DC631

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS GRADE FIVE CIVIL JURISDICTION]

GFCi 21 of 2007

BETWEEN

JOHN BARL & THRESA BARL
Complainant

AND

HIMONY LAPISO
Defendant

Goroka: M Gauli, PM
2007: October 09, November 07, 30

CIVIL - Trespass – Definition of trespass – Preventing the complainant from conducting his normal business operations and causing interference in anyway amount to trespass – Amount of damages claimed in the District Court are far too low to the damages that ought to be claimed – Proceedings in the District Court need to be stayed.

Cases Cited
1. Addie –v- Dumbeck [1929] A.C 358

References
Nil

Counsels
For the Complainants	- Mr. R. Yombon of Paraka Lawyers
For the Defendant	- Mr. D. Umba of Umba Lawyers

30 November 2007

DECISION OF THE COURT

M Gauli, PM The Complainants Mr. and Mrs J.T. Barl sued the defendant Mr. Himony Lapiso for trespassing on the complainants property and stopping the tenant from paying rentals to the complainant. And the complainants are seeking orders from this Court in damages to an amount of K10, 000.00 and for permanent restraining orders against the defendant.

2. The undisputed facts are as follows. The complainants purchases a commercial property namely Section 13 Allotment 24 located at West Goroka in Goroka town in the Eastern Highlands Province at a price of K550, 000.00. The subject property was formerly owned by Lopony Carriers Limited and the defendant Mr. H. Lapiso is the Director of that company. The Lopony Carriers Ltd went into liquidation. The liquidator Deloit Thomasu sold the subject property by public tender published in the national newspapers. The Complainants bid for the tender and were successful. The title was transferred to the Complainants on 21 June 2006 by the Registrar of Titles. On 09 December 2005 a Contract of Sale was entered between the vendor (the Lopony Carriers Limited (In Liquidation)) and the Purchasers (Mr. John Barl and Mrs. Thresa Barl) at a price of K550, 000.00.

3. At the time of the purchase of the property, the Young Jun Wholesale Trading was the existing tenant. On the 27 June 2006the Complainants renewed the tenancy agreement with Young Jun Wholesale Trading for further six months at a rate of K7, 000.00 per month. For the first four months the rents were paid to the Complainants, then the rents were ceased upon the defendant’s intervention. The defendant told the Complainants to refrain from conducting any maintenance or even moving into the property until the outcome of the defendant’s challenge of the liquidation is known. And so the contractor whom the complainants engaged were stopped by the defendant from continuing the maintenance work on the property. 

4. The defendant has properties still remaining on the subject premises. Those properties include four empty containers, two fork lifts, two ice making machines, three safes and office furnitures. And so the defendant sometimes enters the premises to check on these items and he also goes there for shopping.

5. What is being disputed is that the liquidation of the subject property was done without the defendant’s knowledge. And the defendant intends to sort that problem out before the complainant could move into the premises and carry out his business operations on the said property.

6. Issues

The issues before this Court are:

i.	Whether the title is in dispute
ii.	Whether the defendant has committed a trespass
iii.	Whether or not the defendant should pay damages and by how much.

7. I have received submissions from both parties. The submissions by the defendant basically is that although he went onto the property, he did not use any form of force or violence to enter the property therefore no trespass has been committed. The complainant submitted that the defendant has committed trespass because the defendant forced the Complainants out of the property by locking them out, and diverted the rental monies from complainant to a trust account of which the complainant is not a signatory to it. He submitted that these actions amount to trespass. The counsel for the complainant referred to a case of Addie –v- Dumbeck [1929] A.C 358 where Lord Denedin indicated that “a trespasser was one who goes on a land without invitation of any sort and whose presence is either unknown to the proprietor, or, if known, is practically objected to.”

8. These submissions by the parties will be considered as I discuss the issue on or whether the defendant has committed trespass. 

9. Issue No. 1: Whether the Title is in dispute.

There is no dispute that the property namely Section 13 Allotment 24 which is a State Lease Volume 103 Folio 158 located in Goroka town is formerly owned by Lopony Carriers Pty Ltd of which the defendant is the director. That company went into liquidation. The liquidator appointed Hugh Mosley and he put the property on sale by tender. The complainant was the successful tender. The purchase price was K550, 000.00. And the complainant acquired the title to the property on 22 June 2006 through the liquidation process which is a proper legal process.

10. After the complainant had acquired the title, the defendant had informed him that he will be challenging the sale of the property by liquidation. To date the defendant has not challenged the sale in any of the Courts particularly the National Court. Since the defendant has not appealed to the appropriate Court for a review of the sale and purchase of the property by liquidation, I find that there can be no dispute over the title of the property to the Complainants.

11. Issue No. 2: Whether the defendant has committed trespass

There is evidence before this Court that the defendant has his other properties on Section 13 Allotment 24. And so at times he goes there to check on his properties. The evidence also established before this Court that the defendant has physically stopped the contractors who were engaged by the complainant, while they were carrying out maintenance work. Also the defendant has stopped the tenant the Young Jin Wholesale Trading from paying rent to the complainant. The rent was K7, 000.00 per month. The monthly rent is being paid into a trust account of which the signatories are Mr. Denis Umba (the defendants lawyer), Mr. Sakim and the defendant Himony Lapiso. The account number and or the amount has not been made known to this Court.

12. The term “trespass”, in the Oxford Advanced Learners Dictionary gave three definitions. These are: “(1) Enters somebody’s land or property without his permission or other authority; (2) take advantage of something in a selfish way; use something unreasonably; (3) do wrong, sin.”

13. The Osborn’s Concise Law Dictionary 6th Edition by John Burke, defines “trespass’ as: “(1) Trespass vi et armis (with force and arms): injuries to the person accompanied with actual force or violence _ _ _ _ ; (2) Trespass quare clausum fregit [because he (the defendant) broke or entered into the close or land] of the plaintiff without lawful authority; (3) Trespass de bonis asportatis: [the wrongful taking of chattels.”

14. There was no force applied by the defendant to enter the property. He has other reasons to be on the property especially for shopping and to check on his properties lying in that premises. However defendant’s actions in telling the contractors, engaged by the Complainant, from carrying out maintenance on the property and stopping the tenant from paying rentals to the complainant and diverting the rental payments into a trust account which account does not belong to the complainant, in my view, amount to trespass. This is taking something in a selfish way or trespass de bonis asportatis. I am satisfied that the defendant has committed a trespass.

15. Issue No. 3: Whether or not the defendant should pay damages and by how much.

There is no doubt that the defendant is entitled to pay damages for trespassing. But the question is how much. The complainant claims damages of K10, 000.00 which is within the jurisdiction of this Court. The damages the complainant entitled to claim would cover – (a) monthly rental payments of K7, 000.00; (b) contractors costs; and (c) for the breach of a quiet enjoyment of the use of the property. If these are property pleaded the amount would be well over K10, 000.00. For rent along for the 10 months of 2007, would be K70, 000.00. I consider that the amount of damages would far exceed the amount claimed in this proceedings. If this Court were to award the amount of damages claimed before this Court, I consider that the complainant would be disadvantaged from making future claims in damages against the same defendant which damages might be greater than the present amount arising from the same cause of action. He would be prevented from claiming damages greater in future against the same defendant by Section 152 of the District Courts Act. This provision states and I quote: When a complaint or set-off for a civil debt or damages has been heard and determined by a Court, no action is maintainable in any other court in the country for the recovery of the debt or damages.”

16. For this very reason I consider that without proceeding to award damages in favour of the complainant, I have considered to stay the whole proceedings. I consider that in the circumstances of this case where the complainant’s claim for damages would appear to be greater than his present claim, the stay is necessary to do justice in the circumstances so that he is not to be denied of claiming the appropriate damages later. And I make orders that:-

i.	The whole of the current proceedings are stayed.

ii.	The complainant to file fresh proceedings before the National Court.

And in the Interim the Court orders that:-
iii.	The Defendant and his lawyer Mr. D. Umba and or his agents or servants are restrained from having access to the rental monies held in the Trust Account of which they are the signatories to that account until the matter is resolved in the appropriate Court.

iv.	That the Defendant be restrained from interfering with the complainant of the conduct of the normal conduct and operation of his business on the property namely Section 13 Allotment 24 located at West Goroka unless the Defendant has taken appropriate action to challenge the validity of the liquidation of that property.

v.	The parties to meet their own costs.

For the Complainants	- Mr. R. Yombon of Paraka Lawyers
For the Defendant	- Mr. D. Umba of Umba Lawyers