Tike Malawa in his capacity as the Leader of Mategamut Hunapokmitim Clan and Matekaka Langaren Sub Clan v Maria Pidi (2019) N7675

• Jurisdiction: Papua New Guinea
• Judge: Anis J
• Judgment Date: 07 February 2019
• Citation: (2019) N7675
• Docket Number: WS NO. 422 OF 2015
• Court: National Court
• Year: 2019
• Judgement Number: N7675

Full Title: WS NO. 422 OF 2015; Tike Malawa in his capacity as the Leader of Mategamut Hunapokmitim Clan and Matekaka Langaren Sub Clan v Maria Pidi (2019) N7675

National Court: Anis J

Judgment Delivered: 7 February 2019

N7675

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 422 OF 2015

BETWEEN:

TIKE MALAWA in his capacity as the LEADER OF MATEGAMUT HUNAPOKMITIM CLAN and MATEKAKA LANGAREN SUB CLAN

Plaintiff

AND:

MARIA PIDI

Defendant

Kokopo: Anis J

2018: 12 November & 4 December

2019: 7 February

TORT OF TRESPASS – trial on liability – customary land – entering and felling of logs on customary land not disputed – tort of trespass – elements – whether entry of customary land by the defendant authorised by the members of clan that owns the customary land – two local land court decisions over same customary land – local land court recognises two separate but related clans as owners of the customary land – both local land court decisions valid – effect – whether plaintiff able to prove on the balance of probabilities that no consent or authority was obtained by the defendant to enter the customary land – whether there was consent obtained by the defendant - cross claim – whether cause of action sufficiently pleaded – whether cross-claimant has abandoned the cross-claim

Cases Cited:

Ribunan Hijau v Ina Inai (2017) SC 1605

Sam Samoua v. Aces Venture Ltd (2013) N5325

Counsel:

Ms J. Marubu, for the Plaintiff

Mr L. Baida, for the Defendant

JUDGMENT

7th February, 2019

1. ANIS J: This was a trial on liability. It was heard on 12 November 2018 and 4 December 2018. The plaintiff alleged that he and his clan owned a customary land called Langaren Land (customary land) in a village named Rapontamon at Namatanai in New Ireland Province. The plaintiff alleged that the defendant, without his or his clan’s permission, entered the customary land and cut logs there for her company’s use. The plaintiff therefore sued the defendant for the tort of trespass.

2. The defendant defended the matter. Her claim was this. She said she had entered into a valid agreement with a person by the name of Daniel Bitu, whom she said had represented himself as the legitimate landowner of the customary land. She said she paid him K7,000 before she entered the customary land and harvested logs as per the said agreement. She alleged that she was a bona fide purchaser. She also filed a cross-claim. She alleged that because of interferences by the plaintiff and his clan members, she had to leave behind 12 logs which had been harvested on the customary land. She sought compensation for that.

3. I reserved my judgment on 4 December 2018 to a date to be advised. The parties have been notified so I will now deliver my judgment.

EVIDENCE

4. Parties tendered a total of 15 exhibits, that is, 9 affidavits by the plaintiff and 6 affidavits by the defendant. The exhibits were all tendered by consent. I set them out herein:

Exhibit No.	Description	Date Filed
“P1”	Affidavit of Tike Malawa	02/10/17
“P2”	Affidavit of Jacob Kuroh	24/11/17
“P3”	Affidavit of Paul Koh	14/12/17
“P4”	Affidavit of Bokas Rahe	24/11/17
“P5”	Affidavit of Tike Malawa	16/02/18
“P6”	Affidavit of Peter Maorie	25/05/18
“P7”	Affidavit of Raphael Tukul	25/05/18
“P8”	Affidavit of Kanut Malawa	25/05/18
“P9”	Affidavit of Tike Malawa	27/07/18
“D1”	Affidavit of Maria Pidi	30/01/18
“D2”	Affidavit of Kepas Leku	01/03/18
“D3”	Affidavit of Daniel Bitu	01/03/18
“D4”	Affidavit of Rong Philip	01/03/18
“D5”	Affidavit of David Malawa	01/03/18
“D6”	Affidavit of Misson Bulu	06/03/18

ISSUES

5. In my view, the main issues are, (i), The effects that the two (2) Local Land Court (LLC) decisions, made on 25 March 2011 and 14 August 2012, have on the matter, (ii), whether the defendant trespassed onto the customary land, and if not, (iii), whether the amended cross-claim has been sufficiently pleaded, and if so, (iv) whether the plaintiff should be held liable.

LLC ORDER – 25 MARCH 2011

6. The parties are at common ground as follows. The plaintiff sued the defendant’s contracting partner Daniel Bitu for trespass at the LLC. On 25 March 2011, the LLC found Mr Bitu liable for trespass. The LLC then ordered Mr Bitu to, amongst other things, ‘refund’ the Tunubuah clan K7,000. The said sum awarded was the equivalent of the money that had been paid by the defendant or by her employer Kokopo Village Resort (KVR) to Daniel Bitu in harvesting logs on the customary land. The order has not been set aside or appealed against, and it remains binding to this day. A true copy of the order was tendered and is located at Annexure G to Exhibit P5.

7. Evidence of determination of ownership of the customary land, in my view, has been settled in the lower land courts. The defendant, however, attempts to challenge ownership of the customary land in this proceeding. In my view, such a challenge is without merit and misconceived. May I say that the only way to do so, would be to appeal against the decision of the LLC which was made on 25 March 2011, or its subsequent decision which was made on 14 August 2013. In this case, I had asked counsel for the defendant whether the defendant had appealed against these LLC decisions. Counsel, I note, said that no appeals had or have been filed. My conclusive view therefore is that there is no valid challenge or dispute over the ownership of the customary land. As such, this Court has jurisdiction to deal with the matter.

TORT OF TRESPASS

8. Let me set out the elements of the tort of trespass. They are as follows (see case: Sam Samoua v. Aces Venture Ltd (2013) N5325):

(a) the defendant interfered with (eg by damaging or destroying);

(b) the plaintiff’s chattels (any property other than freehold land);

(c) the defendant acted intentionally;

(d) the defendant acted without lawful authority; and

(e) the plaintiff had actual possession of the chattels.

9. In my view, the plaintiff has established by evidence and it is also undisputed that the defendant had entered the customary land at the material time to harvest logs. It is also not disputed that the defendant’s act of harvesting the logs was intentional. The only elements I find contentious are elements (d) and (e), namely, whether the defendant acted without lawful authority at the material time, and, whether the plaintiff had actual possession of the customary land at the material time. Regarding the requirement actual possession, I refer to the recent Supreme Court case of Ribunan Hijau v Ina Inai (2017) SC1605. The Supreme Court held that unlike the common law’s position where actual possession is required, it is not necessary to prove possession or actual possession of land in the Papua New Guinea context. I am bound by the said decision, so I must say that I am satisfied, based on the evidence disclosed, that the plaintiff and ‘his clan’ own the customary land. The phrase ‘his clan’ is an interesting one and I will get to it shortly below in my judgment.

10. Let me address the final contentious element, that is, whether the defendant acted without lawful authority. The defendant claims that Daniel Bitu was and even still is the legitimate landowner of the customary land. In my view, the argument becomes somewhat complicated here. Let me firstly refer to the LLC order of 25 March 2011. That was the first time whereby a competent Court gave recognition to the interest of the plaintiff over the customary land. The material part of the said court order, in my view, and for this purpose is, and I quote in part:

“DECISION KOT I BIN MEKIM I OLSEM BITU BULUNAMAR I RONG LONG TRES PASS IGO LONG GRAUN BLONG TUNUBUAH CLAN NA KATIM 67 DIWAI TREE……”

(Underlining is mine)

11. The translated version of that should read as follows. “Decision Court has made is that (Daniel) Bitu Bulunamar was wrong in that he trespassed onto the land that belonged to the Tunubuah Clan and cut 67 trees……” Tunubuah clan is explained by the plaintiff at paragraph 13 of his affidavit which is marked as exhibit “P1”. It reads, and I quote in part:

13. The Tunubuah clan is our major clan and is made up of five (5) sub-clans as follows:

(a) Hunapokmitim Mategamut sub clan, which is my clan – Tike Malawa

(b) Tubutamat sub clan – Daniel Bulunamur sub clan father of the block holder

(c) Matekasasa sub clan

(d) Matebore sub clan

(e) Matesaliuliu/ Hunsale sub clan

12. I next refer to the affidavit of Daniel Bitu which was tendered and marked as exhibit D3. Mr Bitu challenged the plaintiff’s claim as a landowner over the customary land. I do not regard the evidence relevant for the reasons already stated above in my judgment, but what is useful to note, however, was Mr Bitu’s confirmation of him being part of the Tubutamat sub clan which is part of the Tunubuah clan (main clan). In short, Daniel Bitu confirms his sub-clan status in the manner as deposed to by the plaintiff at paragraph 13 of his affidavit which I have quoted above.

13. The third thing I notice is this. The parties have also disclosed in evidence, a mediation agreement that was sanctioned by the LLC in 2013. I refer to annexure B to exhibit P5. The annexures therein show evidence of mediations that had been conducted by...