Tigan v Polis [2024] PGNC 109; N10777 (3 May 2024)

N10777

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (HR) NO 56 OF 2019

MANKU TIGAN FOR HIMSELF AND ON BEHALF OF
FAMILY MEMBERS OF LATE TIGAN IGAM
Plaintiff

V

ANDREW POLIS, COMMANDER,
BEON CORRECTIONAL INSTITUTION
First Defendant

STEVEN POKANIS, ACTING COMMISSIONER
OF THE CORRECTIONAL SERVICE
Second Defendant

HON CHRIS NANGOI YER,
MINISTER FOR CORRECTIONAL SERVICE
Third Defendant

OSWALD TOLAPA, ACTING SECRETARY,
DEPARTMENT OF LANDS & PHYSICAL PLANNING
Fourth Defendant

HON JOHN ROSSO,
MINISTER FOR LANDS & PHYSICAL PLANNING
Fifth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Madang: Cannings J
2023: 25^th October
2024: 30^th April, 3^rd May

LAND – unlawful use of customary land by the State for a prison – expiration of 50-year lease – State in unlawful occupation of land for 7.5 years after expiry of lease – assessment of rent and damages.

The plaintiff’s father signed a 50-year lease over the family’s customary land in 1966 which allowed the colonial administration to build and operate a prison on the land. The lease expired in 2016 but the defendants including the State continued to use the land for a correctional institution. The plaintiff commenced proceedings against the defendants and after a trial in 2020 obtained judgment in his favour. It was declared that the State has unlawfully conducted operations on the land since 14 October 2016 and is liable to the plaintiff in terms of rent, compensation and/or damages from that date. A separate trial on assessment of those amounts was conducted. The plaintiff’s primary submission was that compensation should be assessed as if the land had been compulsorily acquired by the State and he should be awarded K11.688 million. His alternative submission was he should be at least awarded rent (based on a valuation of the land) of K1.068 million for 7.5 years of unlawful occupation = K8.016 million plus K1 million damages for trespass.

Held:

(1) The land has not been compulsorily acquired and there is no sensible basis on which it should be deemed to have been so acquired. The plaintiff’s primary submission was refused.

(2) The annual amount of rent sought by the plaintiff was exaggerated as it was based on a valuation report for the entire area of the customary land that is owned by the plaintiff (48.7 hectares) whereas the correctional institution is only occupying a small proportion (estimated to be 10%) of that land

(3) Rent was assessed as 10% of the amount claimed = K106,800.00 per year x 7.5 years (14 October 2016 to 14 April 2024) = K801,600.00.

(4) There was no cause of action pleaded for trespass and no evidence of damage to the land, so nothing was awarded for damages.

(5) The total amount for which the State is liable to the plaintiff is K801,600.00.

Cases Cited
Waisime v Ausoka Enterprises Ltd (2019) N7727
Mogai Ltd v Tolopa (2021) N9360

Counsel
B B Wak, for the Plaintiff
E Manihambu, for the Defendants

3^rd May 2024

1. CANNINGS J: The plaintiff’s father, the late Tigan Igam, signed a 50-year lease over the family’s customary land near Foran and Sisiak villages in Madang District in 1966 which allowed the colonial administration to build and operate a prison on the land. The lease expired in 2016 but the defendants including the State continued to use the land for the Beon Correctional Institution. The plaintiff commenced proceedings against the defendants and after a trial in 2020 obtained judgment in his favour.

2. It was declared that the State has unlawfully conducted operations on the land since 14 October 2016 and is liable to the plaintiff in terms of rent, compensation and/or damages from that date. A separate trial on assessment of those amounts has been conducted.

3. The plaintiff’s primary submission is that compensation should be assessed as if the land had been compulsorily acquired by the State and he should be awarded K11.688 million. His alternative submission is that he should be at least awarded rent (based on a valuation of the land) of K1.068 million per year for 7.5 years of unlawful occupation = K8.016 million plus K1 million damages for trespass, a total of K9.016 million.

4. As to the primary submission, the land has not been compulsorily acquired and there is no sensible basis on which it should be deemed to have been so acquired. The plaintiff’s primary submission is refused.

5. The annual amount of rent sought by the plaintiff is vastly exaggerated as it is based on a valuation report for the entire area of the customary land that is owned by the plaintiff (48.7 hectares, now known as Portion 44). Beon Correctional Institution is only occupying a small proportion (I estimate it to be no more than 10%) of that land.

6. I take into account the decisions of Kandakasi DCJ in Waisime v Ausoka Enterprises Ltd (2019) N7727 and Makail J in Mogai Ltd v Tolopa (2021) N9360 when assessing an appropriate amount of rent. The facts of those cases are different of course but their Honours provide useful insights into assessing lost rental, which is akin to an assessment of mesne profits.

7. Rent is assessed as 10% of the amount claimed = K106,800.00 per year x 7.5 years (14 October 2016 to 14 April 2024) = K801,600.00.

8. There was no cause of action pleaded for trespass and no evidence of damage to the land, so I award nothing for damages and nothing for any other compensation.

ORDER

(1) The sixth defendant is liable to the plaintiff as per the order of 5 March 2020 in terms of rent, compensation and damages in respect of the unlawful use of a part of the plaintiff’s land at Portion 44, Madang from 14 October 2016 to 14 April 2024 in the total sum of K801,600.00.

(2) The sixth defendant shall pay the plaintiff’s costs of the proceedings, subject to any other costs orders in the proceedings including the order of 5 March 2020, on a party-party basis, which shall if not agreed be taxed.

________________________________________________________________
Bradley & Co Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyer for the Defendants