Stettin Bay Lumber Company Ltd v Bob [2011] PGSC 7; SC1096 (10 January 2011)

SC1096

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCA NO 98 OF 2008

BETWEEN:

STETTIN BAY LUMBER COMPANY LTD
First Appellant

AND:

S. K. GOH, GENERAL MANAGER, SBLC
Second Appellant

AND:

HII, FINANCIAL CONTROLLER, SBLC
Third Appellant

AND:

GESRING GABING BOB
Respondent

Waigani: Kirriwom, Mogish & Hartshorn JJ
2010: 29th June
2011: 10th January

APPEAL – whether particular occupation of land sufficient to support an action for trespass – consideration by trial judge of evidence as to consent to enter land

Facts:

The respondent is the owner of an oil palm block in Kimbe (Land). He claimed that in 2001, the first appellant, Stettin Bay Lumber Company Limited (SBLC) trespassed on his block, constructed an access road through it, destroyed trees and food gardens and committed environmental damage. At the relevant time the respondent claimed that he did not approve the encroachment. He claimed damages in the sum of K38,000 against SBLC, its general manager and financial controller. His claim is based upon the tort of trespass to land.The appellants denied that they had trespassed as alleged and contended that SBLC had entered at the invitation of the respondent's father, other relatives and other block holders. The National Court in Kimbe decided in favour of the respondent and awarded amongst others, damages and interest. The appellants appeal that decision and this is the decision on that appeal.

Held:

1. The evidence of the respondent's occupation of the land at the relevant time is not such that it can be safely concluded that he had a right to possession that is sufficient to support an action for trespass.

2. The trial judge erred when he preferred the respondent's evidence as to consent as he placed significant weight upon evidence that was speculative, that was to some extent based on the respondent's opinion, was hearsay and uncorroborated.

3. The appeal should be upheld.

Cases Cited:

Papua New Guinea Cases

MVIT v. Pupune [1993] PNGLR 370
MVIT v. John Etape [1994] PNGLR 596
Albert Baine v. The State (1995) N1335
Yange Lagan v. The State (1995) N1369
Kopung Bros Business Group v. Sakawar Kasieng [1997] PNGLR 331
Fly River Provincial Government v. Pioneer Health Services Ltd (2003) SC705
Lupari v. Somare [2010] SC1071

Overseas Cases:

Manchester Airport PLC v. Dutton [1999] EWCA Civ 596; [2000] 1 QB 133
Amalgamated Television Services Pty Ltd v. Marsden [2002] NSWCA 419
Georgeski v. Owners Corporation [2004] NSWSC 1096
Star Energy Weald Basin Ltd & Anor v. Bocardo SA [2010] UKSC 35

Counsel:

Mr. T. Cooper, for the appellants
Mr. G. Linge, for the respondent

10th January, 2011

1. BY THE COURT: The respondent is the owner of an oil palm block in Kimbe (Land). He claimed that in 2001, the first appellant, Stettin Bay Lumber Company Limited (SBLC) trespassed on his block, constructed an access road through it, destroyed trees and food gardens and committed environmental damage. At the relevant time the respondent claimed that he did not approve the encroachment. He claimed damages in the sum of K38,000 against SBLC, its general manager and financial controller. His claim is based upon the tort of trespass to land.

2. The appellants denied that they had trespassed as alleged and contended that SBLC had entered at the invitation of the respondent's father, other relatives and other block holders

3. The National Court in Kimbe decided in favour of the respondent and awarded amongst others, damages and interest. The appellants appeal that decision on seven grounds.

4. In essence the grounds of appeal are:

a) the trial judge erred in fact and law by finding that the appellants had trespassed onto the Land when there was no evidence that at the time of trespass, that the respondent was the owner of the Land or had any interest in the Land, as at the time the Land was owned by the respondent's father and upon his death, the Land was vested in the Public Curator in accordance with the provisions of the Wills and Probate Administration Act.

b) the trial judge erred in law and fact by finding that the respondent's enjoyment of the Land was interfered with as the area of arable land on the Land was reduced and his options as to what to do with the Land were reduced, when there was no evidence, and further it was against the evidence that the Land value was in fact enhanced with the construction of the access road for the respondent to easily transport oil palm to the market.

c) the trial judge erred in law and fact by failing to give weight to the evidence of the appellants through two witnesses who testified that the respondent's father at that time gave permission to the appellants to enter and construct an access road for the respondent's father and others within the area to transport their oil palm to the main road or highway to be loaded and transported to the mill for shipment or storage.

Ground 1: Was the respondent entitled to sue for trespass to the Land?

5. The Land was registered to Nian Gabin on 13th October 1977. Nian Gabin was the uncle of the respondent. He died in 1988. The respondent became the registered proprietor of the Land on 18th September 2002 when the title was transferred to him under s. 125 Lands Registration Act. At the time of the entry upon the Land by SBLC, the respondent was not the owner of the Land.

6. In the appeal the appellants sought to argue that as a matter of law that at the demise of Nian Gabin in 1988, the Land automatically vested with the Public Curator or his appointed agents by operation of s. 44 Wills, Probate and Administration Act and s. 4 Public Curator Act.
Further, if there was any trespass upon the Land then the Public Curator or an appointed agent would have been the appropriate person to complain.

7. This issue was not addressed by Counsel in the National Court. As a result it was not considered by the trial judge in his judgment. This is important. It is clear law that matters not raised in a trial cannot be raised on appeal: Fly River Provincial Government v. Pioneer Health Services Ltd (2003) SC705, MVIT v. John Etape [1994] PNGLR 596, MVIT v. Pupune [1993] PNGLR 370 and Lupari v. Somare [2010] SC 1071. For this reason we reject this submission.

8. The issue of the respondent's interest in the Land though, was raised by the appellants and partly addressed by the trial judge.

9. As to what type of interest in land is necessary to support a claim for trespass, guidance as to the position at common law is obtained from English and Australian decisions, which are persuasive in our jurisdiction. In Star Energy Weald Basin Ltd & Anor v. Bocardo SA [2010] UKSC 35, the United Kingdom Supreme Court, on the question of whether possession or a right to possession is a pre-condition for bringing a claim in trespass, said:

"In Powell v McFarlane CR 452, 470 Slade J said:

"In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prime facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner."

In Pye (JA) (Oxford) Ltd v Graham [2003] UKHL 30, [2003] 1 AC 419, para 40 Lord Browne-Wilkinson approved of this definition, making the point that, without the requisite intention, in law there can be no possession. This is highly relevant if the law is to attribute possession of land to a person who cannot establish a paper title to possession. But in this case the appellant has the paper title. That, in the absence of evidence to the contrary, is enough for it to be deemed to be in possession of the land."

10. Where a plaintiff does not have the paper title as in this case, the New South Wales Supreme Court case of Georgeski v. Owners Corporation [2004] NSWSC 1096, said that:

"... trespass to land entails interference with possession and is maintainable only by someone who has a right to possession." and then later:

"A right of possession of the kind enjoyed by a lessee will support an action in trespass. Possession in fact may also be sufficient, at least as against a defendant having no right to possession."

11. A majority decision of the English Court of Appeal in Manchester Airport PLC v. Dutton [1999] EWCA Civ 596; [2000] 1 QB 133, granted to an airport company that had been granted a licence to enter and occupy National Trust Land for the purpose of removing trees, an order for possession against protester/occupiers who had entered the land before the licence was granted. This decision appears inconsistent with the traditional view of the law on trespass as stated in Georgeski (supra) that the right to possession enjoyed by a lessee, exclusive possession, is necessary to support a claim for trespass.

12. The evidence of the respondent concerning his enjoyment of the Land is that the Land belonged to his uncle, who died in 1988. Between 2001 to 2003, the respondent did not live on the Land as he said that he was away for these two years trying to sort out the title to the Land. The title to the Land was transferred into his name in late 2002. During the time that the respondent was away from the Land, his mother and sisters were looking after the Land.

13. From the time of the respondents uncle's death and specifically at the time that SBLC entered the Land, there is no evidence as to the respondent's entitlement if any, to claim title through his uncle to the Land, no evidence as to whether he was entitled to occupy the Land or merely to grow produce or was entitled to exclusive possession or had to share possession with his mother and sisters or other relatives.

14. The trial judge said:

"It was a family oil palm block and it was transmitted to Mr. Bob a little over a year later. He had clearly contributed to the improvement of land and he was the person in lawful possession of it. So this element of the tort of trespass is satisfied."

15. As to the statement that the respondent was in lawful possession of the block (Land), we are not satisfied that there is evidence to that effect. There is evidence that the respondent had some occupation after his uncle's death, but not for a period of two years during which the entry by SBLC occurred. The fact that subsequent to the entry upon the Land by SBLC, the respondent obtained the paper title to the Land by transmission, is not evidence of whether at the time the entry upon the Land occurred, the respondent had the requisite right to possession to support an action for trespass. Even with the paper title to the Land, the respondent does not have the right to bring an action for trespass of the Land if someone else had exclusive possession of the Land at the relevant time.

16. Is the evidence of the respondent's occupation, at the time of the entry upon the Land, such that it can be safely concluded that he had a right to possession that is sufficient to support an action for trespass? We are not satisfied that it is. We are of the respectful view that the trial judge fell into error in finding otherwise.

Ground 2: Was permission given to the appellants to enter and construct an access road?

17. The appellants contend that there was an agreement between SBLC, block owners and relatives of the respondent to construct the access.

18. The respondent agreed that his mother and sisters were looking after the land in his absence. But he denied giving his express consent to them for the appellants to construct the road. He was adamant that his mother would have never consented to the construction of the access road.

19. The trial judge said in addressing this issue:

"Stettin Bay Lumber Company say that Mr Bob's father, who they describe as Gabor Gabin, and a number of other blockholders, including a caretaker of Mr Bob's block, Mr Nok, agreed that the company should construct the road. SBLC was initially reluctant to build the road because of the risk that blockholders would later claim compensation for damage to their land. However, in the end, upon verbal understandings, the road was constructed.

That is the version of events put to the court through an affidavit by Reginald Ovasui, the company's Administration Manager. It is supported by an affidavit of the dozer operator, Joe Namu, who built the road. He says he acted on verbal requests by Mr Bob's father and by Mr Nok and other blockholders, who undertook not to claim compensation for any damage to their properties.

Against that evidence the court has to weigh the oral evidence of Mr Bob who says that at the time the company came on to the block, he was the person in charge of it as his father, Nian Gabing, had died, in 1988. Mr Bob says he was in Port Moresby in 2001, sorting out the question of transmission of title to the block. He was the only person in a position to give the company approval to build the road and he did not give any approval. His mother was living at the block at the time and she has told him that she did not give approval.

Mr Bob was the only witness to give oral evidence in this case and I am satisfied that he is telling the truth."

20. At page 63 of the Appeal Book. During cross-examination, the respondent was asked:

"Q: Before they could proceed to construct the access road, you talked to them?

A: Before they started working on the road, they did not seek my permission or talk to me after they started work on that, I was informed by my mother and I told her to stop them.

Q: What if I put to you that there was a consent from your caretaker or any other block holders that the defendant was allowed to move in and build the access road, would you agree with me on that?

A: It could not have been that way. They would have sought permission from me and not from anyone else.

Q:....

A: I would not know about the other block owners whether they have consented to or not to the defendants building that road but for my mother, I do not think she would have done that.

page 65

"Q: ...I suggest to you that there was a consent or agreement by other small block holder and your family members to allow the defendant to build the access road on your property, is that correct?

1. I do not know about the other block holders but my mother would not have given them permission, only I could have done that. But I do not know how they came in there and then started building that road."
   

21. According to the respondent, his mother would not have consented. The respondent's mother was not called to corroborate his evidence. The reason given for not doing so was that the respondent's mother was too old. This evidence then, as to whether the respondent's mother gave consent, is not direct, is hearsay, is based on his own opinion and is not corroborated. Notwithstanding this, the trial judge accepted his evidence as "truthful".

22. As to corroboration of evidence in civil cases, there are numerous decisions in this jurisdiction concerning its desirability, particularly in relation to the proof of damage. These decisions include: Albert Baine v. The State (1995) N1335, Kopung Bros Business Group v. Sakawar Kasieng [1997] PNGLR 331, Yange Lagan v. The State (1995) N1369.

23. As to corroboration in civil cases generally, we are attracted to a statement by the New South Wales Court of Appeal in Amalgamated Television Services Pty Ltd v. Marsden [2002] NSWCA 419, where the Court said:

"Evidence of itself may be inherently credible or incredible. The work of corroborative evidence is to support the evidence of a particular witness. A witness's evidence may require support before it is accepted because of some feature of the evidence itself - for example, the evidence may be in respect of an event which occurred many years previously or the witness may have proved so unsatisfactory that the trial judge determined that the witness's evidence would not be accepted unless supported by other evidence."

24. Here, we are of the view that the evidence of the respondent concerning whether his mother had given consent, required support before it could be accepted, as it concerns an event that occurred in 2001, the evidence was hearsay and concerns an issue that has a significant bearing on the success or otherwise of the action - whether consent was given for SBLC to enter upon the Land and construct the access road.

25. When regard is had to the evidence given on behalf of the appellants, that SBLC was invited by the respondent's father and other relatives to construct the road, although hearsay, against the evidence of the respondent to which we have previously referred, we are of the view that the trial judge erred when he preferred the respondent's evidence as to consent and placed significant weight upon evidence that was speculative, that was to some extent based on the respondent's opinion, was hearsay and uncorroborated.

26. As we have found that the trial Judge erred as to his consideration of the respondent's right to bring an action for trespass and his consideration of the evidence concerning whether consent was given to SBLC to enter upon the Land and construct the access road, we are of the view that the appeal should be upheld. Given this, it is not necessary for us to consider the other grounds of appeal

Orders

27. The orders of the Court are:

a) The appeal is upheld and the decision of the National Court at Kimbe delivered on 22nd August 2008 in proceeding WS 1064 of 2004 against the first, second and third defendants is quashed,

b) The respondent shall pay the appellants' costs of the National Court in proceeding WS 1064 of 2004 and the costs of this appeal.

__________________________________________________________________
Rageau Manua & Kikira Lawyers: Lawyers for the Appellants
Linge & Associates: Lawyers for the respondent