For eight years a logging company ran a log pond and port on an island clan's foreshore, paying rent to a different clan. The judgment that followed is now the leading authority on trespass to customary land.
Rimbunan Hijau (PNG) Ltd v Ina Enei on behalf of the Moga clan of Loupom Island [2017] PGSC 36; SC1605
Supreme Court, Waigani — Salika DCJ, Kandakasi and Toliken JJ, 25 September 2017. SCA 126 of 2011.
What happened
From about 1988 to 1996 Rimbunan Hijau used the Mogubo foreshore at Loupom Island, Abau District, as a log pond and export port, with an access road, heavy machinery and tug boats. The Moga clan, through Ibi Enei, said the land was theirs and that the company had entered without their consent. The company had paid occupation fees to another clan under a Local Land Court decision that was later quashed on appeal, and had signed a memorandum of understanding with that clan while fully aware of the dispute.
What the National Court held
In Enei v Rimbunan Hijau Ltd [2011] PGNC 142; N4402, Gavara-Nanu J found the clan’s ownership established by the company’s own admissions in its pleadings and its two attempts to pay for the land. He held the company had acted in reckless disregard of the true owners’ rights and in breach of the Land Act. Damages were assessed on the total benefit the company received from its illegal use, adopting a rate and formula from environmental science groups engaged by the plaintiff. He awarded K4,046,084 in general damages, K150,000 in exemplary damages and K5,000 in special damages, a total of K4,201,084, plus interest of K994,256.51. The company appealed on 36 grounds.
What was argued
The company argued that the clan lacked standing because it was not incorporated, that trespass at common law requires the plaintiff to prove possession, that the damages were based on inadmissible material and were grossly excessive, and that exemplary damages were unsupported. Many of these points had not been taken at trial.
What the Court decided
New issues. A party is precluded from raising and succeeding on appeal on an issue not first raised in the court below. The standing and incorporation points were dismissed on that basis; there is in any event no requirement for a clan to be incorporated before suing in its name.
Trespass. The common law requirement of possession is inappropriate and inapplicable to Papua New Guinea, where there is no waste and vacant land. The State, developers and anyone wishing to enter customary land must carry out due diligence to identify the true owners, organise and deal only with them, and secure the “social licence to operate”. Dealing with anyone else is trespass and illegal use, and any agreement with the wrong people is null and void.
Damages. Damages for trespass are measured by the use of the land and the gain to the trespasser, and must be proportionate to that gain. In an extractive industry, land is one of three factors producing income, so one third of gross income before expenses and tax is reasonable compensation.
Evidence. Evidence of gain is usually in the defendant’s hands. A defendant that fails to disclose it, and does not object to the plaintiff’s evidence, cannot later attack the award. Exemplary damages confirmed; appeal dismissed with costs.
Did it make new law?
The Court affirmed the National Court in full and went further, declaring the possession element of trespass unsuitable for the country under Schedule 2.2 of the Constitution and articulating the due diligence duty. The one-third formula was new. A slip rule application by the company was refused in Rimbunan Hijau v Enei (2019) SC1859.
Why it matters
Identify the landowners before entering. A Local Land Court order or an agreement with one group is no protection if the true owners were known to be disputing it.
Keep and disclose the records. A company that withholds production and income figures invites the court to do the best it can on the plaintiff’s evidence.
Customary owners can sue as a clan through a representative, and admissions in a defence can prove ownership.
What it does not decide
Enei does not decide ownership disputes between clans, which remain for the land courts. The one-third measure was applied to a logging operation and later benches have treated it as a guide rather than a fixed rule. Nor does the case displace Mudge on registered State leases, though the Court expressed doubt about a title holder who benefits from his own irregular conduct.
Recent cases applying it
- Covec (PNG) Ltd v Kama [2020] PGSC 9; SC1912 — Enei applied to a contractor that extracted gravel from customary land: the defendant had a duty to produce evidence of its gain, and the restatement of exemplary damages was followed.
- Dekenai Constructions Ltd v Seeto [2025] PGSC 25; SC2714 — Enei cited for the purpose of damages, to restore the plaintiff as far as money can to the position before the trespass.
- Wereh v Wamuk [2023] PGSC 136; SC2487 — both the Supreme Court and National Court judgments relied on for special damages and out-of-pocket expenses.
- Kuman v Digicel (PNG) Ltd [2019] PGSC 72; SC1851 — Gavara-Nanu J’s finding that admissions in a defence can prove trespass relied on by customary landowners suing over a tower site.
Sources
- Rimbunan Hijau (PNG) Ltd v Enei [2017] PGSC 36; SC1605 (Salika DCJ, Kandakasi and Toliken JJ, 25 September 2017)
- Enei v Rimbunan Hijau Ltd [2011] PGNC 142; N4402 (Gavara-Nanu J, 28 September 2011); Rimbunan Hijau (PNG) Ltd v Enei [2019] PGSC 73; SC1859 (slip rule)
- Constitution — Sch 2.2; Land Act 1996
- Covec (PNG) Ltd v Kama [2020] PGSC 9; SC1912; Dekenai Constructions Ltd v Seeto [2025] PGSC 25; SC2714; Wereh v Wamuk [2023] PGSC 136; SC2487; Kuman v Digicel (PNG) Ltd [2019] PGSC 72; SC1851
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