Epi v Turama Forest Industries Ltd [1998] PGNC 87; N1761 (17 September 1998)

Unreported National Court Decisions

N1761

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 682 OF 1995
KUBERI EPI & OS - PLAINTIFFS
V
TURAMA FOREST INDUSTRIES LTD – FIRST DEFENDANT
THE STATE – SECOND DEFENDANT

Waigani

Woods J
3 September 1998
17 September 1998

INTERLOCUTORY RULING

LAND – claim for nuisance and trespass – claim to customary title - discovery and particulars - pleading customary title

Counsel

S Soi for the Plaintiffs

L ToRobert for the Defendant

17 September 1998

WOODS J: The plaintiffs as representatives of customary tribes have filed a writ of summons seeking certain declarations concerning the use of certain land in the Gulf Province and also damages for nuisance and trespass. There have been requests for particulars and answers filed and the plaintiffs are now seeking orders that the matter be set down for hearing. The Defendants have submitted that there have been insufficient particulars supplied to enable the defendants to properly respond to the claim and also that the issues to be determined by the court have not been sufficiently clarified.

In detail the defendants submit that the status of the plaintiffs in relation to the land the subject of the proceedings has not been appropriately clarified, the plaintiffs have failed to adequately identify the land the subject of the claim and how and whom are the owners by custom of the land and by what authority the named plaintiffs are the representatives of the tribes referred to. The defendants submit that the plaintiff’s claim is too vague and merely relies on a bare allegation.

This is clearly a claim for damages inter alia for trespass and nuisance to land and for restraining orders. It is usually envisaged that to support such a claim there must be an appropriate title to the land. Whilst the plaintiffs are claiming to be the owners by custom of certain rights it is submitted that they have failed to indicate how that ownership is to be proven. The suggestion is that there are laws to provide the machinery and procedures for people to assert their claim to rights to land, whether through the Land Titles Commission Act or the Lands Disputes Settlement Act or the Land Registration Act. The plaintiffs have failed to provide any details of how their rights and title to the land have been or are to be asserted in the court. It is not as if the plaintiffs have suddenly been faced with trespassers in an environment where they would not have had to rely on the modern legislation to clarify ownership of land. The subject of this claim goes back to some activity in 1987, and the writ was filed in 1995 so has there been adequate time and was there an obligation for the plaintiffs to clarify their customary rights to the land in a form recognisable through the existing legislation. And possibly there may have been some land investigations done at that time for the purpose of the activities of the defendants. However why would the plaintiffs have had to place the ownership of this land before the Land Titles Commission or a Land Court when according to their assertions there are no customary disputes vis a vis other customary landowners to this land. The machinery under the Land Disputes Settlement Act and even the Land Titles Commission only comes into operation when there is a customary dispute or an attempt by the customary owners to effect a conversion of their customary land to a modern title for modern developments. But this is not the claim here. Here the plaintiffs are asserting that they are and have been the undisputed customary owners since time immemorial and there has been no need for them to obtain any other titles and that the defendants are trespassing with no title to the land. Of course it is not the role of this court to conduct a wide reaching inquiry into the ownership of land where there is a dispute and where there is no appropriate documentation however for the purpose of such a claim for trespass this court must hear the plaintiffs and it may be that their mere assertions and identification of usage for their customary ownership may be sufficient . Of course the plaintiffs may have some difficulty if the evidence shows that there is an appropriate lease issued under the Land Act and registered under the Lands Registration Act but there is no indication in the pleadings of any such registered title. The Defendants in their defence make no reference to any such registered title to the land they agree they are occupying. They may refer to a Timber Permit, but that is only a permit to conduct logging operations, it is not a title to the ownership of any land itself, and of course any such Timber Permit should be supported by an appropriate agreement with the properly ascertained customary owners although the defendants have made no reference to such in their defence. That will be a matter of appropriate evidence at the trial. Although having failed to plead such documentary evidence of a proper acquisition for the purposes of the Land Act and the Lands Registration Act then any such documents may not be relevant at the trial.

So in effect the plaintiffs have pleaded their claim to customary ownership as a matter of fact and law and the defendants have pleaded some Timber Permit and some vague undertakings by government officials but have pleaded no legal titles. I am satisfied that at this stage the plaintiffs have pleaded their claim with sufficient particularity and it is now appropriate for the matter to be set down for trial.

I Order that the matter be set down for trial and the parties are to appear before me on Thursday 8^th October 1998 for directions and a trial date.