Gau v G & S Ltd [2016] PGNC 7; N6169 (22 January 2016)

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FUGAMAN GAU, FOR HIMSELF AND MEMBERS OF SONGUMBE-MARUMBE AND BOIMBE CLANS
Plaintiff

TORTS – Trespass to property – Land boundaries – Question of fact – Whether plaintiff proved that the defendant entered his land – Proof of damage to land.

The plaintiff, a customary landowner, alleged that the defendant entered two areas of customary land owned by two clans and without authority harvested timber and engaged in other forest industry activities on the land, causing environmental harm. He commenced representative proceedings (acting on behalf of members of his clan and the other clan) against the defendant, seeking declarations and injunctions and damages for the tort of trespass to property. The defendant had lawful authority (under a logging and marketing agreement with the holder of the timber permit) to conduct forest industry activities in a neighbouring timber rights purchase area. It denied entering the two areas of land. It maintained it only conducted logging and other forest industry activities within the timber rights purchase area. A trial was conducted on the issue of liability.

(e) the plaintiff's enjoyment of the land was interfered with (Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (2008) N3440).

Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (2008) N3440
Helen Jimmy v Paul Rookes (2012) N4705
Ibi Enei v Rimbunan Hijau Ltd (2011) N4402
Kuberi Epi v Turama Forest Industries Ltd (1998) N1761
Madang Cocoa Growers Export Co Ltd v Noilai Gunar (2012) N4703
Manuel Gramgari v Steve Crawford & PNG Tropical Wood Products (2012) N4950
Rabaul Shipping Limited v Peter Aisi (2006) N3173
Rafflin v Richard Gault Industries Pty Ltd [1998] PNGLR 394
Re Fisherman's Island [1979] PNGLR 202

1. CANNINGS J: The central issue in this case is whether the defendant, G & S Ltd, has committed the tort of trespass to property. The plaintiff, Fugaman Gau, argues that it has, by unlawfully entering two areas of customary land in Rai Coast District and logging timber on that land and causing environmental harm. The two areas of land are:

2. Those areas are adjacent to the southern boundary of the Rai Coast Timber Rights Purchase Area. The defendant lawfully conducts logging and other forest industry activities in that TRP area pursuant to a registered logging and marketing agreement with the holder of the timber permit (No 12-18), Raikos Holdings Ltd. The Rai Coast TRP area has a total concession area of 76,110 hectares and a total net production area of 55,236 hectares. It is divided into four blocks, Nos 1, 2, 3 and 4. The two land areas are adjacent to block 1.

3. The plaintiff has been authorised by members of each clan to commence these proceedings. He seeks:

4. The defendant denies liability. It argues that the plaintiff has not proven his case and that the court should refuse all relief sought by the plaintiff.

5. The tort of trespass to property, in regard to land, consists of five elements:

(e) the plaintiff's enjoyment of the land was interfered with (Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (2008) N3440).

6. The only uncontentious element is that the plaintiff and the persons he represents had lawful possession of the two areas of land, "Songum" and "Wel". All other elements are contentious and turn on determination of a question of fact:

DID THE DEFENDANT ENTER "SONGUM" AND "WEL" AND CONDUCT LOGGING IN OR AROUND NOVEMBER 2011?

7. There is competing evidence. Five witnesses have given evidence that supports the plaintiff's case. Five witnesses have given evidence to support the defendant's denials. All evidence has been given by affidavits, without oral testimony. It is summarised in the following tables.

No	Witness	Description
1	Fuguman Gau	Plaintiff
Evidence (exhibits P1, P2)
In November 2012 he conducted an awareness program in the Songumbe-Marumbe Clan and Boimbe Clan areas regarding the alleged illegal logging operation that was taking place in those areas – clan members were informed of the court proceedings he had instituted – they authorised him to act of their behalf – logging has been conducted outside the TRP area
2	Andrew Mapio	Member, Madang Civil Society Organisation Forum
Evidence (exhibit P3)
He is a member of the technical committee of the Madang Civil Society Organisation Forum, an umbrella organisation for non-government organisations in Madang Province – he was a member of a team of observers who conducted a site visit to the Rai Coast Timber Permit area on 29 August 2012 – from the coast they drove 17 km inland, through the areas surrounding Bongu and Bang villages to the TRP boundary at Sanjimbe – they drove a further 5 km inland, over the Gidol River, into the high altitude mountain forests of Songumbuk, Banaga and Iwargun where extensive logging was progressing, within the areas of Wards 3 and 4 of the Astrolabe Bay local-level government areas – he prepared a written report of the site visit, annexed to his affidavit.
3	Gala Tomek	Forester
Evidence (exhibit P4)
He holds a Diploma in Forestry and a Bachelor of Science in Forestry Degree and is a certified Log Scaler - he now works independently, having worked as a forester for Jant Ltd for 22 years – he is familiar with the Rai Coast TRP project – he was a member of the observation team that on 29 August 2012 conducted the site visit referred to by witness Mr Mapio – they drove 17 km from the coast, at the Malamu log pond, to Sanjimbe – he considers that logging was taking place at least 10 km beyond the boundary of the Rai Coast TRP area
4	Gabora Mamani	Land Mediator
Evidence (exhibit P5)
He was at Wongbe village in the Bang area on a day in November 2011 to witness a proposed consent form signing ceremony – the defendant was arranging to extend its operations into the mountainous Songum land area – he (the witness) advised against signing of any consent forms as a few days beforehand he had been informed by Songumbe-Marumbe Clan leaders that they would not be consenting to any logging in the Songum land area as they wanted it to be a forest conservation area – no consent signing took place that day – but the defendant later moved into the Songum land area and conducted logging operations.
5	Yogau Siba	Leader, Boimbe Clan
Evidence (exhibit P6)
His clan's land extends from Boimbe village to the slopes of Mt Banaga – this land area is known as "Banaga Slopes" or "Wel" land – it lies outside the Rai Coast TRP area – the defendant has conducted logging in that area.

No	Witness	Description
1	Go Kemsan	Defendant's managing director
Evidence (exhibits D1, D2)
He has checked the maps and records and confirmed that the defendant's operations are confined to the TRP area – the defendant has not received any complaints from the Forest Authority regarding the plaintiff's allegations – the maps will show if the plaintiff's land is within or outside the TRP area.
2	Mamba Sogo	Clan leader, Mararumbe Clan
Evidence (exhibit D3)
His clan holds several coupes (sub-blocks) in block 1 of the Rai Coast TRP area – the plaintiff's clan does not hold any land within the TRP area.
3	Andrew Sallel	Managing director, Raikos Holdings Ltd
Evidence (exhibits D4, D5)
Raikos Holdings Ltd and the defendant entered into a logging and marketing agreement in 2011 – the plaintiff's clan's land is outside the TRP area - Raikos Holdings Ltd has not received any complaints from the Forest Authority alleging that the defendant was operating outside the boundaries of the TRP area – the plaintiff has commenced the court proceedings in bad faith.
4	Batteng Puto	Director, Raikos Holdings Ltd
Evidence (exhibit D6)
The allegation that the defendant has gone beyond the TRP area and harvested on the plaintiff's land is not true – the defendant is operating within the TRP area – the Forest Authority has not been consulted – he has heard of no complaints at the village level.
5	Joe Chin	Defendant's production manager
Evidence (exhibit D7)
He has worked for the defendant in the area for three years, since it entered the logging area in late 2011 – he is familiar with the boundaries and the local people who are affected by the logging operation.

8. Having weighed the competing evidence and the submissions of counsel I find that the plaintiff has proven on the balance of probabilities that the defendant entered the "Songum" and "Wel" land areas and conducted logging in those areas at some time in the period from late 2011 to August 2012.

9. I make this finding of fact despite there being no conclusive independent evidence in support of the plaintiff's case. A case of this nature would have benefited from evidence by a senior officer of the PNG Forest Authority who had investigated and prepared a report on the plaintiff's allegations. However, it is noted that three of the plaintiff's witnesses (Messrs Mapio, Tomek and Mamani) are independent, in the sense that they are not members of either of the two clans whose land is at the centre of the case.

10. The evidence of Mr Mapio and Mr Tomek is direct and specific and based on a physical inspection of the land: there was clear evidence that logging had recently been conducted on the two areas of land as at 29 August 2012. There is no evidence that any forest industry participant other than the defendant was conducting logging or other forest industry activities in the Rai Coast TRP area or any other area in the vicinity of the "Songu" and "Wel" land areas. If it is found that logging took place in those areas in the relevant period, the only reasonable inference to draw from the evidence is that it was the defendant that conducted that logging and that it brought its equipment into those areas for the purpose of logging.

11. The evidence of Mr Mamani, the land mediator, has less probative value as he does not give evidence of what he personally observed. However, his evidence does, by explaining why consent forms were not being signed, corroborate the proposition that the defendant was planning to conduct logging on "Songu" and "Wel" land, and did in fact conduct logging in those areas.

12. The evidence of Mr Siba, the Boimbe Clan leader, is direct and specific: that the defendant conducted a logging operation on his clan's land, on the slopes of Mr Banaga.

13. By contrast the defendant's evidence is indirect and vague. The defendant's managing director, Mr Go, has merely stated that the defendant's operations are confined to the TRP area. The evidence of the production manager, Mr Chin, is even vaguer. He gives no evidence that the defendant's operations have been confined to the TRP area. The evidence of the three witnesses not directly connected to the defendant (Messrs Sogo, Sallel and Puto) contains no statement that the defendant has not logged in "Songu" and "Wel" land. In fact none of the defendant's five witnesses denies that the defendant logged in those areas.

14. In this situation it is appropriate to invoke the fact finding principle that if one side of a case presents evidence on a disputed fact and the opposing side presents no evidence to contradict it, the court is obliged to make a finding of fact that is supported by that evidence unless the evidence is so incredible that it would not be reasonable to accept it (Re Fisherman's Island [1979] PNGLR 202, Rabaul Shipping Limited v Peter Aisi (2006) N3173, Helen Jimmy v Paul Rookes (2012) N4705, Madang Cocoa Growers Export Co Ltd v Noilai Gunar (2012) N4703).

15. The plaintiff has adduced direct evidence that the defendant conducted logging operations in the "Songu" and "Wel" land areas at some time in the period from November 2011 to August 2012. The defendant has adduced no evidence to contradict the plaintiff's evidence. The plaintiff's evidence is not of an incredible nature. It is credible evidence. It is evidence that could, if it were untrue, easily have been rebutted by the defendant. It has not been rebutted. Therefore the Court is obliged to accept the plaintiff's evidence.

16. The answer to the question 'Did the defendant enter "Songu" and "Wel" land and conduct logging?' is yes. I cannot find that logging occurred only in November 2011. I find that logging in those two areas occurred at some time in the period from November 2011 to August 2012.

17. This is a question of law, which involves a determination of whether the elements of the tort, outlined earlier, have been established. I find that:

(a) the defendant directly entered the "Songu" and "Wel" land areas in the period from November 2011 to August 2012;

(b) the defendant did so by moving its equipment into those land areas in the that period;

(d) the plaintiff and the clan members he represents are the customary owners of "Songu" and "Wel" land and had a right to lawful possession of the land; and

(e) the right of the plaintiff and the clan members he represents to enjoyment of the land was interfered with, by the logging operations that were conducted on their land.

18. As all elements have been proven, the answer to the question 'Did the defendant commit the tort of trespass to property?' is yes.

19. As the plaintiff has proven that the defendant committed the tort of trespass to property I have no difficulty in granting the three types of remedies he seeks: a declaration to that effect, a permanent injunction to restrain the defendant from engaging in similar activity in future and an order that the defendant is liable in damages, to be assessed at a separate trial. Costs will follow the event.

20. This is not an unprecedented decision as there have been a number of cases in which the National Court has recognised the right of customary landowners to damages in trespass against forest industry participants who unlawfully enter their land and harvest timber. See for example Rafflin v Richard Gault Industries Pty Ltd [1998] PNGLR 394, Kuberi Epi v Turama Forest Industries Ltd (1998) N1761, Ibi Enei v Rimbunan Hijau Ltd (2011) N4402 and Manuel Gramgari v Steve Crawford & PNG Tropical Wood Products (2012) N4950.

______________________________________________________________
GP Lawyers: Lawyers for the Plaintiffs
Bradshaw Lawyers: Lawyers for the Defendant

National Court of Papua New Guinea

Gau v G & S Ltd [2016] PGNC 7; N6169 (22 January 2016)