PNG Power Ltd v Kerenga [2020] PGNC 100; N8264 (23 March 2020)

N8264

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO.166 OF 2016

BETWEEN:
PNG POWER LIMITED
Plaintiff/Cross-Defendant

AND:
BOB KERENGA as Chairman of the Kapma Gaten Landowners Association of Kau Basis and Dumun villages, Simbu Province
Defendant/Cross-Claimant

Waigani: David, J
2020: 23^rd March

LIMITATION OF ACTIONS – claim for compensation under transmission line access agreement – claim founded on simple contract –time for payment of compensation not stipulated - whether action time-barred – Frauds and Limitations Act, Section 16(1)(a).

Cases Cited:
Papua New Guinea Cases

Brian Josiah v Steven Raphael (2018) SC1665
Joe Kerowa v MVIL (2010) SC1100
John Hiwi v Rendle Rimua (2015) SC1460
Michael Nunulrea v PNG Harbours Ltd (2005) N2790
Otto Benal Magiten v Kopina Raka (2002) N2179
Oil Search Ltd v Mineral Resources Development Corporation Ltd (2010) SC1022
Paul Kumba v Motor Vehicles Insurance (PNG) Trust (2001) N2132

Overseas Cases

Midland Bank v Hett, Stubbs & Kemp [1978] 3 All ER 571
Wylie v Wake [2000] EWCA Civ 349

Treatise Cited:

Chitty on Contracts, Volume 1, General Principles, 1994, Sweet & Maxwell
Halsbury’s Laws of England, Volume 28, 4^th Edition

Counsel:

Derrick Dusava, for the Plaintiff/Cross-Defendant
Edward Keka Komia, for the Defendant/Cross-Claimant

JUDGMENT

23^rd March, 2020

1. DAVID, J: INTRODUCTION: The plaintiff/cross-defendant, PNG Power Limited (PNG Power) instituted these proceedings seeking a number of declarations and permanent restraining orders against the defendant/cross-claimant, Bob Kerenga as Chairman of the Kapma Gaten Landowners Association of Kau Basis and Dumun villages, Simbu Province (Kerenga). During the course of the proceedings, the Court ordered the proceedings to continue on pleadings and granted leave to Bob Kerenga to file a cross claim and he did. A trial was conducted on both PNG Power’s claim and Kerenga’s cross-claim which were both contested. This is the decision of the Court on both claims.
   

PLAINTIFF/CROSS-DEFENDANT’S CLAIM

2. In PNG Power’s originating summons filed on 30 March 2016 which was later amended by amended originating summons filed on 13 April 2016 (amended originating summons), the main relief sought are:

1. A declaration that the land compensation claim by the defendants is time-barred and therefore unenforceable by a court of law pursuant to Section 16 of the Frauds and Limitations Act.
2. A declaration that there being no Court Order ordering the payment of compensation to the defendants by the plaintiff, the plaintiff is under no legal obligation to pay any compensation to the defendants.
3. A declaration that the supply of electricity throughout Papua New Guinea is an essential service and cannot be disrupted due to unjustifiable claims for compensation.
4. A declaration that threatening to disrupt the supply of electricity by vandalizing the property of PNG Power Limited and demanding compensation is a criminal act pursuant to Section 309 of the Criminal Code.
5. A declaration that the plaintiff, its servants, agents and contractors should be permitted to enter upon land to carry out works pursuant to Section 26 of the Electricity Industry Act.
6. An order restraining the defendants and their agents, associates, servants or kinsmen from causing any intimidation, harassment and threatening of any employees of the plaintiff, PNG Power Limited and its associates, agents or contractors from carrying out their lawful duties.
7. An order that the defendants and their agents, servants, associates or kinsmen be restrained from causing any damage, destruction or vandalism to any properties including power poles, lines, towers and any plant or equipment along the Dumun area of the Highlands Highway.
8. An order that in the event that the defendants and their servants, agents, associates or kinsmen fail to comply with orders 5 and 6, the principal defendant Bob Kerenga shall be in contempt of Court and can be arrested by the Police force for the said offence.
   

DEFENDANT/CROSS-CLAIMANT’S CROSS-CLAIM

3. Kerenga is an adult citizen of Papua New Guinea and is from Kapma Gaten tribe of Sinasina District in the Simbu Province. He represents himself and 3,600 others from his tribe in pursuing their claim against the plaintiff.

4. PNG Power is an entity established under the Independent Public Business Act 2002. It can sue and be sued and can be vicariously liable for the actions and omissions of its employees.

5. In or about April 1988, PNG Power’s predecessor, PNG Electricity Commission (ELCOM), entered into an open Transmission Access Agreement with leaders of the defendant’s tribe (the TAA). The TAA allowed PNG Power, its agents and servants to enter the defendant’s virgin land/forest at Nilkama Valley which is situated between Chuave and Kundiawa in the Sinasina District (the land) to cut and clear out an easement or corridor of land containing pristine, thick and vast natural rain forest (forest) measuring 12 kms in length and 20 metres wide (the corridor) to pave way for PNG Power to erect power pylons/lines on their land.
   
6. The forest was the source of food and water supply, habitat for birds and animals used for food and traditional costumes, timber for various use including firewood and building and fencing materials, home of sacred sites and spirits.
   
7. ELCOM grossly deceived the Kerenga’s tribe into believing that when the project was completed they would; restore the forest back to its original condition as nearly as possible and practicable; be paid compensation for destruction caused to their forest and properties along the corridor; compensate them for injuries and damage caused to third parties; and indemnify the tribe from any claim by third parties. It was on those basis that Kerenga’s tribe agreed to sign the TAA.
   
8. Upon signing the TAA, PNG Power, its servants, agents or employees entered the land and cut and cleared forest along the corridor.
   
9. For reasons unknown to Kerenga’s tribe, PNG Power neither completed the project nor restored the forest as nearly as possible to its original condition nor compensate Kerenga’s tribe contrary to and in breach of the TAA. Kerenga’s tribe has suffered loss and damage as a result.
   
10. In 2003, Kerenga started making enquiries about the project and on 3 March 2006 wrote a letter to PNG Power’s manager at Kundiawa to which no response was received. A claim in the sum of K10 million was made to PNG Power. In September and November 2006 and February 2007, PNG Power, through its Manager, Legal Services communicated with Kerenga on the claim and engaged officers to conduct an investigation which involved visits to the project site, meetings with representatives of landowners, and taking photographs.
    
11. Environmental experts were engaged and resulted in a report by one Ted Mamuy dated 18 March 2006. The report reported that; significant flora was destroyed within 24 ha of the forest; commercially loggable trees and others were destroyed; fauna and ceremonial areas were destroyed; landslides occurred as a direct result of the clearance of the forest; important tree species called Yomba was lost or destroyed; and loss of biomass. Another report by one Bafike Kongrui of Chem Clean Environmental Services Ltd in September 2010 reported that environmental damage caused was assessed at K5,065,625.33.
    
12. The statute of limitation does not apply as the damage suffered by Kerenga’s tribe was continuous and unlimited.
    
13. On 24 September 2010, Kerenga formally declared that there was a breach of the TAA and pursued the claim of K10 million against PNG Power.
    
14. Kerenga claims a number of declarations including that the TAA signed on 25 March 1988 was legally binding on the parties to it; compensation in the sum of K5,065,225.00; special damages in the sum of K5,065,625.33, general damages for distress, hardship and expense incurred in executing the TAA; interest; and parties to meet their own costs of the proceedings.
    

PLAINTIFF’S DEFENCE TO CROSS-CLAIM

15. PNG Power denies liability. It avers that; PNG Power is a company established under the Companies Act whose shares are held by the Independent Public Business Corporation; over 28 years have lapsed since the TAA was signed and the claim is statute barred by virtue of Section 16 of the Frauds and Limitations Act; the original persons who signed the TAAs were paid compensation for clearing the corridor at the material time; the project was abandoned due to the difficult terrain; over the course of time, the forest along the corridor has naturally regrown to its original state and this fact has been reported in environmental reports; the reports that Kerenga relies on were done some 20 years after the fact and therefore are not the true description of the value of plants within the corridor that was cleared.

REPLY TO PLAINTIFF’S DEFENCE TO CROSS-CLAIM

16. Kerenga joined issue with PNG Power on its defence.

EVIDENCE

17. PNG Power relies on the affidavit of Titus Tsigese sworn and filed on 7 August 2017 (Exhibit A). No cross-examination was conducted.

18. Kerenga relies on the following affidavits:

1. Affidavit of Ben Okoro sworn on 25 May 2016 and filed on 30 May 2016 (Exhibit 1);
2. Affidavit of Bob Kerenga sworn on 25 May 2016 and filed on 30 May 2016 (Exhibit 2);
3. Affidavit of Bob Kerenga sworn on 10 June 2016 and filed on 20 June 2016 (Exhibit 3); and
4. Affidavit of Bob Kerenga sworn on 26 July 2016 and filed on 27 July 2016 (Exhibit 4).
   

19. No cross-examination was conducted.

SUMMARY OF PLAINTIFF/CROSS-DEFENDANT’S EVIDENCE
Titus Tsigese

20. He is employed by PNG Power as an Environmental Officer attached to its Operations Business Unit. He did an environmental report on behalf of PNG Power.

21. On 28 June 2007, he did a field trip to the area the subject of Kerenga’s claim which is situated in the Nilkama Valley, Sinasina Yongomugl District, Simbu Province. The field trip exercise involved tracking across the ridge where the planned 132 KV Transmission Line would have run starting from the Nilkama Valley and onto the Highlands Highway. The field exercise basically involved physical and visual observations of a section of the area of forest cut as easement for the aborted 132 KV Transmission Line and the surrounding original forest. This was to observe first hand any effect that the area cleared by PNG Power might have had and to compare the original forest with the regrowth from the area cut to see if there were any changes in flora species make up. It also involved observation of other activities that could have had an impact on the flora and fauna of the area.

22. There was nothing that suggested that PNG Power’s activities had negatively impacted the environment within the locality as the type of activity undertaken by PNG Power was not significant in terms of the area cleared and potential magnitude of its impact. On the other hand, the activities of the landowners themselves in terms of the size of the area they cleared and magnitude of its impact on the environment was quite significant. The area of forest cleared by PNG Power was very small compared to the vast area of forest removed by the landowners. Comparing the area of forest cut for the 132 KV Transmission Line easement and that removed by the landowners it was justifiable to claim that the clearance by landowners was more likely to cause environment impact than the clearance by PNG Power.

23. His assessment was that the damage claimed by Kerenga was excessive and not a true reflection of what he saw. The area concerned had significantly re-grown and had naturally rehabilitated. A true copy of his report compiled in July 2007 is annexure A to Exhibit A.

SUMMARY OF DEFENDANT/CROSS-CLAIMANT’S EVIDENCE
Ben Okoro

24. He is from Dumun village, Sinasina District, Simbu Province. He is the Chief of Kimba Ku Kane clan of the Kapma Gaten tribe.

25. Kapma Gaten tribe consists of eight clans that has a population of 3,600 people. The clans are Kimba Ku Kane, Bopakaiworo, KalGawo, Diga Kane, Damaku Kane, Kamara Gawo, Yusi Yal Komuo and Gerel Saki.

26. PNG Power constructed power pylons along 12 kms of their customary land in Sinasina District in 1988 but has not compensated the eight clans who own the customary land on which they stand. A data company in collaboration with PNG Power is using the power pylons to conduct their business. In fact, both PNG Power and the data company are using their customary land to conduct business and making profit without any form of just compensation paid to the customary landowners.

27. PNG Power agreed to pay compensation when it executed an access agreement with the Kapma Gaten Landowners Association and constructed power pylons in 1988 but has not paid compensation to customary landowners for damage done to their customary land.

Bob Kerenga

28. He is the Chairman of Kapma Gaten Landowners Association (the Association) of Sinasina Yongumugl District, Simbu Province. He has been the Chairman of the Association since May 2008.

29. A copy of the TAA that allowed PNG Power to enter and clear forest for purposes of transmission line construction and maintenance is annexed as annexure A to exhibit 4.

30. An environmental impact study of the corridor or stretch of land concerned was conducted by one Bafike Krongui, an environmental scientist of Chem Clean Environmental Services Ltd following his engagement in May 2010 between 12 and 14 June 2010 and a copy of the report he compiled in September 2010 relating to the study is annexed to Exhibit 3 as annexure A. In that report, the value of damage to flora (K65,642.57), fauna, ceremonial areas and land pollution (K346,200.00), timber (K4,532,612.76) and biomass (K121,170.00) was quantified at K5,065,625.33. Copies of the report were submitted to PNG Power through the Board of Directors of PNG Power and its Chief Executive Officer in September 2010.

31. The Association’s claim for compensation commenced in 1988 and has remain unsettled. Subsequent to that date, the Association has submitted numerous claims for compensation to PNG Power copies of which were sent to relevant State agencies.

32. The claim has been followed up with PNG Power directly and with the involvement of others. Annexure B to Exhibit 2 is a copy of a letter from the Association to the then Minister of Public Enterprises and State Investments, Hon. Ben Micah MP dated 24 January 2013 requesting his assistance and intervention in facilitating payment of compensation. Annexure C to Exhibit 2 is a copy of a letter from the then Minister of Public Enterprises and State Investments, Hon. Ben Micah MP to Mr Joshua Bakiri, Chairman of PNG Power dated 12 February 2013 requesting consideration and immediate settlement of the Association’s claim. Annexure D to Exhibit 2 is a copy of a letter from Dr. Clement Waine, Acting Secretary of Department of Public Enterprises & State Investments to Mr John Tangit, Chief Executive Officer of PNG Power dated 23 January 2014 requesting PNG Power to address the Association’s claim. Annexure E to Exhibit 2 is a copy of an undated letter from the Association to the Board of Directors of PNG Power proposing settlement of its claim for K10 million. Annexure F to Exhibit 2 is a copy of a letter from the Association to the Acting Chief Executive Officer of PNG Power dated 17 August 2015 following up on the Association’s claim. Annexure G to Exhibit 2 is a copy of a letter from the Association to the Manager, Legal of PNG Power dated 10 September 2015 following up on the Association’s claim and also giving notice of the possibility of disrupting power supply to all Highlands Provinces failing settlement of its claim. Annexure H to Exhibit 2 is a copy of a letter from Joe Kunda Naur, Provincial Administrator, Simbu Provincial Administration to the Chief Executive Officer of PNG Power dated 3 February 2016 requesting PNG Power to promptly address and expedite payment of the Association’s claim.

33. On 5 February 2016, the Association submitted a claim for compensation to PNG Power for environmental damage caused to 12 km of their customary land in Sinasina Yongomugl District, Simbu Province by PNG Power when clearing land to construct power pylons through the Manager of PNG Power, Kundiawa. A copy of the submission is annexure A to Exhibit 2.

34. Annexure I to Exhibit 2 is a copy of a letter from Superintendent, Albert Beli, Provincial Police Commander of Simbu Province to the Chief Executive Officer of PNG Power dated 16 February 2016 informing him of complaints received from landowners about non-settlement of their claim and threats issued by them to sabotage power pylons erected on their land failing settlement which the police and Provincial authorities had discouraged and requested PNG Power to give priority to addressing the Association’s claim.

AGREED FACTS

35. In the Statement of Agreed and Disputed Facts and Issues for Trial dated 8 November 2017 (the Statement of Facts and Issues), the parties stated that the following facts are not disputed:

1. PNG Power is a State-owned enterprise registered under the Companies Act whose shares were initially held by the Independent Public Business Corporation (IPBC), but now held by Kumul Consolidated Holdings (KCH).
2. On or about 31 July 2014,PNG Power entered into an agreement with a third party namely, PNG Dataco Ltd, a State-owned enterprise, allowing PNG Dataco Ltd to use PNG Power’s high and low voltage transmission towers to attach Fibre Optic Cables.
3. On or about January 2016, that project was disrupted by Kerenga who raised the claim and threatened to destroy PNG Power’s property.
4. PNG Power then filed these proceedings and obtained injunctive orders preventing Kerenga from interfering with its property.
5. Kerenga then lodged his claim based on the TAA made on 25 March 1988.
6. In the 1980s, PNG Power was upgrading the transmission lines from Yonki to the rest of the Highlands Provincial centres.
7. On or about 25 March 1988, PNG Power and Kerenga’s elders entered into a TAA which allowed PNG Power to remove some trees for a distance of 12kilometres long and 20 metres wide so that it could conduct a survey to plot a route for transmission lines.
8. Kerenga has previously filed proceedings in both the National Court and the Supreme Court seeking damages, but those claims were all dismissed.
9. PNG Power’s claim is based on the use of existing power lines along the Highlands Highway whereas Kerenga’s cross-claim is based on another part of land unconnected to PNG Power’s claim.
   

DISPUTED FACTS

36. From the evidence and the Statement of Facts and Issues, the following facts are disputed:

1. Kerenga’s cross-claim is time-barred and therefore not entitled to be paid compensation and damages claimed.
2. At the material time, all landowners who were alive and present personally received payment for the value of trees that had been cut down.
3. The project has since been abandoned and the land has reverted back to the use of the original landowners.
   

LEGAL ISSUES FOR TRIAL

35. In the Statement of Facts and Issues, the parties agreed that the main legal issues for trial in relation to both claims of the parties are:

1. Whether Kerenga’s cross-claim is time-barred pursuant to Section 16 of the Frauds and Limitations Act?
2. Whether Kerenga’s cross-claim is an abuse of process and ought to be dismissed?
3. Whether Kerenga is entitled to be paid compensation?
   

37. Given that, it would appear that other relief sought by PNG Power for declarations and grant of permanent restraining orders from paragraphs 3 to 8 of the amended originating summons have been abandoned and therefore dismissed.

WHETHER THE DEFENDANT/CROSS-CLAIMANT’S CROSS-CLAIM IS TIME-BARRED?

38. PNG Power argues that Kerenga’s cross-claim is founded on a simple contract therefore it is time-barred by virtue of Section 16(1)(a) of the Frauds and Limitations Act which stipulates that no action can be brought after the expiration of six years after the cause of action accrued.

39. Kerenga contends that PNG Power is estopped from pleading Section 16(1)(a) of the Frauds and Limitations Act as a bar by the application of the principles of estoppel by conduct also known as estoppel by representation.

40. In addition, it was argued that the cause of action accrued not from the date when PNG Power stopped clearing the forest, but when PNG Power should have paid compensation to Kerenga. It was submitted that there was no date contemplating the completion of the parties’ obligations under the TAA, i.e.:

1. there was no time stipulated for the payment of compensation by PNG Power;
2. there was no time expressly mentioned for the power pylons to be completed; and
3. The TAA was open ended, there was uncertainty, and the only inference to be drawn was that the parties’ obligations were continuous particularly, the obligation to pay compensation to Kerenga for the destruction caused to the forest, vegetation and property was continuous simply because no time was agreed to by the parties for the payment to be made even though the project had been abandoned.
   

41. The starting point in the present case is Section 16(1)(a) of the Frauds and Limitations Act. It is instructive that I set out the relevant provision below.

Limitation of actions in contract, tort, etc.
(1) Subject to Sections 17 and 18, an action—
(a) that is founded on simple contract or on tort; or
(b) ....

(c) ....

(d) ....

shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.

42. In order to determine whether a cause of action founded on a contract was time-barred, the Supreme Court in Oil Search Ltd v Mineral Resources Development Corporation Ltd (2010) SC1022 suggested three matters that should be considered. The Supreme Court at paragraph 11 of the judgment observed:

A determination of whether an action involving an alleged breach of contractual obligations is time-barred under Sections 16(1) or 16(3) of the Frauds and Limitations Act necessarily entails a finding on three matters:

(a) What is the “cause of action” (that being the term used in both sub-sections)?

(b) What is “the date on which the cause of action accrued” (that term also being used in both sub-sections)?

(c) Is the action “founded on a special contract” (in which case the six-year limitation period in Section 16(1) will apply) or is it “an action upon a speciality” (in which case Section 16(3) applies and the limitation period is 12 years)?

43. I adopt and apply those matters below.

44. What is the cause of action in the cross-claim? I am of the opinion that the cause of action in the cross-claim is founded on a breach of a simple contract in which case the six-year limitation period will apply, i.e., an action for breach of contract must be brought within six years from the date of accrual of the cause of action.

45. What is “the date on which the cause of action accrued”?The general rule in contract is that a cause of action in a breach of contract accrues, not on the date of the contract, but on the date of the breach,: Midland Bank v Hett, Stubbs & Kemp [1978] 3 All ER 571, Otto Benal Magiten v Kopina Raka (2002) N2179, Michael Nunulrea v PNG Harbours Ltd (2005) N2790, John Hiwi v Rendle Rimua (2015) SC1460. So when was the TAA breached by the plaintiff?

46. The argument on estoppel aside, my understanding of Kerenga’s argument is that due to the uncertainty under the TAA as to when payment of compensation was to have been made, the breach of contract is a continuing one and the cause of action accrues die in diem, i.e., the right of action is a continuing one from day to day until the obligation to pay compensation under the TAA is performed by PNG Power.

47. The learned authors of Chitty on Contracts, Volume 1, General Principles, 1994, Sweet & Maxwell at paragraph 28-022 address the subject of successive and continuing breaches of a contract as follows:

Where the innocent party elects to treat himself as discharged from further performance consequent upon a breach of the contract, time begins to run immediately. For instance, if there is an anticipatory breach accepted by him as a repudiation of the contract, his cause of action accrues at once, and not from the failure of the party in default subsequently to perform at the time fixed for performance. But if there are one or more breaches which do not give rise to a discharge either because they are not sufficiently fundamental or because the innocent party declines to accept them as having that effect, each will give rise to a separate cause of action. There may also be a series of breaches of a single covenant. Examples are failure to pay instalments of interest or rent. Or the breach may be a continuing one, e.g. of a covenant to keep in repair. In such a case the plaintiff will succeed in respect of so much of the series of breaches or the continuing breach as occurred within the six (or 12) years before action brought. If the breach consists in a failure to act, it may be held to continue die in diem until the obligation is performed or becomes impossible of performance or until the innocent party elects to treat the continued non-performance as a repudiation of the contract.

48. I will be guided by this passage.

49. In Otto Benal Magiten v Kopina Raka (2002) N2179 when dealing with an application to dismiss the entire action as it was time-barred pursuant to Section 16(1) of the Frauds and Limitations Act, Sawong, J in upholding the application was guided by a passage in Halsbury’s Laws of England, Volume 28, 4^th Edition at paragraph 662 which states:

If the contract is to do something at a particular time or upon the happening of a contingency, and the thing contracted for is not done, the cause of action arises at the time specified or upon the contingency happening.

50. In that case, the parties entered into a contract for the repair of the plaintiff’s motor vehicle by the defendants. An essential element of the contract was that the defendants were to repair the plaintiff’s vehicle within three weeks. The defendants did not repair the vehicle within the three weeks period agreed to. Instead, it took about four months for the defendants to repair the vehicle. His Honour observed that the breach of contract occurred when the vehicle was not repaired by the defendants within the agreed three weeks period and the cause of action accrued immediately after the three weeks expired. The plaintiff commenced his action more than six years after the cause of action accrued and was clearly statute-barred so it was dismissed in its entirety.

51. A copy of the TAA annexed to Exhibit 4, as part of a bundle of documents marked as annexure A shows that the agreement which was to regulate entry and access to easement for transmission line construction and maintenance between Chuave and Kundiawa (Tower angle Position 28A-28) was entered into between ELCOM and one Mui Nuramil, a leader of the Gapma Gaten clan and of the Dumun community who signed as Owner/Occupier of land the subject of the easement. The easement or corridor was to be approximately 1000 metres long and 20 metres wide. It is instructive that I set the relevant terms of the TAA in full and I do so below.

The above named Owner/Occupier of the said land hereby permit and authorise Papua New Guinea Electricity Commission (hereinafter called “the Commission’’ which expression shall include the employees, agents, contractors, sub-contractors and duly authorised representatives of the Commission) to have access to and enter upon the said easement shown on the attached sketch plan for the purposes of construction of Transmission Lines UPON THE FOLLOWING TERMS AND CONDITIONS:-

ACCESS (a) Access to be effected only along transmission line easement at access point on boundary line, as indicated on Sketch Plan; and/or

(b) On tracks at access points as indicated on Sketch Plan.

GATES (a) The Commission may erect and maintain suitable and safe gates at the access points indicated on the Sketch Plan; such gates to be securely locked when not in immediate use;

(b) Owner’s gates, where permitted to be used by Commission under this Agreement, are to be kept closed and barred by the Commission when not in immediate use, to prevent straying of animals or entry.

FENCES (a) The Commission to reinstate owner’s fences and gates where temporarily removed for the purpose of the works.

WORKS (a) Earthmoving and levelling to be carried out without interference with land outside easement area;

(b) Surface of land within easement to be restored so far as is practicable, to enable owner’s continuing use.

TIMBER (Provisions of timber or other growth or objects removed from easement area or access track)

SPECIAL PROVISIONS

DAMAGE In consideration of these present, the Commission hereby undertakes:-

(a) To reinstate the land and the property of the owner on the completion of the construction work as near as possible and practicable to its original condition; and
(b) To pay the owner, make good and compensate for all damage, detriment and deterioration of the land and the owner’s property thereon, which may be due to the construction of the works; over and above the compensation which the owner may be entitled for the grant of the easement only.

LIABILITY The Commission shall be liable for all injury and damage to third parties and property arising out of the construction or maintenance of the works, and shall indemnify the Owner against any claims that may be made against the Owner in respect of such injury or damage.

52. Clearly, there is no specific or clear stipulation as to the time when PNG Power was to pay compensation under the TAA. Other TAAs signed on different dates in April 1988 are in similar terms.

53. It is clear to me and I find as a fact from the available evidence before me that PNG Power abandoned the project and the easement or corridor has reverted back to the use of the original landowners. It is however not clear from the available evidence as to when the project was actually aborted and for what reason(s). It seems from the evidence of Mr. Tsigese that the corridor or easement cut has significantly regrown and naturally rehabilitated. An internal brief on important legal matters by PNG Power’s Manager Legal Services forming part of the bundle of documents constituting annexure A to Exhibit 2 shows that PNG Power never returned to the easement or corridor cut to erect power pylons. In the same brief, it is asserted that the landowners were paid K160.00 for each pylon that was proposed to be erected.

54. Kerenga’s evidence is that their claim for compensation commenced in 1988 and has been unsuccessfully pursued from that time to the present time. There is no strong and convincing evidence before the Court to suggest that all landowners who were alive and present at the time the TAA was signed personally received payment for the value of trees that had been cut down. It is not clear from the evidence as to the reason(s) why the claim for compensation was made not long after the TAA was signed. If that implies that the project was aborted before compensation was claimed and Kerenga elected to treat the non-performance of PNG Power’s obligation to pay compensation or damages under the TAA as a repudiation of the TAA, then Kerenga’s cause of action would have commenced accruing around that time. That means that Kerenga should have commenced his Associations’ action within six years from the time the project was aborted, i.e., sometime towards the end of 1994. If PNG Power aborted the project later than 1988, then it is difficult from the evidence available to pinpoint or guess the nearest date. Even if the project had been aborted anytime after 1988 say within six years of the signing of the TAA and Kerenga elected to treat the non-performance of PNG Power’s obligation to pay compensation or damages under the TAA as a repudiation of the TAA, then Kerenga should have commenced their action by year 2000.

55. In the circumstances, I find that Kerenga’s conduct in claiming compensation or damages under the TAA as I have alluded to above amounted to an election to accept repudiation of the TAA. Kerenga’s cross-claim is time-barred and I declare it to be so.

56. Given that conclusion, Kerenga’s cross-claim also amounts to an abuse of the process of the Court. I also note that it is an undisputed fact that Kerenga has previously filed proceedings in both the National Court and the Supreme Court seeking damages, but those claims were all dismissed.

57. Kerenga’s contention that PNG Power is estopped from pleading the statute of limitation as a bar by the application of the principles of estoppel by conduct also known as estoppel by representation is misconceived and rejected. The maxim equity follows the law and also expressed as aequitas sequitur legem which means that equity will not allow a remedy that is contrary to law is accepted and applied in our jurisdiction: Paul Kumba v Motor Vehicles Insurance (PNG) Trust (2001) N2132, Joe Kerowa v MVIL (2010) SC1100, Brian Josiah v Steven Raphael (2018) SC1665, Wylie v Wake [2000] EWCA Civ 349.

58. Is the action “founded on a special contract” or is it “an action upon a speciality”? The action in the cross-claim is neither founded on a special contract nor upon a specialty. Any contract in the form of a deed is a specialty: John Hiwi v Rendle Rimua (2015) SC1460. The action is founded on a breach of a simple contract in which case the six-year limitation period will apply.

59. I conclude that Kerenga’s claim pursued by the cross-claim is time-bared and amounts to an abuse of the process of Court and therefore will be dismissed in its entirety. This means that Kerenga will not be entitled to compensation under the TAA as PNG Power has no legal obligation to do so.

COSTS

60. Costs will follow the event, i.e., PNG Power is awarded costs of the entire proceedings inclusive of both claims. This means that Kerenga shall pay PNG Power’s costs on a party-party basis, which shall, if not agreed, be taxed.

ORDER

61. The formal orders of the Court are:

1. Judgment is entered in favour of the plaintiff/cross-defendant, PNG Power Limited.
2. The cross-claim filed on 21 October 2016 pursued by the defendant/cross-claimant, Bob Kerenga as Chairman of the Kapma Gaten Landowners Association is time-barred under Section 16(1)(a) of the Frauds and Limitations Act and an abuse of the process of the Court and therefore is dismissed in its entirety.
3. The relief sought in paragraphs 3 to 8 of the amended originating summons filed by the plaintiff/cross-defendant, PNG Power Limited on 13 April 2016 were abandoned and therefore dismissed.
4. The interim orders issued by the Court on 15 April 2016 are discharged.
5. Costs shall follow the event, i.e., the defendant/cross-claimant, Bob Kerenga as Chairman of Kapma Gaten Landowners Association shall pay the plaintiff/cross-defendant, PNG Power Limited’s costs of the entire proceedings inclusive of both claims of the parties on a party-party basis, which shall, if not agreed, be taxed.
6. Time is abridged.
   

62. Judgment and orders accordingly.
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