Kiku v Manase [2016] PGNC 273; N6470 (31 May 2016)

N6470

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 1432 OF 2001

BETWEEN:

TONY KIKU & KACK KAIPO
Plaintiff

AND:
DICK MANASE
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Mount Hagen: Poole, J
2016: 31^st May

Cases Cited:

Elapi v Giosa Labi (N5291),

Gabriel Kenziye v The State (N5424)

Counsel:

Mr Kunai, for Plaintiff
Ms Doa, for the State

Ruling

31^st May, 2016
1. POOLE J: On the 4^th of October 2001 the Plaintiff filed a Writ and Statement of Claim seeking damages for loss he said he sustained as a consequence of armed police from Wabag breaking into his trade store and looting contents and destroying goods and also destroying traditional houses, 5 pig houses and making away or with destroying a number of the Plaintiff’s pigs. The Statement of Claim was served on the First Defendant, personally, on the 1^st of March 2002. Although there is no affidavit of service on the Solicitor General’s Office, the Solicitor General’s office filed a Notice of Intention to Defend on the 26^th of November 2001.

2. Nothing further was filed by either Defendant and, after due warning to the Solicitor General, lawyers for the Plaintiff moved the Court for Default Judgment on Motion, supported by an affidavit and served on the Solicitor General. On the 11^th of October 2002 the National Court Ordered Default Judgment be entered for the Plaintiff, and damages to be assessed.

3. It is trite law but, none the less, a frequently repeated principal often ignored that pleadings are not evidence. (see John Elapi v Giosa Labi (N5291), for example, or Gabriel Kenziye v The State (N5424)). Pleadings are unsworn statements of facts and cannot, for the purpose of establishing a case, “pull themselves up by their own boot – straps” and become evidence admissible in proof of a Claim. In this matter, on the 11^th of October 2002, when the Court granted Default Judgment on liability, there was no sworn evidence by way of affidavit or otherwise before the Court to justify granting the Application for Default Judgment.

4. In this circumstance it is appropriate, indeed necessary, that the Default Judgment be vacated because it was granted in error when there was no evidence before the Court to substantiate a Judgment or to establish a loss which is compensatible by damages.

5. I revoke the Order of the 22^nd of October 2002 and I directed that the Plaintiff serve this Order on the Solicitor General in 14 days.

6. The matter is to be relisted for Directions on Monday the 4^th of July 2016 at 9:30am.
________________________________________________________________
Kunai & Co Lawyers: Lawyer for the Plaintiff
Solicitor General : Lawyer for the Defendant