Rumba v Global Construction Ltd [2004] PGDC 65; DC202 (24 March 2004)

This is a claim for damages caused to complainant’s land and properties at Kump section of the Urup Ramba road while the defendant’s machines were carrying out road maintenance and sealing work in the year 2001. The complainant claims in the statement of claim and in his affidavit sworn on 19th September 2003 that the defendant’s machines clearance of the road way exceeded the authorized 07 meters mark and caused destruction to;-

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(a)	4 x yar trees (matured)	@ K12.00	= K48.00
(b)	1 x marata tree	@ K8.00	= K 8.00
(c)	3 x forest tree	@ K12.00	= K36.00
(d)	Bamboos	@ K20.00	= K20.00
(e)	Flower garden	@ K68.00	= K68.00
(f)	Singsing ground
(g)	Certain portion of usable land}		= K4,320.00.

The complaint was registered with defendants and also at Anglimp South Waghi District Court Office and recommendations was made for the second defendant to settle the claim but nothing happened so they ended up in this court.

Defendants denied liability in full and case was adjourned to 16th February 2004 for trial proper. However, both complainant and defence counsel consented to admission of their respective affidavits and for defence counsel to file written submissions. Complainant said he is a villager and had no facilities to do written submission. Defence lawyer did file written submission.

Complainant filed three other affidavits from those who witnessed the destruction. It appeared on documents record that the demand put to the defendant was K4,500.00 as break up shown above based on assessment done by Rural Development Officer at Anglimp District Office, one Mr. Denge on 10th October 2001.

Defence relied on the affidavit of Mr. Micheal Kilua the supervisor of the road construction with the defendant. He disputed the claim. He also raised issue of identity of the complainant. He also verified their defence that all such claims were to be directed to the Department of Western Highlands Engineering Division as per their agreement. Unfortunately a copy of such agreement was not produced or annextured to prove existence of it.

Defence counsel has raised some important legal issues in his written submission on admissibility of documents relied upon by the complainant but not verified by authors through affidavits. On this, I agree it is a settled practice but had there been a trial proper, such argument would have sustained but it was over looked and it came too late.

Defence was served with those documents annexed to the affidavits and had the opportunity to object to their admission but allowed them through.

The other factor went against the defence case was that Mr. Kilua did not annex to his affidavit a copy of the agreement in which the second defendant was indemnified from damage claims such as the present case.

On quantum, the claim was for K4,500.00. It was noted in defence submission that no alternatives were raised in mitigating of damages. However, since we cannot be sure of the exact values of the destruction caused, it is only fair to make a deduction say by K1,000.00 as close enough. I only allow for K3,500.00 in general damage.

I enter judgement for the complainant for a sum of K3,500.00 in general damage plus 8% interest to run from date of summons to judgement date and nominal cost of the proceeding.

Papua New Guinea District Court

Rumba v Global Construction Ltd [2004] PGDC 65; DC202 (24 March 2004)