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Malawa v Pidi [2019] PGNC 11; N7675 (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

7^th 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:

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 the two sub clans, that is, the sub clan of the plaintiff and the sub clan of Mr Bitu, regarding their dispute over the customary land. It was agreed then that the plaintiff’s sub clan, namely, Mategamut, would be regarded as the owner of the customary land. The mediation agreement was reached on 31 August 2012. About a year later and on 14 August 2013, the agreement was sanctioned, or it was converted into a valid LLC order. I must remind myself that the LLC order of 25 March 2011 and the LLC Order of 14 August 2013 are valid and binding. I have no reason to doubt them, nor is there any suggestion or submissions made by the parties that say that the orders have been overturned by appeals or by a higher court of competent jurisdiction.

14. So, what do I make of the three (3) scenarios I have covered above? I will give a summary of my findings. Firstly, the LLC order of 25 March 2011 gives ownership of the customary land to the Tunubuah clan which is the major clan of the sub clans where the plaintiff and Mr Bitu come under. That therefore makes both the plaintiff and Mr Bitu landowners of the customary land. Then comes the second LLC order of 14 August 2013. The LLC, by the said order, endorsed the mediation agreement of 31 August 2012. So with the LLC order of 14 August 2013, the LLC has also recognised the plaintiff’s sub-clan, namely, Mategamut, which is a sub clan of the Tunubuah clan, as another owner of the customary land. In effect and in my view, there are two valid but conflicting LLC orders. The first LLC order recognises the Tunubuah clan (main clan) as the owner of the customary land whilst the second LLC order recognises the plaintiff’s sub clan, the Mategamut clan, as the owner of the customary land. And in the evidence before this Court, both the plaintiff and Daniel Bitu confirm the status of their sub-clans.

15. With these considerations, I am therefore not convinced that the plaintiff has established 4^th element of the tort of trespass, namely, that the defendant acted without lawful authority. In my view, there is evidence which shows that the defendant did seek the permission of Daniel Bitu, who is a landowner and a member of the Tunubuah clan (fact confirmed by the plaintiff himself in his own evidence) which the LLC has also recognised as an owner of the customary land, before she entered the customary land and harvested the logs.

16. I am therefore not satisfied on the balance of probabilities that the plaintiff has made out a case for trespass against the defendant. Liability for the tort will therefore fail.

CROSS-CLAIM

17. I have perused the pleading in regard to the defendant’s cross-claim. At paragraph 2 of the amended cross-claim, the defendant pleads, and I quote:

2. The Cross-Claimant suffered loss as a result of the interference by the Plaintiff in disputing the felling of the 12 logs, which were wasted and rotten.
   

18. In my view, I find the pleading vague. I find as a matter of fact that the defendant has failed to clearly plead and particularise her cause of action against the plaintiff. I will strike out the cross-claim on that basis. I also note that the defendant appeared to have abandoned her amended cross-claim. Nothing concerning the cross-claim was covered in the written submission of the defendant that was filed in Court on 29 November 2018. This is the second reason why the amended cross-claim must fail.

SUMMARY

19. The plaintiff’s claim for trespass and the defendant’s cross-claim will be dismissed.

COST

20. An award of cost is discretionary. In this case, I will order each party to bear their own costs of the proceeding. I make this order given the fact that I have dismissed both claims by the parties in the proceeding.

THE ORDERS OF THE COURT

22. I will make the following orders:

1. The plaintiff’s claim for the tort of trespass is dismissed.
   
2. The defendant’s amended cross-claim is also dismissed.
   
3. Parties shall bear their own costs of the proceeding.
   
4. Time for entry of these orders is abridged to the date of settlement by the Registrar of the National Court which shall take place forthwith.
   

The Court orders accordingly.
____________________________________________________________
Marubu Lawyers: Lawyers for the Plaintiff
Nelson Lawyers: Lawyers for the Defendant