Pacific Trade International Ltd v Waisime [2020] PGSC 20; SC1935 (31 March 2020)

SC1935

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW NO 49 OF 2019

BETWEEN
PACIFIC TRADE INTERNATIONAL LIMITED
Applicant

AND
JAMES WAISIME
First Respondent

AND
MARYANNE WAISIME
Second Respondent

AND
AUSKOA ENTERPRISES LIMITED
Third Respondent

AND
JUSTIN SEO trading as CITI ENGINEERING (PNG) LIMITED
Fourth Respondent

Waigani: Mogish, Makail, & Koeget JJ
2020: 17^th & 31^st March

SUPREME COURT REVIEW – Application for review – Inherent power – Review of National Court decision on award of damages –Award of damages for trespass and mesne profits – Constitution – Section 155(2)(b)

DAMAGES – Order for joint defendants to jointly and severally pay damages – Apportionment of damages among joint defendants – Extent or degree of participation in tort of trespass

DAMAGES – Assessment of damages – Damages for trespass and mesne profits – Different heads of damages – Distinction between damages for trespass and mesne profits discussed – Computation of mesne profits – Date of accrual of mesne profits

Facts

This is an application for review of a decision of the National Court on assessment of damages pursuant to the inherent power of the Supreme Court under Section 155(2)(b) of the Constitution. Leave was granted by a single judge of the Supreme Court previously. The action was for trespass of a State lease over a property by the applicant, third and fourth respondents without the authority of the first and second respondents. The trial judge awarded damages for trespass and mesne profits. For mesne profits, it was awarded at a daily rate from date of entry of the property to date of its vacation. The applicant, third and fourth respondents were jointly and severally ordered to pay damages. The applicant argued that the trial judge erred when he did not apportioned damages among the tortfeasors because it relied on a fake title of the third respondent to enter and occupy the property, secondly that damages for trespass and mesne profits are the same forms of relief and amounted to duplication of relief, and unjust enrichment and finally, the correct date of accrual of mesne profits is from date of issue of State lease title of the first and second respondents. Prior to that, they were not title holders of the property and had no interest in the property.

Held:

1. In an action for trespass one does not necessarily have to be physically on the property (indirect trespass) nor does someone who enters a property illegally or unlawfully must cause harm or loss to be held liable for damages. In this case, each party played a vital and equal role to deny the first and second respondents from accessing and occupying the property. In addition they are bound by the default judgment and equally liable in damages.

2. Damages for trespass and mesne profits are distinct and separate forms of relief at common law. The former is awarded purposely to compensate a party for the illegal entry of the property by another. The latter is awarded in the form of profits or value of the land during the time someone was wrongfully occupying the property.

3. The commencement of the term of the first and second respondents’ State lease was made retrospect to date of publication of notice of their successful application for a State lease and by law, were joint-title holders at the time the applicant and others entered and occupied the property: Section 81 of the Land Act 1996.

4. The applicant failed to establish meritorious grounds of review or shown that substantial injustice will occur if the application for review is not granted. The review is dismissed with costs.

Cases Cited:
Papua New Guinea Cases

James Waisime & Anor v. Auskoa Enterprises Ltd & 2 Ors (2019) N7727
Avia Aihi v. The State (No 2) [1982] PNGLR 44
Application by Ludwing Patrick Shulze, Review Pursuant to Constitution Section 155(2)(b) (1998) SC572
Application by Herman Joseph Leahy (2006) SC855
Paul Gigmai v. Motor Vehicle Insurance Limited (2004) SC750
Fly River Provincial Government v. Pioneer Health Serviced Ltd (2003) SC705
Curtain Brothers (PNG) Ltd v. University of Papua New Guinea (2005) SC788
Van Der Kreek v. Van Der Kreek [1979] PNGLR 185
Papua Club Inc v. Nusaum Holdings Ltd (2005) SC812
Telikom PNG Ltd v. ICCC (2008) SC906
Maria Seeto v. NGIP Agmark Ltd (2019) N8137
Gaya Nomgui v. The Administration (Re Lae Administration Land) [1974] PNGLR 349
Rimbuan Hijau (PNG) Ltd v. Ina Enei (2017) SC1695
Deep Sea Fishing Ltd v. Luke Critten (2010) SC1126
Madaha Resena v. The State [1990] PNGLR 22
PNG Port Corporation Ltd v. Charles Inni (2012) N4717
PNG Nambawan Trophy Ltd v. Tubuan Investments Ltd (2009) N5349

Overseas Cases

Plenty v. Dillon [1991] HCA 5; (1991) 171 CLR 635
Entick v. Carrington (1765) 19 St Tr 1029
Southam v. Smout (1964) 1QB 308

Counsel:

Ms. J. Topo & Ms. D. Doiwa, for Applicant
Mr. D. Kipa, for First and Second Respondents
No appearance, for Third and Fourth Respondents

JUDGMENT

31^st March, 2020

1. BY THE COURT: This is an application for review of a decision of the National Court on assessment of damages of 28^th February 2019 pursuant to the inherent power of the Supreme Court under Section 155(2)(b) of the Constitution. Leave was granted by a single judge of the Supreme Court on 10^th July 2019.

Undisputed Facts

2. The undisputed facts are these, the first and second respondents were successful applicants of a piece of land in the form of a State lease described as Allotment 48, Section 445, Hohola, NCD (Property). The purpose was to build a residential property. Their successful application was published in the National Gazette dated 26^th January 2011. The State lease commenced on 26^th January 2011 for a period of 99 years. The first and second respondents attended to all of the other requirements for the issuance of the State lease including payment of requisite fees and waited for a copy of the State lease to be issued by the Registrar of Titles. It was not until 1^st May 2013 when they were issued the official State lease title for the property.

3. Unbeknown to them, the applicant, third and fourth respondents produced another title for the same property and the fourth respondent had moved in and occupied the property sometimes in 2012. The fourth respondent had moved storage containers, building materials and dumped strong soil in preparation for the construction of a four-storey building. It was said the construction of the building was on the property next to the subject property. The fourth respondent’s occupation was at the invitation of the applicant who appeared to have entered into a contract of sale to purchase the property from the third respondent. It turned out that the title of the third respondent was a fake as confirmed by the Registrar of Titles on 7^th May 2013. The fourth respondent then vacated the property but only after the first and second respondents had obtained eviction orders from the District Court on 1^st April 2014.

4. Following that, on 17^th July 2014 the first and second respondents sued the applicant, third and fourth respondents for trespass and conversion of the property. Amongst other forms of relief sought, they sought damages for trespass and mesne profits. The applicant, third and fourth respondents failed to comply with procedural requirements of the National Court Rules including Court directions and orders and on 18^th June 2015 default judgment, with damages to be assessed, was entered against them.

National Court Decision

5. After a trial on assessment of damages, on 28^th February 2019 the National Court (Kandakasi DCJ) awarded damages in the total sum of K268,012.63 which comprised of the following:

(a) K69,222.99 in mesne profits;

(b) K50,000.00 for trespass with the additional awards for the following expenses:

(i) AU$2,485.59 (K6,663.04) for airfares;

(ii) K1,000.00 in legal costs;

(iii) AU$18,215.97 (K44,433.80) for value of accrued leave entitlements lost;

(c) K86,692.80 for diminution of value and costs of restoration of property;

(d) K10,000.00 for mental anguish, frustration and emotional distress.

Grounds of Review

6. The judgment has been published and the full reasons may be found in James Waisime & Anor v. Auskoa Enterprises Ltd & 2 Ors (2019) N7727. Not the entire judgment is under challenge in this review. The challenge is limited to about three specific aspects of the judgment, one of them being his Honour’s ruling that the applicant, third and fourth respondents shall “jointly and severally” pay the sum of K268,012.63. The other aspect which formed the second ground of review relates to his Honour’s decision to make one award of damages for trespass and another for mesne profits. The next aspect which formed the final ground of review is in relation to the correctness of the date of accrual of mesne profits of 20^th December 2012.

7. The applicant was compelled to seek a review of these aspects of the judgment because after the judgment sum remained unsatisfied for almost five months with no appeal being lodged by either the applicant or the other two respondents, the first and second respondents instituted enforcement proceeding and obtained a garnishee order absolute on 1^st July 2019 against funds of the applicant held at Westpac Bank (PNG) Limited. They sought the total judgment sum of K268,012.63 including interest to be remitted to them. An attempt to have the garnishee order set aside or dismissed was unsuccessful, paving the way for the funds to be remitted to the first and second respondents to satisfy the judgment debt.

Principles of Review

8. Where the Court is giving consideration to an application for review under Section 155(2)(b) of the Constitution, it must bear in mind that it is not an appeal where the Supreme Court’s power is wide enough to include grounds of appeal against findings of fact by the trial judge but its exercise of power is confined to the applicant being able to establish exceptional circumstances exists, that some substantial injustice is manifested or that the case is of special gravity and there are clear legal grounds meriting a review of the decision: see Avia Aihi v. The State (No 2) [1982] PNGLR 44 and adopted in Application by Ludwing Patrick Shulze, Review Pursuant to Constitution Section 155(2)(b) (1998) SC572; Application by Herman Joseph Leahy (2006) SC855 and many other subsequent cases. We adopt and apply these principles to this case.

Apportionment of Damages

9. We begin with the basic premise that the trial Court has wide discretion to apportion damages among multiple or joint defendants. Conversely, it may order all the defendants to jointly and severally pay damages. The discretion is exercised based on the extent or degree of participation of each defendant. The judge’s decision to apportion damages or not will be captured and expressed in the judgment for the parties’ noting and compliance. The same principle is captured and applied in Section 7 of the Criminal Code in the context of criminal offences where multiple offenders are sentenced according to the extent or degree of participation in the commission of an offence, for example, the principal offender is likely to be given a heavier sentence than the one who played a lesser role. The question for our consideration is whether the applicant had made out a case for apportionment of damages before the learned trial judge.

10. The applicant’s case in this review is this. As it was one of the defendants in the proceeding in the National Court and the others were the third and fourth respondents, the learned trial judge failed to apportion damages among them according to the extent or degree of each party’s wrongdoing. Moreover, it submitted that it is almost not an option for the trial judge not to identify the role of each of them in the act of trespass and apportion damages among them. This is because each of them is a company and a separate legal entity capable of being sued on its own and furthermore, not vicariously liable for the actions and/or omissions of the other. Finally, it submitted that the first and second respondents failed to plead and specify the different roles each of them played in the act of trespass. Where pleadings do not identify the different degree of participation of each of them, it is not open to the trial judge to award damages against all of them. Support for this submission was drawn from the Supreme Court decision in Paul Gigmai v. Motor Vehicle Insurance Limited (2004) SC750.

11. In this case, the applicant submitted it was not the primary tortfeasor who was responsible for procuring the fake title of the property. The contrary view, it submitted was, it was a victim of circumstances because it was misled by the third respondent to purchase the property based on a title which turned out to be fake. Given its degree of participation, it should not be liable to settle the whole judgment sum. As the trial judge failed to specify the sum it was liable to pay, the first and second respondents have moved to issue garnishee proceeding and obtained an order to remit funds from its bank account to settle the whole judgment sum. It submitted gross injustice will and has occurred if the judgment sum is not reviewed and apportioned, accordingly.

12. In opposing this ground the first and second respondents submitted that the issue of apportionment was not brought to the notice of the learned trial judge and his Honour did not have the benefit to rule on it. It was the failure of the applicant to raise it and such failure does not attribute an error to the trial judge nor can it constitute a ground of review. Secondly, they submitted that the applicant failed to lead evidence by affidavit at trial to qualify its trespass and its failure is not a ground to set aside the judgment under review. For these reasons, these grounds are misconceived and should be dismissed. In any case, this issue brings up the issue of liability which has been determined by the entry of default judgment and should be disregarded.

13. We deal with the various contentions by the parties in this way. First, we accept the first and second respondents’ submission that the applicant did not lead evidence by affidavit at trial to qualify its trespass. Where it had not led evidence and made submissions on apportionment of damages according to its degree of participation in the trespass, for example, it was misled by the third respondent to believe that the third respondent was the title holder of the property, and now use it to attack the trial judge’s award of damages against it, it would constitute a belated attempt to bail itself out of its own failure and no error can be attributed to the trial judge for ruling against it.

14. Added to that, the applicant did not distance itself from the other defendants (third and fourth respondents). We say this because there is evidence at paragraph 12 of the affidavit of Justin Seo filed 20^th March 2015 that the applicant was the party who initially instructed a lawyer in Kimbe to defend all of them (itself, the third and fourth respondents). However, in the end, the proceeding was left to the contractor the fourth respondent to defend. This is self-evident from the affidavits filed by the fourth defendant and none by the applicant in response to the claim and/or assessment of damages. It also had the option of asking the Court to have it removed as an unnecessary party to the proceeding or have the proceeding struck out at the outset under Order 5, rule 9 or Order 12, rule 40 of the National Court Rules respectively. It did neither of them.

15. As to lack of pleadings on apportionment, the applicant was a spectator in the National Court and now wants to be the leader and at the forefront of the review in its bid to have the judgment against it set aside. It cannot have it both ways. It cannot now accuse the trial judge of falling into error when it did not assist his Honour with submissions on the issue of lack of pleadings. A challenge to adequacy of pleadings on apportionment of damages is a point of law and the applicant’s failure to bring it to the notice of the trial judge and meaningfully contribute to its resolution infers to us that it is not a genuine and bona fide party and its challenge will be disregarded: see Fly River Provincial Government v. Pioneer Health Serviced Ltd (2003) SC705 and Curtain Brothers (PNG) Ltd v. University of Papua New Guinea (2005) SC788. Contrast this position with cases where leave has been granted to a party to raise a point of law not raised in the National Court before the Supreme Court: see Van Der Kreek v. Van Der Kreek [1979] PNGLR 185; Papua Club Inc v. Nusaum Holdings Ltd (2005) SC812 and Telikom PNG Ltd v. ICCC (2008) SC906.

16. However, if we were to consider it, the Paul Gigmai case (supra) cited by the applicant is irrelevant. That was a claim for damages against the Insurer for a death from a motor vehicle accident. Under the relevant legislation the Insurer is liable to a fixed maximum sum as damages. Any sum over and above that is an excess sum and may be claimed against the owner or driver or both. The owner of the motor vehicle was not named as a defendant. The claim was settled by the Insurer at a lesser sum with the excess outstanding. The appellant was granted leave to join the owner and sought to recover the excess from the owner. The National Court dismissed the claim against the owner because there was no cause of action pleaded against him. The Supreme Court dismissed the appeal and upheld the decision of the trial judge. However, the issue of pleading an apportionment of damages between joint defendants was not considered by the Supreme Court and so that case is of no assistance to the applicant.

17. Nonetheless, we look at the pleadings in the statement of claim to see if they failed to adequately address the applicant’s complaint. With the background information that the first and second respondents were gazetted as successful applicants of the State lease over the property and awaiting a copy of the official State lease title to be issued to them, the pertinent parts of the statement of claim are recited hereunder:

“ Particulars of Conversion

8. Unfortunately, during the waiting period for the State lease title copy, the First Defendant made arrangements or agreements with the Second Defendant and the Third Defendant (hereafter all are referred to as “the Defendants”) entered and occupied the property without the knowledge, consent, and authority of the Plaintiffs.
   
9. The First Defendant at all material times had obtained and knowingly relied on an incorrect and forged copy of a State lease title of a property described as Allotment 48 Section 445 Hohola, NCD as comprised in the State Lease Volume 22, Folio 141 to claim ownership of the Plaintiffs’ property and commercially leased it to the Second Defendant and Third Defendant for their use since 2012.
   

Particulars of Trespass & Continued Trespass

10. The Plaintiffs discovered of this illegal occupation and apart from verbal complaints, handed over a letter dated 07^th May 2013 signed by the Deputy Registrar of Titles- DLPP, to the Second Defendant, rejecting their claim of ownership of the property and declaring the Plaintiffs to be true title holders.
    
11. The Defendants instead produced their own false title copy if the property and continued to occupy and use the premises to their benefit and enjoyment until eviction orders were successfully obtained under the Summary Ejectment Act 1952 Chapter 202 in April 2014.
    
12. The Defendants were at all material times well aware of the fact that they were not the registered proprietor and were unlawfully occupying and using the premises to their benefit and convenience”.
    

18. From the allegations of fact recited above, we are able to identify that the applicant and the third respondent entered into a lease agreement for the applicant and the fourth respondent to enter and occupy the property. The lease agreement was based on a title produced by the third respondent. As it turned out, the title was a fake. Upon discovery of the occupation, the first and second respondents complained and produced a letter from the Deputy Registrar of Titles to confirm their title over the property but the applicant and fourth respondent remained until eviction orders were obtained in April 2014.

19. As to the different roles they played, the third respondent played the role of the title holder of the property based on the title which turned out to be a fake. The applicant played the role of a lessee by entering into a lease agreement with the third respondent to enter and use the property. The fourth respondent was the party who was invited by the applicant to enter and use the property. When the first and second respondents disputed their authority to be on the property, they relied on the title of the third respondent to defend their right to be on the property. The summary of the roles played by each party sufficiently show that they denied the first and second respondents from accessing and occupying the property. In our view, these facts put it beyond argument that the applicant, third and fourth respondents are equally liable in damages for trespass. For these reasons, we are not convinced that the applicant’s submission to the contrary must be upheld.

20. The pleadings are also consistent with the law on trespass where one does not necessarily have to be physically on the property (indirect trespass) nor does someone who does enter a property illegally or unlawfully must cause harm or loss to be held liable for damages. To clear the misconception, we refer to a case cited by counsel for the first and second respondents. This is the decision by Dingake J in Maria Seeto v. NGIP Agmark Ltd (2019) N8137 where his Honour cited the decision of the High Court of Australia in Plenty v. Dillon [1991] HCA 5; (1991) 171 CLR 635 which we find useful and worthy of mentioning. In that case the plaintiff sued the police officers and the State of South Australia for the officers entering his property without his express or implied authority to serve on him a Court Summons. The High Court despite finding there was no real damage done to the property, the act itself constituted a damage and allowed for the plaintiff to be compensated accordingly. The High Court cited a statement by Lord Camden L.C.J, in Entick v. Carrington (1765) 19 St Tr 1029 at 1066:

“By the laws of England, every invasion of private property, be it ever so minute, is trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage is nothing....... If he admits the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him”.

21. The High Court further noted that the principle also applied to entry by persons purporting to act with the authority of the Crown as well as to entry by other persons. It referred to the judgment of Lord Denning M.R in Southam v. Smout (1964) 1QB 308, at 320 adopting a quotation from the Earl of Chatham:

“’The poorest of man may in his cottage bid defiance to all the forces of the Crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter - the rain may enter - but the King of England cannot enter - all his forces dares not cross the threshold of the ruined tenement.’ So be it - unless he has justification by law”.

22. These cases make the point that entering a property without the owner’s authority is trespass and damages will lie. In this case, the allegation is that the applicant and the fourth respondent physically entered and occupied the property, and regardless of it and others being companies and not vicariously liable for the actions and/or omissions of the other, they are equally liable in damages for entering and occupying the property if evidence so establish.

23. We now turn to the evidence led by the parties to establish damages for trespass and mesne profits and to counter them. The first and second respondents led evidence by affidavit to prove each party’s involvement in the act of trespass and damages. The conduct of the applicant, third and fourth respondents have been highlighted by the first and second respondents in their submissions based on the affidavit of the second respondent filed 23^rd February 2015, affidavit of Justin Soe filed 20^th March 2015 and another affidavit of Justin Soe filed 5^th October 2016. Their conduct demonstrated that they are equally liable in damages for trespass and mesne profits:

(a) The applicant engaged and directed the fourth respondent on to the property to occupy and use to construct its four-storey building on an adjacent property;

(b) The property was used to dump waste ground dug from the property of the applicant;

(c) The applicant invited and allowed the fourth respondent to use the property as storage area for equipment and machines;

(d) The applicant enjoyed the convenience and expense of setting up the contractor (fourth respondent) beside the construction site which resulted in less time trucking or transporting equipment or machines and it reduced the construction time;

(e) The fourth respondent was contracted by the applicant to construct the four-storey building on the adjacent property;

(f) The fourth respondent relied on the representation of the applicant to enter the property;

(g) The applicant gave some money to the third respondent to purchase the property without conducting its own due diligence;

(h) The applicant showed the purported title to the fourth respondent to invite him to come onto the property;

(i) The applicant and the third respondent did not accept and disregarded the letter dated 7^th May 2013 from the Deputy Registrar of Titles confirming that the first and second respondents were joint-title holders of the property and remained on the property;

(j) The applicant’s refusal to vacate the property compelled the first and second respondents to commence District Court proceedings and obtained eviction orders.

24. The above evidence sufficiently established that regardless of the applicant, third and fourth respondents being companies and not vicariously liable for the actions and/or omissions of the others, each party played a vital and equal role to deny the first and second respondents from accessing and occupying the property. In addition, they are bound by the default judgment and equally liable in damages. It follows that the applicant’s claim that it was misled to believe that the third respondent was the title holder of the property has been outweighed by those factors highlighted above and makes it a primary tortfeasor. We find no error in the trial judge’s finding that the applicant, third and fourth respondents shall jointly and severally pay the sum of K268,012.63. We dismiss this ground as having no merit.

Damages for Trespass and Mesne Profits

25. The second aspect of the judgment under challenge is the trial judge’s decision to award damages for trespass and mesne profits and not the excessiveness of the awards. Thus, our consideration will be confined to the issue of whether or not damages for trespass and mesne profits are distinct and separate heads of damages. The trial judge dealt with this issue at length in his judgment and held that damages for trespass and mesne profits are two distinct heads of damages and it is open to him to make separate awards, which he did. He awarded K50,000.00 as damages for trespass and K69,222.99 as mesne profits.

26. The applicant submitted that damages for trespass and mesne profits are one and the same and the trial judge erred when he held that they were two distinct heads of damages. To make two separate awards is not only a duplication of relief but also contrary to the well established principle of restitutio in integrum, that the first and second respondents were only entitled to be restored to as close a position as if the tort or grievance complained of had not occurred. It also constituted unjust enrichment. It relied on a statement by the Supreme Court in the pre-Independence case of Gaya Nomgui v. The Administration (Re Lae Administration Land) [1974] PNGLR 349 where the Court stated that “Mesne profits are damages for trespass, a landlord being entitled to receive as mesne profits the damages which he had suffered through being out of possession of the land” to say that damages for trespass and mesne profits are one and the same form of damages.

27. But this statement has been taken out of context. Mesne profits are a specifically designed relief available to a landlord to claim from a tenant for being out of possession of his or her land. It applies to a typical landlord and tenant relationship where there is a tenancy agreement between the landlord and tenant. But it can sometimes have a broader application and the form of damages commonly claimed are the profits or value of the land during the time someone was wrongfully occupying the land. As we shall see shortly, by definition, damages for trespass and mesne profits are two distinct forms of relief at common law. Trespass is “......primarily a civil wrong or tort which may take one of three forms, namely trespass to the person, trespass to goods and trespass to land. Trespass will lie only in respect of a direct interference........”. see Osborn’s Concise Law Dictionary 9^th ed Sweet & Maxwell, 2001 at 385. Mesne profits are “The damages payable to a landlord for losses incurred because his tenant stayed in possession of the property after the tenancy came to an end”: see Osborn’s Concise Law Dictionary (supra) at 251. (Underlining is ours).

28. Turning to the trial judge’s finding on this issue we note that his Honour was well acquainted with the distinction between the two forms of relief and un-slavishly explained to the parties the difference between the two at [34] of the judgment in this way:

“Trespass goes into the question of how a defendant to such a claim first entered the plaintiff’s land or property. If the defendant first entered the land without any permission, authority or consent of its owner, that amounts to an act of trespass. It is both a criminal and civil wrong. The former would attract criminal responsibilities and penalties while the civil wrong would attract damages....................................

On the other hand, mesne profits cover the period a defendant occupies another’s land and gains from it, whether any actual income or benefit is derived or not by reason only of the defendant’s adverse possession of the land. The measure of damages is based on the extent of the defendant’s use of the land and gaining from it”.

29. As his Honour further explained at [34] of the judgment, an action for trespass is established “without the need to prove use and gain. Similarly, mesne profits could come about without trespass. This could be possible where the defendant lawful (sic) enters the property say under a lease or rental agreement but fails to vacate after the expiry of its relevant term and the defendant continues to make use and gain from the property”. (Underlining is ours). The tenancy agreement is sometimes referred to as a lease or rental agreement which his honour was referring to above and forms the landlord and tenant relationship. Where it is breached, the relief of mesne profits is awarded.

30. In addition his Honour referred to numerous Supreme Court and National Court decisions which cited English cases and legal texts on trespass and mesne profits, some of them are Rimbunan Hijau (PNG) Ltd v. Ina Enei (2017) SC1695; Deep Sea Fishing Ltd v. Luke Critten (2010) SC1126; Madaha Resena v. The State [1990] PNGLR 22; PNG Port Corporation Ltd v. Charles Inni (2012) N4717 and PNG Nambawan Trophy Ltd v. Tubuan Investments Ltd (2009) N5349. These cases supported and reinforced his Honour’s finding that damages for trespass and mesne profits are distinct and separate heads of damages and it was open to him to make an award for each of them.

31. With respect, we agree with his Honour’s reasons. His Honour’s detailed dissertation of the distinction between damages for trespass and mesne profits is quite remarkable and plain enough to understand. We add the awards are consistent with the principle of restitutio in integrum and neither do they amount to unjust enrichment nor duplication of relief. Ultimately, these damages were awarded to restore the first and second respondents to a position as close to their original position if the trespass had not occurred. We come to the conclusion that the applicant has failed to establish a clear legal ground for this ground of review to be upheld. This ground is dismissed.

Date of accrual of Mesne Profits

32. In the final ground of review, the applicant challenged the trial judge’s decision to award mesne profits from 20^th December 2012 to 05^th February 2014. However, it does not challenge the daily rate of K165.21 applied by his Honour to calculate the mesne profits. The trial judge held that 20^th December 2012 was the date the applicant entered and occupied the property. The applicant’s occupation followed a publication of a gazettal notice dated 26^th January 2011 of the first and second respondents’ successful application for a State lease.

33. The applicant submitted that the trial judge’s computation of the date of accrual of mesne profits of 20^th December 2012 is wrong because the first and second respondents were not joint title holders of the property until 1^st May 2013. This was the date the first and second respondents were issued a State lease. This is the correct date for computing the commencement of mesne profits. It pointed out that publication of a gazettal notice of the first and second respondents’ successful application does not confer an interest in land but is simply a notice of the successful applicant for a State lease. As successful applicants, they have been recommended for allocation of a State lease. However, it is subject to their acceptance and registration of the State lease. Once a State lease is issued, the applicant is conferred an interest in land as the title holder. Thus, mesne profits should have been calculated from 1^st May 2013 until the applicant and other respondents vacated the property on 5^th February 2014 at the daily rate of K165.21. This will give a sum less than the sum awarded by the trial judge. This is where his Honour fell into error.

34. However, the entire submissions of the applicant failed to acknowledge the fact that the commencement of the term of the first and second respondents’ State lease was made retrospect to 26^th January 2011 and by law the first and second respondents were joint-title holders of the State lease over the property as at 26^th January 2011 pursuant to Section 81 of the Land Act, 1996. Section 81 provides for commencement of State lease in this term, “The terms of a State lease and time within which improvement conditions are to be fulfilled and rental fees paid shall be calculated from (a) the date of publication of the relevant notice under Section 74 or (b)..........”. By the time the applicant, third and fourth respondents entered and occupied the property on 20^th December 2012 they did not have authority, even up to April 2014 when they vacated it.

35. The learned trial judge expressed the retrospective effect of the title at [41] of the judgment in a slightly different way but the effect is the same:

“In my view, upon publication of the notice in the National Gazette dated 26^th January 2011 of the Plaintiffs’ successful application for State Lease over the property, everyone was placed on notice that the Plaintiffs were the only persons who have the legal interest over the property........................................

The subsequent issuance of the formal title was a confirmation of that interest and right over the property the Plaintiffs had as at the time of advertisement of their successful tender for the property”.

36. We find this ground is misconceived and dismiss it.

Conclusion

37. The applicant has failed to establish meritorious grounds of review or shown that substantial injustice will occur if the application for review is not granted. The review is dismissed with costs to the first and second respondents, to be taxed, if not agreed.

38. Finally, there were other grounds relied upon by the first and second respondents to oppose the application for review such as duplication of application for leave for review verses finality to litigation and abuse of process. However, in the light of our decision, it is not necessary for us to consider all of them.

Order

39. The orders of the Court are:

1. The application for review is dismissed.

2. The applicant shall pay the first and second respondents’ costs of the review, to be taxed, if not agreed.

________________________________________________________________
Makap Lawyers: Lawyers for Applicant
Twivey Lawyers: Lawyers for First and Second Respondents