Ruin v Kaupa [2004] PGDC 59; DC483 (25 October 2004)

DC483

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

Case No. 120 of 1998

Wan Ruin & 13 Ors
Complainants

V

Imapo Kaupa
First Defendant

Stern Highlands Provincial Government
Second Defendant

Mt. Hagen: M.M. Pupaka
2004: 25th October

Counsel
MR. Johannis Poya for the Complainant
Mr. Wesley George Arua for the Defendant

M. M. PUPAKA: This matter has a chequered history. It began in 1998 as a claim for payment for work done on Mala – Menjim Road.

First of all the complainants seem to be a collection of 14 individual groups. I cannot make out clearly what roles the principal complainant, Mr. Wan Ruin, is playing. He seems to be acting in more than one representative capacity. He seems to be acting on behalf of his own group and also the other 13 groups. There are no instruments of consent to act filed by anyone. I am not sure if any or all of the 14 groups are registered entities, vested with capacity to institute legal proceedings. The individual persons within the groups remain unidentified and are unknown and are not properly named also. Mr. Wan Ruin could be acting for the unnamed and unidentified individuals, but then again there are no there are no instruments of consent to act on file. Subsequent so-called schedules of names seem to have been filed but the Complaint and the Summons Upon Complaint have never been amended to rectify any original defects. In fact the way the pleadings and the proceedings is structured the entire proceedings could be a nullity in its entirety. However the defendants, being fully represented as they are, have neither raised issue nor made any case on this aspect so I shall say no more thereon.

This proceedings was issued on the bases that the defendant, through its employee the 1st defendant engaged the 14 groups to work on a 14-kilometer stretch of road; one kilometre per group, to do the following types of work:

1. Grass cutting, for K120.00 a kilometre per group,

2. Pipe & Drainage cleaning; for K200.00 per group,

3. Digging ditches; for K200.00 per group, and

4. Removing landslides; for K280.00 per group.

The complainant also said one Andrew Bank was paid K5, 000.00 in full satisfaction of the work done. Messrs Paulus Dowa Lawyers initially represented the defendants. The claim was fully denied mostly on the bases that the work done was fully paid for.

After full hearing of the parties and their witnesses the Mt. Hagen District Court, per Principal Magistrate R. Appa presiding entered judgment on the 13th of August 1999 against the 2nd defendant in the sum of K8, 000.00 plus interests at 8% plus costs of the proceedings.

That decision was appealed against on the 20th of September 1999. Subsequently, on 7th September 2000, the Mt. Hagen National Court, after having heard the appeal, upheld the appeal of the defendants. The National Court further remitted the matter back to be reheard by a different magistrate.

Consequential upon the National Court ruling this Court first became seized of this matter about four years ago on 16th October 2000. It was adjourned for a month, to the 16th of November 2000 in fact, for the parties to advise on the mode of the rehearing. On the 16th of November (2000) the parties’ council then in attendance, advised the Court that they would only file final submission. They asked the Court to reconsider the various affidavits already on file and decide the matter. Thenceforth the parties failed to file their respective submissions and the matter was in abeyance until both parties have changed lawyers.

This time around too council having carriage of the respective sides’ cases have decided to file final submissions for the Court to consider. Presumably they have taken it for granted that the Court would consult the case file and inform itself of any available evidence on file, whether these are affidavit material or otherwise, and decide the issues. Whilst there is no fuss about that approach to dealing with the case, considering what happened previously and particularly the exclusive nature of the defence raised it would have been better for cross-examination to take place. There seems to important issues of credibility raised in the circumstances, which are better resolved through assessing of witnesses’ demeanor. This cannot happen here as the parties have closed their respective cases.