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Wete v Western Highlands Provincial Government [2012] PGNC 12; N4563 (7 February 2012)

N4563

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1047 OF 1999

BETWEEN

TOM WETE & PENDIU KOYATI ON THEIR OWN BEHALF AND ON BEHALF OF 17 OTHER PLAINTIFFS, WHOSE NAMES APPEAR IN
ANNEXURE "A" TO THE STATEMENT OF CLAIM
Plaintiffs

AND

WESTERN HIGHLANDS PROVINCIAL GOVERNMENT
Defendant

Mount Hagen: Makail, J
2008: 21st, 22nd July & 29th September
2012: 07th February

TORT - Liability - Trespass - Trespass to land - Destruction of land, trees and vegetation - Land cleared for construction of 7 km road - Whether defendant's officials construct road - Proof of.

CONTRACT LAW - Liability - Breach of contract - Alleged agreement to pay compensation - Compensation for destruction of land, trees and vegetation - Land cleared for construction of 7 km road - Whether defendant agreed to construction of road and compensation - Proof of.

PRACTICE & PROCEDURE - Limitation of action - Time bar - Whether claim time barred - Res judicata - Frauds and Limitations Act, 1988 - Section 16.

Facts

This was a mix bag of claim. The plaintiffs sued the defendant for damages for destruction of land, trees and vegetation in building a road over land owned by them. It is a claim for trespass against provincial government officers and also a claim for breach of contract based on an alleged agreement with the defendant to fund the construction of the road and pay compensation. They claimed damages of K7.2 million. The defendant denied the claim. It objected to the competency of the proceedings on the ground that no notice of claim was given by the plaintiffs under section 5 of the Claims By and Against the State Act, 1996 and the claim was time barred under section 16 of the Frauds and Limitations Act, 1988. It also denied having authorised the building of the road on the plaintiffs' land and if there was a road construction project, it was a self help project.

Held:

1. The claims were for trespass and breach of contract relating to the construction of the road in 1994 and 1998. The earlier proceedings did not deal with claims for damages for 1994 onwards and therefore the claims were neither time barred under section 16 of the Frauds and Limitations Act, 1988 nor res judicata.

2. On the evidence, the plaintiffs had failed to establish the claim for trespass.

3. On the evidence, the plaintiffs had failed to establish the claim for breach of contract.

4. The proceedings was dismissed with costs.

Cases cited:

Gesring Gabing Bob -v- Settin Bay Lumber Company Limited (2008) N3440

Counsel:

Mr K Sino, for the Plaintiffs
Mr R Otto, for the Defendant

JUDGMENT

07th February, 2012

1. MAKAIL, J: This is a mix bag of claim. The plaintiffs are members of various clans in the Mapoa Constituency of Baiyer District of the Western Highlands Province. They sued the defendant for damages for destruction of land, trees and vegetation in building a road over land owned by them. It is a mix bag of claim because the pleadings in the statement of claim indorsed to the writ of summons seemed to suggest it is a claim for trespass against provincial government officers and at the same time a claim for breach of contract although the pleadings do not draw the distinction between the two causes of action.

2. In so far as the claim for trespass is concerned, the plaintiffs alleged the defendant invited a group of villagers from Sip tribe to construct the road through their land to connect the Sip tribe. As a result, in 1994, the Sip tribe built the road and destroyed their land, trees and vegetation and the defendant had failed to pay compensation to them.

3. As for the claim for breach of contract, the plaintiffs alleged on 02nd February 1998, there was a ceremony held at Tapiakama where the then Governor of Western Highlands Province Fr Robert Lak and the then Provincial Administrator Dr Thomas Webster attended with councilors including councilors Kiaka Minako and Wete Pyakawa. They claimed it was at that ceremony that Fr Lak announced that the defendant would fund the recommencement of the road construction and agreed to pay compensation to the landowners of land affected by the road construction. They recommenced construction of the road from Makop Kaymai river to Lumulum river. As a result, more land, trees and vegetation were destroyed and despite Fr Lak's agreement to pay compensation, none was paid.

4. The defendant denied both claims. First, it objected to the competency of the proceedings on the ground that no notice of claim was given by the plaintiffs under section 5 of the Claims By and Against the State Act, 1996 and secondly, the claim was time bared under section 16 of the Frauds and Limitations Act, 1988 and also res judicata on the basis that an earlier proceedings seeking damages for the same road construction was dismissed by the National Court in 1998. Thirdly, it denied having authorised the building of the road on the plaintiffs' land.

5. Fourthly, it claimed the claims are false and a sham because if there was such a road construction project, it was a self-help project initiated by the councilors from the area and it did not agree to pay any compensation to the landowners and was not responsible for any loss suffered by the plaintiffs. Fifthly, it said any such project approved or funded by the defendant required approval for funding under its infrastructure development programme for any fiscal year under its Budget Appropriation Act. No such budget had been approved for those relevant years or for this road construction project.

6. In their writ of summons filed on 24th September 1999, the plaintiffs claim damages of K7.2 million against the defendant. The trial was conducted on 21st, 22nd July 2008 and 29th September 2008. Directions were given for parties through their respective counsel to file and serve written submissions by or before 29th October 2008 and thereafter, decision reserved to a date to be fixed. Both counsel have filed their respective submissions and I am thankful for their assistance. I have considered the submissions in my deliberations and this is the judgment of the Court.

7. There are two issues for determination. The first is liability and the second is assessment of damages. The plaintiffs bear the onus of proving liability before the Court may consider damages. In so far as the cause of action for trespass is concerned, the plaintiffs must prove the defendant committed trespass. A succinct statement on establishing a cause of action for trespass to land has been stated by Cannings, J in Gesring Gabing Bob -v- Settin Bay Lumber Company Limited (2008) where it was stated, "............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."

8. In relation to breach of contract, the plaintiffs must prove there is an agreement between them and the defendant, the defendant breached it and they suffered loss.

9. Out of the 19 plaintiffs, 10 of them appeared and gave brief oral evidence and tendered their respective affidavits which were marked exhibits. They were also cross-examined by counsel for the defendant. The other 7 had their affidavits tendered by consent and were given exhibit numbers without cross-examination. The 17 plaintiffs and their affidavits were:

1. Tom Wete exhibit "P1" & exhibit "P2"

2. Pana Maku exhibit "P4"

3. Aruma Neya exhibit "P5"

4. Wange Koyati exhibit "P6"

5. David Ken exhibit "P7"

6. Rui Ipi exhibit "P8"

7. Paul Rokowa exhibit "P9"

8. Konga Maku exhibit "P10"

9. Makwa Pus exhibit "P11"

10. Ruri Engine exhibit "P12"

11. Waiya Dange exhibit "P13"

12. Kila Ruri exhibit "P14"

13. Pate Pama exhibit "P15"

14. Samson Win exhibit "P16"

15. Peter Pama exhibit "P17"

10. Evidence was also led from a Mr Bafike Kongrui, a witness, who claimed to be an expert on environmental impact assessment matters. He gave evidence in relation to the environmental impact assessment as a result of the road construction, the description and value of property loss. His affidavit was tendered and marked exhibit "P3". He was also cross-examined. His evidence is relevant to the issue of damages.

11. The defendant called Dr Thomas Webster. He was the Provincial Administrator of the Western Highlands Provincial Administration at the relevant time. He tendered an affidavit (exhibit "D1") and was also cross-examined. Two more witnesses' affidavits were tendered after the Court overruled the plaintiffs' counsel's objection to their admission on the basis the deponents were not available for cross-examination. These affidavits were for Councilor Kiako Minako (exhibit "D2") and Councilor Wete Payakawa (exhibit "D3").

12. In relation to the issue of competency of proceedings raised by the defendant, the plaintiffs' counsel submitted the plaintiffs' earlier claim filed in 1998 was dismissed for being time barred. The National Court dismissed the proceedings because they had claimed damages for loss in relation to the construction of the road in 1991. They have then filed the present proceedings to claim damages suffered in 1994 and 1998. Counsel submitted the defendant's defence is flawed and a misconceived because the plaintiffs have clearly pleaded in the relief that the claim is for destruction of land, trees and vegetation in 1994 and 1998. For those periods, the argument on res judicata is not applicable. His Honour Woods, J made it very clear in his judgment that the plaintiffs were at liberty to commence fresh proceedings based on trespass committed in 1994. The claim was filed in 1999 which was within 6 years from 1994.

13. From the evidence of both parties, the undisputed facts are, a Paraka Nii who was then the duly elected member of Simu/Sip Constituency in the Western Highlands Provincial Government proposed to build a road connecting the people of Mapoa Constituency and Sip No. 1 Constituency in the Baiyer District. The proposed road would cover approximately 3 kilometers of the plaintiffs' land from Alimaisa to Kekope.

14. The plaintiffs initially objected to the proposed road project but after being convinced by the then Premier, Lucas Roika and his two cabinet Ministers, Paraka Nii and Napil Kuri, they gave in and allowed the project to go ahead. In mid 1991, the construction of the road began on the 3 kilometers stretch of land. In 1992, work on the road construction was suspended due to the suspension of the defendant. In 1994, the defendant was reinstated and the construction recommenced. A further half a kilometer of road was constructed. In the same year, 1994, the Provincial Government reform came into force and the defendant was suspended for the second time. Construction work was suspended for the second time.

15. The plaintiffs then commenced proceedings against the defendant on 04th November 1998 under WS No 1082 of 1998. The plaintiffs claimed damages for trespass to land and vegetation for the road construction from 1991 to 1994. The National Court (Woods, J) dismissed the proceedings for being statute barred as the action for the trespass to land and environment was commenced 6 years after the cause of action arose between 1991 and 1994. However, his Honour gave them liberty to file fresh proceedings for any claims in 1994.

16. The plaintiffs then commenced fresh proceedings, which is the present proceedings on 24th September 1999 to claim damages for trespass to land and vegetation for 1994 and 1998. Based on the above evidence, I am satisfied any claims from 1994 onwards arising from the road construction is not time barred under section 16 of the Frauds and Limitations Act, 1998. They are also not res-judicata because the Court had not determined them. However, any claims from 1991 to 1993 are time barred as they are well past 6 years time limitation under section 16 of the Frauds and Limitations Act, 1988 and will not be considered.

17. Turning now to the claim for trespass, the plaintiffs' evidence is that, the defendant invited a group of villagers from Sip tribe to construct the road through their land to connect the Sip tribe. As a result, in 1994, the Sip tribe built the road and destroyed their land, trees and vegetation and the defendant had failed to pay compensation to them.

18. The principal plaintiff Tom Wete stated in his oral evidence the villagers themselves constructed the road and they were from Sip which is a different tribe from his. The people from Sip constructed the road from Lumulum river to Sip with crowbars, axes, spades and sledge hammers. In constructing the road, these people cut down and removed Mr Wete's trees and food crops.

19. To my mind, the plaintiffs' evidence does not establish firstly, the defendant entered their land, secondly, intentionally, thirdly, had no lawful authority to do so and finally, interfered with the plaintiff's enjoyment of the land. At best, the plaintiffs' evidence established the villagers were the ones who constructed the road for their own use and benefit. This evidence supports the defendant's defence that the road was a self –help project initiated by their local provincial government member Mr Paraka Nii in 1991.

20. For these reasons, I am not satisfied the defendant is liable for damages caused by the construction of the road on the plaintiffs' land in 1994. I dismiss the claim for 1994.

21. In relation to the claim for breach of contract, it is the plaintiffs' evidence that on 02nd February 1998, there was a ceremony held at Tapiakama where Fr Lak and Dr Wesbster attended with councilors including councilors Kiaka Minako and Wete Pyakawa. They claimed it was at that ceremony that Fr Lak announced that the defendant would fund the recommencement of the road construction and agreed to pay compensation to the landowners of land affected by the road construction.

22. However, none of them have deposed in their affidavits or in their oral evidence that at the ceremony, Fr Lak did say that the defendant would fund the recommencement of the road construction and also pay compensation to the landowners affected by the road construction. None of them said how much Mr Lak would allocate to fund the road construction and compensation. All they said in their affidavits at paragraph 7, and I should say here that except for the plaintiff Albert Hai, the contents of the rest of the plaintiffs' affidavits are identical is, "[t]he Provincial Government supplied four chainsaws in 1998 at the time of the recommencement of the road construction. The chainsaws were presented by the late Father Lak as Governor."

23. In my view, this statement does not establish that Fr Lak as Governor of the defendant agreed to pay compensation to the landowners of the land affected by the road construction including the plaintiffs. Further, the plaintiffs' evidence is vague in relation to Fr Lak's agreement on how much funding and compensation on behalf of the defendant. Furthermore, none of them have deposed that the defendant provided officers such as civil engineers and heavy equipment such as bulldozers, graders and rollers, etc to construct the road. On the other hand, what they have deposed at paragraph 7 of their respective affidavits establishes that the defendant merely assisted them to construct the road by providing chainsaws.

24. The defendant supplied chainsaws and tools including fuel to them to construct the road. The chainsaws were used to cut down trees and the tools were used to dig and clear the earth to make way for the road. In other words, the actual construction of the road was done by them. The arrangement was the same as in 1994, except that this time, the plaintiffs joined in the construction of the road.

25. Their evidence confirms the position of the defendant who through its witness Dr Webster does not deny the construction of the road. However, he said if there was a road constructed by the villagers, it was not approved by the Provincial Executive Council (PEC). He also said there was no record of the defendant budgeting for this road project. He said the absence of a decision of the PEC approving the construction of the road and the non funding of the road project in its annual budget support the defendant's defence that it was not an authorised road project but a self-help road project initiated by their local provincial member Mr Paraka Nii and supported by the defendant in terms of provision of chainsaws and tools.

26. Thus, while I accept that on 02nd February 1998, there was a ceremony held to recommence construction of the road from Makop Kaymai river to Lumulum river and the ceremony was officiated by Fr Lak and Dr Webster may have being in attendance, on the evidence, I am not satisfied the plaintiffs have established that the defendant through Fr Lak had agreed to pay compensation to the landowners affected by the road construction including the plaintiffs. I dismiss the claim for 1998.

27. In the end, the proceedings is dismissed with costs.
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Sino & Company Lawyers: Lawyers for the Plaintiffs
Paul Mawa Lawyers: Lawyers for the Defendant