Giko v Hannon [2022] PGNC 348; N9779 (8 July 2022)

N9779

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 1433 OF 2018


BETWEEN:
BIBI GIKO
Plaintiff

AND:
DAVID HANNON as the Chief Executive Officer of New Guinea Highlands Coffee Exports Limited
First Defendant

AND:
NEW GUINEA HIGHLANDS COFFEE EXPORTS LIMITED
Second Defendant

Goroka: Mugugia, AJ
2022: 17^th June, 8 July

CIVIL TRIAL ON ASSESSMENT OF DAMAGES – Alleged unlawful dismissal - Default judgment entered against the Defendants – Trial on assessment of damages – Whether damages should be awarded to the Plaintiff.

DAMAGES – Claim for damages for suffering, inconvenience, hardship and distress as a result of alleged unlawful dismissal –Proper foundation in pleadings required –Evidence to support pleadings required - Plaintiff’s pleadings are inadequate - Lack of credible evidence to establish damages - No basis to assess and allow any damages - No damages awarded.

DAMAGES - Plaintiff can only claim for the notice period - Payment of money in lieu of notice period prescribed by Contract – Plaintiff already paid money in lieu of 4 weeks notice – No basis to assess and allow any damages - No damages awarded - Damages are not payable by the Defendants to the Plaintiff - Plaintiff’s claim is dismissed.

Held:

(1) The Plaintiff’s claim for K215,088.16 was not specifically pleaded with particulars in the Statement of Claim. There was no foundation for this claim in the pleadings. No award made.

(2) There is lack of proper foundation in the Plaintiff’s pleadings and credible evidence to establish damages for suffering, inconvenience, hardship and distress. There is no basis to assess and allow any damages. Damages are not payable by the Defendants to the Plaintiff.

(3) The Plaintiff is only entitled to be paid for the notice period. Money in lieu of notice was paid by the Defendants to the Plaintiff. There is no basis to assess and allow any damages. The Plaintiff is not entitled to receive additional damages.

Cases Cited:

Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC 694

More & Others v. The University of PNG [1985] PNGLR 401

Yange Langan v. Independent State of Papua New Guinea (1999) N1369
Gau v. G & S Ltd. (2018) N7198
Porgera Joint Venture v. Kami (2010) SC1060

Counsel:

S. Ifina, for the Plaintiff
G. Geroro and M. Chou-Lee, for the First and Second Defendants

DECISION

8^th July, 2022

1. MUGUGIA, AJ: The Plaintiff was employed by the Second Defendant as an accountant. This was by way of an agreement made between the parties on 23 November 1993. The Plaintiff received his termination notice from the First Defendant on 16 November 2012, effectively terminating his employment. The Plaintiff filed his writ of summons on 14 November 2018, claiming damages for unlawful and/or unfair dismissal. Default judgment was entered against the Defendants with damages to be assessed on 27 October 2021. This was on the basis that the Defendants defaulted in filing their defence. The trial of the assessment of damages was conducted on 17 June 2022. The trial was by way of submissions. The issue for trial is whether damages should be awarded to the Plaintiff. This is my decision.

TRIAL – Tendering of Affidavits

2. The parties, through their lawyers, Mr Ifina for the Plaintiff, and Mr Geroro for the Defendants, tendered their clients’ evidence without any contest or objections. The Plaintiff’s evidence was the Affidavit of Bibi Giko sworn on 17 March 2022 and filed on 18 March 2022 (Exhibit “P”), and the Defendants’ evidence was the Affidavit of David Hannon sworn and filed on 1 April 2022 (Exhibit “D”).

PLAINTIFF’S CASE ON ‘ASSESSMENT OF DAMAGES’

Plaintiff’s Evidence

3. The Plaintiff was employed by the Second Defendant as an accountant/financial controller without an employment contract since 23 November 1993. It was based on a verbal agreement. He worked until around 1 July 2005 when the Second Defendant offered him a contract by way of an employment agreement as an accountant. He signed the contract on 1 July 2005. The Employment Agreement dated 1 July 2005 is Annexure “A” in Exhibit “P”. He was removed or terminated without any prior notice or warning on 16 November 2012. His net pay was K1,920.43. When he was terminated, he was paid in lieu, a four (4) weeks/ month’s salary, and his remaining long service leave entitlement in the sum of K8,000.00.

4. If it was not for the breach of contract by the Defendants, he will still be employed by the Second Defendant, and be entitled to 9 years and 4 months wages (K215,088.16), which when calculated will be as follows:

9 years and 4 months – 112 months

112 months X K1,920.43 per fortnight per month

Total = K215,088.16

5. He is now claiming his full entitlements and damages for suffering he went through to date as a result of the breach of contract.

Plaintiff’s Submissions

6. As a result of the termination, he suffered immensely with his family. He seeks a fair compensation for his suffering and inconveniences caused. Lability of breach of contract is established, thus, damages on breach of contract should be paid. Assessment of damages will be on the Agreement which is Annexure “A” in Exhibit “P”.

7. Mr Ifina referred to the case of Tai v. Aka (2020) N8618, and submitted that liability was established for breach of contract of employment. One of the issues was whether the applicants were entitled to general damages. His Honour Narokobi J awarded K10,000.00 to each applicant.

8. Mr Ifina submitted that his client has spelt out his hardships and sufferings as a result of the breach of his employment contract in his evidence. His client should be awarded general damages for distress. Mr Ifina submitted that I should exercise my discretion in awarding general damages between the range of K10,000.00 and K15,000.00. For interest, I should allow at the rate of 8% from the date of filing the writ of summons (14 November 2018) to the date of judgment pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act. Further, costs of the proceedings should be awarded to the Plaintiff (to be taxed if not agreed).

DEFENDANTS’ CASE ON ‘ASSESSMENT OF DAMAGES’

9. The Defendants relied on the evidence contained in Exhibit “D”, and contended that the Plaintiff was paid all his entitlements. As such, no damages should be awarded to him.

10. The background facts as given by the Defendants are that the Plaintiff commenced employment with the Second Defendant on or about 22 November 1993. On or about 1 July 2005, the Plaintiff and the Second Defendant entered into a written employment contract (employment contract). Clause 4.2 of the employment contract reads:

“The employment of the Employee may be determined at any time by either of the parties hereto giving to the other of them two (2) weeks written notice to that effect or on the part of the Company by the payment to the Employee of two (2) weeks salary by the Company in lieu of notice or on the part of the Employee by foregoing two (2) weeks salary in lieu of notice.”

11. On 16 November 2012, the Plaintiff’s employment contract was terminated by the Second Defendant. On or about 2 May 2013, the Plaintiff was paid all his outstanding entitlements plus a salary for one (1) month notice period. The Provincial Labour Office in Goroka was also consulted and cleared the calculations.

12. The Defendants’ submission is that by operation of Clause 4.2 of the employment contract, the period of notice stipulated is two (2) weeks or in lieu thereof. Clause 4.2 is applicable. Mr Geroro submitted that where a contract has been unlawfully terminated pursuant to a written contract, assessment should be by reference to the notice period. Reference was made to the cases of Boinamo Enterprises Ltd. v. Carey (2004) SC744, and Placer (PNG) Ltd. v. Kawa (2008) SC919.

13. The Defendants’ submission is that in the present case, the Plaintiff was entitled to 2 weeks notice. He was paid all his entitlements and given four (4) weeks or one (1) month’s wages in lieu of notice. Reference was made to Annexure “A” in Exhibit “D”. This is the Second Defendant’s Spreadsheet dated 19 December 2012, showing all the payments made to the Plaintiff. This, it was submitted, was cleared by the Second Defendant’s Goroka Office. The Plaintiff has not led or filed any evidence to dispute the Defendants’ evidence as to the payment made to him. The Plaintiff has no claim on this basis, and the Court should dismiss the proceedings on this basis alone.

14. The Defendants further submitted that the payment of 4 weeks or 1 month’s wages in lieu of notice was 2 weeks more than his lawful entitlement under Clause 4.2 of the employment contract. The Plaintiff has been overpaid by the Defendants by 2 extra weeks. The Plaintiff was compensated and overpaid by a further 2 weeks because of the long relationship with the Second Defendant going back to 1993.

15. On the pleadings, Mr Geroro submitted that there is no basis in the Plaintiff’s pleadings. The Plaintiff’s claim for damages for distress and inconvenience is unfounded. There is lack of pleading, and no proper itemization and source. What the Plaintiff should have done was apply to amend his pleadings. However, he is stuck with the default judgment. Default judgment was entered on the pleadings. The Plaintiff is confined to the pleadings, and he is bound by what is pleaded.

16. Mr Geroro submitted that no weight should be placed on the Plaintiff’s evidence.

17. On the authorities relied on by Mr Ifina, Mr Geroro submitted that they do not assist his client’s case. The amounts relied on in those cases were pleaded, and not in the present case.

18. Mr Geroro’s concluding submissions were that the Plaintiff is not entitled to any damages or relief claimed. The Interest Act as pleaded by the Plaintiff does not exist. For this reason, interest should not be awarded to the Plaintiff. In the circumstances, the Plaintiff’s entire claim for damages should be dismissed with costs.

MY ‘ASSESSMENT OF DAMAGES’

19. I have considered the Plaintiff’s pleadings, the parties’ evidence presented to the Court, the parties’ submissions, the principles on pleadings and the law on assessment of damages.

20. As a starting point, I looked at the Plaintiff’s pleadings. His relief in the Prayer for Relief are:

“1. Damages for unlawful and or unfair dismissal to be assessed.
2. Interest pursuant to the Interest (Judgments and Debts) Act.
3. Costs.
4. Any other or further order the Honourable Court deems fit.”

21. The Plaintiff’s evidence contained in Exhibit “P” is that he was paid money in lieu of notice (4 week’s notice), and the remaining entitlement for long service leave in the total sum of K8,000.00. The Plaintiff’s evidence is that he is entitled to 9 years and 4 months wages (K215,088.16). Mr Ifina had submitted that his client has spelt out his hardships and sufferings as a result of the breach of his employment contract in his evidence. What he is claiming now is damages for the inconvenience and suffering, and general damages for distress. When asked where that was pleaded in the Prayer for Relief, Mr Ifina submitted that these were not pleaded. However, the Court can infer that it refers to suffering. The consequences are inconvenience and suffering. Mr Ifina asked the Court to use its discretion to award damages for inconvenience and suffering.
22. Should the Plaintiff be awarded K215,088.16? Should the Plaintiff be awarded the additional damages claimed? I answer both questions in the negative. Set out below are my reasons for decision.

23. In Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC 694, the Supreme Court said, and I quote:

"Where a Plaintiff's claim is special in nature, such as a claim for loss of salaries or wages, they must be specifically pleaded with particulars. Unless that is done, no evidence of matters not pleaded can be allowed or relief granted."

24. A party to civil proceedings cannot obtain relief which has not been requested or sought in the pleadings either originally or by way of proper amendment: See More & Others v. The University of PNG [1985] PNGLR 401.

25. In Papua New Guinea Banking Corporation v. Jeff Tole, the Plaintiff claimed damages in his Prayer for Relief. The Court found that this pleading was inadequate. The Court said, and I quote:

"The onus remained with Mr. Tole to properly plead, and then prove what was in fact pleaded by way of damages. The moment he stepped outside the pleadings, he went outside what was resolved by the default judgment. ... If a Plaintiff seeks to step out of the pleadings, he is obliged to amend the pleadings and then allow the normal process of pleadings to take place before there can be a hearing and judgment on matters not in the original pleadings. ... It is the duty of a Plaintiff to plead his claim with sufficient details or particulars. It is a breach of the Rules....”

26. The Court further said, and I quote:

“Such a pleading gives no advantage to a Plaintiff, since he can not add to his Statement of Claim without an actual amendment to his Statement of Claim. Also, such a pleading casts no onus or obligation on a Defendant to clarify or enlarge a Plaintiff's case, and it simply has no foundation in the Rules."
27. The law requires proper pleadings with particulars before any claim or prayer for relief can be granted. The Plaintiff cannot obtain relief which has not been requested or sought in the pleadings. The pleadings enable the parties to decide in advance of the trial what evidence will be needed.

28. When it comes to assessment of damages, the onus is upon a plaintiff to prove his/her/its loss. Injia J (as he then was) cited the following passage from McGregor on Damages in Yange Langan v. Independent State of Papua New Guinea, (1999) N1369:

"The plaintiff has the burden of proving both the facts and the amount of damages before he can recover substantial damages. This follows from the general rule that the burden of proving a factor is upon him, who alleges it and not upon him who denies it so that where a given allegation forms an essential part of a person's case, the proof of such allegation falls on him. Even if the defendant failed to deny the allegations of damage or suffers default, the plaintiff must still prove his loss".

29. In Gau v. G & S Ltd (2018) N7198, Cannings J set out the general principles for assessment of damages. His Honour held that the general principles for assessment of damages are:

(i) the plaintiff has the onus of proving his losses, it is not sufficient to rely on assertions in the statement of claim (Yooken Paklin v The State (2001) N2212);

(ii) corroboration of a claim is required (Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331);

(iii) the fact that damages cannot be assessed with certainty does not necessarily relieve the wrongdoer of the necessity of paying some amount of damages (Graham Mappa v ELCOM (1992) N1093).
30. In the present case, I find that the Plaintiff’s claim for K215,088.16 was not specifically pleaded with particulars in the Statement of Claim. There was no foundation for this claim in the pleadings. The Plaintiff cannot obtain relief which has not been requested or sought in his pleadings. The onus was on the Plaintiff to prove his loss. This, he failed to do so. Therefore, the Plaintiff will not be awarded K215,088.16.

31. No claims for damages for suffering, inconvenience and hardship were pleaded in the Prayer for Relief in the Statement of Claim. The Plaintiff did not plead general damages for distress. Pleadings ride the evidence. The Plaintiff has the burden of proving both the facts and the amount of damages before he can recover damages. I find that there was lack of proper foundation in the Plaintiff’s pleadings, and credible evidence to establish damages for suffering, inconvenience, hardship and distress. The Plaintiff cannot ask for what he has not pleaded in his Statement of Claim. He cannot get what he does not ask for. The onus was on the Plaintiff to prove his losses. This, he failed to do so. I will not step outside the pleadings and make inferences to support the Plaintiff’s claim for additional damages. There is no basis to assess and allow any damages. Damages are therefore not payable by the Defendants to the Plaintiff.

32. I agree with Mr Geroro that where a contract has been unlawfully terminated pursuant to a written contract, assessment should be by reference to the notice period.

33. It is settled law that an employer can terminate an employee's employment by giving the employee notice or payment in lieu of notice equivalent to the period of notice. To measure an unlawfully terminated employee’s damages, the relevant period of notice is the one the contract provides for or one imposed by legislation.
34. A Plaintiff can only claim for the notice period: Porgera Joint Venture v. Kami (2010) SC1060.

35. In the present case, the relevant period of notice is provided in Clause 4.2 of the employment contract which reads:

“The employment of the Employee may be determined at any time by either of the parties hereto giving to the other of them two (2) weeks written notice to that effect or on the part of the Company by the payment to the Employee of two (2) weeks salary by the Company in lieu of notice or on the part of the Employee by foregoing two (2) weeks salary in lieu of notice.”

36. The Court’s function in contracts is to look for the intention of the parties expressed in their contract and uphold them in so far as possible. I find that the Plaintiff was entitled to 2 weeks notice. The Defendants’ evidence show that the Plaintiff was paid all his entitlements and given 4 weeks wages in lieu of notice. Mr Ifina confirmed that his client had been paid. The Plaintiff is only entitled to be paid for the notice period. Money in lieu of notice was paid by the Defendants to the Plaintiff. There is no basis to assess and allow any damages. The Plaintiff is therefore not entitled to receive additional damages.

CONCLUSION

37. The default interlocutory judgment resolved the issue of liability on the matters pleaded by the Plaintiff in his Statement of Claim and prayed for. The Plaintiff did not discharge his onus of producing credible evidence to establish his claims for additional damages. The Plaintiff has been paid all his entitlements. There are no other entitlements due and owing to him. I therefore assess no damages as being payable by the Defendants. Damages are not payable by the Defendants to the Plaintiff. The Plaintiff has not proven his case. His claim is therefore dismissed.

COURT ORDERS

38. I make the following orders:

1. Damages are not payable by the Defendants to the Plaintiff.

2. The Plaintiff’s claim is dismissed.

3. The Plaintiff shall pay the Defendants’ costs of the proceedings on a party-party basis, to be taxed if not agreed.
________________________________________________________________
S. Ifina: Lawyer for the Plaintiff
Geroro Lawyers: Lawyers for the Defendants