N11689
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO 772 OF 2019 (CC1)  

BETWEEN
LUCAS NILKARE
  Plaintiff

AND
PNG POWER LIMITED
Defendant

 WAIGANI: MAKAIL J
15 JULY, 22 AUGUST 2025; 3 FEBRUARY 2026   

LAIBILITY – Tort of trespass – Trespass to land – Tresspass must be intentional – Proof of

TRESPASS – Defence to trespass – Invitation or authority for entry and use – Easement – Right created by easement – Prescriptive easement – Easement created by statute – Statutory easement – Dominant land – Land used for public utilities – Public utility provider – Electricity Commission (Privatisation) Act 2002 – Section 8  

EASEMENTS – Use of land based on right created by easement – Easement may be expressed or by prescription or created by statute – Easement may be provided in writing in State Lease – Easement by prescription created over a long uninterrupted use of land by dominant tenement owner – Statutory easement created for public utility provider – Use of land to provide public utility    

Facts

This was a trial on liability. The cause of action was one of trespass to land and the core issue for determination was whether the defendant was authorised to erect a Transmission Tower and two Power Line Poles (“Installations”) on the plaintiff’s land.  These installations were built on the land well before the plaintiff acquired the land from the previous owner under a State Lease.  In addition to the defendant relying on there being no intention to deprive the plaintiff of the right to quiet and peaceful enjoyment of his land, it relied on a right created by an easement for its employees to enter and maintain and/or repair the installations.

Held:

1.	To succeed in an action for trespass to land, the plaintiff carried the burden to prove an unlawful intrusion or invasion of his land, that the intrusion or invasion was intentional and with force and he was injured: Mogai Limited & Anor v Oswald Tolopa & The State (2021) N9390 at [16] and Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (2008) N3440 referred to. (Obiter dicta).

2.	On the other hand, it is a defence if the defendant has been invited or authorised by the plaintiff to enter and use the land.  The invitation or authority given by the plaintiff may be in writing or oral.  In this case, there was no evidence that the plaintiff invited or authorised the defendant to enter and use the land for its Transmission Tower and Power Lines and this defence did not apply.

3.	However, the plaintiff carried the burden to prove that the intrusion or invasion by the defendant was intentional and with force.  In this case the installations were built on the land well before the plaintiff acquired the land from the previous registered proprietor under a State Lease.  Where the installations were built by the defendants on the land well before the plaintiff acquired the land, such conduct by the defendant did not constitute an intention to deprive the plaintiff as the owner of the land to a quiet and peaceful enjoyment of the land.   

4.	The defendant relied on the right created by an easement during the term of the plaintiff’s State Lease.  An easement may be expressed or by prescription or created by statute. (Obiter dicta).
 5.	While there was no easement created between the parties because the defendant did not own an adjourning land to the plaintiff and no easement right existed to protect the defendant, it was not necessary for the defendant to rely on easement by prescription because it was open to it to rely on an easement created by statute under Section 8 of the Electricity Commission (Privatisation) Act, 2002.

6.	While there was no evidence of a National Gazette to verify that the defendant was a specified entity under Section 8(1) of the Electricity Commission (Privatisation) Act, 2002, the description of the type of work it did clearly fell within the terms of Section 8(1)(a) & (b) and Section 8(2) Electricity Commission (Privatisation) Act, 2002.

7.	In plain terms, Section 8 of the Electricity Commission (Privatisation) Act, 2002 authorised the defendant to maintain the installations on the plaintiff’s land because they were critical Government infrastructure.  They provided how electricity generated from Rouna Hydro Power plant was transmitted to the city of Port Moresby and surrounding areas.  They reinforced the notion that the defendant was a public utility provider.  It used a small part of the plaintiff’s land to provide public utility in the form of electricity through them to the general-public.

Cases cited

Mogai Limited & Anor v Oswald Tolopa & The State (2021) N9390
Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (2008) N3440

Counsel

Mr B Isaac, for plaintiff
Ms A Hombunaka, for defendant
 
JUDGMENT
1.	MAKAIL J: This is a trial on liability. The cause of action is one of trespass to land and the core issue for determination is whether the defendant was authorised to erect a Transmission Line Tower and two Power Line Poles (“Installations”) on the plaintiff’s land.  

BACKGROUND

2.	There is evidence from the defendant in the affidavit of Cathy Sigiamo sworn and filed on 4 August 2021 which is uncontested that construction of the Sirinumu Dam (“Dam”) started in the early 1960s and completed sometimes in 1963.  On 7 September 1963 the dam was commissioned.  There is, however, dispute in relation to when transmission towers and lines were built from Rouna in the Central Province to Port Moresby. 

3.	According to the plaintiff in his affidavit sworn on 12 September 2021 and filed on 13 September 2021, the installations were built between 1970s and 1980s while the defendant says that all transmission towers and distribution lines network between Sirinumu and Port Moresby were completed and came online around the same time the dam was built and completed.

4.	Whatever, the date was, it is uncontested that the land Portion 1405 Milinch of Granville, Fourmil of Port Moresby, Central Province was not registered with Department of Lands and Physical Planning until 7 February 1982.  

5.	Records from the Department of Lands and Physical Planning show that the land was registered under a lease granted under Section 54 of the Lands Act Chapter 85, for a term of 99 years from 7 February 1982 to 7 February 2081 for Agriculture Purposes to a Benedict Sarton, the former owner.

6.	Following the registration of the land as a State Lease, the former owner, Benedict Sarton did not oppose the installation of the transmission tower and distribution lines on the land.  

7.	Presently, the title deed shows that the plaintiff is the registered proprietor of Portion 1405 (Boroma Piggery Junction), Milinch of Graville, Fourmil of Port Moresby, Central Province when he took ownership from Benedict Sarton pursuant to a transfer of title in 1992.

8.	According to the plaintiff in his affidavit sworn on 28 July 2021 and filed on 2 August 2021 and his witness Ben Martin in his affidavit sworn on 31 May 20255 and filed on 3 June 2025 in 2002, the plaintiff mobilised building materials to construct a piggery farm and mini-mart on the land near the Transmission Tower but was advised by the defendant’s officers to stop.  In 2010 he obtained a loan from the National Development Bank to build the piggery farm but again, did not.  

9.	On the land are three installations.  These are a 66kv Transmission Line Tower Number TT166 and two Distribution Power Line Poles carrying 240 volts each running parallel with the 66 kV Transmission Line.  These poles facilitate the carrying of the Distribution Line and the Service Line.  The Distribution Line distributes electricity flowing from the Transmission Line down to the Service Lines reaching the household consumers.

10.	Because of the actions of the defendant and its servants and agents, the plaintiff claims that he suffered loss and damages.

INTENTIONAL TORT

11.	To succeed in an action for trespass to land the plaintiff carries the burden to prove an unlawful intrusion or invasion of his land, that the intrusion or invasion was intentional and with force and he was injured: see Mogai Limited & Anor v Oswald Tolopa & The State (2021) N9390 at [16].  In Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (2008) N3440 Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (2008) N3440 the National Court listed the criteria to prove trespass, two of them being that “The defendant entered the land either directly (in person) or indirectly” and “the defendant did so by some intentional act”.

12.	On the other hand, it is a defence if the defendant has been invited or authorised by the plaintiff to enter and use the land.  The invitation or authority given by the plaintiff may be in writing or oral.  In this case, there is no evidence that the plaintiff invited or authorised the defendant to enter and use the land for its Transmission Tower and Power Lines and this defence does not apply.

13.	However, the plaintiff carries the burden to prove that the intrusion or invasion by the defendant was intentional and with force: Mogai (supra) and Gesring (supra).  In this case the installations were built on the land well before the plaintiff acquired the land from the previous registered proprietor Mr Sarton under a State Lease.  When the plaintiff acquired the land, he was aware of the installations on the land.  

14.	In my view, where the installations were built by the defendant on the land well before the plaintiff acquired the land, such conduct by the defendant does not constitute an intention to deprive the plaintiff as the owner of the land to a quiet and peaceful enjoyment of the land.  Accordingly, it is not necessary for the defendant to obtain consent or authority from the plaintiff to erect these installations on the land.

EASEMENTS

15.	The counsel for the plaintiff and defence counsel made further submissions in relation to the defendant’s employee’s entry onto the land and accessing the installations for maintenance and repair works during the term of the plaintiff’s State Lease.  According to the plaintiff, the actions of the defendant’s employees constitute a separate action for trespass.  The defendant relies on the right created by an easement.  An easement may be expressed or by prescription.  It may be provided in writing in a State Lease.  It may be by prescription if it is by conduct of the parties based on the existence of a dormant tenement and servient tenement over a long uninterrupted use by the dominant tenement owner.  It may be created by statute.

16.	The counsel for the plaintiff contends that the defendant’s reliance in an easement must fail for three reasons.  First, the defendant failed to plead it in its defence to put the plaintiff on notice that it will rely on it in its defence to contest the plaintiff's action at trial.  Secondly, no easement has been created because the defendant does not own an adjourning land to the plaintiff to create a right of way to access the installations on the plaintiff’s land as a dormant servient.

17.	The third reason the counsel gives is that if the defendant relies on an easement created by statute under Section 8 of the Electricity Commission (Privatisation) Act 2002, it should be disregarded because the defendant did not plead it in its defence to put the plaintiff on notice that it will rely on it to contest the plaintiff's action at trial.  Furthermore, and in any case, there is no evidence of a notice published in the National Gazette that the subject land has been reserved for the purpose of providing public utilities under Section 8 (1) (supra).   

18.	As to the first ground; lack of pleading the defendant’s reliance on easement, I am not persuaded that the defendant’s failure to plead it in its defence has deprived the plaintiff of a fair trial.  On the contrary, both parties have adequately addressed the issue of easement in their respective written and oral submissions, and I am grateful for that and reject this ground.

19.	As to the second ground; there being no easement created between the parties, I do agree with the counsel for the plaintiff’s submissions that because the defendant does not own an adjourning land to the plaintiff, no easement right exists to protect the defendant.  However, it is not necessary for the defendant to rely on easement by prescription because it is open to it to rely on an easement created by statute under Section 8 of the Electricity Commission (Privatisation) Act 2002.  Section 8 states:

“(1)	Notwithstanding the absence of a dormant tenement, an entity specified in a notice published in the National Gazette by the Head of State, acting on advice (in this section called the “specified entity”), shall have an easement over land where – 

(a)	works owned or operated by the specified entity are on, above or under the land and the land does not belong to the specified entity; and

(b)	those works were, as at the date specified in the first notice published pursuant to Section 4(1), owned or operated by the Commission and the land did not belong to the Commission.
	
(2)	The easement entitles the specified entity - 

(a)	to maintain the relevant works on, above or under the land affected by the easement; and

(b)	to enter the land, by its agents or employees, for the purposes of operating, examining, maintaining, repairing, modifying or replacing the relevant works; and

(c)	to use the works for or in connection with the generation and supply of electricity; and

(d)	to bring on to the land any vehicles or equipment that may be reasonably necessary for any of the above purposes.

(3)	Sections 26(2), (3) and (5) of the Electricity Industry Act (Chapter 78) (and any regulations made for the purposes of any of those provisions) apply to the entry on land and carrying out of work under this section in the same way as if the land were land which was entered, and the work were work which was undertaken, under Section 26 of the Electricity Industry Act (Chapter 78). 

(4)	The specified entity shall make good any damage caused by the exercise of powers under this section as soon as practicable or pay reasonable compensation for the damage.

(5)	If the specified entity has an easement relating to works over another person’s land otherwise than by virtue of this section, the application of the easement under this section to the land is excluded to the extent necessary to avoid the same part of the land being subject to both easements.

(6)	The specified entity may, by instrument in writing – 

(a)	suspend or limit rights or impose conditions on the exercise of rights arising under the easement under this section; or	 
(b)	surrender (in whole or in part) the easement under this section, and such an instrument has effect according to its terms.”

20.	While the plaintiff’s submission is correct that the defendant failed to plead Section 8 (supra) in its defence to contest the plaintiff’s action, I am not satisfied that the plaintiff has been deprived of a fair trial because he has adequately addressed the application of Section 8 (supra) in his counsel’s written and oral submission at trial for which I am grateful.

21.	Of relevance is the ground that there is no evidence in the form of a National Gazette produced by the defendant to verify that it is a “specified entity” to have a right of way by an easement over the plaintiff’s land to satisfy the terms of Section 8(1) (supra).  While there is no evidence of a National Gazette to verify that the defendant is a specified entity under Section 8(1) (supra), the description of the type of work it does clearly falls within the terms of Section 8(1) (a) & (b) and Section 8(2) (supra).  

22.	For example, while there is an absence of a dormant tenement under Section 8(1)(a) (supra), the defendant will have an easement on the plaintiff’s land because of the work it does and operate on the land which among others, are to enter the land, by its agents or employees to operate, examine, maintain, repair, modify or replace the Transmission Tower and Power Line Poles on the plaintiff’s land in order to generate and supply electricity to the general public in the city of Port Moresby and surrounding areas under Section 8(2)(b)&(c) (supra).

23.	In plain terms, Section 8 (supra) authorises the defendant to maintain the installations on the plaintiff’s land because they are critical Government infrastructure.  They provide how electricity generated from Rouna Hydro Power plant is transmitted to the city of Port Moresby and surrounding areas.  They reinforce the notion that the defendant is a public utility provider.  It uses a small part of the plaintiff’s land to provide public utility in the form of electricity through them to the general-public.  Without these installations, the entire city will be without electricity, save for those with alternative power supply.

CONCLUSION

24.	For the foregoing reasons, I am not satisfied that the plaintiff has proven its action on the balance of probabilities that the defendant and its employees committed the tort of trespass to land and dismiss the action with costs to the defendant, to be taxed, if not agreed.
________________________________________________________________
Lawyers for plaintiff: Tangua Lawyers	 	
Lawyers for defendant: PNG Power In house Lawyers