Polowa v Tepoka [1998] PGDC 24; DC487 (31 March 1998)

DC487

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 251 OF 1996

Wik Polowa

Complainant

V

Polga Tepoka & Ors

Defendant

Mt Hagen: M. M. Pupaka
Dates: 10th, & 11th March 1998.

31/03/98.

M. M. PUPAKA: The complainant in these proceedings sued the 8 defendants herein collectively for K6867. 45in damages alleging destruction of garden and food crops. The defendants denied liability in full and the matter proceeded by way of a contested hearing.

At the commencement of the hearing it was clear, as it was always quite clear, to the mention magistrates previously, that the parties are locked in a major land dispute. They are, as it would seem, still at the mediation stages in that dispute. It seems mediation, if there ever was any mediation at all, has obviously not been successful. For the purposes of this proceedings it was resolved that the land dispute is another matter altogether - as it rightly should be. Parties were directed to argue their cases on the issues at hand only. The issues being: whether or not the food and other crops as alleged were destroyed; who owned those such crops if there were in fact such crops; whether or not these defendants are responsible for such destruction; and the value of the things destroyed.

It was also resolved that the defendants could raise the defence of exclusive interests or rights over the disputed land as against the complainant’s complete lack of same, that is to say justification for the destruction. This was allowed as the defendants had asserted justification right from the beginning. It was pointed out that whether or not that line of defence would be sustainable under the circumstances would be another matter.

Initially the defendants had denied full liability, however during the course of the hearing the 8th defendant, Moka Tepoka, admitted full responsibility for the destruction and denied any participation by the other seven (7) defendants. Moka Tepoka nonetheless denied any liability on the grounds that he felt justified in destroying a garden otherwise unlawfully planted on his land.

THE EVIDENCE:

The complainant and his clansmen, it appears, planted a garden on land obviously under dispute between his clansmen and the defendants. It is not quite clear how big the garden area was but it is said the garden area was big enough, such that only one person could not have caused its entire destruction as alleged by the 8th defendant.

It is fairly well established that the garden destroyed was a new garden. Nothing planted on it had been harvested as yet. It was asserted that the destroyed food crops had been ready for harvest, that is to say those crops that could have been harvested first were ready to be harvested. The defendant Moka Tepoka, being the only one out of all these 8 defendants to testify, denied that assertion saying the garden had been freshly planted. Evidence on this aspect is not clear, in fact, no evidence was proffered as to just how ready or mature the crops were at the time. For that reason it is accepted that the crops may have been fully grown, that is the food crops, excepting food trees like breadfruit trees, marita, and three casuarina trees, but were just not yet ready for harvesting.

It is fairly established that the garden was planted with Kaukau for the most part. It is not clear how much of the other identified food crops had been planted in the garden but it is fairly established that there had been planted in the garden, taro; cassava; corn; peanuts; pineapples and bananas. There is evidence that 11 marita plants;3 breadfruits trees; and 3 casuarina trees were chopped down as well.

That really was the evidence. There was a lot of questioning of the witnesses and counter questioning by the witnesses in reply, but for the most part those were basically a display of emotion over the land dispute and quite irrelevant to the main issues. One of the complainant’s witnesses sought to tender a set of documents said to be a lists of things destroyed and assessment of the value of those same as prepared by a "DPI" officer. This set of documents was not allowed into evidence. The author of those documents remained unknown and he, whoever he was, was apparently not going to be available to testify as a witness.

With the sole exception of the 8th defendant, Moka Tepoka, none of the other defendants were ever identified, neither by description nor by name. The complainant’s witnesses, especially the complainant himself and one other witness asserted that the destruction was caused by all eight (8) defendants, and the party of these defendants was led by the 8th defendant. However, as I said, none of the other defendants were even remotely identified. This lack of identification was mentioned and pointed out at the close of the complaint’s case and the other defendants, that is the first seven (7) defendants, wisely elected not to testify. As was said the person Moka Tepoka admitted full responsibility for the destruction and he alone testified in his defence. He called only one other witness.

So at the end of the hearing, the sum total of all the evidence in this proceedings is that a fairly large garden of food crops and food trees was destroyed by at least one identified and certain other unidentified persons. No specified value, in monetary terms, though suggested in the summons and complaint, was proved or placed on the damaged crops or the destruction as a whole. The figure of K6,867.45 claimed for "damages and losts" (sic) in the summons and complaint is basically left unsubstantiated. I need not say this is hardly surprising, considering the fact that the parties are uninformed villagers appearing unrepresented.

However I am nonetheless satisfied that the person Moka Tepoka, with the help of his clansmen wilfully and maliciously destroyed a fairly large garden of food crops and trees belonging to the complainant and his clansmen. I would find the said Moka Tepoka liable for such destruction. From here on I would be referring to the defendants as the defendant. On the evidence, I must find all the other - first seven - defendants not liable to the complaint.

DEFENCE OF JUSTIFICATION:

The defendant raised a defence of justification. It is basically his contention that he was compelled to cause the alleged destruction by the unlawful acts of the complainant and his clansmen, that is to say he feels quite justified in doing what he did.

I must state at the outset that no one, especially the defendant Moka Tepoka, gave any evidence of there being in existence any custom in the parties’ area that allows for the kind of acts carried out or perpetuated by the defendant. However I would hasten to add that if there were to be found or there were any evidence of such a custom, that custom would be one that the Constitution of Papua New Guinea identifies a being repugnant to the general principles of humanity. Such a custom would not be harmonious with what is, or all that is, encompassed in the term ‘Rule of Law’. Such a custom would be nothing more than ‘rule of the jungle’.

It is said the complainant generally disobeyed numerous lawful instructions issued by the police for him not to work on the disputed land. The complainant asserted in reply that if he was acting contrary to any such police direction he was never charged by the police. By inference it seems the complainant would have the Court accept that there was in fact no stop orders from the police, basically because he neither denied nor confirmed that there had been in fact any such police direction. Therefore I must accept, under these circumstances, that there may have been directions from the police issued to the parties for the parties not to work on the disputed land until their dispute was properly heard and determined by the Land Court. There was however no evidence adduced for or by the defendant to show that the defendant or anyone else attempted have the complainant or anyone of the complainant’s line arrested for disobeying lawful directions from the police.

The fact that the parties were in dispute as to ownership of land is clear enough. Their land dispute goes over many years. But surprisingly there was neither evidence adduced nor was it said that there was in place any appropriate retraining orders as issued by a Land Court. It is fair to accept then that there are no such orders in place.

I say all these because I am at a loss as to understand just how the defendant could possibly plead justification. The defendant had all these options. He could have sought and obtained restraining orders from the Land or District Court at any time. He also had the option to seek and obtain preventative orders from the Village Court. He may have done well to have the police issue stop work directions. The on the strength of any such restraining orders, preventative orders or directions the defendant was always at liberty to have those such orders or directions enforced by having the complainant and his clansmen arrested and charged for violating those same.

It was never an option for the defendant to go on the rampage. No law justifies his actions. His alleged exclusive interests over the disputed garden land does not in any way permit him to destroy the food crops. The basic concept of the ‘Rule of Law’ cannot justify his acts, neither the Statute Law nor the principles of Common Law and Equity. No person or persons must be allowed to get away with actions like this. The community at large must abhor these sort of acts. The courts cannot condone these sort of activities, non matter what provocative conduct the other side may have engaged in. Wilful damage of property is a criminal conduct. The defendant cannot now assert justification for his own breach of the law in response to what he at the time perceived to be a breach of his civic rights.

I therefore cannot accept and must dismiss the defence of justification raised by the defendant Moka Tepoka.

ASSESSMENT OF DAMAGES ON QUANTUM MERUIT

I have already said that the complainant has not substantiated his claim for K6,867. 45. This, that is the K6,867.45, is a relatively substantial amount of money. The complainant has not actually proved his quantified K6,867.45 claim. That however is not to say the complainant has not proved his claim in damages for the destroyed garden. In all fairness he can not be allowed to go empty handed after having incurred the loss of a portion of his daily subsistence for a period of time.

The courts have assessed damages on Quantum Meruit in this sort of situation. That is a trite proposition. I am of the view that this is a appropriate case where damages would be assessed on quantum meruit. However that is easier said than done. I am unable to even remotely guess at what may be reasonable in the given circumstance. My problems in this regard are compounded by the fact that I am unable find any reported (in the law reports) instance where approximate value for damages of food crops had to be assessed.

I have generally found that the defendant (with the help of his clansmen) had destroyed a fairly large garden of food crops and trees belonging to the complainant and his clansmen. I must now do what I possibly can to place a value on this fairly large garden of food crops and trees.

The only guide to go by in this proceedings as to what possible value the damaged garden could be placed at, is the suggested figure of K6,867.45, as stated in the statement of claim. The defendant has proffered no probable figure as an alternative. I must accept that this figure is a otherwise probable value of the destroyed garden. Under the circumstances I put the possible value of the destroyed garden at about K6,867.45.

I am mindful of the fact that this could very well be an overstated figure. For one, it is the complainant’s own assertion when he has much to gain out of this, and on the other hand he should have proved his claim. He cannot have the best of his own short comings. For these reasons I would reduce the probable value of the destruction that I have accepted, by a global figure of 3%. Taking into account the 30% reduction I then assess damages generally at K4,807.22.

However that is not the end of the matter. Having assessed the costs of damage at K4,807.22 I must now assess the extend of complainant’s own contribution towards his losses, if any.

The complainant was at the relevant times aware of the fact that the land was the subject of a land dispute. Whilst he must have otherwise had no doubts about his own exclusive rights over that land, he nonetheless was all too well aware of the dispute to his rights over it by the defendants. These things, that is land disputes, do not occur overnight. The complainant could not have possibly not known, or could not have thought it not possible, that the defendant and others of the defendant’s clan would stand by and allow him to work and merrily prosper on the disputed land. He must have, or should have, foreseen that preventative, obstructive and other actions, both legal and illegal, would most likely be taken by his antagonists. The complainant must now accept some responsibility for his own losses. For all intent and purposes his claim for compensation as appeasement for wasted effort. Given the peculiar circumstances prevailing at the time, the complainant should have been mindful of the fact that he could well be labouring in vain, that he may not get to enjoy the fruits of his labour.

In that regard the complainant did not wait and allow for the resolution of the land dispute first. He contributed considerably in having his efforts wasted. He would have been overly better off making gardens on land not disputed. After all land disputes are essentially disputes as to one’s rights to work on and live off the land as against similar such rights of the opposing party.

In all the circumstances I would hold the complainant half liable for having his own efforts wasted. He is equally liable for having taken on the risks and banking on foreseeable events not occurring in this particular set of circumstances. In arriving at this manner of apportionment of liability I am being mindful of the fact that the complainant must, in all fairness, also bear the responsibility and face the consequences of his risky conduct, while at the same time the defendant is being made to understand and accept that he cannot avoid facing the natural consequences of breaking the law. I apportion liability between the parties at 50%.

I would find the defendant Moka Tepoka liable to the complainant as to only half of the assessed damages of K4,807.22. The defendant would then be liable to the complainant in the sum of K2,403.61.

I order judgement for the complainant against the 8th defendant Moka Tepoka alone in the sum of K2,403.22, plus interest and cost.