Matino v Warena [2008] PGDC 162; DC5013 (8 July 2008)

DC5013
PAPUPA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

Civil Jurisdiction

DC N0 722 OF 2008

FRANCIS MATINO

- Complainant-

-V-

PAWA WARENA

- 1^st Defendant -

WANTOK RADIO LIGHT

- 2^nd Defendant -

PORT MORESBY: PUPAKA

2008: 8^th JULY

Civil proceedings – Damages for destruction of garden plants – Lack of corroborative evidence – Lack of evidence of ‘representations’ made over many years – Veracity of claim is fully in issue – Defence of denial – Similar claim was issued against the defendants by another person in 2005 – Previous claim was dismissed on the strength of the same sort of defence now raised here – Complainant was issued specific directions to adduce evidence to prove that this instant case is not that failed case resurrected under a different name – Direction not complied with – Possibility of fraud or abuse of the process not properly or at all eliminated – Case dismissed with costs.

The Complainant in person
The first Defendant appears for the Defendants

8^th July 2008
PUPAKA: This is a damages suit by the complainant, Francis Matino, against the defendants, Pawa Warena and Wantok Radio Light. The complainant sued the defendants on the bases that they caused destruction to his garden and destroyed food plants and tress. He has placed approximate value on the destroyed things and claims an aggregate total of K10, 000.00.
The parties file affidavit evidence as directed by the Court. They were to cross-examine opposing witnesses if they wished. The matter was set down for a hearing but today, on the hearing day, they just tendered their affidavits and closed their cases. The parties’ requested the Court to consider their evidence and decide the issues raised. Consequently I have perused their evidence and the following is the considered judgment of the Court.

THE ISSUES

The issues are: Whether the complainant had a garden on the site; whether there were food plants or tress on the site; whether there was destruction of these things; if there was such destruction then who caused it. There is also an issue as to whether the complaint is genuine or it is just an old case resurrected under a different name or person.

FACTS

I detect some undisputed facts which are: The alleged destruction occurred over a Leasehold land to which the defendants have title and have since built a radio station. The complainant may have resided on the site or made gardens on it in the past. There seems to have been an ethnic strife between the Tari people and the complainant’s ethic group. The defendants moved into the site on or around early 2004. The complainant may have been a squatter on the land but was not there in 2004. Just when the defendants obtained title to the site is unclear but they obviously had title prior to 2004. There is no evidence to indicate that the complainant was gardening on the land with the permission from the title holders. In the circumstances the complainant can only have been squatting on private land, if indeed he was residing or gardening on the land as he says.

COMPLAINANT’S CASE

The complainant filed an affidavit dated 5^th May 2008. It is mostly devoted to stating the fact of the destruction and the quantity of the destruction. It does not give any other details. This affidavit is the only evidentiary material the complainant has file, apart from his pleadings in the complainant and summons of course. The pleadings are not evidence per se but even then the complainant’s affidavit repeats what is already stated in the complaint.

As I said the complainant seeks K10, 000.00 for the alleged destruction.

DEFENDANTS’ CASE

The defendants denied causing any destruction as alleged. They said that the complainant, even if he lived and gardened on the site as alleged, had no gardens on the site when they commence construction of their radio station.

The defendants say that the complainant’s group and the Tari people were engaged in a conflict before they moved in. As a result of that conflict the complainant’s gardens, and possibly the gardens of others of his line, were destroyed by the Tari people. The defendants have filed evidence by way of photographs showing a barren landscape that they captured on camera upon their arrival at the site. The photographs show no gardens.

The defendants also contend that a similar case or in fact the same case as this case was prosecuted against them (the same defendants) in 2005. More or less the same facts were pleaded, seeking just about the same relief. The 2005 case is Case No. 2931 of 2005. The only difference between the cases is the name of the complainants and the amount claimed. The 2005 case was instituted by one Morris Moroi for K4, 000.00 and this case is by Francis Matino for K10, 000.00. The 2005 case was simply dismissed.

FINDINGS

First of, considering the issues of credibility raised the complainant was specifically directed to provide evidence that this instant case is not the 2005 claim resurrected under a different name. The directive was given because this complainant would know something about that 2005 case. It based on the same cause of action, against the same defendants and was over the same land. Yet the complainant has not indicated or given a hint about the 2005 case. He is completely blank on it. He has filed no further affidavits touching on it. In fact he has no witnesses to corroborate even this current claim.

In the circumstances the complainant’s claim cannot succeed. This could well be a fraudulent reclaim under a different name or complainant. The issue of veracity raised is not even addressed by the complainant. The Court must therefore dismiss this matter for that reason alone.

However, even if the claim was properly attested as being a fresh, different and genuine claim, this complainant has failed to corroborate his story. In the face of the documented and organized defence evidence that seem to find fault even with his own identity as it were, the complainant needed to verify matters to give himself a fair opportunity. The Court did highlight and pointed out these matters to him. What he needed to do and how he needed to prosecute his claim was properly explained to him.

CONCLUSION

In the end this proceedings will have to be dismissed. It is dismissed on the bases that there is no corroborated proof of the existence of a garden or food plants and trees and corroborated evidence of actual destruction by the defendants. It is also dismissed on the bases that the possibility that this claim could be a fraudulent double claim, to a similar case in Case No. 2931 of 2005, has not been properly or adequately eliminated.

The proceeding is therefore dismissed. The defendants shall have their nominal costs of defending this proceeding.

_____________________________________________________

The Complainant in person
Mr. Kennedy for the 1^st Defendant