permit (No 12-18), Raikos Holdings Ltd. The Rai Coast TRP area has a total concession area of 76,110 hectares and a total net production area of 55,236 hectares. It is divided into four blocks, Nos 1, 2, 3 and 4. The two land areas are adjacent to block 1.

3. The plaintiff has been authorised by members of each clan to commence these proceedings. He seeks:

· a declaration that the defendant unlawfully entered the two areas of land and conducted logging in or around November 2011,

· a permanent injunction to restrain the defendant from further logging in those areas, and

· damages.

4. The defendant denies liability. It argues that the plaintiff has not proven his case and that the court should refuse all relief sought by the plaintiff.

ISSUES

5. The tort of trespass to property, in regard to land, consists of five elements:

(a) the defendant entered land, either directly or indirectly,

(b) the defendant did so by some intentional act,

(c) the defendant had no lawful authority,

(d) the plaintiff had a right to lawful possession of the land, and

(e) the plaintiff’s enjoyment of the land was interfered with (Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (2008) N3440).

6. The only uncontentious element is that the plaintiff and the persons he represents had lawful possession of the two areas of land, “Songum” and “Wel”. All other elements are contentious and turn on determination of a question of fact:

· Did the defendant enter those two areas of land and conduct logging there, in or around November 2011?

Once that question is determined, the remaining issues will be addressed:

· Did the defendant commit the tort of trespass to property?

· What declarations and orders should the Court make?

DID THE DEFENDANT ENTER “SONGUM” AND “WEL” AND CONDUCT LOGGING IN OR AROUND NOVEMBER 2011?

7. There is competing evidence. Five witnesses have given evidence that supports the plaintiff’s case. Five witnesses have given evidence to support the defendant’s denials. All evidence has been given by affidavits, without oral testimony. It is summarised in the following tables.

Plaintiff’s evidence

No	Witness	Description
1	Fuguman Gau	Plaintiff
Evidence (exhibits P1, P2)
In November 2012 he conducted an awareness program in the Songumbe-Marumbe Clan and Boimbe Clan areas regarding the alleged illegal logging operation that was taking place in those areas – clan members were informed of the court proceedings he had instituted – they authorised him to act of their behalf – logging has been conducted outside the TRP area
2	Andrew Mapio	Member, Madang Civil Society Organisation Forum
Evidence (exhibit P3)
He is a member of the technical committee of the Madang Civil Society Organisation Forum, an umbrella organisation for non-government organisations in Madang Province – he was a member of a team of observers who conducted a site visit to the Rai Coast Timber Permit area on 29 August 2012 – from the coast they drove 17 km inland, through the areas surrounding Bongu and Bang villages to the TRP boundary at Sanjimbe – they drove a further 5 km inland, over the Gidol River, into the high altitude mountain forests of Songumbuk, Banaga and Iwargun where extensive logging was progressing, within the areas of Wards 3 and 4 of the Astrolabe Bay local-level government areas – he prepared a written report of the site visit, annexed to his affidavit.
3	Gala Tomek	Forester
Evidence (exhibit P4)
He holds a Diploma in Forestry and a Bachelor of Science in Forestry Degree and is a certified Log Scaler - he now works independently, having worked as a forester for Jant Ltd for 22 years – he is familiar with the Rai Coast TRP project – he was a member of the observation team that on 29 August 2012 conducted the site visit referred to by witness Mr Mapio – they drove 17 km from the coast, at the Malamu log pond, to Sanjimbe – he considers that logging was taking place at least 10 km beyond the boundary of the Rai Coast TRP area
4	Gabora Mamani	Land Mediator
Evidence (exhibit P5)
He was at Wongbe village in the Bang area on a day in November 2011 to witness a proposed consent form signing ceremony – the defendant was arranging to extend its operations into the mountainous Songum land area – he (the witness) advised against signing of any consent forms as a few days beforehand he had been informed by Songumbe-Marumbe Clan leaders that they would not be consenting to any logging in the Songum land area as they wanted it to be a forest conservation area – no consent signing took place that day – but the defendant later moved into the Songum land area and conducted logging operations.
5	Yogau Siba	Leader, Boimbe Clan
Evidence (exhibit P6)
His clan’s land extends from Boimbe village to the slopes of Mt Banaga – this land area is known...