N10941
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1619 OF 2015 (NO. 3)

BETWEEN:
JOYCE BENARD, BETTY MAUA, AGNESS JACOB, JENNY EPI, ESTHER KEMAPU, MARY GORDON, KAI BOLA, OXY LEX, AKITA ALBERT AND EVERLYN GIYA
Plaintiffs/First Cross Defendants

V
ALEX TIRI AIPA trading as AIPA TRADING
First Defendant

AND
OUR REAL ESTATE LIMITED
Second Defendant

AND
BHUIYA ENTERPRISES LIMITED
Third Defendant/Cross Claimant

AND
NATIONAL CAPITAL DISTRICT COMMISSION
Second Cross Defendant

Waigani: Anis J
2023: 7th & 20th June
2024: 7th August

CLAIM FOR TRESPASS – Hearing on liability only – whether the plaintiff and the second cross defendant should be held liable for trespass – preliminary issue – whether claim for trespass or cause of action properly or sufficiently pleaded – whether proceeding should be dismissed – whether cross-claimant has satisfied the elements of trespass – whether liability should be entered against both parties for damages to be assessed – consideration – ruling

Cases Cited:

Joyce Benard and Ors v. Alex Tiri Aipa and Ors (2021) N9247
Gotell Limited v. Avenell Engineering Systems Limited (2015) N6605
Covec PNG Ltd v. Kama (2020) SC1912
PNGBC v. Jeff Tole (2002) SC 694
Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370
MVIL v Kauna Kiangua (2015) SC1476
Maniosa Yakasa v. David Piso (2014) SC1330
Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (2008) N3440

Counsel:

T Tape, for the Plaintiff’/ First Cross Defendant
M Phillip, for the Third Defendant/ Cross-Claimant
M Mukwesipu, for the Second Cross-Defendant

DECISION

7th August 2024

1.	ANIS J:	This was a hearing on a cross-claim for trespass filed by the third defendant/ Cross Claimant (cross claimant) against the plaintiffs/first cross defendants (plaintiffs) and the second cross defendant (NCDC).

2.	The hearing was on liability only.  It was heard on 7 June 2023.  Parties presented their closing submissions on 20 June 2023 before I reserved my decision to a date to be advised.

3.	Parties have been notified of today’s date for ruling, so I will rule on it now.

BACKGROUND

4.	I will restate the background of the matter, with variations, to what I have stated in Joyce Benard and Ors v. Alex Tiri Aipa and Ors (2021) N9247.  The plaintiffs and others like them used to sell second-hand clothing and items on a piece of land here at Waigani in the Nation’s Capital, Port Moresby.  They claimed that they began trading there since 1993.  The land in question is next to the Waigani Market in Port Moresby.  The land was described as reserved State land, and it was managed by NCDC at the material time.  The plaintiffs claimed that NCDC had an arrangement with them where it had permitted them to do their sales on the land.

5.	On or about 2009, the land was converted into a state lease.  It is now described as Allotment 36, Section 137, Hohola (Waigani), NCD (the Property).  The original state lease, which the land and other allotted blocks were part of, was described as Allotment 34, Section 137, Hohola (Waigani), NCD (original lease).  The original lease was created as a state lease on 14 July 2009, and it was issued to the first defendant as its registered proprietor.  On 7 April 2011, the first defendant sold and transferred the original lease over to the second defendant.  On 23 August 2011, the second defendant, having applied for consolidation of Allotment 34 with other surrounding land area, was issued with new sub-divided allotments including Allotment 36 Section 137 which is the Property.  On 20 May 2014, the second defendant sold and transferred the Property over to the cross claimant.  The cross claimant is the current registered proprietor/owner of the Property.  

6.	On 16 November 2015, the plaintiffs filed this proceeding.  They complained and alleged fraud against the first, second and third defendants.  They argued that the Property had been fraudulently acquired, and they sought various relief that included cancellation and restoration of the land back to its original status.  The defendants denied the allegations.  NCDC was joined to this proceeding as the second cross-defendant by the cross-claimant.  The cross-claimant seeks, amongst others, an order that he be declared the registered proprietor of the Property.  It also seeks damages for acts of trespasses against the plaintiff and NCDC.

7.	The plaintiffs’ claim against the first, second and third defendants was dismissed by this Court on 29 October 2021 in Joyce Benard and Ors v. Alex Tiri Aipa and Ors (supra).  The plaintiffs were ordered to give vacant possession of the Property to the cross claimant.  

8.	What is before me for hearing on liability is the cross claimant’s Cross-Claim filed 24 August 2021 (CClaim).  The plaintiffs and NCDC filed their defences where they deny liability to the CClaim.

EVIDENCE

9.	The cross claimant tendered a total of 4 affidavits which were marked as exhibits P1, P2, P3 and P4.  The plaintiffs also tendered a total of 4 affidavits which were marked as exhibits D1, D2, D3 and D4.  NCDC tendered a total of 5 affidavits which were marked as exhibits C1, C2, C3, C4 and C5.

10.	The hearing proceeded by way of affidavit evidence without the benefit of cross-examination.

PRELIMINARY ISSUE

11.	NCDC has raised a preliminary issue.  It submits that the claim for trespass was insufficiently pleaded to the extent (i) that it does not constitute a duly pleaded claim for trespass against it, and or, (ii) that evidence adduced do not support the trespass allegations that are made against it as pleaded in the CClaim.

12.	In my view, I will reserve this and consider the arguments and issues when I address the substantive matter.  This is a type of situation where it is difficult to deal with preliminary issues separately from the substantive matter.

ISSUE

13.	The main issue herein is whether the plaintiff and NCDC should both be held liable for trespass. 

CONCESSION BY THE PLAINTIFFS

14.	The plaintiffs, in closing, changed their position in the matter.  They informed the Court that they do not dispute or challenge the cross-claimant’s claim for trespass against them.  However, they submit that they were told by NCDC to occupy the Property.  Therefore, they submit that they were acting as agents of NCDC at the material time when they occupied the Property.  They rely on the principle of agency which means, or they submit, that NCDC, as the principal, should be the one that should be held liable for the tort of trespass and not them.

15.	In response, NCDC submits that the CClaim for trespass is made separately against the plaintiff and itself.  It submits that they both filed separate defences in the matter to defend themselves independently against the cross claimant.  It denies that the plaintiffs were acting as its agent at the material time, and it further submits that the defence of principal and agent relationship is baseless because the plaintiffs did not plead that in their defence to the CClaim.

16.	I refer to the pleadings.  I uphold NCDC’s submission.  The plaintiffs did not plead facts nor file a cross claim against NCDC, to support their assertion that they had acted as agents of NCDC at the material time:  Gotell Limited v. Avenell Engineering Systems Limited (2015) N6605.  I note that the submission by the plaintiffs on the matter was merely made over the bar table by their counsel without proper basis or foundation: Covec PNG Ltd v. Kama (2020) SC1912, PNGBC v. Jeff Tole (2002) SC 694, Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370 at pp. 373 –374, MVIL v Kauna Kiangua (2015) SC1476 and Maniosa Yakasa v. David Piso (2014) SC1330.  The assertion, in my view, is also nonsensical.  I make this finding because of the fact that the activity complained of for trespass made against the plaintiffs by the cross claimant, was for selling second-hand clothing on the Property, which was something that the plaintiffs had been doing for 20 years or so for their own personal gain or profit.  They were not selling second-hand clothing as agents for or on behalf of NCDC.

17.	I dismiss this defence or claim by the plaintiffs.  Given that the plaintiffs have admitted to trespass, I also enter judgment on liability against them.

WHETHER NCDC IS LIABLE FOR TRESPASS

18.	Let me begin by setting out the elements for the tort of trespass.  I adopt Justice Cannings’s decision in Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (2008) N3440 where His Honour identified the elements of trespass.  His Honour held:

(1)	To succeed in an action for trespass to land, a plaintiff must prove five things:

(a)	the defendant entered land, either directly (in person) or indirectly (eg by propelling an object or a third party on to the land); and
(b)	the defendant did so by some intentional act;
(c)	the defendant had no lawful authority;
(d)	the plaintiff was in lawful possession of the land; and
(e)	the plaintiff’s enjoyment of the land was interfered with.

19.	So, I ask myself this first question.  Did the plaintiffs duly plead sufficient facts to make out a claim for trespass against NCDC?

20.	Let me refer to the CClaim.  The relevant pleadings pleaded against NCDC are paras. 14, 18, 19, 20, 21, 22 and 28.  The best way to address that, in my view, is to compare the pleadings with the evidence that have been adduced and consider whether they match each of the elements of trespass that is alleged against NCDC.

21.	So, the next question I ask is this.  Are there pleadings in the CClaim that NCDC directly or indirectly entered the Property?  The answer to that is, “yes, there are pleadings that asserts that NCDC entered the Property directly as well as indirectly.”  As in regard to alleged indirect entry, the assertions in the pleadings were directed at the actions of plaintiffs.  However, I note that I have dismissed the plaintiffs’ claim that they had acted as agents of NCDC at the material time.  I will come back to this in the later part of my decision.

22.	As in regard to alleged direct entry, the relevant pleading in the CClaim is para. 21 under the sub-heading, “PARTICULARS OF TRESPASS BY THE SECOND CROSS DEFENDANTS”, which states:

1.	The Second Cross Defendant does not have a right, title or licence and as such cannot legally give continuous possession to the Plaintiffs/First Cross Defendants.
2.	By all allowing the Plaintiffs/ Cross Defendants to continue to occupy the Land owned by the Third Defendant/Cross Claimant.
3.	Interfered with the subject Land by erecting fence around the Land.
4.	Continuously supporting the Plaintiffs/Cross Defendant to continue to occupy the Land dispute, the fact that title was for the Third Defendant/Cross Claimant and was the registered proprietor.

(Underlining mine)

23.	The direct claim for trespass labeled against NCDC is that it was NCDC that erected a fence on the Property at the material time.  This assertion is pleaded in the CClaim.

24.	Having established that, but before turning to the evidence, I must address a claim that was raised by the cross claimant, that is, whether NCDC has admitted in its pleadings to have constructed the fence on the Property.  If the claim is true, then judgment for trespass may also be entered against NCDC.

25.	The cross claimant refers to para. 8 of NCDC’s defence to make the admission claim.  Paragraph 8 reads:

8.	The Second Cross Defendant denies paragraph 21 of the Cross-Claim and states;
(a)	that the fence was only erected on the basis that this land is in a Public Utilities Zone which comes under the Second Cross Defendant as the Municipal Authority and due processes and procedures were not followed in acquiring the title and further repeats paragraph 4 of the Amended Defence to the Cross-Claim.

(Underlining mine)

26.	In observing, I note that NCDC has expressly denied para. 21 of the CClaim in its defence.  And in further answer, NCDC states at para. 8(a), which begins in part, and I quote, “the fence was only erected on the basis”.  What para. 8(a) means is that NCDC, (i), denies erecting the fence, (ii), admits that the fence was erected, and (iii), did not plead or say who erected it.  For comparison, the relevant pleading by the plaintiffs in response to para. 21 of the CClaim is para. 6 which states:

6.	The Plaintiff/First Cross Defendant denies paragraph 21 of the Cross-Claim and says that the attempt fencing was done by the First and Second Defendants which was stopped by the Second Cross-Defendant.  

(Underlining mine)

27.	In other words, the plaintiffs have stated in their defence that, in fact, it was NCDC that stopped or prevented the former registered proprietors of the Property from erecting a fence around it.  

28.	I therefore find that NCDC did not expressly admit in the pleadings to have constructed a fence on the Property at the material time.  The pleadings in general, on the matter, also appear confusing.

29.	So, let me now turn to the evidence.  Despite NCDC’s denial of erecting a fence, what do the evidence say?  Do they say that it was NCDC that built the fence, or do they say that NCDC prevented the fence from being built?  And if proven either way, when did that occur?  Did it occur at the time when the cross claimant was the registered proprietor of the Property, or did it occur before that?  To begin, I refer to Exhibit P3.  The cross claimant relies on the affidavit of Andy Kenamu who is the Managing Director of the second defendant.  The second defendant was the last person that sold the Property over to the cross claimant on 20 May 2014.  At para. 10, he states, The NCDC granted permission to set up a Ware house and Supermarket and also erect Spike fence.  And he attaches evidence of that including a certificate to construct a spike fence that was issued by Department of Physical Planning dated 19th September 2012.

30.	The next relevant evidence to consider is Exhibit C1, which is the affidavit of Amanda Binoka of NCDC.  Her evidence on point corroborates Exhibit P3 where she states at para. 4 in part, The NCDC Planning Office approved a planning application PD.12.144 for spike fencing approved under deemed powers for the Second Defendant.  And she attaches evidence of the approval given for the construction of spike fence over the Property.  

31.	The next relevant evidence to consider is Exhibit D1, which is the affidavit of Betty Maua who gave evidence for the plaintiffs.  On point and at para. 32 she states:

32.	Bhuiyu Enterprises Ltd and its executives and officers behind it as a next door neigbor to the Market and the land in question, know and/or ought to have known the attempt fencing by Alex Tiri Aipa and Our Real Estate Limited which was stopped by the National Capital District Commission (NCD) and the Court battle between Alex Tiri Aipa and the NCDC.

(Underlining mine)

32.	When I consider these evidence and pleadings, I make the following observations:

•	NCDC denies the assertion that it was the one that constructed the fence over the Property at the material time;
•	The plaintiffs have also denied para. 21 of the CClaim in their pleadings; however, I note that they have changed their position and have admitted liability; that said, the pleading is relevant for this purpose, that is, to show that their denial was similar to NCDC’s denial on the subject matter, and to give this Court a better view of what may have transpired then;
•	there is overwhelming evidence adduced that supports the defence of NCDC (and the plaintiffs) that the fencing was carried out by the second defendant; there is overwhelming evidence that also shows that it was the second defendant, who was the previous registered proprietor of the Property, that had applied for a permit to construct the fence and had been grant the permit by the Physical Planning Division of the Department of Lands;
•	evidence adduced shows that the permit to construct the fence was granted to the second defendant on 19 September 2012;
•	the evidence do not go to show whether the fence was completed, or half completed, and whether it was later pulled down completely or in part by NCDC or anyone;
•	the second defendant kept the property until 20 May 2014, which was about 2 years, before it sold it to the cross claimant;
•	it is reasonable to conclude, premised on the evidence presented, that the fence was constructed by the second defendant during the time that it had title over the Property;
•	the cross claimant produced no evidence or proof, in exhibits P1, P2, P3 and P4, that NCDC erected a fence over the Property;
•	the only fence erected over the Property, which is supported by evidence, was done by the second defendant which occurred before the time the cross claimant owned the Property;
•	therefore, the cross claimant does not appear to have a right of action for trespass against NCDC premised on the direct entry claim as pleaded.

33.	In summary, I note that the only time where NCDC could be accused of accessing the Property to erect a fence or to stop a fence from being erected, was during the time when the Property was registered to the name of the second defendant.  Therefore, my findings in summary is this.  First, the general claim that NCDC had trespassed onto the Property to erect a fence is not supported by the cross claimant’s evidence, and so I dismiss it. Secondly, the only fence that was constructed, which is discussed and adduced in the evidence before this Court, occurred before the time the cross claimant became the registered proprietor of the Property.  I find that to be the case.  As such, I also find no basis for the cross claimant to make assertions against NCDC for trespass on matters that were alleged to have occurred on the Property at the time when the cross claimant did not have a legal right over the Property where it could sue over.

OTHER CONSIDERATIONS

34.	Before I give my final decision on liability, there are evidence adduced I note which I believe should be summarised to get a better perspective of how this matter started.

35.	The land in question, prior to it being converted into a state lease which is the Property, was reserved land which was listed as Public Utility Zone for Public Car Park.  This is well explained in exhibits C4 and C5.  The land is directly next to the Waigani Market.  NCDC, as the city’s Municipal Authority, was its custodian at the material time prior to the disputes and creation of various state leases over the area. The plaintiffs, who comprised of mothers, began illegally occupying the land to sell their second-hand clothing next to the Market in or about 1993.  That had been going on for a long time, perhaps 20 years or more.  NCDC, on humanitarian grounds, permitted the mothers to continue to sell their second-hand clothing on the land which is now the Property.  The situation turned ugly when the said land was converted, it seems, without the formal knowledge of NCDC as its custodian.  However, I note that this fact is contested.  Upon becoming aware of the situation, NCDC lodged its internal investigation into the matter, to determine whether the land was fraudulently acquired by the first, second and third defendants, the third defendant being the cross claimant.  Its internal investigation showed evidence of suspicious dealings on acquisition of lands in the area including the land where the Property is situated.  So, on 12 August 2014, the then City Manager Leslie Alu, lodged a formal complaint by way of letter to the Frauds and Anti-corruption Unit (Fraud Squad) to investigate the matter.  However, it seems that no response or investigation was carried out by the Fraud Squad.  On 5 May 2022, about 8 years later, NCDC, through its Acting City Manager Ravu Frank, lodged a second formal complaint by way of letter to the Fraud Squad.  In the letter, NCDC also referred to its original complaint of 12 August 2014.  These facts are contained in Exhibit C1 and in NCDC’s evidence as a whole.

36.	Presently, it is not known whether the Fraud Squad has conducted its own investigation on the matter, or whether there is an ongoing investigation.  But in the meantime, the Property had exchanged hands or ownership since 2011.  Disputes then arose between the plaintiffs, who were illegally residing on the land, and the new owners of the Property.  NCDC was later named as the second cross defendant by the cross claimant, on 23 August 2021.

37.	The cross claimant makes reference to Annexure A to Exhibit C4, which is the Affidavit of Bernard Kipit to say that that is proof of indirect trespass committed by NCDC.  Having considered that, I fail to see how this is so.  Mr Kipit gave sworn testimony to say he rejected the letter dated 5 October 2020.  He said it could have been an oversight on his part to sign the letter, and I note that his evidence is not rebutted by the evidence of the cross claimant.  But regardless, I see nothing in the letter that will support the cross claimant’s claim for indirect trespass.  Paragraph 2 of the letter states:

This effectively means that the Secondhand Sales previously approved by NCDC or all other approvals that may have been given by my Office are revoked forthwith for purposes of development of the land.

38.	The only evidence of a previous approval given by NCDC was deposed at para. 3 in Exhibit C where Mr. Atasoa stated, and I quote, “A group of mothers were permitted on humanitarian reasons to use a portion of the land to sell second hand clothes to sustain their livelihood.”  NCDC had allowed the plaintiffs to continue to occupy the land (i), at the time when the land was under its custody as the Municipal Authority, (ii) before it was converted into state leases and (iii), before disputes erupted between the plaintiffs and the defendants.  

39.	But the cross claimant, on its own, did not adduce any evidence to establish its assertion of indirect trespass against NCDC.  Having perusing exhibits P1, P2, P3 and P4, I note that the cross claimant did not depose to any evidence that is supported with attachments, that may go on to prove on the balance of probabilities, that NCDC had indirectly committed trespass to the Property.  Its allegations are premised on making general references and assertions on the evidence of the other parties.  It has the burden of proof as the claimant.  In my view, however, it has failed to discharge that burden to the Court.

40.	My final finding under this sub-heading is as follows.  The plaintiffs had illegally settled on the land and had conducted their second-hand clothing business.  At the material time before the land was converted into state leases in 2011, NCDC did not own the land but was its custodian on behalf of the State.  But the plaintiffs had illegally operated there on their own accord.  NCDC, knowing fully well that the plaintiffs were illegally operating on the state reserve land, allowed them, on humanitarian grounds, to continue with their activities.  When the land was issued with a state lease which is the Property, NCDC did not have any legal control over it.  The owners of the Property were responsible then to remove the plaintiffs.  What had happened, premised on the adduced evidence, was that the plaintiffs refused to vacate the land.  It then became a battle between the first, second and third defendants against the plaintiffs.  There was nothing NCDC could have done except to follow up on its complaints with the office of the Frauds Squad. The plaintiffs were later ordered by this Court, on 29 October 2021, to vacate the Property and give possession to the cross claimant.

SUMMARY

41.	In summary, the claim for trespass against NCDC shall fail.

42.	I will enter judgment on liability against the plaintiffs and make an order for damages to be assessed.  I will also grant the declaratory relief sought where I will declare the cross claimant as the registered proprietor of the Property.

COST

43.	Cost relief is discretionary.  I will first order the plaintiffs to pay the cross claimant’s cost of the proceeding on liability on a party/party basis to be taxed if not agreed.  I will also order the cross claimant to pay the NCDC’s cost of the proceeding on a party/party basis to be taxed if not agreed.

ORDERS OF THE COURT

44.	I make the following orders:

1.	The cross claimant Bhuiya Enterprises Limited is the registered proprietor of the State Lease described as Volume 46, Folio 89, Allotment 36, Section 137, Hohola (Waigani), NCD.

2.	The plaintiffs/first cross defendants are liable for the tort of trespass with damages to be assessed.

3.	This matter shall return for directions hearing at 9:30am on Thursday 15 August 2024.

4.	The plaintiffs/first cross defendants shall pay the cross claimant’s cost of the proceeding on liability on a party/party basis to be taxed if not agreed.

5.	The cross-claimant’s claim against the second cross defendant is dismissed.

6.	The cross claimant shall pay the second cross defendant’s cost of the proceeding on a party/party basis to be taxed if not agreed.

7.	Time for entry of these orders is abridged to the date and time of settlement by the Registrar of the National Court which shall take place forthwith.

The Court orders accordingly

________________________________________________________________
Kandawayn:	Lawyers for the Plaintiff/First Cross Defendant
Anthony Waira:	Lawyers for the Second Defendant
Korerua & Associates:	Lawyers for the Third Defendant/Cross-Claimant
In-house Counsel:	Lawyer the Second Cross-Defendant