Paito v Kalas [1998] PGNC 126; N1827 (12 June 1998)

N1827

PAPUA NEW GUINEA
(In the National Court of Justice)

WS No. 451 OF 1995

TOM PAITO
Plaintiff

AND:

THOMAS KALAS
First Defendant

AND:

DEMAS KAVO
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

LAE, GOROKA: SAWONG J
1998: 16 May, 12 June

P. Ousi, for the Plaintiff
P. Mogish, for the Third Defendant
No appearance for the First and Second Defendants

12 June 1998

SAWONG J: This was a trial of assessment of damages, default judgement having been obtained and entered against all defendants.

The matter was heard in Lae on 16 May 1998. After the trial I made the following directions in respect of the parties' submissions:

1. The plaintiff has 7 days from today (16 May) to file and serve his written submissions, that is by close of business on 28 May 1998.
   
2. The defendants to file and serve their written submissions by close of business on 4 June 1998.
   
3. The plaintiff has a further 2 days to file any written reply.
   
4. Decision is reserved to June 1998.
   

Since those directions, only the plaintiff has filed his written submissions. None of the defendants have filed their written submissions. The defendants have not made any applications for extension of time. In these circumstances, I shall proceed to make a decision in this matter.

The plaintiff gave evidence on affidavit and he was duly cross examined. One other evidence for the plaintiff was admitted into evidence by consent.

There was no appearance by the first and second defendants. Mrs P. Mogish appeared on behalf of the State. However she did not call any evidence to contradict or dispute the evidence given by the plaintiff. Despite cross examination the plaintiff's evidence on the loss he suffered remained intact and undestroyed.

The plaintiff in his evidence set out the value of the various properties he lost because of the actions of the defendants. Also annexed to his affidavit was a valuation of his properties which had been compiled by Benionaj Levi, a field supervisor with the East New Britain Small Holder Development Project of the Department of Agriculture and Livestock. Mr Levi carried out a physical inspection and valuation of the plaintiff's various properties on 3rd February 1992 and compiled his report on 12 February 1992. The defendants destroyed the plaintiff's properties on or about October 1993. It is clear that the valuation was about one year and six months.

According to the valuation, the crops, buildings and land were valued at approximately K58,543.52 as at 3rd February 1992. The plaintiff in his evidence said that in addition, he also lost cash and other personal properties. He valued these at K830.00. He also claims survey fee of K1,300.00 which he paid for the survey of the land.

As I have said earlier, the evidence produced by the plaintiff has not been destroyed. They remain intact and undisputed.

In those circumstances, I accept the evidence and the submissions made on behalf of the plaintiff. I award to the plaintiff the following damages against all three defendants:

(i)	Land improvements	K58,543.52
	Interest (at 8% p.a. from date of filing of Writ (7. 6. 95) to today (12. 6. 98)	K 14,113.00
	Special Damages	K 2,130.00
	TOTAL DAMAGES	K74,786.52

I order that the Defendants pay to the plaintiff the total sum of K74, 786.52. I further order that the Defendants pay the plaintiff's costs.

I direct that judgement be not entered for fourteen (14) days from today's date. The parties may during that time apply to the Court to vary the judgement to correct errors of calculation or errors of a similar kind. If parties are in agreement that such an error has been made, it may be dealt with by my Chamber's Order. Otherwise judgement shall take effect and may be entered at the end of that time.

_____________________________________

Lawyer for the Plaintiff: Warner Shand
Lawyers for the First & Second Respondents: No appearance
Lawyers for the Third Defendant: Solicitor General