Rimbunan Hijau (PNG) Limited v Ina Enei on his behalf and on behalf of Moga clan of Loupom Island, Abau District, Central Province and Public Curator of Papua New Guinea as representative of the estate of Ibi Enei (Deceased) 2017 (SC1605)

• Jurisdiction: Papua New Guinea
• Judge: Salika DCJ, Kandakasi & Toliken JJ
• Judgment Date: 25 September 2017
• Docket Number: SCA 126 OF 2011
• Court: Supreme Court
• Judgement Number: SC1605

Full Title: SCA 126 OF 2011; Rimbunan Hijau (PNG) Limited v Ina Enei on his behalf and on behalf of Moga clan of Loupom Island, Abau District, Central Province and Public Curator of Papua New Guinea as representative of the estate of Ibi Enei (Deceased) 2017 (SC1605)

Supreme Court: Salika DCJ, Kandakasi & Toliken JJ

Judgment Delivered: 25 September 2017

SC1605

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 126 OF 2011

BETWEEN:

RIMBUNAN HIJAU (PNG) LIMITED

Appellant

AND:

INA ENEI on his behalf and on behalf of Moga clan of Loupom Island, Abau District, Central Province

First Respondent

AND:

PUBLIC CURATOR OF PAPUA NEW GUINEA AS REPRESENTATIVE OF THE ESTATE OF IBI ENEI (Deceased)

Second Respondent

Waigani: Salika DCJ, Kandakasi & Toliken JJ.

2015: 27th April

2017: 25th September

APPEALS – Practice & Procedure - Appeals to the Supreme Court – Grounds raising issues not raised in the Court below – A party is precluded from raising and succeeding on appeal an issue not first raised in the Court below – Principles – Five member Supreme Court decision in Isaac Lupari v. Sir Michael Somare & Ors (2010) SC1071 settled the law – Appeal grounds raising issues not first raised in the Court below dismissed.

PRACTICE & PROCEDURE – Locus standi – Suing for and in the name of a land owning clan – A defendant at the National Court has a duty to raise with the plaintiff all issues on correctly naming and pursing a claim in the name and for the benefit of a clan or a landowning clan – No requirement for a clan to be incorporated before issuing proceedings in the name of a clan - Issue not taken up at the National court – Appellant not at liberty to raise issue on appeal.

LAW OF TORTS - Tort of trespass – Common law requiring possession by landlord as an essential element for finding trespass – Requirement inappropriate and inapplicable to the circumstances of the country – No waste and vacant land in the country – Duties of State, developers and other persons wishing to enter, occupy and use customary land obliged to carry out due diligence to ascertain true and correct owners of such land, properly organise enable and deal only with the true and correct owners – Need for the State or the developer to seek secure and obtain the “social license to operate” - Failures and or choosing to deal with persons other than the true and correct landowners amounts to trespass, fraud, illegal entry, occupation and use of land illegally – Any agreement with persons other than the true and correct owners null and void and of no effect.

DAMAGES – Tort of trespass – Measure of damages – Use of land and gain or benefit to the trespasser basis to assess damages – Damages to be proportionate to defendants gain and must reflect the defendant’s gain – Formula for measure of damages – Key factors contributing to gain – Resources extractive industry - Expense one component, sale of product another and land subject of trespass and illegal occupation and use third factor - Hence, one third of gross income before allowing for expenses and tax reasonable compensation for landowner.

EXEMPLARY DAMAGES – Tort of trespass – Total disregard and disrespect for customary landowners rights and interest – Purpose of awarding exemplary damages – Punish and to deter – Failure to take all steps necessary identify, organise, enable and deal only with true and correct land owner – Failure amounting to failure to seek and properly secure the social license to enter and operate business - Ownership of relevant land clearly raised and in Court– Defendant ignoring and choosing to deal with fraudster – Higher award of damages called for – No convincing argument presented to demonstrate award by the trial Court is excessive or on wrong principle – Award by trial Judge confirmed .

LAW OF EVIDENCE - Relevant evidence of gain usually in the defendants possession and is required to produce the evidence or disclose them – Defendant fails to disclose or adduce the relevant evidence - Plaintiff produces some evidence not objected to and no arguments present as against the acceptance and use of such evidence – Court duty bound to use the evidence available to it and do the best it can and arrive at a reasonable award – Defendant precluded from taking issue with award of damages in such circumstances.

Cases Cited:

Papua New Guinea Cases

Alex Bernard & P’Nyang Resources Association Inc. v. Hon. Nixon Duban, MP, Minister for Petroleum & Ors, (2016) N6299

Able Construction Ltd v W.R. Carpenter (PNG) Ltd (2014) N5636

Abel Tomba v. The State (1997) SC518

Brian Laki v. The State (2005) SC783

Central Province Forest Industries Pty Limited v. Rainbow Holdings Pty Limited N321. Rainbow Holdings Pty Ltd v. Central Province Forest Industries Pty Ltd [1983] PNGLR 34

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

Dillingham Corporation of New Guinea Pty Ltd v. Constantino Alfredo Diaz [1975] PNGLR 262

Daera Guba on behalf of himself and the Tubumaga Clan of Poreporena v The Administration of the Territory of Papua and New Guinea; Lohia Doriga on behalf of himself and the Giakone Clan v The Administration of the Territory of Papua and New Guinea and Daera Guba on behalf of himself and the Tubumaga Clan of Poreporena [1971] FC 18

Emas Estate Development Pty Ltd v. John Mea & Ors [1993] PNGLR 215

Eva Aglum & Ors v. MVIT (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

Isaac Lupari v. Sir Michael Somare & Ors (2010) SC107

Kanga Kawira v. Kepaya Bone & Ors (2017) N6802

Koitachi Ltd v. Walter Schnaubelt (2007) SC870

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

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

Michael Kuman & Ors v. Digicel (PNG) Limited (2017) SC1638

Mumukrui Kopil v. John Wakon [1992] N2065

Mudge v. Secretary for Lands [1985] PNGLR 387

MVIT v. James Pupune [1993] PNGLR 370

MVIL v. Maki Kol (2007) SC902

Paru Aihi v. Peter Isoaimo & Anor (2013) SC1276

Pike Dambe v. Augustine Peri & The Independent State of Papua New Guinea [1993] PNGLR 4.Philip Takori & Ors v. Simon Yagari & Ors (2008) SC905

PNG Deep Sea Fishing Ltd v. Luke Critten (2010) SC1126

Rawson Constructions Limited and 238 Ors v. The State (2005) SC777

Rex Lialu v. The State [1990] PNGLR 487

Robert Brown v. MVIT [1980] PNGLR 409

Roselyn Cecil Kusa v. MVIT (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

Van Der Kreek v. Van Der Kreek [1979] PNGLR 185

William Mel v. Coleman Pakalia (2005) SC790

Overseas Cases Cited:

Attorney General vs. Blake & Anor (2000) UKHL 45; 92000) 4 All ER 385

Star Engery Weald Basin Limited & Anor v. Bocardo SA (2010) UKSC 35

Strom Bruks Aktie Bolag v. Hutchinson [1905] AC 515

Penarth Dock Engineering Co. Ltd v. Pounds [1963] 1 Lloyd’s Rep. 359

Whitwham v. Westminster Brymbo Coal Co [1896] 2 Ch 538

Other Materials Cited:

McGregor on Damages, 15th ed. (1988)

Counsel:

Mr. Ian Molloy & Bill Frizzell, for the Appellant

Mr. Louis Yandeken, for the First Respondent

No Appearance for the Second Respondent.

25th September, 2017

1. BY THE COURT: Rimbunan Hijau (PNG) Limited (RH) is appealing against a K6, 198, 599.38,inclusive of K150, 000.00 exemplary damages and K1, 997, 515.38 interests. That was on findings of RH trespassing and illegally using including an access road for its logging operations the First Respondent (Moga)’s customary land described as Mogubo Foreshore including a site known as Mogubo log pond which is registered as Portion 249C in Survey Plans Catalogue Nos. 53/136 and 53/137 and its environment (the Land) for 8 years.

The grounds of appeal and the respondents’ response

2. In its notice of appeal, RH pleads 36 grounds. They are not with respect organised in a logical way so that issues on liability get dealt with first before getting in to the questions on damages. We have therefore taken the liberty of reordering the grounds of appeal and they could be summarised as claims of the learned trial Judge falling into error in:

(1) finding trespass when:

(a) there was no evidence of the respondent being in continuous occupation (ground 2) or had not established an entitlement to the land;

(b) RH had the consent and had signed a contract (MOU) with the party who was found as the owner by a Local Land Court decision (grounds 6) which the National Court erroneously found was void and of no effect (5);

(2) making the award in favour of Moga clan when it was not correctly pleaded and named as a party (ground 35);

(3) making awards that manifestly excessive, (grounds 24, 31) and making an award that went beyond restoring Moga to a position it would have been had it not...