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Wag v Mount Hagen Town Authority [1997] PGNC 144; N1640 (3 November 1997)

Unreported National Court Decisions

N1640

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 40/93 & OS 19/93
RAFFLIN & OS
PLAINTIFFS
V
RICHARD GAULT INDUSTRIES PTY LTD
FIRST DEFENDANT
KERAWARA PTY LTD
SECOND DEFENDANT
EAST NEW BRITAIN PROVINCIAL GOVERNMENT
THIRD DEFENDANT
PAPUA NEW GUINEA FOREST AUTHORITY
FOURTH DEFENDANT
THE STATE
FIFTH DEFENDANT

Kokopo

Woods J
11 August 1997
3 November 1997

FORESTRY - timber licence – nature of – rights to land – terms and conditions and reservations on Agricultural Leases.

TRESPASS - damages for unauthorised logging activities.

Counsel

P Harricknen & B Killian for the Plaintiffs

No appearances for the first, second, third and fourth defendants

Ms P Kiele for the fifth Defendant.

3 November 1997

WOODS J: The Plaintiffs in these actions are seeking certain declarations concerning the rights of the defendants to licence and conduct logging operations on their lands and they are also seeking damages for trespass and breach of the conditions of State Leases for quiet enjoyment.

The writ of summons seeks:

1. ҈ A declaration that that the 1st and 2^nd defendants are not entitled to enter the land and to carry on logging operations thereon.

2.ـ҈&&#160eclaration that the 1^st

st/sup> and/ and/or 2nd defendants logging operations on the land was unlawful in respect of the 1^st and 3^{rd nd} plaintiff since the commencement of the logging operations.

3. ـ An injunctior to aistraistrain the 1^st and 2^nd defendants by their servants and agents from entering and car on lg opens onland.

4. ټ&#A60; de order rder rder that that the 1the 1^{st, 2nd, 3rd, 4th, 5th defendants give a full and accurate account of timber harvested from the land at all material times.}

5. ټ Damages against thet the 1^st and 2^nd defendants for trespass and/or conversion.

6. &#D60; esmagainag thet5th defendant in favour of the plaintiffs for breach of contract.

7. ҈ I60; Interest.

W tlst the 1^st and 2^nd defendants did respond with pleadingsy in this matter they have failed to continue with pleadings or appear at mentions over ther the past year or more in spite of being served with process and the court has been forced to accept that they are not interested in defending the claims.

The proceedings were discontinued against the 3^rd defendant.

The 4^th defendant has shown no interest in attending at the hearing of the matter.

One of the plaintiffs, Steven Rafflin, had settled his claim with the defendants and thereupon discontinued his claim.

The case briefly concerns the alleged trespass of logging companies namely the 1^st and 2^nd defendants onto the lands of the plaintiffs under a Timber Licence given by the State. The Plaintiffs were holders of State Leases for agricultural purposes, except for one plaintiff who was the customary owner of certain land. Most of the plaintiffs held State Leases which were granted under the Warongoi Cocoa Block Scheme which was a project planned by the Department of Primary Industry, the Provincial Government and the Agriculture Bank for the economic development of the area into cocoa production by way of smallholder blocks. The Plaintiffs had applied in the normal fashion under the Land Act for their blocks and in due course they were granted State Leases over the land and in most cases were granted loans by the Agriculture Bank for the development of their blocks. This therefore resulted in the State Leases being issued subject to mortgages to the Agriculture Bank. These State Leases were granted in March 1991, and I refer here to Government Gazette G27 of 14 March 1991.

The State Leases were in the usual form of an Agricultural Lease under the Land Act Section 49 and issued on various dates between March and July 1991 and they contained the usual reservations implied in State Leases, which would be by virtue of Section 39 the reservations of minerals, and they included the usual style of terms and conditions for cultivation and development for in these cases cocoa, and a residential condition. There is no mention of any reservation of timber and of course any such a reservation would not make any sense as the Leases were leases to plant and grown certain tree crops.

In 1992 the then Minister for Forests granted a Timber Licence No 15-8 relating to the Warongoi Timber Area, East New Britain Province to the 1^st Defendant. This timber licence purported to include the lands owned by the Plaintiffs. In 1993 the 1^st and 2^nd defendants entered the lands of the plaintiffs and cut down and removed trees. There was no separate consent from the plaintiffs for this action by the 1^st and 2^nd defendants. The defendants admitted in their Defence and Cross-Claim filed in July 1994 that they had a Timber Licence issued under the Forestry Act 1991 over the plaintiffs’ lands. However they asserted that they were under no obligation to treat with the lessees or landowners. And the Department of Forests agreed in June 1993 that the subject Licence did purport to include the Agricultural Blocks, and refer here to a letter from the then Secretary of the Department of Forests dated 1^st June 1993. The 1^st and 2^nd defendants relied on this Timber Licence to give them the right to enter onto the land the subject of these Agriculture leases and remove timber and further it appeared that the defendants relied on the terms of this Licence that they were in no way answerable to the plaintiffs as leaseholders of these Agriculture Leases but only answerable to the State and only had to pay any licence fees or royalty fees to the State or its Instrumentalities.

I note here that the 4^th Defendant, the Papua New Guinea Forest Authority, is the successor to the responsibilities and obligations of the Department of Forests, note the Forestry Act 1991 and in particular section 140.

It is clear that all defendants agree that there was a Timber Licence granted over the lands owned by the plaintiffs and that under that Licence the 1^st and 2^nd Defendants entered onto the lands of the plaintiffs and removed trees and any payments for that Licence and for those trees was made to the State or its agent.

The first question is therefore how and by what right did the State grant a Licence to the 1^st defendant to remove trees from the plaintiff’s lands. The Plaintiff Rowan Kilian is the owner of some customary land and no-one has produced any document to prove that the State had acquired his land or any rights to his land for any purposes. I must note here that whilst the Timber Licence refers to a Timber Rights Purchase of 1952 there is no evidence before me to support any suggestion that this Purchase included this particular plaintiff or these lands belonging to this plaintiff. I must therefore find that the State had no right to grant a Licence over his land and therefore the 1^st and 2^nd defendants had no right to enter the lands of the Second Plaintiff and are therefore liable in trespass for any loss or damage done to the plaintiff’s lands. The other Plaintiffs held properly issued and registered State Leases. There were the usual reservations of minerals. But there was no reservation of trees, and of course such a reservation of trees would make nonsense of such a Lease as the lease was for the purpose of planting and cultivating certain specified trees. The land the subject of these leases was thereupon not Government land following the granting of the leases, note here the definition of Government Land in the definition section of the Land Act which makes it clear that land that is the subject of a State Lease is not Government Land.

Therefore the only right or authority the State had over these lands was by virtue of the terms and conditions imposed on the lease. The lawyer for the State refers to section 67 of the land Act for the power of the State to grant the Timber Licence but note that Section 67 only refers to such a right over Government Land, and these leases clearly take the land out of that category. The Lawyer for the State has submitted that these State Leases contained implied terms for the reservation of all trees to the State however has been unable to refer the Court to any particular section of the Land Act to support such a submission. As indicated above there is no such reservation on the Leases, nor is there any section of the Land Act which reserves such a right, and as I have already noted such reservation would make nonsense of any such a Lease being as it is a Lease to cultivate a certain type of tree.

I note that the Timber Licence makes reference to a Timber Purchase Agreement of 1952. However as the land has now been subdivided and granted under Agricultural Leases then there has been a further complete acquisition of customary land by the State which would supercede such a limited Timber Purchase and that therefore such Timber Purchase itself has been superceded and merged into the full State title to the land.

I find it extremely disturbing that there has been no help offered to the Court in this case from the Department of Forests or its successor the Forest Authority to explain how this situation has arisen, what was the nature of this old Timber Rights Purchase and how they say they still have rights in the timber when there has been a further acquisition for leasing for agricultural purposes. They appear to have a very naïve understanding of land rights. It appears that the relevant officers in the Forest Department or Authority have been grossly careless or negligent in the advice they gave to the Minister for Forests that the State owned trees on what was in effect private land.

Agriculture Leases and for general purposes, State Leases, do not include reservations of such things as trees to the State unless such a reservation is expressly stated. There is evidence that Lands Department Officers in East New Britain had queried the right of the Defendant Companies to enter onto and log the subject land but they were overruled by Officers of the Department of Forests. Whilst according to certain customary rules of property trees were often regarded as the personal property of the person who planted them this rule had only existed where the customary practices prevailed. It is noted that the State did at one time recognise that right and went to a great deal of trouble to negotiate over the rights to trees and thus entered into Timber Rights purchases. However once the State acquired land for modern development and purposes then trees became part of the land that was leased or granted, on the one hand of course the State could never claim to still own the trees because the State had not planted them according to the traditional system with the agreement of the group for the use of the land to so plant them. The State by its acquisition and grant of State Leases cannot then be seen as a customary user of the land. And now of course once the State started issuing documents of Title or in this case Lease documents with reservations and conditions then it was important that any reservations and condition on the use of the land so leased had to be clearly spelled out. So trees have now become part of the land according to modern concepts that what is attached to the soil becomes part of the land.

It is suggested that under the Forestry Act there is a right in the State to grant licences over timber on land held under lease from the Government. Unfortunately as I have already noted no-one has appeared to assist the Court in any understanding of how this provision can operate over what is in effect private land. How does the State give a title to land with no specific reservations of trees on the one hand and then assert it has rights over the trees on the other hand. There may be some overriding power in the State to control logging in the country but any logging on private land must still require the consent of the owner of that private land. Whilst the Forestry Act 1991 clearly notes that for example in Section 46: ‘The rights of customary owners of a forest resource shall be fully recognised and respected in all transactions affecting the resource’.it is noted that the Timber Licence here was issued a day before the 1991 Forestry Act came into operation. The 1991 Forestry Act came into operation on the 25^th June 1992 whilst the Timber Licence was signed on the 24^th June 1992. So this means the Licence was originally issue under the terms of the Forestry Act Chapter 216. Is there any difference in the effect of a Licence under the original chapter 216. Chapter 216 is less specific about rights timber on private land. Section 10 of that Act seems to allow the taking of timber from private land, Section 10 (1) Subject to this Act, the Minister may grant permits and licences to take and contract for the sale of forest produce on:

a) ҈& a60;Govy Governmenrnment land...

b) & l60; hend unddr lease froe from the Government....

But what do the words ‘take and contract’. We alwaye the implications o Consion section 53 unjust deprivation of property. And And how chow can a an a LicenLicence bece be a grant of an interest in Land, to do so it must accord with the provisions of the Land Act. As already noted, land thjesubject of State Leases is no longer ‘government land’ under the Land Act. By authorising logging companies to go onto these State Leases thee hasgated from the grant of the State Leases. It must must have have been implied in the Forestry Act Chapter 216 that even if the State could grant licences over land held under lease from the Government there would have to be the consent and negotiations from the lessee otherwise there would be a clear breach of the rights of ownership of land whether the implied right of quiet possession under the land Act or the rights granted under the Constitution that a person cannot be deprived of their property without proper procedures, and it must be implied that such proper procedures must include consent or proper negotiation. The Forestry Act 1991 which replaces the Forestry Act Chapter 216, and which came into force the day after this Timber Licence was granted, makes it clear in Section 55 that a lessee of State land must consent to any logging on his land so any Forest Licence is still subject to the lessees rights of ownership, neither the State nor the Forest Authority has any title to the trees. And the court must note here that prior to the 1991 Act there was the requirements for Timber Rights Purchase Agreements to be concluded with traditional owners before logging could be done and such therefore recognised the Constitutional rights in landowners to things that grew or were attached to the land as well as the land.

It must be clear that a Timber Licence is only a means of controlling the logging industry, it does not give title to land or even trees and in particular title to trees that the State does not have.

There is no evidence of any consent by the plaintiffs to the logging on their lands nor any contracts between the defendants and the plaintiffs for such logging to take place. And the Defendant Companies clearly acknowledge that they had no agreement with the lessees to enter and log the land. The evidence suggests that the Directors and other Officers of the two defendant companies colluded with officers of the Forest Authority to ignore the concerns of Lands Departments officers and deliberately ignore the rights of the landowners and take timber belonging to the Plaintiffs.

I find that the first and second defendants were not entitled to enter onto the land of the plaintiffs and carry on logging operations thereon.

I declare that the first and second defendants logging operations on the lands of the plaintiffs was unlawful.

I order that the first and second defendants are restrained from entering and carrying on logging operations on the plaintiffs’ lands.

I find that there has been a trespass by the first and second defendants, with the active encouragement and support of the Department of Forests and Forest Authority, onto the lands of the plaintiffs and that the first and second defendants are liable to pay damages to the plaintiffs for this trespass.

I find that there has been a breach by the State and its instrumentality whether the Department of Forests or the Forest Authority of implied covenants for quiet possession in the granting of agricultural leases to the plaintiffs in granting Timber Licences to the 1^st and 2^nd defendants and supporting and encouraging the actions of those defendants in trespassing onto the lands of the plaintiffs and causing loss and damage in derogation of their Agricultural Leases without prior agreement or contracts with the plaintiffs. I find that the State whether by itself or through its responsible Authority is liable in damages for any loss and damage suffered by the plaintiffs and one can only hope that the State ensures that the relevant Authority and its officers take the responsibility for this.

ASSESSMENT OF DAMAGES

The only evidence presented to the Court for the assessment of damages has been evidence presented on behalf of the plaintiffs. There has been no assistance from the defendants and in particular none from the Forest Authority through their supervisory role over logging operations in the country to corroborate or contradict the evidence. So I am left with the evidence and assessments presented on behalf of the plaintiffs. Much of the evidence is from a Mr Steven Mombi an agricultural scientist with the Rural Development Bank in Rabaul and some of the evidence is from a Mr D Hollis a supervising appraiser with the Agricultural Bank of PNG. I have no reason to question their credentials and ability and expertise to make assessments of loss in regard to natural timber.

I consider each plaintiff as follows.

THE FIRST PLAINTIFFS

1. FrancisuWalate atd ttebe t be the owner of Block 2002 with a State Lease granted in 1991. However there is no assessment of damages to his Block

2. Snm Beka Kai alaestet to b to be the owner of Block 2183 with a State Lease granted from June 1991. There is an assessment of the damages for destruction and removal of trees of K144,704.2>

60;&##160; Gerson Rson Rian Ria attesattested to be the owner of Block 2171 with a State Lease granted from 1991. However there has beeasses of ds to his Block.

4. ـ D60; Donia Waia Warabe rabe attesattested to be the owner of Block 1973 with a State Lease granted from April 1991. There is an assessment of damages for destruction and removal of trees of K11,550.oo. I canncept ther t claimclaimed heed here ofre of K8,160.oo as there is no adequate explanation of the suggested overlap of assessment.

5. Esau Wesley attested to b the owner of Block 1980 with a State Lease granted in 1991. There is an assessment of the damages for the removal of trees of K7,200.oo.

6. ـ҈ E60; Elizah izah Passingan attested to be the husband of Akea Elizah the owner of Block 2188 with a State Lease granted in 1991. There is an assessment of damages for the removal of of K00.oo.

7.

7.&#160 ټ T60; Thomas Valar attesteb to be the owner of Block 2168 with a State Lease granted from July 1991. There is an assessment of damages for loss of timber and destruction of K36,065.63.

8. &ـ&#1obert Dick aick aick attestttested to be the owner of Block 2180 with a State Lease granted in 1991. There is an assessment of damage lossimber and destruction of K90,418.28.

9. ټ&#Jo0; Jo0; Joh; John Mei attested to be the owner of Block 2184 with a State Lease granted in 1991. There is an assessment of loss of timber and destruction of K67,580.88. I cannot aca furamounimed ofed of K26, K26,880.o880.oo as there is no adequate explanation of the suggested overlap of assessments.

10. ـ Lote Romulus ulus Gegelo attested to be the owner of Block 1997 with a State Lease granted from April 1991. There is anssment of loss of timber of K55,200.oo.

11. ael Eremas amassattested toed to be the owner of Block 2003 with a State Lease granted in 1991. There is an assessment of loss of trees of K16,320.oo.

12. & Amostetotbeownbeowner of r of Blof Block 20ck 2007 wi07 with a State Lease granted from April 1991. There is an assessment of loss of trees of K55,200.oo.

THE THIRD PLAINTIFFS

1. ـ S60; Scholastica Manaka attested to be the owner of Block 2176 with a State Lease granted in 1991. There is an assessment of loss of trees estru of K16.60>

2.  & ; Fr0dda Turakit atte attestetested to d to be thbe the owner of Block 1913 with a State Lease Volume 2 Folio 190 granted from March 1991. There has been no assessment of Damages or Loss.

3. ҈ S60; Stanley Vuvu aetest b to be the owner of Block 1995 with a State Lease Volume 2 Folio 209 granted from May 1991. There has been no ament magesoss.

4. &160;
i0; LKaet atta ted to beto beto be the the ownerowner of Block 1964 with a State Lease granted from March 1991. There is an assessment of loss of trees and destruction of K26,461.76.

5. ;ټ Jimmy Fmmy Febuar buar attested to be the owner of Block 2011 with a State Lease granted from May 1991. There has been no assessment for damages or losp>

7. & H60;y Jnrn athested to beto be the owner of Block 2182 with a State Lease granted from October 1991. There is an assessment of damages for loss of trees of K48oo.8.&##160;;ټ Serri Boli Bola atta attestedested to b to be thee the owner of Block 2001 with a State Lease granted from June 1991. There is an assessment of damages for loss of trees and destruction of K12,597.01.

9. &##160;; J60; John Tohn Tobata attested to be the owner of Block 1924 with State Lease Volume 2 Folio 193 granted from March 1991. There is an assessment ofges fss ofs and destruction of K95,599.50. I cann cannot acot accept a further amount of K72,000.oo c.oo claimed as there is no adequate explanation for the suggested overlap of assessments.

10. Sam Pinia attested to be the owner of Block 1968 with a State Lease granted from April 1991. There is an assessment of damages for loss of trees and destruction of K130,486.p>

12. ;&#16sie Joyce ayce attestetested to be the owner of Block 2186 with a State Lease granted in 1991. There is an assessment of damages for loss of trees and deston of243.08. I cannot accept a further amount of K23,0K23,040.oo40.oo as there is no adequate explanation of the suggested overlap of assessments.

13. ;&#16mulus ToiwaToiwat atte attested to be the owner of Block 2000 with a State Lease granted in 1991. There is an assessment of loss of trees of K22,560.oo.

14. Augustine Bele attetted t be the owner of Block 1996 with a State Lease granted from May 1991. There is an assessment of damages for loss of trees of K42,240.oo.