N11430

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 428 OF 2023

BETWEEN:
BEN KAVU URAME
Plaintiff

AND:
SIXTH ESTATE LIMITED
Defendant

WAIGANI: CARMODY J
15 AUGUST 2025

TRESPASS - Unlawful eviction - destruction of family home - judgment by default - assessment of damages - general damages; exemplary damages – inflation - breach of human rights

Cases cited
Lapune Aine & 21 Others v. The State [2011] PNGC 116; N4389
Enei v Rimbunan Hijau Ltd [2011] N4402
Nealy & Ors v Eki [2024] SC2556
Abel Tomba v The State (1997) SC518
Rimbunan Hijau (PNG) Ltd v Enei [2017] SC1605

Counsel
E. Jim for the plaintiff
No appearance for the defendant

JUDGMENT

1.	CARMODY J: On 22 July 2024 this Court entered judgment by default. The defendant did not appear despite being served with the plaintiff’s notice of motion. Liquidated damages were awarded in the amount of K68,072. That figure was made up of:

-K60,000 being the value of the improvements (the family home and other structures) and
-K7,587 being for the loss of household items; and
-K485 being for damaged plants.

2.	Unliquidated damages were to be assessed. This assessment was conducted by way of affidavit and written submissions.

THE CLAIM

3.	The Writ of Summons and Statement of Claim were filed on 6 September 2023. The claim was in relation to the plaintiff’s unlawful eviction from his property and the demolition and destruction of the family home and other structures and the loss of personal items, work tools, plants, and the family dog on 22 October 2022. The cause of action was unlawful
trespass and negligence.

4.	The plaintiff’s property bordered land the subject of a settlement eviction by the defendant company. In the plaintiff’s affidavit filed 6 September 2023 he states that on 12 October 2022 the defendant company commenced the eviction and destruction of surrounding properties by bulldozer. On 17 October 2022, as the defendant company approached the boundaries of his property, he explained to the approaching driver that if they entered they would be trespassing on land which was the subject of a lawful State Lease for Residential Purposes.

5.	He deposed that he handed over a copy of the State Lease Title and other documents supporting his claim. The documents were thrown to the ground by the driver and the plaintiff was told “that whatever or whatsoever grievances there is should be brought to the court of law.” The driver then drove onto the land and destroyed the family home and surrounding structures.

6.	The plaintiff deposed to the complete destruction of his home which included an outdoor bathroom and toilet, outdoor laundry area, kitchen, barb wire fencing and car port. He set out in detail what his house had consisted of prior to the destruction and provided evidence by way of photos of the family home before and after the defendant company’s actions.

7.	He also spoke of the devastating impact of the loss of the family home and contents on both him and on his family and the loss of their young dog. He further explained that the loss of machinery work tools meant a loss of their means of earning a livelihood:

24. a three bedroom weatherboard residence having a gross area of 35.5 square metres (M2) including short wooden railings and erected on 1.3m steal posts, timber framed structure, tongue and grove floor joists, weatherboard walls, painted plywood internal lining, timber framed adjustable glass louvre windows with fly nettings and arc mess wire, painted plywood ceiling and corrugated galvanized iron cable roof, fit outs (Veranda) with short edge timber flooring and wood railings, and three bedroom with polished tongue and groove floor, hardboard lined & ceiled. The house has sufficient fixtures and fittings including wardrobe and cupboards, sufficient sitting areas with fittings adequate fluorescent lighting and power points to all rooms.

25. During the demolition of the dwelling house, I have also endured the loss of household items and machinery, which the livelihood of my family and I depends entirely on.

26. The demolition further caused destruction to plants which I bought and planted specifically for reaping its produce and for the purpose of beautification.

27. Furthermore, the action of Sixth Estate Limited to bulldoze the property, directly amounted to the unlawful killing of a five (5) months old domestic animal-peg [sic] Dog, which was bought with K50.00 and bred and raised.

28. The consequences of destructing the property brought mental distress and hardship to my family because for months we could not to eat food prepared properly, take proper shower, wear appropriate clothes and have proper sleep and also we were exposed to sickness, malnutrition, criminals and other life threatening vulnerabilities.

8.	The Plaintiff sought the following damages in the Statement of Claim:

-	Special Damages of K158,12 2.00 for Damage to improvement’s,
Household Items and Machinery, Plants and Peg (sic] Dog.

-	General Damages.

-	Exemplary Damages.

-	8% Interest pursuant to Judicial Proceedings (Interest on Debts and Damages) Act 2015.

-	Costs of these proceedings.

-	Any further Orders the Court deems fit.

9.	He also claimed breach of his constitutional rights pursuant to sections 36, 44 and 53 of the Constitution.

ADDITIONAL DAMAGES FOR INFLATION AND THE PET DOG

10.	On 22 July 2024 damages in the amount of K68,072 were awarded on the basis of what I considered to be the reasonable amounts claimed. That figure was calculated as:

-K60,000.00 – family home
-K  7,587.00 – household items and machinery
-K     485.00 – plants
-K68,072.00	TOTAL

11.	The K60,000 related to the loss of the family home and associated structures and was based on an expert valuation report issued 6 November 2015 by the office of the Valuer General and prepared for mortgage purposes. That report valued the land as K200,000 and the house and associated structures at K60,000. As previously discussed, the plaintiff’s photographs demonstrated the extent of the destruction. The family home was virtually razed to the ground.

12.	A further amount needs to be considered. The valuation was dated 2015, that is 10 years ago. I am of the view that further damages should be awarded to allow for inflation. That is because, to the extent that it is even possible to do so in such distressing circumstances as the loss of a family home and possessions, the award of damages is intended to put the plaintiff, as far as possible, in the same position as he would have been had he not suffered the destruction and loss – Livingstone v Rawyards Coal Co. (1880) 5 App Cas 25 at 39. In order to rebuild his family home the plaintiff would incur expenses in terms of goods and services at a price in excess of the costs incurred leading up to the 2015 valuation.

13.	In Lapune Aine & 21 Others v. The State (2011] PNGC 116; N4389 inflation was awarded at a rate of 30%. I adopt that figure for the reasons set out in that decision and on the basis of the authorities referred to in that case. In addition to the K60,000 already awarded a further 30% of that amount is awarded being K18,000.

14.	The second and third amounts were in relation to damages for “Particulars of household Items and Machinery Claimed’ and “Particulars of Damaged Plants Claimed” in the amount of K8,072. That figure was based on two tables set out in the Statement of Claim and as an annexure to the plaintiff’s affidavit filed 6 September 2023. The tables were very detailed and carefully itemised and described and gave the numbers of each item and their values. Mattresses, blankets, bed spreads, shoes, and other clothing items, and kitchen and working tools were all included. The two tables demonstrated, inter alia, the following losses:

-	K7,587 for the loss of clothes, bedding, mattresses, and household appliances such as two electrical kettles, an electrical rice cooker, a Direct View TV and TV Play Box and machinery items being a rotary hammer drill machine (K2,725) and a welding machine (K1,500); and

-	K485 for the destruction of fruit plants such as breadfruit, oranges, bananas and the like and flowers.

15.	Although no evidence in terms of receipts or other documents were provided, in my view, their absence did not preclude the plaintiff from being awarded K8,072.00. This was so because of the nature of the loss. The family home and its contents had been so badly damaged that any receipts which may have existed would have been destroyed. Further the amount claimed was within what I consider to be a reasonable range when compared with the value of household and other items and the applicable retail prices observed in shops throughout Port Moresby and elsewhere. As stated in Jonathan Mangope Paraia v The State (1995) N1343 when available precise evidence is expected to be provided – when it is not the Court must do the best it can.

16.	In my view the amount awarded for those items should also include a component for inflation. Applying the same principle as explained earlier in this decision an additional 30% of the combined amount of K8,072 is awarded being K2,421.60.

17.	There was also a claim for the 5 months old pet dog for K50. There was no evidence with respect to its value but I am prepared to accept K50 as reasonable. I award that amount. No component for inflation is added.

GENERAL DAMAGES

18.	The plaintiff also claims General Damages as follows:

Particulars of Mental Distress and Hardship:

The Defendant unlawfully entered the property without the Plaintiff’s consent and demolished the structures erected on it.

The absurdity of Defendant’s action left the Plaintiff and his family with nothing to continue on with their lives.

The Plaintiff was left in a position where he was unable to support and sustain himself and his family with basic needs that are essential for survival.

The Plaintiff and his family were unable to eat food prepared properly, take proper shower, wear appropriate clothes and have proper sleep for months

The actions of the Defendant left the Plaintiff and his family exposed to sickness, malnutrition, criminals and other life-threatening vulnerabilities.

19.	It is well established that the purpose of any award of general damages is to compensate a plaintiff for the pain, suffering, humiliation, distress and inconvenience caused by the unlawful acts of a defendant.

20.	Other than what he has deposed to the plaintiff has not provided any evidence with respect to this head of damages. However, this is a category of damages, where, on occasion, the facts may speak for themselves. Further, general damages do not always require the specificity of evidence which is required when seeking special damages. The distinction between general and special damages was discussed in Enei v Rimbunan Hijau Ltd [2011] N4402 by his Honour Justice Gavara-Nanu where he cited with approval Lord MacNaghton In Strom Bruks Aktie Bolag v. Hutchinson [1905] UKLawRpAC 52; [1905] AC 515 at 525 – 526. In that case his Lordship stated:

General damages are such as the law will presume to be the direct natural or probable consequence of the action complained of. Special damages on the other hand are such as the law will not infer from the nature of the act. They do not follow in ordinary cause. They are exceptional in character and therefore they must be claimed and proved strictly.

21.	It is difficult to quantify the loss suffered by the plaintiff when he and his family found themselves, suddenly, homeless, without any possessions and with no means to earn an income. As he poignantly explained he and his family were “exposed to sickness, malnutrition, criminals and other life-threatening vulnerabilities”. His photos reveal the level of destruction of the plaintiff’s home in which he resided with his family. The devastation is catastrophic. In circumstances such as that I am prepared to accept that the mental distress and hardship faced by the plaintiff as a consequence of the defendant company’s actions was significant.

22.	I note that in Nealy & Ors v Eki [2024] SC2556, a case involving an unlawful eviction where the appellants had conducted the evictions in a particularly brutal manner whilst armed with AR rifles and under the influence of alcohol, K20,000 was awarded in general damages and upheld on the appeal. Although I accept that the brutality of the Nealy eviction was extreme, in that case eviction was a known possibility. In the case before me the plaintiff was lawfully residing on the land and reasonably believed that he, his family and his property were at no risk due to the documents he was able to produce. The sudden and unexpected shock and trauma of what eventuated must have been deeply distressing and ongoing for considerable time while the family had to struggle without a home or a means to make a living. For that reason I award general damages in the same amount – K20,000.

EXEMPLARY DAMAGES

23.	Cases such as Abel Tomba v The State (1997) SC518 discuss the relevant principles with respect to exemplary damages. Ahmet CJ (as he then was) considered that exemplary damages may come into play “whenever the Defendant’s conduct is sufficiently outrageous to merit punishment, as where it discloses malice, fraud, cruelty, insolence or the like.” Included in that definition are cases where a defendant acts “in total disregard and disrespect for the rights and interests of others”.

24.	 Importantly the Court also noted that exemplary damages are discretionary in nature “having regard to the conduct of the defendant in the particular circumstances of each case.” and “The main purpose of awarding exemplary damages is dual in purposes. The first is to punish and the second is to deter the party against whom the award is made as well as others from engaging in future and further such conduct or behaviour.”

25.	The principles with respect to exemplary damages were considered more recently in Rimbunan Hijau (PNG) Ltd v Enei [2017] SC1605 where the Supreme Court noted the specific circumstances of that case including that “…there is no evidence of RH spending any time or resources at all to identify the correct landowners…”. In that case there were very significant issues considered including the trespass on land, the illegal use of that land for eight years and the breach of various Acts with respect to the logging industry. 

26.	On the basis of issues discussed in Rimbunan Hijau (supra) I make the following observations. First, in the face of the unchallenged evidence of the plaintiff that he provided evidence of proof of ownership of the land - l accept that evidence. Secondly, I note the plaintiff’s evidence that when he showed the defendant company's agent documents evidencing his entitlement to reside upon the subject land those documents were thrown to the ground. He was told to raise any issues he had in Court. This demonstrated a callous disregard for the well-being and the property of the plaintiff and his family despite being told by the plaintiff that he was lawfully residing on the land. This also demonstrated a determination to proceed with the destruction of the plaintiff’s home and personal property without affording him an opportunity to establish his ownership. Having told him to take the matter up in Court the appropriate action would have been to leave his property untouched and to continue in another location to allow the plaintiff to take up the suggested course of action. Thirdly, in the absence of any material from the defendant company I conclude that it failed to carry out any due diligence in investigating and establishing the identity of legitimate holders of State leases. Finally, the consequences of the defendant company’s actions were clearly devastating for the plaintiff and his family.

27.	The distinction between Rimbunan Hijau (supra) and the case before me is that the former involved very significant commercial activities conducted on landowners’ land for a period of eight years. The case before me does not fall into that category. Nevertheless, the conduct of the defendant company is deeply troubling. A consideration of similar cases reveals that K5,000 is frequently awarded for exemplary damages. However, I note that that amount has been applied for a number of years with no increase despite the passage of time. Given that the basis for an award of exemplary damages is that the amount awarded should have a punitive and deterrent effect, in my view an amount of K5,000 in 2025 no longer serves that purpose. For that reason, and by way of an exercise of my discretion, I have decided to increase that amount to K15,000 being an amount which is not excessive given that the defendant company is a commercial enterprise.

BREACH OF CONSTITUTIONAL RIGHTS

28.	The plaintiff also claims breach of his constitutional rights as follows:

The action of the Defendant in negligently trespassing into a registered state lease constituted a breach of the Plaintiff’s constitutional rights of inhuman treatment, freedom from arbitrary search and entry and protection from unjust deprivation of property as conferred by the Constitution.

(a) Particulars of Breach of Constitutional Rights:
i.The actions of the Defendant and its agents in the way they entered the property and bulldozed everything on it was inhumane and cruel because it was without any regard or respect to the dignity of mankind.
ii.The Defendant failed to get consent from the owner or even confirm the authenticity of the documents produced, appealing that the property was a registered State Land, but forcefully and arbitrarily entered the property and bulldozed all structures erected on it.
iii.The Defendant did not take any heed towards the lawful ownership of the property possessed by the Plaintiff but entered it and demolished everything, which was unjust, uncalled for and constitutes a complete deprivation of the Plaintiff’s constitutional right in exclusive use and enjoyment of the property.
The ultimate consequence of the Defendants actions particularised as (a)(i),(ii) & (iii) constitutes a complete breach of sections 36, 44 and 53 of the Constitution.

29.	Section 36 provides for the freedom from inhuman treatment. Section 44 provides for freedom from arbitrary search and entry. Section 53 provides for protection from unjust deprivation of property. The particulars provided by the plaintiff above with respect to each of the constitutional breaches and the facts of the case have led me to accept that the plaintiff’s rights to each of the three freedoms/protections have been breached.

30.	I am satisfied that the plaintiff’s rights pursuant to those provisions of the Constitution were violated given the nature of the entry onto the land and the destruction of the property. The defendant company’s conduct towards the plaintiff was both inhuman and inhumane and the cruel way in which he was treated was reprehensible and demonstrated a complete disregard for the plaintiff’s rights. 

31.	In Pyain Tribe v Anawe [2010] PGNC 103; N3911, a case involving a police raid, the Court considered a range of authorities in which serious breaches of the Constitution were found in circumstances similar to the circumstance of the case before me. Those damages ranged from K2,000 to K5,000. In the more recent case of Paul Kelly & 54 Others and Joel Wal & 314 Others v Fred Yakasa, Metropolitan Superintendent and Garry Baki, Police Commissioner and the Independent State of Papua New Guinea (2020) N8425 the Court awarded K1,000 after considering a range of earlier authorities. On occasions damages are awarded for each breach. On other occasions a global approach is adopted.

32.	Breaches of constitutional rights are breaches of fundamental freedoms which the Constitution expressly protects – they are not trivial. For that reason I have decided to exercise my discretion and award damages at the higher end of the range due to the circumstances of this case. I award K5,000 for each of the three breaches totally K15,000.

INTEREST

33.	The plaintiff deposes to having written to the defendant company on 21 March 2023 proposing an out of court settlement. The letter is detailed. It produces evidence of the lease. It attaches photos of the damage. It provides details of the extent of the damage and the amounts claimed for the items lost. It categorises the damages and includes a table which itemises the household items, machinery, domestic plants and a domestic animal and their values. 

34.	The plaintiff states that no response was received.  This was consistent with the defendant company’s conduct throughout this matter. Not only did it fail to respond to the letter but it failed to file any documents in response to this legal proceeding. If there had been a meaningful engagement with the plaintiff to seek to resolve the matter the plaintiff would not have been put to the time and expense of commencing this legal proceeding. 

35.	In his affidavit filed 1 December 2023 the plaintiff deposes to another letter dated 23 October 2023 advising the defendant company of the need to file a notice of intention to defend and defence. Again there was no response. 

36.	Given the ongoing conduct of the defendant company I have decided to exercise my discretion with respect to the date from which interest shall be calculated. That date is the date of the unlawful entry onto the plaintiff’s property being 17 October 2022.

ORDERS

1.	The defendant shall pay damages to the plaintiff in the sum of K70,471.60 being in addition to the K68,072.00 awarded on 22 July 2024.

2.	Interest shall be paid at 8% per annum pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015 calculated from the date of the accrual of the cause of action being 17 October 2022 until full payment of the judgment figure on as much as may remain unpaid from time to time.

3.	The defendant shall pay the costs of the proceeding on a party-party basis to be taxed if not agreed.

4.	Time for the entry of these orders is abridged to the date of settlement by the Registrar which shall take place forthwith.

5.	The file shall be closed.

The Court orders accordingly.

Lawyers for the plaintiff: Twivey Lawyers