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Seeto v Dekenai Constructions Ltd [2023] PGNC 63; N10172 (27 March 2023)

N10172

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]


WS NO. 432 OF 2017


BETWEEN

NICOLE SEETO for and on behalf of Agnes Seeto
Plaintiff


AND

DEKENAI CONSTRUCTIONS LIMITED
Defendant


Waigani: Shepherd J

2019: 7th & 13th March, 4th April

2023: 27th March


TORTS – trespass to land – relevant principles – unauthorised entry of land by contractor pursuant to roading contract with the State – requirement for due diligence to establish ownership of land prior to entry – necessity to obtain authority to enter land.


DAMAGES – assessment of damages for trespass – different heads of damages – consequences of encroachment and excision of land taken for public road – costs associated with those consequences allowed.


Cases Cited:


Bob v Stettin Bay Lumber Company Ltd (2008) N3440
Cheong Supermarket Pty Ltd v Muro [1987] PNGLR 24
Deukari v Kuglam and The State (2006) N3087
Gau v G & S Ltd (2018) N7198
Gramgari v Crawford (2018) N7197

Kopung Brothers Business Group v Kasieng [1997] PNGLR 331
Gramgari v Crawford (2018)

Mappa v Elcom (1992) N1093
Motor Vehicles Insurance Limited v Kol (2007) SC902
Nambawan Super Ltd v Petra Management Ltd (2017) N6748
Paklin v The State (2001) N2212
Rimbunan Hijau (PNG) Ltd v Enei (2017) SC1605
Waisime v Auskoa Enterprises Ltd (2019) N7727
Wii v Baki (2009) N5898


Legislation:


Judicial Proceedings (Interest on Debts and Damages) Act 2015: Sections 4, 6
Wrongs (Miscellaneous Provisions) Act Chapter 297: Part VIII


Counsel


Mr Loani Henao & R. Puka, for the Plaintiff
Mr Dane Mel, for the Defendant

DECISION


27th March, 2023


  1. SHEPHERD J: Agnes Seeto is the registered proprietor of an estate in freehold of a block of land known Kaumona No. 2, being Portion 352C, Milinch of Kieta, Fourmil of Bougainville South situated in the Kieta District of the Autonomous Region of Bougainville and being all the land described in Certificate of Title Volume 27 Folio 237 (the Property). According to the first page of the Certificate of Title, the land has a nominal area of 1.3 hectares, subject to survey.
  2. Nicole Seeto is the daughter of Agnes Seeto. Nicole as plaintiff is suing on behalf of her mother Agnes, who now resides in Australia. Nicole holds power of attorney from Agnes dated 23 August 2016. For the purposes of this decision Nicole and Agnes are generally referred to by their first names to distinguish each from the other but in other contexts Agnes is referred to as the Plaintiff in her capacity as the registered proprietor of the title to the Property.
  3. In August 2016 Agnes and Nicole became aware during a trip back to Bougainville that the defendant, Dekenai Constructions Ltd (Dekenai), when carrying out a roading contract it had with the State, had entered the Property during the course of road-widening at some point in time prior to their visit and had cut down trees and vegetation and undertaken earthworks on the Property without having first obtained the permission of Agnes to do so.
  4. Agnes is suing Dekenai for damages for trespass to Property and for despoliation of the soil surface, damage to spring water and destruction of trees, crops and vegetation on the Property.

BACKGROUND


  1. Agnes and her family, including Nicole, resided on the Property for more than 20 years but were forced to vacate it after their home and other buildings on the Property were burnt down in 1990 during the Bougainville crisis. Thereafter the Property remained unoccupied, but trees and vegetation continued to grow.
  2. Dekenai is a long established construction company in Papua New Guinea and is well-known for its road construction capabilities.
  3. On 13 October 2015 Dekenai entered into a roading contract with the State of Papua New Guinea acting through the Department of Works and Implementation for the construction of road works on a section of the Aropa Road on Bougainville Island between Kieta and Toimanapa (the Contract). Under the Contract, Dekenai was required to reconstruct, upgrade and seal a major portion of the existing arterial road which connects Aropa to Kieta.
  4. Clause 18.3 of Schedule 1 of the Contract provided that Dekenai was not responsible for compensation to landowners for land or crops damaged within the limits of clearing for the road works, which were required by the Contract to be carried out within a 40-meter corridor of the Aropa Road. However, clause 18.3 of Schedule 1 also stated that Dekenai was responsible for payment of compensation to landowners for any damage to land caused by Dekenai to areas outside the limits for clearing of the road corridor.
  5. The Property owned by Agnes is adjacent to the western side of the Aropa Road at a point not far the small township of Toniva when heading northwards from Aropa to Kieta.
  6. On 16 August 2016 Nicole, her husband Scott Ryan and her mother Agnes, when driving on the Aropa Road and approaching the Property, noticed that a substantial portion of the Property closest to the road had been graded and that a large number of trees on the Property had been cut down.
  7. After making enquiries in the local community, Nicole was informed that the company that had been carrying out the rehabilitation works for the Aropa Road was Dekenai.
  8. On 18 August 2016 Nicole spoke with Dekenai’s site manager, Graham McKillop, at Dekenai’s site office at Toniva. After visiting the property later that same day, Mr McKillop confirmed to Nicole that Dekenai had indeed entered the Property and had graded a portion of the land there when carrying out the roadworks under the Contract. Nicole informed Mr McKillop that Dekenai had no right to have intruded onto the Property without the permission of herself or Agnes.
  9. Agnes, represented by Nicole, filed this proceeding against Dekenai in WS No. 432 of 2017 on 1 March 2019. The statement of claim endorsed on the writ of summons pleads trespass to the Property by Dekenai. It is alleged in the statement of claim that Dekenai caused destruction of trees, crops and vegetation on the Property, as well as environmental damage to soil surface, spring water and waterways. Agnes seeks an assessment of damages and interest on damages pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015.
  10. Dekenai by its defence filed on 7 June 2017 has denied that it lacked lawful authority to enter onto the Property and pleads that it carried out the roading works required of it under its Contract with the State within a 40-meter corridor of the Aropa Road and that in any event it had no knowledge of Agnes’s ownership of the Property. Dekenai seeks the dismissal of this proceeding.

LAW ON TRESPASS


  1. The law on the tort of trespass in Papua New Guinea is well established. In the National Court case of Bob v Stettin Bay Lumber Company Ltd (2008) N3440 Cannings J said this at para. 2, citing the earlier case of Deukari v Kuglam and The State (2006) N3087:

“ To succeed in an action for trespass to land, a plaintiff must prove five things:

(a) that the defendant entered the land, either directly (in person) or indirectly (eg. by propelling an object or a third party onto the land); and

(b) that the defendant did so by some intentional act;

(c) that the defendant had no lawful authority;

(d) that the plaintiff was in lawful possession of the land; and

(e) that the plaintiff’s enjoyment of the land was interfered with. ”


  1. It is of consequence that in the subsequent case of Rimbunan Hijau (PNG) Ltd v Enei (2017) SC1605 it was held by the Supreme Court (Salika DCJ and Kandakasi J as they were then, and Toliken J) that, in the Papua New Guinea context of establishing whether the tort of trespass has occurred, lawful possession of land as a factor is not restricted to physical or actual possession of land but includes land where customary ownership can be proved. More on point, in the course of delivering its decision, the Supreme Court said this at para. 27 regarding the duty of persons intending to enter onto land for some purpose, that they must first establish ownership and then enter into arrangements with the owner(s) appropriate to the purpose of entry:

“ It is not necessary to prove [actual] possession. The common law requiring [actual] possession may be relevant and applicable in England and the rest of the common law world. However it is not the law in PNG. The colonial masters made a deliberate decision and correctly arrived at the view that no land is waste and vacant and ownerless in PNG. Hence, the onus is on the administration or indeed anyone claiming any such land to prove it. The position at law has been carried over into current PNG by the Lands Act. In other words, there is a presumption that there is no waste and vacant land in PNG. The duty is therefore upon the State or any other person, which may include foreign investors or developers, who wish to enter any land in PNG and more so customary land, to first make it their business to ascertain who the true and correct owners are. Once they have done that, they would then be in a better position to enter into meaningful discussions and negotiations with them and get their free and informed consent or approval before entering, occupying and using their land. ”


[underlining added]


  1. I adopt and apply the principles relating to the tort of trespass in Papua New Guinea enunciated in the three abovementioned cases.

AFFIDAVIT EVIDENCE


  1. At trial counsel for Agnes relied on five affidavits:

(1) Affidavit of Nicole Seeto filed on 5 May 2017.

(2) Affidavit of James Murray filed on 31 July 2018.

(3) Affidavit of William Ovasuru filed on 21 September 2018.

(4) Affidavit of Scott Ryan filed on 8 November 2018.

(5) Affidavit of William Ovasuru filed on 20 December 2018.


  1. Dekenai relied on 4 affidavits at trial:

(1) ffidavit of Jamie Mitchell filed 7 June 2017.

(2) Affidavit of Jamie Mitchell filed on 22 October 2018.

(3) Affidavit of Dane Mel filed on 22 October 2018.

(4) Affidavit of Kaluwin Potuan filed on 6 December 2018


ISSUES


  1. The parties’ Statement of Agreed and Disputed Facts and Legal Issues, certified by their respective counsel, was filed on 22 February 2019 (the Statement). The issues which both counsel agreed in the Statement were to be determined by the Court at the trial of this suit were these:

(a) Whether Dekenai’s conduct was authorised by clause 18.1 (scope of works) or any other provision of the Contract?

(b) If the answer to the above issue is no, whether Dekenai’s conduct falls within the ambit of clause 18.3 (scope of works) or any other provision of the Contract and therefore is not liable to pay compensation?

(c) If the answer to the above issue is no, whether Dekenai trespassed onto the Property?

(d) Whether the Plaintiff is entitled to damages?


  1. With respect, I disagree with the parties’ evaluation of the issues for trial. Having reviewed the evidence, the submissions made for both parties and applicable law, I consider that the first two of these issues, which go to the contractual relations between Dekenai and the State in connection with the Contract, are irrelevant to the Plaintiff’s cause of action against Dekenai, which is founded on the tort of trespass. The Plaintiff is not a party to the Contract. The Plaintiff has not sued the State. The State is not a party to this proceeding. If Dekenai is found to be liable to the Plaintiff in trespass as a result of the manner in which it performed its obligations under the Contract and damages are awarded against Dekenai, the company has a right to claim contribution and or indemnity from the State for its payment of those damages. This is a matter which I refer to later in this decision.
  2. I have accordingly determined that the two issues presented in this proceeding which require decision by the Court are these:

ISSUE 1:

Did Dekenai trespass onto the Property when carrying out the roading works?


  1. There is no dispute that Agnes is the owner of the Property. A copy of Agnes’s freehold certificate of title to the Property is annexure “B” to Nicole’s affidavit.
  2. Nicole has deposed in her affidavit that the family home was formerly on the Property. The Seeto family resided on the Property for more than 20 years prior to the Bougainville crisis in 1990. Nicole says that that during the troubled times which took place on Bougainville in 1990, the family home as well as buildings and equipment associated with an engineering business the Seeto family had been operating on the Property was burnt down, forcing the family to leave Bougainville and to live elsewhere.
  3. Nicole says that after 1990 her family have made frequent trips back to Bougainville to check on the Property and to visit relatives there. On one of those trips, on 16 August 2016, Agnes, Nicole and her husband Scott Ryan, arrived at Aropa Airport and then drove from Aropa northwards to Arawa town. When they came to the Property, they noticed that a portion of the land there had been graded and that many trees had been cut down.
  4. On arriving at Arawa, Nicole made enquiries with relatives and found out that Dekenai had been carrying out roading works on a lengthy portion of the Aropa coastal road. Nicole was informed by her relatives that Dekenai had a roading contract with the State to do this.
  5. On 18 August 2016 Nicole, her husband Scott and Agnes went to Dekenai’s site office at Toniva. They met with Dekenai’s site manager Graham McKillop. Nicole expressed her concern to Mr McKillop that Dekenai had caused damage to the Property and that the company did not have permission from Agnes or her to have gone onto the Property. Mr McKillop said that he was not sure what part of the Property Nicole was referring to so he agreed to accompany Nicole, Scott and Agnes to do an inspection of the Property.
  6. Scott says in his affidavit that Nicole travelled to the Property on 18 August 2016 with Mr McKillop in his vehicle and that he drove in another vehicle and escorted them to the Property. Accompanying Scott in his vehicle were Agnes and a niece of Nicole’s.
  7. On arrival at the Property, Mr McKillop confirmed to Nicole, Agnes, Scott and Nicole’s niece that it was apparent that Dekenai had gone onto the Property when carrying out the roading works required under its Contract with the State.
  8. Scott, in his affidavit, says that when conducting their inspection of the Property on 18 August 2016 with Mr McKillop, he observed that a portion of the Property had been graded, trees had been felled and old equipment and discarded foliage had been heaped further inside the Property.
  9. Scott has deposed that when Nicole pointed out the damage and discarded shrubs and foliage to Mr McKillop, he heard Mr McKillop say that he would arrange to have the felled trees and discarded foliage removed. Scott says that Nicole refused Mr McKillop’s offer. Nicole told Mr McKillip that Dekenai’s employees were not allowed to encroach onto the Property again and that the damage to trees and foliage pointed out by Nicole would remain as evidence of Dekenai’s encroachment onto the Property.
  10. Colour photographs of the felled trees and discarded shrubs and foliage referred to by both Scott and Nicole in their respective affidavits are annexed to Nicole’s affidavit.
  11. Scott says that after conducting their joint inspection of the Property, they all returned to Mr McKillop’s site office at Toniva on 18 August 2016. Mr McKillop then showed Nicole some contract documents. Other persons who were then present in Mr McKillop’s office were Dekenai’s local community liaison officer (CLO) Mr Severius Dupansi as well as members of Dekenai’s staff.
  12. Scott concludes his affidavit by stating at paragraphs 11 to 13:

“ 11. Nicole then turned to the CLO and asked if he was aware of who had owned the land and he admitted that he knew of [Nicole’s] family and was aware that from previous knowledge of the area her family owned the land.


12. Again, I recall my wife advising Graham [McKillop] that Dekenai had no right to enter the property without first seeking consultation and consent of the owner. He did not provide any proof at the time to verify that Dekenai had the appropriate authorisation to carry out work on the property.


13. Before leaving I also recollect Nicole clearly stating to Graham that Dekenai was not to encroach the property any further, that she was seeking legal representation for the previous encroachment and as part of Dekenai’s due diligence that they should check with their employer and the Department of Lands to validate her mother’s claim of title ownership to the property. ”


  1. No affidavit from Mr McKillop or Dekenai’s CLO Mr Dupansi has been filed for Dekenai in this proceeding. The matters deposed to by Nicole and Scott in connection with their joint inspection of the Property with Mr McKillop and their discussions with him in his office before and after that inspection on 18 August 2016 remain unchallenged.
  2. In answer to the Plaintiff’s evidence regarding Dekenai’s unauthorised entry onto the Property, Dekenai’s position is that no trespass onto the Property took place during the course of the road construction work because the works were authorised by the State and it is alleged that all such work was carried out by Dekenai within the road corridor of 40 meters allowed under its Contract with the State.
  3. Dekenai relies on clause 18.1 and clause 18.3 of Schedule 1 of the Contract. Schedule 1 outlines the scope of the roading works to be performed by Dekenai.
  4. Clause 18.1 of Schedule 1 of the Contract between Dekenai and the State included the following provision:

“ 18.1 ... Clearing and grubbing shall be carried out along the road alignment to a distance of 10m from inverts of table drains on both sides of the road up to the limit of the 40m corridor. Cleared vegetation shall be removed and disposed of at approved locations. The Contractor shall comply with Group 3 of the Department of Works Specification for Roads and Bridge Works 1995. ”

  1. Clause 18.3 of the Schedule 1 of the Contract states:

“ 18.3 Cleaning and clearing of all existing culverts and their inlet and outlet channels from both ends of the culverts and lined drains within the 40m road corridor shall be carried out by the Contractor concurrently with the clearing and grubbing of the road corridor including maintaining drainage systems during construction and handing over in good working order on completion.

Clearing shall also include the removal and disposal of vegetation and any other demolished debris from existing water courses within the 40m road corridor. The Contractor shall not be responsible for compensation to land owners for any land or crops damaged within the limits of clearing for the Works. However, the Contractor shall be responsible for payment of compensation to landowners for any damage to land caused by the Contractor to areas outside the limits for clearing of the road corridor. ”

[underlining added]

  1. Dekenai’s evidence in support of its denial of trespass to the Property is to be found in the affidavit of Mr Jamie Mitchell filed on 7 June 2017. Mr Mitchell was at all material times the general manager of Dekenai. He deposes at paragraphs 3 to 8 of his affidavit:

“ 3. On 13 October 2015, Dekenai executed a Contract with the Independent State of Papua New Guinea through the Department of Works under Contract No. CSTB 2930 for the Engineering Procurement and Construction of Kieta to Toimanapa section of Aropa Road in Autonomous Region of Bougainville (AROB) (the Contract).


4. Under the Contract, Dekenai was required to reconstruct, upgrade and seal the existing road that runs from Aropa to Kieta in the AROB.


5. Dekenai commenced works pursuant to the Contract in or about November 2015 and entered the approximate area claimed by the Plaintiff and commenced clearance and other works on or about September/October 2016.


6. Prior to conducting clearance works, the Community Liaison Officer Mr Severius Dupansi had approached the customary landowners and obtained permission from the paramount chief Mr Thomas Wukaia to carry out clearance works. At no time was Dekenai advised nor did it have prior knowledge of the Plaintiff’s claim to ownership of subject property.


7. In any case, the clearance works carried out were well within the road corridor of 40 meters allowed under the Contract. At clause 18.1 of the Contract, Dekenai was authorised to undertake clearing and grubbing along the road up to the limit of 40 meters corridor. Clause 18.3 of the Contract provides that Dekenai is not responsible for compensation to landowners for land or crops damaged within the limits of clearing for the works.

Annexed and marked “B” is a true copy of relevant part[s] of the Contract.

8. Dekenai therefore denies it had trespassed and is any way liable in the manner claimed. ”

  1. Firstly, I note that Mr Mitchell’s contention in paragraph 5 of his affidavit that Dekenai commenced clearance and other works on the Property in “September/October 2016” is at variance with the Plaintiff’s evidence that those works had already been commenced well before the Plaintiff’s site inspection of the Property with Dekenai’s Mr McKillop on 18 August 2016.
  2. Secondly, Mr Mitchell’s assertion in paragraph 7 of his affidavit that Dekenai had no prior knowledge of the Plaintiff’s ownership of the Property may well be true. I make no finding in that regard. However, Dekenai did have constructive knowledge that the Property was owned by the Plaintiff via Dekenai’s CLO, Mr Severius Dupansi, who failed to inform Dekenai of that ownership. This is clear from the uncontested matters deposed to by Scott Ryan in his affidavit filed on 8 November 2018.
  3. Thirdly, had Dekenai and the Department of Works for the State carried out proper due diligence before entering into their Contract on 13 October 2015 by fully investigating who owned the various blocks of land either side of the Aropa Road and by conducting a thorough check of records held by the Office of the Surveyor-General and the Office of the Registrar of Titles at the Department of Lands and Physical Planning, staff at Dekenai and the State’s Department of Works would have each ascertained that Agnes was the proprietor of the Property by virtue of her freehold Certificate of Title Volume 27 Folio 237. They would also each have ascertained the existence at the Office of the Surveyor-General of a copy of a large, detailed survey plan for the Property, namely Survey Catalogue Plan no. 27/453 dated 28 May 1979, signed by licensed surveyor Donald Thomas Smith, which shows that the road adjacent to the Property had a corridor of 30 meters wide, not 40 meters wide as was wrongly assumed and wrongly stated in the Contract between Dekenai and the State. This Catalogue Plan, a copy of which was admitted into evidence at trial as Exhibit “C”, also shows that the Property had an area of 1.191 hectares at the date of that survey in 1979 and that the Property was enclosed by a cyclone wire fence which separated the Property from adjoining customary land. The Catalogue Plan depicts the location of a substantial residence and two smaller buildings in the centre of the Property, with a water course referred to as the Bena River meandering around the perimeter on three sides of the Property. The three buildings depicted on the Catalogue Plan are obviously the family residence and outbuildings that Nicole has deposed were burnt down during the 1990 Bougainville crisis.
  4. Fourthly, I observe that Mr Mitchell conveniently omits reference in paragraph 7 of his affidavit to the fact that Clause 18.3 of Schedule 1 of the Contract clearly stated that Dekenai was to be responsible for payment of compensation to landowners for any damage to land caused by the Contractor which occurred to areas outside the limits for clearing of the road corridor.
  5. After the commencement of this proceeding, the parties were directed by order of the Court made on 28 February 2018 to agree on the appointment of an independent registered surveyor to conduct and prepare a survey report of the area alleged by the Plaintiff to have been trespassed on by Dekenai. The parties were required by that order to each pay one-half of the costs of that survey report pending further order of the Court.
  6. In compliance with the Court’s order of 28 February 2018, the independent surveyor’s report was furnished by James Murray, a certified surveyor. Mr Murray deposes in his affidavit filed on 31 July 2018 that on 10 July 2018 he travelled to Bougainville with two assistants to conduct the Court-ordered survey. A copy of Mr Murray’s survey report is annexure “A” to his affidavit filed on 31 July 2018.
  7. An updated survey plan showing the actual final area of encroachment of Dekenai’s roadworks onto the Property is annexure “B” to Mr Murray’s survey report. The total area of encroachment as shown in Mr Murray’s survey plan is an area of 0.023 hectare, the equivalent of 23m2. The encroachment is located where the frontage of the Property meets the boundary with the corridor for the Aropa Road.
  8. Mr Murray’s survey plan is enhanced and confirmed by an aerial drone survey of the encroachment area of 23m2 which is annexure “C” to Mr Murray’s affidavit.
  9. Mr Murray’s survey report and survey plan do not refer to that area of land within the Property which was temporarily encroached on when Dekenai’s heavy machinery cleared and grubbed the frontage of the Property. That area of temporary encroachment when Dekenai’s bulldozers and equipment graded the topsoil and removed trees and other foliage from the frontage of the Property and then propelled the fallen trees and uprooted foliage further into the Property is, however, clearly evidenced in the photographs which are annexed to Nicole’s affidavit as well as in the photographs which are annexed to the affidavit filed by surveyor William Ovasuru on 21 September 2018. The photographic evidence is compelling. It shows a substantial number of decaying trees and a large amount of bulldozed logs and vegetation dumped in a wide area that extends into the middle of the Property.
  10. In view of the totality of this evidence, there can be no doubt that Dekenai trespassed onto the Property at some point prior to when Agnes, Nicole and Scott first observed on 16 August 2016, the encroachments which had occurred on the Property as a result of the newly constructed roadworks carried out by Dekenai.
  11. I make the following findings:

(2) That Dekenai’s repeated entry onto the Property was intentional and was done in furtherance of Dekenai’s obligations under its roading Contract with the State.

(3) That Dekenai had no lawful authority at any stage of its construction of the subject road works to enter onto the Property owned by the Plaintiff, despite having constructive knowledge of that ownership via its CLO Severius Dupansi.


(3) That the Plaintiff was at all material times in lawful possession of the Property by reason of her freehold ownership of the Property evidenced by her Certificate of Title Volume 27 Folio 237, which was available for public search and by Dekenai and the Department of Works at the Office of the Registrar of Titles, physical possession of the subject land not being a requirement for the purposes of the tort of trespass under PNG law: Rimbunan Hijau (PNG) Ltd v Enei (supra).

(4) That the Plaintiff’s enjoyment of the Property was interfered with by Dekenai when it carried out its roading improvements adjacent to the Property under its roading Contract with the State in that damage was caused when, among other things, topsoil was graded, trees and vegetation were felled and deposited at areas within the Property and the Property has furthermore been permanently deprived of an area of 23m2 of land taken for the Aropa Road corridor where the frontage of the Property abuts the corridor for the Aropa Road.
  1. I am accordingly satisfied that all five of the factors to establish commission of the tort of trespass by Dekenai have been proven by the Plaintiff on the civil standard of proof. Dekenai is liable to the Plaintiff for its trespass to the Property when carrying out its roading Contract with the State. Issue 1 is resolved in the affirmative.

Issue 2: If trespass occurred, what is the quantum of damages, if any, to which the Plaintiff is entitled?


  1. As Dekenai’s liability for trespass on the Property has been established, the Plaintiff’s claim for damages must now be considered. What therefore is the appropriate measure of damages for trespass that should be awarded?
  2. It was submitted for Dekenai that even if the Court were to find that the company is liable to the Plaintiff in trespass, which it denied, the Plaintiff had failed at trial to substantiate her claim for damages.
  3. The Plaintiff’s primary evidence in support of her claim for assessment of quantum of damages is provided in the valuation report of certified valuer William Ovasuru which is annexed to Mr Ovasuru’s affidavit filed on 21 September 2018.
  4. Mr Ovasuru’s valuation report is dated 7 September 2018. According to uncontested factual material in paras. 3.4, 3.9 and 5.1 of Mr Ovasuru’s valuation report, the Property is situated immediately after a single-lane bridge on the Aropa Road between the Aropa/Toniva border, about 2 kilometres from Toniva township and 11 kilometres from Aropa Airport. Kieta is 25 minutes’ drive to the north of the Property. There is a communication tower in the vicinity, with good mobile, telephone and internet access, depending on daily reception coverage. The Property is opposite a beach water frontage. There is an active water source from a river within 100 metres from the Property, presumably the Ariobau River depicted in the plan on page 1 of the Plaintiff’s Certificate of Title Volume 27 Folio 237. Another water source servicing the Property is the Bena River depicted on Catalogue Plan No. 27/453, which Nicole refers to in her affidavit as the Bena Creek. The Property is said by Mr Ovasuru to be suitable for both commercial business and agricultural activities. This is consistent with evidence given by Nicole Seeto that her family had resided on the Property for at least 20 years prior to the Bougainville crisis of 1990 and that they also had an engineering business there.
  5. Mr Ovasuru summarises his estimated value of the damage caused by Dekenai’s trespass in his valuation report at a total of K620,145, which he has assessed under the following headings:

(a) value of 23m2 of land “encroached” and taken for

the Aropa Road corridor: K 50,600

(b) remediation for disturbance causing land on the Property

to become flood prone and removal of crane relic: K 548,870

(c) past occupation fee - 2016 to 2018: K 10,675

(d) economic value of felled trees and plants: K 10,000

Estimated total value: K 620,145


  1. Dekenai’s evidence in rebuttal of Mr Ovasuru’s assessment of the damages claimed for the Plaintiff is contained in part in the report of valuer Mr Kaluwin Potuan which is annexure “E” to Mr Potuan’s affidavit filed on 6 December 2018.
  2. Mr Potuan’s valuation report states that it is a valuation of the Property as at 18 November 2018. In marked contrast to Mr Ovasuru’s valuation report, Mr Potuan has assessed that in his opinion the damage caused to the Property by Dekenai’s road works has a compensation value of only K56,675, approximately 90% less than the amount of K620,145 assessed by Mr Ovasuru.
  3. Mr Potuan has adopted what he calls the “direct comparison approach” for the purposes of his valuation report. He defines this approach as meaning that the property to be valued is directly compared to recent sales of similar properties to establish a current market value.
  4. Mr Potuan states in his valuation report that it was requested by Dekenai’s general manager Jamie Mitchell for the purpose of assessment of all heads of a compensation claim. However, there are only two heads of compensation covered by Mr Potuan’s valuation report: (1) the estimated market value of the encroached area of 23m2, which Mr Potuan has assessed as having a market value of K46,000; and (2) allowance for an occupation fee for a period of two years when the roadwork was being carried out by Dekenai, assessed by Mr Potuan at K10,675, which coincidentally is exactly the same as valuer Mr Ovasuru’s own assessment of an appropriate occupation fee for the same period of two years.
  5. Mr Potuan has assessed a total of K56,675 which he says would be “fair and just compensation” for the Plaintiff if Dekenai were to be found by the Court to be liable in trespass to the Plaintiff. This total of K54,675 comprises the aggregate of the encroachment area of 23m2 assessed by Mr Potuan to have a market value of K46,000 and the occupation fee of K10,675, which Mr Potuan agrees with Mr Ovasuru should be paid if trespass by Dekenai is established in this suit.
  6. Mr Potuan accepts in his valuation report that the area of land “severed” for which compensation should rightfully be assessed is the encroached area of 23m2 taken from the frontage of the Property as a result of Dekenai’s roadworks for the rehabilitation of the Aropa Road. After setting out sales figures for the sale of properties at Misima Island, Buka, Kimbe, Kokopo and Losuia on Kiriwina Island which Mr Potuan says he has used as a guide, Mr Potuan deduces that a fair and just compensation for the encroached area of 23m2 should be an amount of K46,000 based on a value of K200/m2, as opposed to the rate of K220/m2 assessed by Mr Ovasuru.
  7. Mr Potuan makes it clear in his valuation report that he has made no allowance for environmental damage or “injurious affection” said by the Plaintiff to have been caused to the Property by Dekenai. Mr Potuan categorically states at page 5 of his valuation report:

“ Environmental Matters:

There is no evidence of past or present site specific or nearby contaminating activities of a nature that on current general information would have any adverse effect on the marketability or value of the property.

This valuation is on the assumed basis of No site contamination. We caution that any contamination noted or suspected herein and/or subsequently confirmed or revealed by an Environmental Audit or any other source, would warrant a review of the valuation.”


  1. Mr Potuan’s denial of any environmental damage to the Property is of little or no evidentiary weight as he himself conceded during cross-examination at trial to the effect that he had not conducted any physical inspection of the Property at all and that he relied for his sources when preparing his valuation report on Mr Ovasuru’s valuation report and on a number of other documents given to him by Dekenai’s counsel, Mr Dane Mel. I consider that as Mr Potuan had not conducted any physical inspection of the Property at all, he was in no position to assert that there was no evidence of deleterious environmental matters that could have had an adverse effect on the value of the Property.
  2. To recapitulate, Dekenai’s primary submission is that the roadworks it carried out adjacent to the Property were all on State reserved land within the 40-meter corridor referred to in Dekenai’s Contract with the State and that Dekenai’s road construction activities did not encroach onto the Property. This submission must fail because, as I have already found, the plan of the Property on page 1 of Certificate of Title Volume 27 Folio 237 and the detailed survey plan in Catalogue Plan No. 27/453 clearly show that the width of the corridor of the Aropa Road was 30 meters, not 40 meters. The Plaintiff furnished credible proof by surveyor James Murray at trial that one of the permanent results of the roadworks carried out by Dekenai was that the Plaintiff has sustained a permanent loss of 23m2 of land where the frontage of the Property meets that portion of the corridor of the Aropa Road which was upgraded by Dekenai under its contract with the State. Furthermore, Dekenai’s own valuer, Mr Potuan, agrees that compensation should be awarded to the Plaintiff for the permanent loss of 23m2 excised from the Property taken for the rehabilitation of the Aropa Road.
  3. It was then argued in the alternative for Dekenai that if any of the subject roading works it carried out did affect the Property, then those roading works would have increased the value of the Property in terms of better road access. It was said that any damage which Dekenai may have caused to the Property, alleged to be negligible at best, would be outweighed by the increase in the value of the Property caused by the upgrading and sealing of the Aropa Road carried out by Dekenai. This assertion must also fail because there was no evidence whatsoever adduced at trial for Dekenai to support this submission. It is an assumption unproven by evidence.
  4. Further, it was submitted for Dekenai that the Plaintiff had failed at trial to substantiate its claim for the value of the fruit trees destroyed by the roadworks or how the Plaintiff’s enjoyment of the Property had been affected by the roadworks.
  5. I return now to the Plaintiff’s own evidence on quantum of compensation. As noted above, Mr Ovasuru has assessed that the impairment to the Property, said by the Plaintiff to have been caused by Dekenai, amounts in his professional opinion to an estimated total of K620,145 and that it comprises five heads of damage. I address each of those heads of damage.

(a) Value of land severed by the encroachment – assessed by Mr Ovasuru at K50,600


  1. The first of the heads of damage assessed by Mr Ovasuru relates to the value of the 23m2 which was encroached on by Dekenai at the frontage of the Property and which now forms part of the corridor for the reconstructed Aropa Road. The permanent excision of this 23m2 from the Property is based on surveyor James Murray’s boundary identification survey report dated 26 July 2018 which is annexure “A” to Mr Murray’s affidavit filed on 31 July 2018.
  2. Mr Ovasuru states in para. 4.1 of his valuation report that the basis for his valuation of the fair value of the 23m2 of land taken from the Property by Dekenai for the reconstructed Aropa Road was sales information for similar properties in Bougainville, including Buka, as well as properties in the New Guinea Islands Region at Kokopo and Rabaul in East New Britain Province, Kimbe in West New Britain Province and Kavieng in New Ireland Province. Indicative sales information for parcels of land, both customary and semi-commercial, sold in those locations said by Mr Ovasuru to be similar to the Property is then set out at pages 9 to 15 of his valuation report.
  3. Mr Ovasuru explains at page 16 of his valuation report that he arrived at a rate of K220/m2 for the 23m2 of land “severed” from the Property, a total value of K50,600, after considering the sales information set out in his report. Mr Ovasuru says this:

“ Encroached portion (Severance)

The encroached portion of land which is supported by recent id survey (survey plan attached) has been severed during a period of road upgrading and extension, thus has made permanent change to the total land area, thus has effectively reduced the size from 1.916 ha to 1.686 ha. We have analysed special purpose blocks and industrial blocks in Kokopo - East New Britain Province, Kimbe – West New Britain Province and Kavieng – East New Ireland Province and have deduced 25% of comparable rates in the range of K34/m2 – K238/m2. Taking into consideration that our subject which has been encroached and severed and on the premise that it has not been affected by Bougainville Crisis or its effects but based on its advantage as a prime commercial business block within waterfront vicinity and that the frontage has been affected by severance; we were inclined to adopt a conservative rate of K220/m2 for the encroached portion of land which is 0.0230 ha. It is our opinion that the adopted rate is fair and reasonable, therefore in line with the market. ”


  1. When cross-examined at trial, Mr Ovasuru’s assessment of K50,060 for what he termed the severed portion of 23m2 based on a rate of K220/m2 was not seriously challenged. In answer, Mr Potuan used a rate of K200m2 to justify his assessment of K46,000 for the same loss of 23m2. I will therefore apply a rate of K210/m2, being a rate midway between those two rates, as being the fairest rate to determine the amount of compensation to which the Plaintiff is entitled for the loss of 23m2 permanently excised from the Property as a result of the road reconstruction work and which now forms part of the corridor for the Aropa Road.
  2. The amount to be awarded to the Plaintiff as damages by way of compensation for the market value of the loss of 23m2 taken from the Property during the course of Dekenai’s rehabilitation of the Aropa Road is therefore assessed by the Court at K48,300 calculated as follows:

23m2 x K210/m2 = K48,300.

(b) Disturbance causing land to become flood prone and removal of crane relic: remediation assessed by Mr Ovasuru at K548,870


  1. This component of Mr Ovasuru’s valuation report is the most contentious. Dekenai strenuously denies that its actions when intruding onto the Property in the course of the subject road works have caused the land to become flood prone or that there has been any long-term environmental damage to the land and its adjacent waterways caused by Dekenai’s temporary presence on the Property.
  2. Mr Ovasuru says at page 16 of his valuation report that the remaining portion of the Property, after “severance” of the 23m2, now has a total area of 1.1686 ha. Mr Ovasuru says that this remaining portion has been affected by the destruction of the natural environment, including the destruction of fruit trees, tropical trees with canopies, undergrowth and shrubs. Mr Ovasuru says that there was destruction of a stream tunnel and that drainage was not constructed by Dekenai to curb storm water flow, resulting in the frontage of the Property becoming waterlogged during wet weather conditions. Mr Ovasuru expands on this by stating at page 16 of his valuation report:

“Having taken these into consideration, we were inclined to value the land on the basis of “before” and “after” approach. Our assessment incorporated the difference of value between these two periods to determine the loss being brought about by the act of severance thus causing “Injurious Affection”. We have adopted a “before” value rate/m2 of K100/m2 representing 80% of deduced median commercial rate/m2 as fair and reasonable. In assessing the “after” value of the remaining portion of land with an area of 1.1686 ha, we have adopted a rate/m2 of K55/m2 which represents 44% of deduced median commercial rate/m2 of K125/m2 as fair and reasonable. These rates were deduced from sales occurring around the time of the road project. ”


  1. Mr Ovasuru does not set out in his valuation report any calculation for the actual results of the “before” and “after” approach he adopted. Using Mr Ovasuru’s above rates, my own calculation is this:

1.1686 ha = 1,168.6m2

Value of balance of Property before road works: 1,168.6m2 x K100/m2 = K1,168,600

Less value of balance of Property after road works: 1,168.6m2 x K55/m2 = K 641,773

Applying Mr Ovasuru’s methodology, I surmise that he has estimated

the value of the “disturbance” caused to the balance of the Property

(1.1686 ha) due to environmental damage to trees, vegetation and

alteration of land surface causing the Property to allegedly become

more flood prone as being the difference between these two values: K 526,827


  1. What is further unexplained in Mr Ovasuru’s valuation report is how he has then arrived at a figure of K548,870 for the overall value of the “disturbance” to Property shown as the second item in his summary on page 18 of his valuation report. In that summary Mr Ovasuru has ascribed a value of K548,870 for the “disturbance” to the land for having become flood prone allegedly due to no allowance for storm water and for removal of a stream tunnel and guard rail at the frontage of the Property and for the “reckless” relocation of a crane relic, said to have had special value for the Seeto family, from its original position to elsewhere on the Property. The crane relic was presumably a reminder to the Seeto family of the engineering company it operated from the Property prior to the Bougainville crisis in 1990.
  2. The unexplained difference in Mr Ovasuru’s assessment of the value of the “disturbance” to the Property is the not inconsiderable sum of K22,043, which I have calculated as follows:

Mr Ovasuru – “disturbance” to the Property as per item 2 of his Summary

including factors such as relocation of the crane relic and lack of proper
drainage: K 548,870

Mr Ovasuru – “disturbance” in value of the Property using “before” and

“after” approach but excluding other factors: K 526,827

Difference: K 22,043


  1. In the absence of any explanation by Mr Ovasuru for this difference of K22,043, I can only surmise that this amount relates to, or includes, a notional allowance for the additional but unquantified costs referred to at the top of page 17 of his valuation report for “associated expenses” such as surveying fees, valuation fees and the costs of registration at the Department of Lands and Physical Planning of a new survey plan and update of the Certificate of Title for the Property necessitated by the excision of 23m2 taken from the frontage of the Property by the 30-meter corridor for the Aropa Road.
  2. Although Mr Ovasuru would not have been aware of the fee actually charged by surveyor Mr Murray for provision of his independent boundary identification survey report, a copy of Mr Murray’s invoice no. HL-00001TI dated 26 July 2018 for K31,768 (incl. GST) is annexure “L” to the affidavit of lawyer Mr Rarua Puka filed on 21 September 2018. So to that extent, Mr Ovasuru has significantly underestimated surveying fees as a component of what I perceive to be his allowance for “associated expenses” of K22,043, which could ultimately be more than triple that amount by the time a new survey plan is registered and the Plaintiff’s Certificate of Title is updated as to area by the Registrar of Titles. I address this issue of the costs associated with the re-issuance of the Plaintiff’s Certificate of Title later in this decision.
  3. Reverting to Mr Ovasuru’s overall assessment of K548,870 from perceived resultant environmental damage caused by the roading works, counsel for Dekenai submits that if the majority of this amount is for environmental “disturbance” in that the Property is now said to be flood prone because of the roadworks, then Mr Ovasuru’s valuation report is unclear as to whether this “disturbance” is for the entire Property or just the encroached portion of 23m2. Mr Ovasuru was cross-examined at length on this point and gave clarification that it was for environmental disturbance for the entire Property, not just the 23m2 taken for the corridor for the Aropa Road.[1]
  4. The next objection which was made to Mr Ovasuru’s valuation report by Dekenai is that Mr Ovasuru’s allowance for environmental damage to the Property through having become flood prone because of disturbance caused by the road works was not substantiated by evidence from an environmental scientist.
  5. Counsel for Dekenai, Mr Mel, referred in his submissions to item 6 of a letter he had written to Henaos Lawyers dated 5 October 2018. The letter is annexure “A” to Mr Mel’s affidavit filed on 22 October 2018. In that letter Mr Mel stated:

“ 6. In our view, it is inconceivable for the valuer to make a finding of property being flood prone due to the purported encroachment when you consider the area encroached:


  1. lies towards and runs along the foot of the property which slopes downwards towards the coast; and

ii. did not impede, cut across, redirect or otherwise disturb any existing waterway.

To then find that the entire property became flood prone and value such at an exorbitant amount is absurd. A look at annexure “C” of James Murray’s Affidavit filed 31 July 2018 illustrates our point. ”


  1. As previously noted in this decision, annexure “C” to Mr Murray’s affidavit is an aerial drone view in colour of the encroached area of 23m2. Mr Murray explains under the heading “3. Identification Survey” on page 2 of his survey report dated 26 July 2018 that :

“ To further show the boundary in relation to the road works done, an aerial drone survey was undertaken with a corresponding orthomosaic image produced and superimposed on the surveyed cadastral boundary to show a more clearer picture of what’s on the ground You will find that although the majority of the road carriage lays outside the boundary, some construction questions are raised on the north east and south east side of the boundary where the road carriage and road batter, top and bottom when graded and sealed, falls down and well into the boundary of Portion 352C. ”


  1. I find that there is nothing in the aerial drone image which is superimposed over the cadastral survey to support the proposition advanced by Mr Mel for Dekenai that it proves that the Property could not become flood prone. Mr Murray’s explanation under heading 3 in his survey report tends to suggest the reverse, when he says in effect that construction questions arise from the fact that there are portions of the road batter that link the edge of the road carriage to the boundary for the frontage of the Property, inferring that stormwater can flow from the road over the sides of the road batter and onto the Property and thereby cause flooding.
  2. In road engineering terms, batters are the side slopes of land that connect a road surface to the contour of surrounding land. When newly constructed, batters are bare earth surfaces that can rapidly erode, so batter stabilisation through retaining walls and surface planting of vegetation is usually required, often with construction of concrete drainage channels to divert stormwater at: (1) the base of a batter that has descended from an upwards position down towards the edge of the road to prevent flooding of the road itself, and (2) at the base of a batter that has descended downwards towards adjoining land below the edge of the road surface to prevent flooding of lower lying land.
  3. Mr Ovasuru was extensively questioned at trial by both Mr Henao for the Plaintiff and by Mr Mel for Dekenai on Mr Ovasuru’s contention that the environmental damage to the Property caused by the roadworks carried out by Dekenai included a propensity for flooding which did not previously exist.
  4. Set out below is an extract from pages 46 and 47 of the transcript of proceedings of Mr Henao’s examination in chief of Mr Ovasuru at trial:

MR HENAO:

Q: In your report, Mr Ovasuru, did your report cover the road corridor only or did it cover the area that was not within the road corridor but affected by the construction work?

A: My report covered the enclosed boundary as well as the resumed or the remaining part of the property as well.

Q: And in your report you stated that the encroached area before the encroachment was 1.1916 hectares. Is that correct?

A: That is correct.

Q: And that land area that was – as you said in your report or in your affidavit – encroached was 0.0230 hectares.

A: That is correct.

Q: Was it based on your physical inspection?

A: Yes.

Q: Were there any evidence of works that show that the effect of the road construction had gone outside the road corridor?

A: During my inspection I noticed and recorded that the road was built up. The remaining land after being encroached, was below the road surface. What happened was there was a drainage infrastructure within the property [which] was disrupted and damaged. They [Dekenai] were leaving the water to run its own course. The remaining land is below the road surface, [it] does not have drainage built on it.
...

It is believed that from physical inspection when there is no drainage to cater for water runoff, if water is coming off the road surface and falls back into the land, there is no drainage to cater for that to get a runoff. There is no drainage to drain off rain water when there is a heavy rainfall period and water would be trapped. It would be like a rice field with water in it.


  1. Mr Ovasuru was then cross-examined on this aspect of his valuation report by Mr Mel. The transcript records the following exchange at pages 56 to 58:

MR MEL:

Q: ... At paragraph or page 5 of your report you describe the property or topography as downward gradient slope at frontage then generally level throughout. Is that right?

A: That is correct.

Q: That would mean that given the downward gradient or the slope of the property, you would allow for natural drainage downwards towards the front of the property, is that right, given your description of the topography? ...

A: That would be a gradient describing a downward slope. I did not give a 50 per cent or 90 percent or 45 degree angle. I classified it as a downward gradient which means it could be a drop and this description here refers to different levels – road level and the gradient slope which is the drop in the land on the remaining part of the land.

Q: That you have not made clear in your report, have you, writing what you have just explained?

A: Gradient slope is sufficient.

Q: Yes. So, you described it as a gradient slope. So, gravity would dictate that any rainfall or flow of water would flow downwards towards the front of the property. Is that not right?

A: That is correct.

Q: And then gravity, it would flow out of the property. Is that right?

A: That is correct.

Q: I put it to you that your assessment and finding in your report saying that the property is now flood prone is factually incorrect and baseless for the reason that you said in your same report that the property has downward gradient and you have just said in court that would allow for natural drainage.

A: The description of the downward gradient refers to the whole land in its original state which means that part of it was on top towards the road side and part of it was below.

Q: But you have not said that in your report, have you?

A: It is described in my valuation part segments.

  1. When Mr Ovasuru responded to Mr Mel’s questions during cross-examination and said that his description of the downward gradient of the Property was contained in his report, Mr Ovasuru was clearly referring to this statement contained in his certificate of value on page 5 of his valuation report:

“ Topography: Downward gradient slope of frontage then generally level throughout.

Effects: Part of land (frontage) affected by road corridor encroachment and whole of the land to be affected by or prone to flooding by effect of road encroachment and damage to plants and trees. ”

  1. Mr Ovasuru was also referring to the following of his explanatory statements on pages 8, 14 and 15 of his valuation report:

“ EFFECTS BY ROAD CORRIDOR ENCROACHMENT

1) Disturbance ...

2) Severance (Damages)

Long term damage with defining, grading and packing without allowance for storm water drainage

...

After Value

... This in our opinion means that the land could [be] prone to flooding and waterlogged in the front portion approximately 25% of the land size thus rendering it unattractive and not useable in times of heavy rain conditions thus affecting its value

...

Disturbance and Damages (Injurious Affection)

The remaining portion of land with a reduced land area of 1.168 ha has been affected by effect of destruction of natural environment which includes fruit trees, tropical trees with canopies, undergrowth and shrubs that maintained balance in the soil and exposed to direct impact of sun light. Also taking into consideration is flooding effect caused by the destruction of the stream tunnel and drainage was not constructed to curb storm water flow which would result in the frontage to become waterlogged and thus useless during wet weather conditions. ”

  1. Dekenai has vigorously challenged the conclusions made by Mr Ovasuru regarding remediation and his estimated cost of the damage to the Property caused by the subject road works assessed at K620,145 and the propensity for the Property to become flood damaged. Dekenai’s challenge at trial was voiced by Dekenai’s general manager Jamie Mitchell in his oral evidence, which echoed the content of Mr Mel’s letter dated 5 October 2018 written by Mr Mel to Henaos Lawyers, a copy of which is annexure “A” to Mr Mel’s affidavit filed on 22 October 2018, a matter already referred to earlier in this decision.
  2. Dekenai’s vehement denial of Mr Ovasuru’s contention that the Property had become flood prone as a result of the roadworks done by Dekenai came from Mr Mitchell during his cross-examination by Mr Henao. Mr Mitchell’s oral evidence on this issue is recorded at pages 76 to 78 of the transcript as follows:

MR HENAO:

Q: Mr Mitchell, when it floods – if it rains and it floods, would you agree with me that the water would go from the elevated road onto portion 352. Would you agree with that?


A: It cannot.


Q: Why not?


A: Because it slopes to the inside of the curve away from the property. The only water that accumulates at the base of the batter of which referred to as flood prone, that water can only come from the property because everything in relation to the road slopes away from that portion.

Q: Are you saying that no water from the top of the road would go into portion 352?


A: It cannot ---


Q: That is incredible.


A: --- because the road slopes in the opposite direction. It is gravity. It cannot flow uphill.


Q: But certainly, water would go from the top of the road onto the adjoining area?


A: It cannot.


Q: Even the water, so no water will go onto portion 352 from the road?


A: No, because it slopes all in the opposite directions. The catchment of the road flows to the inside of the curve and the only water that can accumulate at the bottom of the batter comes from the property.


Q: Would that be because as a result of the road being elevated”


A: No..


Q: Because there is no ---


A: Because the toe of the batter – the old toe of the batter, if you look at the batter like this and you have got the sloping property as described in the valuer’s report coming down to this, okay, the water will naturally pond at the base of the batter. You move the batter this way by extending the batter, the water will still pond there and all the water is coming from the property. It cannot come from the road.

...

Q: Where was a - you are saying that there was a natural flow of water when it rained, natural drainage in other words.


A: Well, in the valuer’s report, and I agree with him, the land is generally flat with a slight gradient to the front of the property. I totally agree with that. And that property graded generally to the batter of the old road. We have extended that slightly out and we have done nothing to funnel the water to increase water flow to that particular area other than extend the batter. And actually from that water that lands on the road, going in the opposite direction away from the property.


Q: Would it not be the scenario that because of the elevation of the road, the natural flow of water would have been affected?


A: It would – in actual fact, it would promote the water away from that area because it is actually catching more water or rainfall and flowing it to the inside of the curve rather than the outside of the curve which is on to the property.


Q: And Mr Mitchell, is it also not so that when Dekenai completed the roadwork, there were no drainage to allow or provide for flow of water ---

A: In design standards there is ---


Q: --- creating flooding”


A: In design standards, there is never any need for drainage at the batter – at the bottom of a fill batter. And when I talk about fill, I am talking about a raised elevated embankment. There is never any drainage on the base of that. There is no need for it because it is not catching anything.


  1. In view of Mr Mitchell’s oral evidence at trial, there is an obvious conflict between the evidence for the Plaintiff and the evidence for Dekenai regarding the issue as to whether the subject roadworks actually caused or exacerbated the ponding of rainwater and flooding on the Property to such an extent that environmental damage has occurred for which compensation should be payable.
  2. I make the following findings of fact regarding the parties’ evidence on this issue:
  3. I am unable, on the evidence presented by the parties at trial, to determine whether there was any drainage infrastructure such as a concrete drain tunnel or other permanent drainage channel at the base of the former batter, as asserted by Mr Ovasuru, which pre-existed the road works carried out by Dekenai. Mr Mitchell for Dekenai denies that there was any such drainage infrastructure previously in place, other than what he termed an earth “swale”, by which I understand Mr Mitchell to have meant a hollowed out trench or depression at the foot of the former batter for the removal of stormwater. Mr Mitchell was also adamant in his oral evidence that in any event, the contour of the Aropa Road in its elevated position above the reconstructed batter at the frontage of the Property was sloped in such a way that stormwater now drains away from the new batter, in the opposite direction back towards a curve in the road, and that stormwater could not cascade down the new batter and add to stormwater arriving at the base of the batter from the gentle downward gradient from other parts of the Property.
  4. However, Mr Mitchell also gave evidence that he was not on site when the roadworks at the Property commenced and then got under way. It is an agreed fact in the parties’ Statement that Dekenai commenced the road work at the Property in November 2015. It is apparent from Mr Mitchell’s oral evidence that he only properly inspected the Property for the first time after he was notified by his colleagues of the claim made to Dekenai’s Mr McKillop by Agnes and Nicole on 18 August 2016 that Dekenai had trespassed on the Property when carrying out the roadworks.
  5. As for Mr Ovasuru, he only inspected the Property for the first time when he travelled to Bougainville and did his physical site inspection on 7 September 2018, by which time most of the roadworks had already been completed by Dekenai, including the grading work at the frontage of the Property and Dekenai’s construction of the new or renovated batter, leaving only the bitumen sealing of the Aropa Road to be done.
  6. Mr Mitchell and Mr Ovasuru were dependent on other persons and historic records for their source of hearsay information as to what drainage measures were in place at the base of the former batter to remove storm water and prevent flooding of the Property before Dekenai commenced the roadworks in November 2015.
  7. I accordingly find that both Mr Ovasuru and Mr Mitchell were unable to give competent evidence as to the existence or otherwise of the drainage measures which pre-existed the rehabilitation roadwork carried out by Dekenai and which affected the Property.
  8. I note that Nicole Seeto, in her affidavit filed on 5 May 2017, makes no mention of what drainage infrastructure pre-existed the roadworks at the frontage of the Property. Nicole Seeto alleged in paragraph 16 of her affidavit filed on 5 May 2017 as follows:

“16.The negligent actions of Dekenai in destroying the fruit trees have also caused damage to the soil surface, nearby spring water and sedimentation of waterways. The surface soil that was once held together by the fruit trees during the wet season is now destroyed and during flooding, the flow of the water is re-directed across the Property and is causing the land to deteriorate. “


  1. When cross-examined by Mr Mel as to whether there had been any flooding on the Property as a direct result of Dekenai’s roadworks in the three years preceding the trial, Nicole referred to the photographic evidence attached to her affidavit which showed extensive ponding of water on the Property at some point in time prior to swearing her affidavit filed on 5 May 2017. However Nicole was not questioned by her counsel Mr Henao or by Mr Mel for Dekenai as to what drainage system, if any, was in place at the frontage of the Property for removing stormwater prior to Dekenai’s commencement of the roadworks in November 2015.
  2. Furthermore, I note that there was no evidence adduced at trial as to the cause of any flooding of the Property which may have taken place subsequent to when Nicole deposed to the matters contained in her affidavit filed on 5 May 2017, other than Mr Ovasuru’s observations in that regard contained in his valuation report based on his site inspection of the Property 16 months later on 7 September 2018. There was certainly no geophysical or other scientific evidence presented to corroborate Nicole Seeto’s contention that surface soil on the Property which had previously supported fruit trees had been “destroyed” or that there was any demonstrable damage which had been caused by Dekenai’s roadworks to nearby spring water or that any sedimentation of waterways had occurred as a result of those roadworks. This is not to say that such damage has not occurred, but there was no persuasive evidence given at trial to corroborate Nicole’s assertions that Dekenai should be responsible for unproven long-term environmental damage to soil surface and water sources on or near to the Property.
  3. It is therefore not possible for this Court to make any finding on the evidence presented at trial as to whether Dekenai, when carrying out its rehabilitation of the Aropa Road adjacent to the Property, in any way caused or contributed to the propensity of the Property to encounter serious flooding which has in turn permanently affected the soil surface of the Property for agricultural use or commercial purposes. The absence of evidence critical to this issue has a direct bearing on the quantum of damages which could be awarded to the Plaintiff.
  4. Given this conflict in the evidence, what then is the Court to do?
  5. Mr Ovasuru has assessed the overall value of the disturbance to the Property caused by Dekenai at an amount of K548,870 because of a combination of factors, including the grading of an area at the frontage of the Property which was unauthorised by the Plaintiff, the removal and destruction by Dekenai of fruit trees affecting soil surface, the alleged failure of Dekenai to install a proper drainage system to remove flood water at the foot of the new batter, and compensation for Dekenai’s removal of what was an iconic crane relic for the Seeto family from the frontage of the Property and dumping it further inside the Property.
  6. Dekenai’s valuer, Mr Potuan has, allowed nothing in his valuation report for these alleged instances of actionable misconduct by Dekenai.
  7. I am reminded at this juncture of those general principles for assessment of damages which are as applicable to cases founded on the tort of trespass as they are to other torts and causes of action where compensation is claimed. Some of those principles were recounted by Cannings J in Gau v G & S Ltd (2018) N7198 and include:

(1) A plaintiff has the onus of proving its losses. It is not sufficient to rely on assertions made in the statement of claim: Paklin v The State (2001) N2212.

(2) Corroboration of a claim is required: Kopung Brothers Business Group v Kasieng [1997] PNGLR 331

(3) The fact that damages cannot be assessed with certainty does not relieve the wrongdoer from paying some amount of damages: Mappa v Elcom (1992) N1093.


  1. The overriding principle is of course the principle of restitutio in integrum, that damages are awarded by the Court to restore a plaintiff to a position as close to its original position as if the trespass or other actionable wrong had not occurred.
  2. Although I am not persuaded that the Plaintiff has in this instance proven on the balance of probabilities that Dekenai in its performance of the roadwork required under its Contract with the State is liable to the Plaintiff for having failed to install a proper drainage system at the base of the reconstructed batter, such failure by Dekenai having been said by the Plaintiff to have caused or exacerbated the Property’s propensity to become flood damaged during heavy rain thereby diminishing the value of the Property, I am nevertheless satisfied that Dekenai is liable to the Plaintiff in trespass for the following disturbances which I find were caused to the Property during Dekenai’s performance of the roadwork between November 2015 and date of filing of the writ on 17 May 2017:
  3. To the extent I have just outlined, I consider that the Plaintiff has proven Dekenai’s liability for her claim for actual damage suffered in respect of Dekenai’s trespass to the Property. The four instances of “disturbance” to the Property I have found to have occurred and caused by Dekenai are not mere assertions in the pleadings but have been proven on the evidence.
  4. As already observed, the valuation report of Mr Ovasuru contains an assessment of K548,870 under the heading of “Disturbance” which represents Mr Ovasuru’s allowance for the alleged diminution in the market value of the Property which can be traced to the Plaintiff’s allegation that Dekenai’s roadworks were the primary cause of the Property to have become flood prone with long term local environmental damage, an allegation which I have found to be unproven on the evidence. I accordingly reject the “before and after” methodology which was adopted by Mr Ovasuru in his valuation report to arrive at his assessment of K548,870 for the combination of factors which he aggregated under the heading of “Disturbance” to the Property.
  5. Putting aside the matter of the conflict of evidence as to whether Dekenai’s roadworks caused the Property to become more flood prone, what evidence is there as to the cost of remediation of the four categories of disturbances which I have found were caused by Dekenai during the course of the company’s intrusion onto the Property? No costings for the remediation of the Property by way of replanting of valued fruit trees or replacement of disturbed soil surface or for the costs of the relocation of the crane relic to an alternative preferred site within the Property were adduced in evidence for the Plaintiff.
  6. The Court must therefore endeavour to do the best it can with the evidence before it as regards quantification of compensation for Dekenai’s multiple disturbances to the Property.
  7. I note that in the case of Wii v Baki (2009) N5898 the Court was confronted with the task of assessing compensation by way of general damages for trespass caused by certain members of the police having driven their vehicles for many years across the plaintiffs’ land to access a police station, without the consent of the plaintiffs. In the result, Hartshorn J accepted a rental valuation of the land prepared by the Valuer General at a rate of K4,000 per month, which worked out to K0.67 m2/month for the total area of land owned by the plaintiffs. His Honour then used K0.67 as a multiplier against the total area and number of months the trespass had occurred to arrive at an award of damages of K10,721.68 for each block of land owned by the plaintiffs.
  8. In Gramgari v Crawford (2018) N7197, a trial on assessment of damages for trespass, the plaintiff claimed K8,647,976.29 general damages for loss of timber cut and exported and for loss of royalties. The second defendant argued that the plaintiff should, at most, be awarded only a nominal amount of damages in respect of loss of royalties because the plaintiff’s evidence as to the volume of timber cut and exported and the extent of alleged environmental damage was not credible. Cannings J upheld the second defendant’s submission and awarded notional damages of K50,000 to the plaintiff because, among other reasons, the plaintiff’s estimates of the value of loss of timber cut and exported and the value of environmental damage and destruction to land were based on unrealistic assumptions.
  9. In Nambawan Super Ltd v Petra Management Ltd (2017) N6748 general damages for the act of trespass were awarded by Cannings J at K20,000. His Honour then awarded further damages of K153,120 for the costs of restoration of the plaintiff’s land, which had been dug up by the defendant, there having been credible evidence of the cost which would be incurred for remediation of the land.
  10. In Waisime v Auskoa Enterprises Ltd (2019) N7727 a similar approach was taken by Kandakasi J (as he then was) when he awarded, among other heads of damages, general damages of K50,000 for the act of trespass itself and further damages of K86,692.80 as compensation for diminution in value of the plaintiff’s land and the proven cost of restoring land that had been dug up and materials dumped on it.
  11. Having considered the totality of the evidence as to quantum of the Plaintiff’s damages in the present case, I consider that a fair and reasonable quantum of general damages by way of compensation for the four disturbances to the Property which I have identified as having been caused by Dekenai’s presence on the Property, unauthorised by the Plaintiff, would be approximately half of the amount of K547,870 for “Disturbance” which was assessed by Mr Ovasuru in his valuation report. The trespass occurred on multiple occasions over a period of more than 2 years from first entry by Dekenai onto the property in November 2015 and continued until August 2016 and some point beyond. I accordingly award general damages to the Plaintiff of K275,000 in trespass for the physical disturbances to the Property actually proven to have been caused by Dekenai in connection with the roadworks it carried out in its rehabilitation of the Aropa Road adjacent to the Property.

(c) Past occupation fee – 2015 to 2018


  1. It is an agreed fact as per paragraph A.5 of the parties’ Statement that Dekenai commenced its roadworks for the rehabilitation of the Aropa Road under its contract with the State in November 2015. This means that Dekenai would also have commenced occupying part of the Plaintiff’s Property by sending heavy machinery onto site in late 2015 or early 2016. Dekenai’s occupation of the front part of the Property where grading and other earthworks were carried out then continued on and off throughout 2016 and part of 2017. It seems that Dekenai had completed most of its major works for the rehabilitation of the Aropa Road by mid-2018: see paragraph 11 of the second affidavit of Jamie Mitchell filed on 22 October 2018. In any event, there is no dispute between the parties’ valuers that if liability for trespass on the part of Dekenai were to be established at trial, then the Plaintiff should be compensated for an occupation fee of K10, 675.00. as assessed by the Plaintiff’s valuer Mr Ovasuru and confirmed by Dekenai’s valuer Mr Potuan.
  2. The basis for Mr Ovasuru’s assessment of an amount of K10,675 for an occupation fee rounded off to 3.05 years for Dekenai’s multiple entry onto the Property during the course of the rehabilitation work to the Aropa Road is set out on page 17 of Mr Ovasuru’s valuation report:

“ Past Occupation Fee

The property was trespassed and occupied during the height of the road project which resulted in the contractor entering and using the land while carrying [out] road construction works, including encroachment of the subject land, thus we have deduced a minimal Unimproved Value rate/m2 of K25/m2 for using approximately 2,000 m2 of frontage. This rate is within deduced market rates, thus used accordingly. A rental per centum of 5% was charged to derive an annual rental of K3,500.00. Our assessment of the rental value over a period from July 2015 to the current year 2018 where the project was stalled due to encroachment is assessed at K10,675. We have adopted future value estimates to cater for loss time using long term deposit rate of 5% to bring to present rentals due in previous years of 2016 and 2017. ”


  1. I accordingly accept that the Plaintiff is entitled to damages of K10,675 by way of compensation for Dekenai’s periodic occupation of the Property when it carried out the roadworks it was required to complete under its contractual arrangements with the State for the upgrade of the Aropa Road.

(d) Economic value of felled trees and plants


  1. Mr Ovasuru in his valuation report gives an assessment of K10,000 for his notional estimate of the value of trees and plants which were destroyed as a result of Dekenai’s activities on the Property. He explains his reason for this assessment at page 17 of his valuation report in these terms:

“ Planted Improvements (Economic plants and trees)

The property was trespassed and occupied during the height of the road project without an awareness of a ‘notice to show cause’ and caused destruction of plants and trees which held special or sentimental value to the owner, thus has caused approximately 2,000m2 of frontage to be bare. Since ample time was not given to verify exact number of plants and trees [that have] been destroyed due to encroachment, we have adopted a nominal rate of K5/m2 and have assessed the loss of economic plants and trees at K10,000.00. This in our opinion is fair and reasonable.”

  1. This evidence of Mr Ovasuru as to the need to compensate the Plaintiff for the loss of trees and plants destroyed by Dekenai was disputed by Mr Potuan on the ground that the Plaintiff had failed to provide particulars of the species and age of the fruit trees that had been destroyed. Mr Ovasuru responded to Mr Potuan’s objection in this regard in paragraph 5(b) of Mr Ovasuru’s second affidavit, which was filed on 20 December 2018. Mr Ovasuru pointed out that it was Dekenai which had failed to record the trees and plants it removed from the Property. Mr Ovasuru’s response then continued:

“ The Defendant’s valuer, Mr Kaluwin Potuan, was negligent in not consulting the booklet Valuer General’s Schedule of Plants and Trees of 2016. The rate of K5 per square metre adopted from the area affected by encroachment is justified on the basis of the Valuer General’s Schedule of Plants and Trees of 2016 which is in conjunction with PNG Chamber of Mines and Petroleum. This rate is applicable to the subject land. ”


  1. The area affected by encroachment that Mr Ovasuru is referring to in the extract from his valuation report that has just been cited is not the area of 23m2 which was encroached and permanently lost to the Plaintiff at that point where the frontage of the Property abuts the road corridor but a large area from the road frontage back towards the rear of the Property which was the subject of temporary encroachment when Dekenai’s heavy earthmoving machinery graded and cleared that area by the felling of fruit trees, other trees and natural vegetation in circumstances when Dekenai had no authorisation from the Plaintiff to do so.
  2. However, although I consider that Mr Ovasuru’s assessment of K10,000 for the notional value of the fruit trees that were destroyed by Dekenai to be reasonable and would reject Mr Potuan’s objection, I have already catered for compensation for loss of the fruit trees because that loss has been factored in to the award of general damages of K275,000 for remediation for disturbance to the land. I therefore decline to award any additional amount of general damages for loss of “economic” plants and trees.

Costs associated with updating of Plaintiff’s Certificate of Title


  1. Mr Ovasuru refers at page 17 of his valuation report to a range of costs which are associated with or incidental to the permanent excision of 23m2 from the Plaintiff’s Property as a result of the Dekenai’s rehabilitation of the Aropa Road. This is what Mr Ovasuru says in connection with these additional costs:

“ Disturbance & Damages (Incidental and Associated Costs)

We must emphasise here in the first instance that other costs ... associated with or caused as result of “encroachment” to the subject land necessitated a chain of events ... which lead to the following expense:

1) Registry of change – New survey plan issued to the title owner

2) Registry of change – Update of title and registration of change with Department of Lands & Physical Planning

3) Registry of change – Associated expenses included surveying fees, registration fees, valuation fees and travel costs incurred in engagement of a surveyor and valuer. ”

  1. However, Mr Ovasuru does not give any direct indication in his valuation report of estimates of the amounts for these associated expenses. I have commented earlier in this decision that, after my own extrapolation from Mr Ovasuru’s estimates as to the value of “disturbances” to the Property caused by Dekenai, there seems to be an amount of K22,043 by way of compensation to the Plaintiff which Mr Ovasuru has allowed for “associated expenses” in his global estimate of K548,870 assessed under his heading of “Disturbance” . Be that as it may, as I have rejected Mr Ovasuru’s methodology for calculating the value of the disturbances he has identified because of the lack of any cogent evidence of any pre-existing drainage measures for the Property, I nevertheless consider that the Plaintiff is entitled to reasonable allowance towards the expenses associated with amending her Certificate of Title for the Property to reflect the loss of 23m2 of land taken for the carriageway for the Aropa Road.
  2. Mr Ovasuru says that the associated expenses include the cost of surveying fees, valuation fees and travel costs incurred in the engagement of a surveyor and valuer, as well as registration fees at the Department of Lands and Physical Planning.
  3. I have already noted that surveyor James Murray’s fees for the provision of his independent survey report, including the travel expenses for himself and two assistants to travel from Port Moresby to inspect the Plaintiff’s Property on Bougainville Island, came to a total of K31,768. These fees and expenses are represented by the copy of invoice no. HL-00001TI dated 26 July 2018 issued to Henaos Lawyers from Mr Murray’s company, JM & Sons Ltd, which is annexure “L” to the affidavit of Rarua Puka filed on 21 September 2018. The parties were directed by order of this Court dated 2 August 2018 to each pay one-half of that invoice by 17 August 2018, which order was duly complied with by the parties.
  4. However, there are also the expenses the Plaintiff has incurred already for Mr Ovasuru’s fees for his valuation report, an amount unknown to the Court, and all of the costs and registration fees associated with registration of a new catalogued survey plan at the Office of the Surveyor-General for Portion 352C to reflect the excision of 23m2 from the frontage of the Property and the subsequent registration of a replacement or re-issued Certificate of Title at the Office of the Registrar of Titles to officially reflect that surveyed excision.
  5. Mr Ovasuru’s fees for his valuation report and attendances in Court in connection with this litigation can be taken care of by way of an appropriate costs order. However, I consider that allowance for the remainder of the Plaintiff’s costs and expenses associated with the updating of the Department of Lands and Physical Planning’s official survey records and title records for the Property at the Office of the Surveyor-General and the Office of the Registrar of Titles must be catered for.
  6. Based on my own experience with similar land title matters when in legal practice in Port Moresby, and again, doing the best I can in the absence of accurate costings, I will allow an amount of K75,000 as being a fair and reasonable component of general damages for the Plaintiff’s costs associated with preparation and compliance with the requirements of the Office of the Surveyor-General in respect of an updated and registered catalogued survey plan for the Property and for a replacement Certificate of Title for the Property to issue showing the excision of 23m2 taken from the frontage of the Property for the rehabilitation works carried out by Dekenai to the Aropa Road in the performance of Dekenai’s roading Contract with the State. This allowance of K75,000 is inclusive of, and represents reimbursement to the Plaintiff of, the amount of K15,884 already paid by the Plaintiff in settlement of her one-half share of JM & Sons Ltd’s surveying fees for the independent survey report furnished by Mr Murray.

SUMMARY OF GENERAL DAMAGES


The total award of general damages awarded to the Plaintiff in this suit is assessed at K408,975 comprising:

of the Property taken for the rehabilitation of the Aropa Road: K 48,300

Total of general damages: K 408,975
INTEREST ON GENERAL DAMAGES


  1. The Plaintiff has claimed interest on general damages pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015. The question of whether interest is payable is a matter of discretion for the Court under Section 4 of the Act. This section confers a four-fold discretion: (1) whether to grant interest at all; (2) to fix the rate; (3) to grant interest on the whole or part of the damages for which judgment is given; and (4) to fix the period for which interest will run. See Cheong Supermarket Pty Ltd v Muro [1987] PNGLR 24 (Bredmeyer J); Nambawan Super Ltd v Petra Management Ltd (supra).
  2. The conventional rate of interest, unless the Court otherwise orders, is 8% yearly: Order 12 Rule 6(2) of the National Court Rules. However the Court has a wide discretion when determining the most appropriate rate of interest to be applied to damages. I will allow pre-judgment interest on general damages of K408,975 at the rate of 4% per annum from date of filing of the Plaintiff’s writ on 5 May 2017 to the date of this decision, 27 March 2023, a period of 2,153 days.
  3. The reason for applying an interest rate of 4% per annum is because it is a matter of public knowledge that interest rates on term deposits and other financial facilities offered by registered banks in Papua New Guinea over the last 4 to 5 years have plummeted to 4% per annum and below. The purpose of damages is to compensate a successful party who has sustained loss as close as possible for that sum of money which will put the party in the same position as it would have been if it had not sustained the loss for which compensation is being awarded: Motor Vehicles Insurance Limited v Kol (2007) SC902 (Kandakasi, Lanalia and David JJ). The purpose of awarding interest on damages is to compensate a claimant for being kept out of money later found by the Court to be payable. As the Plaintiff here could not reasonably expect to have earned 8% per annum on any component of general damages now awarded to her had it been invested with a bank in Papua New Guinea over the last 4 to 5 years, I consider that a rate of interest of 4% per annum applied to general damages for that period is a fair and proper rate of interest to be applied by way of compensation which is reflective of the prevailing economic conditions in the country.
  4. Interest on general damages of K408,975 is K96,500 computed by applying the formula: D x IR x (N/365) = I, where: D is the principal amount of general damages, IR is the applicable percentage rate of interest per annum, N is the number of days expressed as a percentage of years and I is the amount of interest:

K408,975 x 4% x (2,153/365 days) = K96,495.69 rounded off to K96,500.


  1. Judgment for the Plaintiffs on assessment of damages will therefore be entered for a total of K505,475 comprising:

Total of assessed general damages: K 408,975

Total of pre-judgment interest: K 96,500

Total of Judgment: K 505,475

  1. Post-judgment interest will, pursuant to the discretion of the Court allowed by Section 6(1) of the Judicial Proceedings (Interest on Debts and Damages) Act 2015 and Order 12 Rule 6(1) of the National Court Rules, be payable by Dekenai at the rate of 4% per annum on such of the judgment amount of general damages assessed at K408,975 as remains from time to time unpaid.

COSTS


  1. The general rule is that costs follow the event, which means that the successful party is awarded a contribution towards its legal costs paid for by the losing party on a party/party basis on the scale set out in Table 1 of Schedule 2 of the National Court Rules.
  2. There was no submission made for the Plaintiff in the present case that if her claim were to be successful, costs should be awarded in her favour on any basis other than the party/party scale. Costs will therefore be awarded to the Plaintiff on a party/party basis, together with that amount as represents all reasonable fees and disbursements invoiced by valuer Mr William Ovasuru to the Plaintiff for his valuation report and his attendances in connection with this suit, such costs and valuer’s fees to be taxed if not agreed.
  3. For the avoidance of doubt, I direct that Dekenai is required, as a component of the party/party costs, to reimburse the Plaintiff for her payment of one-half of surveyor Mr James Murray’s company’s invoice no. HL-0000171 dated 26 July 2018 rendered by JM & Sons Limited, which invoice is referred to in term 1(a) of the interim order made in this proceeding on 2 August 2018.

CONCLUDING REMARKS


  1. On 7 December 2018 the Court declined to grant a motion filed for Dekenai on 22 October 2018 whereby Dekenai was seeking an interlocutory order that the State and the Department of Works & Implementation be joined as parties to this proceeding. The reasons given by the Court for refusing Dekenai’s motion were because the Plaintiff was entitled to choose whom she wished to sue, because the Plaintiff by her claim sought no relief against the State and the Department of Works based on the tort of trespass and because the Plaintiff could not be compelled to sue the State or any of its agencies.
  2. However, the Court, by its order dated 7 December 2018, granted leave to the Dekenai to forthwith file a cross-claim in this proceeding against the State should Dekenai wish to claim contribution or indemnity against the State under its Contract with the State for the rehabilitation of the Aropa Road in the event that the Plaintiff’s claim against Dekenai were to succeed as to liability and quantum. Leave was granted to Dekenai for this purpose because Part VIII of the Wrongs (Miscellaneous Provisions) Act Chapter 297 enables a tort-feasor to recover contribution or to claim indemnity from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage.
  3. When the proceeding returned to Court on 15 February 2019 for further directions to progress the case to trial, Dekenai had not availed itself of the opportunity to file a cross-claim claiming contribution or indemnity against the State. Leave to file that cross-claim was therefore withdrawn by the Court on 15 February 2019, thereby enabling the Plaintiff’s claim against Dekenai to proceed to trial commencing on 7 March 2019 without distraction or interruption from any cross-claim by Dekenai against the State
  4. Dekenai’s entitlement to claim contribution or indemnity against the State under Part VIII of the Wrongs (Miscellaneous Provisions) Act in respect of the judgment which is now about to be entered against Dekenai in this proceeding nevertheless remains intact. Dekenai is still at liberty to pursue a claim against the State for contribution or indemnity under clause 18.3 of Schedule 1 of its Contract with the State or under any of the other provisions in that Contract if Dekenai so wishes.

JUDGMENT

  1. The terms of the formal judgment of this Court on liability and assessment of the Plaintiffs’ damages in this suit are:

(1) Judgment is entered for the Plaintiff in the sum of K 505,475 comprising:

(a) assessed general damages: K 408,975

(b) pre-judgment interest at 4% per annum

on assessed damages: K 96,500

Total of Judgment: K 505,475

(2) Post-judgment interest shall accrue at the rate of 4% per annum on so much of the above assessed damages of K408,975 as remains from time to time unpaid.

(3) The Defendant shall pay to the Plaintiff:

(a) the Plaintiff’s costs of and incidental to this proceeding on a party/party basis, and

(b) that amount as represents all reasonable fees and disbursements invoiced by valuer Mr William Ovasuru to the Plaintiff for his valuation report and his attendances in connection with this suit,

such costs and valuer’s invoiced amount to be taxed if not agreed.

(4) The time for entry of this judgment is abridged to the time of signing by the Court which shall take place forthwith.

Judgment accordingly
_________________________________________________________________
Henao Lawyers: Lawyers for the Plaintiff
Mel & Hennry Lawyers: Lawyers for the Defendants


[1] See pages 58 and 59 of the transcript of the proceedings for 7 March 2019.

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