Polowa v Tepoka [2004] PGDC 35; DC488 (25 February 2004)

DC488

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 251 OF 1996

BETWEEN

Wik Polowa
Complainant

V

Moka Tepoka
Defendant

ASSESSMENT ON DAMAGES

Case returned from National Court – re-assesment on damages – fresh evidence to prove damages – apportionment of liability.

Cases cited:
Yange Langan & Ors –v- State (1995) N369
Pyati –v- Inspector Uvavo and the State unreported before Injia Judge (now DJC), MVIT -v- Tabanto [1995] PNGLR 214 at page 370
Jonathan Mangope –v- The State & Ors (1995) N347– All distinguished.

Counsel
R. Kalepo (Ms) for the complainant
K. Sino (Mr) for the defendant

25th February, 2004

APPA, P.M. This case has a long history going back to 1998. The case is on allegation of destruction of garden crops and other economic trees at an estimated value of K6,867.45. It appeared to be a class or collective case.

It was alleged that on or about 29th and 31st of March 1996 the first defendant who was a Village Court official led his tribesmen onto complainant’s food garden and caused the destruction. There was no dispute that damages were caused but claimed justification. Defence also disputed the amount of damages claimed.

Mr. M. Pupaka had determined the case and apportioned liability on 50-50% of the total claim and made assessment accordingly. It was adjudged that defendant Moka Tepoka was to pay the complainant a sum of K2,403.22 plus interest and cost.

The defendant appealed from the decision to the National Court where the appeal was upheld (in part) and sent the case back to the District Court for re-assessment of damage before the same Magistrate. The case was left unattended to for sometime so I took the case for assessment purpose. A trial was conducted on assessment and both Lawyers have filed their written submissions for their respective clients. The decision was delayed because I was on furlough leave.

The complainant filed his affidavit and those of his three witnesses who were cross examined. Defendant Moka Tepoka gave oral evidence. No defence witnesses were called.

The complainant’s affidavit states that his clan had bought that land on which he made the garden and set out the type of crops destroyed. He said there were 600 kaukau mounds, 02 corn blocks, 166 banana trees and 22 sugarcane, 09 taro blocks. There were 11 marata trees, one breadfruit tree and 01 yar tree.

Witness Nomba Clak, the DPI officer who went to the scene of the destruction and assessed damages two weeks later had filed his report and was annexed to his affidavit sworn on 08th November 2002. His pricing of crops damaged was based on Valuer General price index. The total damages assessed was at K6,867.45, the figure used in the initial summons. It was noted that the damages complained of were done not only to the complainant’s crops but many others as well. Two people mentioned in particular were Rangpi Man and Puri Landowa and the complainant.

Total damages assessed to their crops was at K1057.50. Damages done to other people’s crops was at K5,814.00. It seems that complainant was acting in representative capacity because there is evidence that complainant started the garden and shared blocks with others who helped with the work. The appeal court affirmed this position in the judgement in page 02 in that complainant was acting for himself and others.

Defence submitted for mitigation of damages. Defendant Moka Tepoka gave evidence that him and his tribesmen did cause the damages complained of because the garden was made on his land, a claim of justification. That defence had already been dealt with by Mr. Mark Pupaka and made appropriate apportionment on liability. It was noted during trial that defendant Tepoka said nothing on the number of crops and economic trees which were allegedly damaged. However, he did dispute the assessment done by the DPI officer but that was too general. The other mitigation factor raised in defence submission was that only the complainant should be entitled to damages done to his crops and not others. I must point out again that there is ample evidence to show that many other people’s food garden crops were destroyed and not just the complainant’s. Although not all the names were mentioned, complainant knew whose crops were destroyed and is responsible for disbursement of outcome of this proceeding (if any).

I quite agreed with defence submission that those other unnamed complainants whose garden crops destroyed should not be entitled to any awards or compensation as a matter of principle because they did not provide any evidence on their losses.

I have noted the principles stated in the cases of Yange Langan & others –v- The State N369 [1995], Pyati –v- Inspector Uvauvo and State Unreported before Injia J and MVIT –V- Tabanto [1995] PNGLR 214 at 370 and Jonathan Mangope –v- State and Others N343 [1995] though the facts were difference, they stated the same principle applicable in all class or group actions that the plaintiffs must prove their damages and not enough to rely on evidence of their representation or others.

Although the courts hands are tied to these principle of law, I am of the view that I must deviate from it for a while for the purpose of assessment of damages required in the present case. If I may reiterate what I have said earlier his Honour Hinchliffe J. has recognized the complainant as a representative of others in this proceedings on page 02 of his judgement on appeal hearing. This in my view, in village type situation, the complainant was speaking for others whose crops were destroyed along with his. It was true not all of those others were named in the proceeding but that should make no big difference. The complainant was the person who led those others to clear the bush and made gardens while the defendant and his tribesmen who lived close by did nothing constructive to stop the gardening but watched patiently for the food to grow before they go out to destroy them. This is in evidence. Those were the aggravating factors and not mitigating. They should shoulder the blame in full.

Finally, the appeal court disagreed with the assessment done by Mr. Pupaka because there was no evidence to prove the damages so the issue was referred back to District Court for re-assessment. In the re-assessment the DPI Officer, Village Court Peace Officer and a Policeman and others who have inspected the destruction and made reports gave evidence all confirming the number of food garden and economic trees destroyed. The DPI officer Nomba Clak who was a certified Agriculturist (Diploma) tendered his report on valuation to court. Defence gave no evidence in rebuttal to the number of crops destroyed and the valuation used. Mr. Clak also said in examination that some of the crops destroyed were matured and others were new, still growing to become matured so his valuation was based on different age groups using the standard pricing. I couldn’t be mere convinced than by the evidence of this witness.

After having said all the above and in light of new evidence on prove of damage and with the confirmed apportionment of liability at 50% the principle claim is now reduced to K3,433.73. In all fairness there ought to be a further reduction to cover for contingency. For an example, one cannot dispute that not all the garden food and crops (destroyed) would have been sold for cash earning it was a subsistent farming and also to cover for the possibility that the DPI assessment could have been overstated. I allow for K500.00 reduction as near enough.

It is now adjudged that the defendant (and his seven tribesmen) pay the complainant(s) a sum of K2,933.73 plus 4% interest and cost of the proceeding. The judgement debt be settled within 30 days from date of service of the orders on the defendants.

Tamutai Lawyers: Complainant
Kunai & Co. Lawyers: Defendant