Wii v Baki [2009] PGNC 310; N5898 (11 February 2009)

N5898

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 817 OF 2007

BETWEEN:

WILLIAM EKIP WII
for and on behalf of himself and Sikange Business Group Inc
Plaintiff

AND:

GARI BAKI
in his capacity as Commissioner of Police
First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Hartshorn J.
2008: 17th September, 18th October,
2009: 11th February

ASSESSMENT OF DAMAGES – Torts – Trespass to Land – Liability not in issue

Cases cited:
Papua New Guinea Cases

Keith Reid v. Murray Hallam and Allcad Pty Ltd (1995) N1337
Yange Lagan v. The State (1995) N1369
Obed Lalip & Ors v. Fred Sikiot & Anor (1996) N1457
Andale More and Manis Andale v. Henry Tokam and The State (1997) N1645
Karl Paul v. Awai Kispe (2001) N2085
Coecon Ltd (Receiver/Manager Appointed) v. National Fisheries Authority (2002) N2182
Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694
Desmond Huaimbukie v James Baugen (2004) N2589
William Mel v. Coleman Pakalia & Ors (2005) SC790
The State v. Brian Josiah (2005) SC792

Overseas Cases

Jegon v Vivian (1871) LR 6 Ch. 742
Whitwham v Westminster Brymbo Coal and Coke Co [1896] UKLawRpCh 112; [1896] 2 Ch 538
Chaplin v. Hicks [1911] UKLawRpKQB 104; [1911] 2 KB 786
Biggin & Co Ltd v. Permanite Ltd [1951] 1 KB 422
Penarth Dock Engineering Co Ltd v Pounds [1963] 1 Lloyd's Rep 359
Bracewell v Appleby [1975] Ch 408
Swordheath Properties Ltd v Tabet [1979] 1 All ER 240
League against Cruel Sports Ltd v Scott [1986] QB 240
Mayfair Ltd v. Pears [1986] NZCA 476; [1987] 1 NZLR 459
Madaha Resena v. PNG [1990] PNGLR 22
Ministry of Defence v Ashman [1993] 2 EGLR 102
Jaggard v Sawyer [1995] 2 All ER 189
Inveragie Investments Ltd v Hackett [1995] 3 All ER 841
Lockwood Buildings Ltd v. Trust Bank Canterbury Ltd [1995] 1 NZLR 22
Roberts v Rodney District Council [2001] 2 NZLR 402
Port Stephens Shire Council & Anor v. Tellamist Pty Ltd [2004] NSWCA 353

Counsel:

Mr. B. Boma, for the Plaintiff
Mr. G. Korei, for the Defendants

11th February, 2009

1. HARTSHORN J: Mr. William Ekip Wii and Sikange Business Group Inc. (Plaintiffs) are respectively the registered proprietors of 2 State Leases for adjoining blocks of land in Kudjip, Minj, Western Highlands Province.

2. The Plaintiffs allege that since 1980 members of the Royal Papua New Guinea Constabulary (Police) have been driving vehicles across their land to access the police station at Kudjip, without their consent.

3. The Plaintiffs commenced this proceeding seeking amongst others, damages and an order restraining this use of their land.

4. Summary judgment for damages to be assessed was entered by consent at a previous hearing before me. Consequently, this hearing was for an assessment of damages.

Evidence

5. Counsel for the Defendants sought to rely upon 4 affidavits. As none of the deponents were available for cross examination, the affidavits were admitted into evidence but subject to a reduction in the weight to be placed upon them. The Plaintiffs relied upon 4 affidavits all sworn by Mr. Wii.

Assessment of damages – law

6. The Supreme Court in William Mel v. Coleman Pakalia & Ors (2005) SC790 stated:

"The principles that apply to a trial on assessment of damages following entry of default judgment were summarised by Kandakasi J. in Coecon Ltd (Receiver/Manager Appointed) v National Fisheries Authority (2002), National Court, N2182.

His Honour stated:

A survey of the authorities on assessment of damages after entry of judgment on liability mainly in default of a defendant's defence, clearly show the following:

1. The judgment resolves all questions of liability in respect of the matters pleaded in the statement of claim.

2. Any matter that has not been pleaded that is introduced at the trial is a matter on which the defendant can take an issue on liability.

3. In the case of a claim for damages for breach of contract as in this case, such a judgment confirms there being a breach as alleged and leaves only the question of what damages necessarily flow from the breach.

4. The plaintiff in such a case has the burden to produce admissible and credible evidence of his alleged damages and if the Court is satisfied on the balance of probabilities that the damages have been incurred, awards can be made for the proven damages.

5. A plaintiff in such a case is only entitled to lead evidence and recover such damages as may be pleaded and asked for in his statement of claim.

The Supreme Court adopted and applied those principles in Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694, Amet CJ, Sheehan J, Kandakasi J.

Kandakasi J. applied those principles recently in the National Court in Desmond Huaimbukie v James Baugen (2004) N2589. We believe His Honour succinctly and correctly stated the law. We elaborate on the first principle by saying that once default judgment is entered, the facts as pleaded and their legal consequences in terms of establishing the cause of action as pleaded must be regarded as proven. (See Keith Reid v Murray Hallam and Allcad Pty Ltd (1995) N1337, National Court, Kapi DCJ and Andale More and Manis Andale v Henry Tokam and The State (1997) N1645, National Court, Injia J.)........................

Turning back to the issue raised above as to the role of the trial judge after entry of default judgment, we consider the following to be the correct approach:

the trial judge should make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity;

if it is reasonably clear what the facts and cause of action are, liability should be regarded as proven;

only if the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability."

The claim

7. From a perusal of the further amended statement of claim (statement of claim) it appears that the facts are pleaded sufficiently clearly for the cause of action to be determined as being in tort for trespass. The State is liable in tort for the acts of its employees.

8. The Plaintiffs' however, are claiming for acts of trespass that occurred since 1980. As a consequence, the issue is raised as to whether this court has jurisdiction to consider such a claim given s. 16 Frauds and Limitations Act. The issue was not argued before me. One of the arguments would have been that the Defendants should have pleaded the "limitation" defence. The Supreme Court in The State v. Brian Josiah (2005) SC792, said the following concerning the non-pleading of a "limitation" defence:

"We therefore cannot accept Mr. Dataona's submission's that it is a statutory defence which should have been raised in the pleading. If a claim is not sustainable at law....... what difference would pleading of statute of frauds and limitations make? Can failure to plead cure a clear defect in law? Certainly not"

This decision is binding on this court.

9. I note the following comments of Injia J. (as he then was) in Karl Paul v. Awai Kispe (2001) N2085 which were cited with approval in Brian Josiah's case (supra):

"there is a wide discretion vested in the Court by the NCR to screen and weed out claims which do not disclose a reasonable cause of action, are frivolous and vexatious or an abuse of process of the Court, (O12 r40) or the documents filed in Court are scandalous, irrelevant or otherwise oppressive (O2 r29), or on the ground of irregularity. That discretion is normally exercised upon application by an interested party. Nevertheless, it goes without saying that the Court may exercise that discretion on its own initiative. It is open to the Court to raise and determine questions covering the regularity (O1 r1-9) or competency of proceedings at any stage of the proceedings with or without application by an interested party."

10. I note also that in Obed Lalip & Ors v. Fred Sikiot & Anor (1996) N1457, Injia J. (as he then was) said:

"Just because the plaintiff has obtained default judgment does not mean that he is entitled as of right to receive damages. He must prove the damages suffered by credible evidence."

11. After having considered the above authorities, in the exercise of this court's discretion, if after reviewing the evidence of the Plaintiffs' I decide to award damages, those damages will be awarded in respect of the period from the 25th July 2001 and not before. The 25th July 2001 is 6 years before this proceeding was commenced and is the period of time in s. 16 Frauds and Limitations Act during which an action founded on simple contract or tort may be brought.

Damages

12. I now must determine whether the Plaintiffs' have sufficiently proved the damages that they claim. (In submissions filed on behalf of the Plaintiffs, the total sum of K1,042,591.32 is claimed).

13. Mr. Wii initially makes a claim for damages for breach of a lease agreement between him and the Police Department. In the prayer for relief in the statement of claim, the sum of K648,000 is claimed for payment of outstanding rental fees. The only reference in the statement of claim to any lease however, is in paragraph 8 where it is pleaded that:

"agents and servants of the First Defendant verbally informed the Plaintiff that they would rent the land at an annual rent of K24,000 but that did not happen"

14. As no lease or agreement has been pleaded and there is no evidence of any, Mr. Wii cannot claim damages for outstanding rental. Consequently this specific claim for damages is rejected.

15. The Plaintiffs have pleaded that they have suffered loss and damage as a consequence of the trespasses by members of the police and in their prayer for relief they seek:

"General Damages to be assessed"

16. What is the appropriate measure of damages for trespass by members of the police on the Plaintiffs land? The plaintiffs have relied upon a decision of Bredmeyer J. in Madaha Resena v. PNG [1990] PNGLR 22. At p. 29 His Honour states:

"Damages will thus be limited to loss arising from the period of wrongful occupation by the Defendant." and

"The normal measure of damages is the market value of the property occupied or used for the period of wrongful occupation or user."

17. A cause of action in trespass is different to a cause of action in negligence. An action for trespass exists to protect the right of a person in possession of his land to the exclusive enjoyment of that land. The category of trespass involved in this instance is similar to that considered in what have become known as the "wayleave cases". In Port Stephens Shire Council & Anor v. Tellamist Pty Ltd [2004] NSWCA 353, Sakar J. said:

"These are cases where the defendant wrongful uses a right of way over the plaintiff's land. The measure of damage awarded is the usual reasonable charge for the user of the right of way: Jegon v Vivian (1871) LR 6 Ch. 742. Damages for trespass by staghounds was similarly compensated in League against Cruel Sports Ltd v Scott [1986] QB 240. It has been noted that such damages are an anomalous measure in the law of torts, apparently resting on a presumption that the plaintiff has incurred loss and the defendant has benefited from the trespass; see Roberts v Rodney District Council [2001] 2 NZLR 402 at 409."

18. In Roberts v. Rodney District Council (supra), which was a case concerned with various claims for damages for trespass to land, Barker J. said at pp 405 – 406:

"In broad terms, damages for trespass to land may be nominal, exemplary or compensatory: Mayfair Ltd v. Pears [1986] NZCA 476; [1987] 1 NZLR 459 (CA) at 465. This case is concerned with compensatory damages... There are two possible measures of compensatory damages. The first is, where there has been actual damage to the plaintiff's land or the chattels thereon, the measure of damages is the cost of reinstatement: Mayfair Ltd v. Pears at p 465. In some circumstances, where reinstatement is not possible for example, the diminution in the value of the land may be awarded in lieu thereof. See Lockwood Buildings Ltd v. Trust Bank Canterbury Ltd [1995] 1 NZLR 22 (CA).

"The second measure of damages usually applies where there has been some wrongful use made of the plaintiff's land. Where a trespasser has wrongfully made use of the plaintiff's land, the plaintiff is entitled to receive by way of damages such sum as should reasonably be paid for that use: Laws NZ, Tort para 218. That this measure of damages is available to a victim of trespass to land is well established by English authority. See Penarth Dock Engineering Co Ltd v Pounds [1963] 1 Lloyd's Rep 359; Bracewell v Appleby [1975] Ch 408; Swordheath Properties Ltd v Tabet [1979] 1 All ER 240; Ministry of Defence v Ashman [1993] 2 EGLR 102; Jaggard v Sawyer [1995] 2 All ER 189; Inveragie Investments Ltd v Hackett [1995] 3 All ER 841 (PC)...

"The distinction between these two measures of damages is to be found in the different form of injury to the victims land. The latter applies where there is wrongful use made of the plaintiff's land....

At pp 407 – 408 of his judgment, Barker J. goes on to say:

"Where there is actual damage to a person's land, the award of the cost of reinstatement or diminution in value is based upon the compensation principle which requires that a victim of a tort be placed in the same position as he or she would have been placed had the tort not been committed. Thus, the award is designed to compensate the plaintiff for the loss suffered at the hands of the tortfeasor.

"Damages for wrongful use, on the other hand, are sometimes said to rest upon a user principle: if one person has without leave of another been using that other's land for his own purposes, he ought to pay for such use (Whitwham v Westminster Brymbo Coal and Coke Co [1896] UKLawRpCh 112; [1896] 2 Ch 538 ar pp 541 – 54). See Salmond and Heuston on The Law of Torts (21st ed, 1996) p 50.

19. It is apparent then, that a plaintiff is entitled to be compensated for actual damage and wrongful use. For actual damage: this is subject to there being evidence of the actual damage and cost of reinstatement or diminution. For wrongful use: there has to be evidence as to what sum should reasonably be paid for the wrongful use of the property. This means the particular piece of property that has been wrongfully used, not the whole portion of land of which the piece wrongfully used, is a part.

20. Mr. Wii has annexed to one of his affidavits a valuation report from the Office of the Valuer General in which a valuation of the fair market monthly rental for both blocks of land is assessed at K4,000 as at 13 July 2008. That is all. There is no evidence of actual loss or damage suffered, or any valuation of any cost of reinstatement or of loss of value.

21. In my view therefore, the plaintiffs have not proved their claim for actual damage or loss suffered.

Wrongful use

22. As for damages for the wrongful use of the land, that part of the land that has been trespassed upon by the police is not specifically pleaded. In an affidavit of Mr. Wii however, Mr. Wii says that the "access road", (that part of the land that has been trespassed upon) (trespassed land), is about 10 m wide and 37 m long. Annexure "C" to the affidavit of Mr. Wii sworn on 4th July 2008 shows that the trespassed land runs along the boundary between both blocks of land. It is apparent therefore that the major portions of both blocks of land, especially portion 656 have not been trespassed upon.

23. To ascertain the sum that should reasonably be paid for the trespassed land requires a valuation of the trespassed land when the acts of trespass began and up to the present day - not a valuation of the blocks of land of which the trespassed land is a mere part. The Plaintiffs have not provided such a valuation.

24. Mr. Wii has given evidence that the police were considering renting the land for K2,000 per month, but this is not evidence of what should reasonably be paid for the trespassed land.

25. As mentioned, the Plaintiffs have only given evidence of a valuation in respect of their blocks of land, not the trespassed land.

26. In the present situation the court can only do the best that it is able. In Yange Lagan v. The State (1995) N1369, Injia J. (as he then was) cited the cases of Chaplin v. Hicks [1911] UKLawRpKQB 104; [1911] 2 KB 786 at 792 where it was stated:

"The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages."

and the case of Biggin & Co Ltd v. Permanite Ltd [1951] 1 KB 422 at 438 where it was stated:

"Where precise evidence is obtainable, the Court naturally expects to have it (but) where it is not, the Court must do the best it can."

27. Consequently this court will attempt to do the best that it is able with the evidence before it.

28. The total area of the 2 blocks of land is 0.5937 hectares or 5937 square metres. Mr. Wii deposes that the trespassed land is 10 m wide by 37 m long: that is 370 square metres. The Valuer General has valued the land at a rental of K4,000 per month. That is K0.67 per square metre per month. 370 square metres at K0.67 per month is K249.28 per month.

29. As mentioned earlier, the starting date for both Plaintiffs is 25th July 2001. As there is no indication as to how much of the trespassed land was on each block of land, I will apportion the 370 m equally between both Plaintiffs.

30. On the above bases the calculations are:

For Mr. Wii: 86.5 months x K0.67 a square metre x 185 square metres = K10,721.68.

For Sikange Business Group Inc: 86.5 months x K0.67 a square metre x 185 square metres = K10,721.68.

31. The interest calculation on both sums at 8% per annum has been claimed without objection from the Defendants, from the date of the filing of the Writ of Summons, which was on 25th July 2007.

Orders

32. Mr. Wii is awarded damages of K10,721.68 and interest in the sum of K1,038.68, a total of K11,760.36.

33. Sakange Business Group Inc. is awarded damages of K10,721.68 and interest in the sum of K1,038.68, a total of K11,760.36.

34. If the 2 sums of K11,760.36 are not paid within 30 days of today, interest shall be payable at the rate of 8% per annum from today on each sum or on so much of each sum that is from time to time unpaid.

35. As to the claim for a restraining order, as in my view it is in the public interest that the Police Station at Kudjip be able to be readily accessed, I order that the State enter into an agreement with the Plaintiffs concerning the use of parts of Portions 656 and 657 within 3 months from today. If no agreement is reached by then, the Plaintiffs are at liberty to make application to this Court for appropriate injunctive relief.

36. Costs of the proceedings are to be paid by the Defendants to the Plaintiffs.

___________________________________________________________
Boma Lawyers: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the Defendants