N9861

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 947 OF 2014

BETWEEN:
WERA MORI in his capacity as member for Chuave Open Electorate and as Chairman of the Joint District Planning & Budget Priority Committee
-Plaintiff-

AND:
SENIOR SERGEANT HICKSY TAUKA of the First Royal Pacific Infantry Regiment, Taurama Barracks
-First Defendant-

AND:
LIEUTENANT ELISAN GARESA in his capacity as the Officer in Charge of the First Defendant and other members of the contingent of First Royal Pacific Infantry Regiment to Chuave Simbu Province
-Second Defendant-

AND:
BRIGADIER GENERAL GILBERT TOROPO in his capacity as the Commander of the Papua New Guinea Defence Force
-Third Defendant-

AND:
JOHN PORTI in his capacity as the Secretary of the Department of Defence
-Fourth Defendant-

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
-Fifth Defendant-

Waigani: Tamade AJ
2022: 30th May, 12th August

DAMAGES – appeal to supreme court – trial on assessment of damages after entry of default judgment – statement of claim does not disclose a reasonable cause of action – Plaintiff has no standing to sue in his capacity as chairman for Chuave District Administration – no evidence to show legitimate owner of the vehicle – an award on damages in favour of the Plaintiff against the Defendant is refused

Cases Cited:

The following cases are cited in the judgment:

Mel v Pakalia [2005] PGSC 36; SC790 
Maku v Maliwolo [2012] PGSC 5; SC1171
Wapi v Ialy [2014] PGSC 32; SC1370 
Rombil v Pitpit [2018] PGNC 244; N7344 

Counsel:
	
Mr John Napu, for the Plaintiff
Ms Priscilla T Ohuma, for the Defendants

12th August, 2022

1. 	TAMADE AJ: The Plaintiff filed an application for default judgment which was refused by the National Court and the Plaintiff appealed to the Supreme Court. The Supreme Court upheld the appeal in SCA 141 of 2017 on 25 February 2020 and this is a decision on trial on assessment of damages.

2. 	The Plaintiff filed these proceedings as the Member for Chuave District and Chairman of the District Development Authority. 

3. 	The Plaintiff relies on the Affidavit of Mr Wera Mori sworn on 21 September 2021 and filed on 28 September 2021 which is tendered as Exhibit P1. 

4. 	Mr Wera Mori states that he is the Member for Chuave. The vehicle the subject of these proceedings was given to the Village Courts in Chuave when on 25 January 2014, it was driven by officers of the PNG Defence Force who used it to repatriate the body of a deceased soldier from Chuave to Morobe Province when the subject vehicle was involved in an accident at Erap in Morobe Province and was completely written off. 

5. 	Mr Mori states that a letter dated 27 January 2014 was written to the Commanding Officer of the PNG Defence Force for a replacement of the vehicle as the vehicle was given to the Taurama Barracks Contingent to use for the repatriation of their colleague. The vehicle was also given as the father of the deceased is a senior administration driver under the Chuave District Administration.

6. 	Mr Markus Warip, the District Administrator for Chuave then wrote a letter dated 29 January 2014 to the Provincial Administrator in Kundiawa to report to him the accident and the loss of the said vehicle belonging to the Chuave District Administration. In a letter dated 4 February 2014, the Provincial Administrator Mr Joe Kunda Naur wrote to Mr Warip, the District Administrator and expressed his frustration at the loss of the said vehicle which is said to be only three months in use and urged Mr Warip to pursue the Defendants for a replacement vehicle. 

7. 	On 26 March 2014, Mr Warip was served with charges under the Public Service (Management) Act for wilfully and negligently giving away a District Vehicle to the Defence Force officers for use which ended up in the accident which rendered the vehicle a complete write off.

8. 	The Plaintiff therefore claims for loss of the subject vehicle and also costs for hire of the vehicles to carry out the function of the village Courts in Chuave District. The Plaintiff claims a loss of K1 000 per day as loss of use of the said vehicle from 25 January 2014 until paid, for costs of housing the PNG Defence Force Officers and catering for them in the sum of K30 192.00 and costs in the sum of K132 232.00 in which the Plaintiff says it is to mitigate the loss. The Plaintiff is also claiming loss and distress on the District Administrator at K200 per day.

9. 	The Defendants on the other hand object to the claim by the Plaintiff and seek to revisit the issue of liability on this matter strenuously arguing that the Plaintiff has not put forth any evidence to say who is the owner of the subject vehicle. The Defendants state that the Plaintiff is suing in these proceedings as the Member for Chuave whilst the vehicle he is claiming damages on is said to be owned by the Chuave District Administration and assigned to the Village Courts in the Chuave District.

10. 	The Supreme Court case of Mel v Pakalia sets out the principles for consideration in a hearing on assessment of damages which are as follows:

“The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person’s case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)

• Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia J.)

• The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. (Peter Wanis v Fred Sikiot and The State (1995) N1350, National Court, Woods J.)

• The same principles apply after default judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence. (Yange Lagan and Others v The State (1995) N1369, National Court, Injia J.)

• If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, National Court, Injia J.)

• Where default judgment is granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1993] PNGLR 370, Supreme Court, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, National Court, Injia J.)

• The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the Court must do the best it can. (Jonathan Mangope Paraia v The State (1995) N1343, National Court, Injia J.)”

11. 	The Defendants therefore argue that the Court should revisit the issue of liability notwithstanding that default judgment has been entered as the Plaintiff has no standing to issue these proceedings as he nor his capacity as Member for Chuave has any right to ownership of the subject vehicle and therefore there is no cause of action disclosed in the matter.

12. 	 In the case of Maku v Maliwolo, the Supreme Court held that:

“As a general rule, a default judgment entered by consent or otherwise determines the issue of liability and the only issue for determination by the Court is assessment of damages. Therefore, it is not open to the Court to revisit or relook at the issue of liability. However, there is an exception in cases where the pleadings do not disclose a cause of action in law. William Mel -v- Coleman Pakalia, The Police & The State (2005) SC790; Titus Wambun -v- The Commissioner of Police & The State (2009) N3787 and Keith Reith -v- Murray Hallam and Allcad Pty Ltd (1995) N1337 referred to.”

13. 	The Supreme Court in the case of Wapi v Ialy also said this:

“ Given the above, we are of the view that where a judgment, be it default or otherwise, has been entered, and a primary judge determines, after concluding a hearing to assess damages, that the plaintiff has not sufficiently proved his loss or that no cause of action is disclosed in the statement of claim or that the pleadings are defective or that the claim is frivolous or vexatious or is an abuse of process, he is entitled to refuse to make an award of damages. This is in accord with him being able to consider the question of liability for the damages claimed. To dismiss the entire proceeding however, in the absence of any application to set aside, as in this case, the effect of which is to review the decision to enter judgment and to set such judgment aside, is in our respectful view, to fall into error.”

14. 	I find that the Plaintiff has not produced any evidence at all as to who owns the subject vehicle.

15. 	There is therefore no evidence to say that the Plaintiff has some right over the subject vehicle to claim for the loss of the vehicle and in order to be paid compensation or damages for the vehicle. When posed this question at the trial of the matter to Mr Napu for the Plaintiff, Mr Napu’s response was unsatisfactory. 

16. 	I will therefore take the approach in Rombil v Pitpit where the Court followed the Supreme Court cases of Maku v Maliwolo , Wapi v Ialy and Mel v Pakalia and refused to grant any award of damages finding that no cause of action was disclosed in the Statement of Claim.  

17. 	I therefore find and uphold the submissions by the Defendants that the Plaintiff has no standing to sue in these proceedings to show at which capacity he is suing over the subject vehicle allegedly owned by the Village Courts in Chuave District or by the Chuave District Administration. There is also no evidence to substantiate who has legitimate title or ownership of the said vehicle. The Plaintiffs claim will be refused on these bases.

18. 	I therefore make the following orders:

i)	The Plaintiff’s claim for damages is refused.
ii)	The Plaintiff shall meet the Defendants costs of these proceedings to be taxed if not agreed.

Orders accordingly.
_____________________________________________________________	
Napu & Company Lawyers: Lawyers for the Plaintiff 
Office of the Solicitor General: Lawyers for the Defendants