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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 1273 OF 2019
BETWEEN:
JAMES URIM DUK
-Plaintiff-
AND:
BEN AMALA
- Defendant-
Lae: Dowa J
2021: 22nd September
2022: 30th November
CIVIL ACTION IN TORT-CLAIM FOR UNLAWFUL DAMAGE TO PROPERTY-– defence of res judicata, whether defence of res judicata made out, consideration of principles of res judicata- Crossclaim on outstanding land rental-parties succeeded on respective claims- set off-judgment for plaintiff on balance of claim.
Cases Cited:
Titi Christian v Rabbie Namaliu (1996) SC1583
National Airline Commission v Lysenko [1990] PNGLR 266
AGC (Pacific) Ltd v Sir Albert Kipalan (2000) N1944
Kundu Consultants Ltd v The State (2001) N2128
Telikom PNG Ltd v ICCC (2008) SC906
Yooken Paklin v The State (2001) N2212
Peter Wanis v Fred Sikiot and The State (1995) N1350
Enaia Lanyat v State (1996) N1481
Obed Lalip v Fred Sekiot and The State (1996) N1457
Jonathan Mangope Paraia v The State (1995) N1343
Samot v Yame (2020) N8256
Counsel:
K. Kevere, for the Plaintiff
K. Aisi, for the Defendant
DECISION
30th November, 2022
1. DOWA J: This is a substantive decision on competing claims by the parties. The Plaintiff is claiming damages for unlawful destruction of property. The defendant crossclaims against the Plaintiff seeking damages for outstanding rental payments.
Facts
2. The Plaintiff originally from Karkar, Madang Province, is a resident of Lae, in the Morobe Province. The defendant is a customary landowner of Abongtu clan of Busu, Morobe Province.
3. The Plaintiff entered a lease agreement with the defendant in 2002, on a customary land, at Malahang, Lae, Morobe Province. Under the terms of the agreement, the Plaintiff was to pay a yearly rent of K500.00.
4. The Plaintiff moved onto the land in 2002 and constructed a residential home. Thereafter he constructed a permanent corrugated iron fence around the perimeters of the property. It is alleged, it cost the Plaintiff about K51,727.36 to construct the fence.
5. On 28th February 2018, the Defendant without a good reason demolished the entire perimeter fence. The Defendant was then arrested and charged for wilful destruction of the Plaintiff’s property.
6. On 17th October 2018, the defendant was convicted by the District Court and sentenced to one year imprisonment. The sentence was suspended, and the defendant was placed on good behaviour bond with a recommendation for recovery proceedings in a civil suit. The defendant has since paid the K 10,000.00 in compensation to the Plaintiff.
7. The Plaintiff is now claiming the balance of the cost for the fence destroyed by the defendant.
8. The Defendant filed a defence alleging that; the Plaintiff failed to review his annual rental, failed to pay for the renewed annual rent, constructing a permanent fence on customary land without permission, and that he was paid K10,000.00 in full and final settlement as per direction of the District Court.
9. The Defendant filed a cross claim of K32,500 being for the outstanding land rentals for the period of May 2007 to May 2020.
Issues
10. The issues for consideration are:
Trial by Affidavits
11. The parties agreed to conduct trial by affidavits. They tendered their respective affidavits without cross examination.
Plaintiff’s Evidence
12. The Plaintiff relies on the following Affidavits:
13. This is the summary of the Plaintiff’s evidence. The Plaintiff entered into a customary land lease agreement with the defendant in April 2002 to lease a small plot of the defendant’s customary land known as “Abongtu” located along the Bumayong-Malahang main road, north of Lae city. The agreement was further strengthened by a subsequent Clan Land Usage Agreement signed by Plaintiff with the Abongtu Luhu clan of Kamkumung. The major terms of the agreement were that the land would be used for residential building and the rent was fixed at K500.00 per annum renewable every five years. The Plaintiff built on the said property a residential building. After many years later, the Plaintiff constructed a galvanized security/perimeter fencing on the demised property. On 28th February 2018, the defendant engaged a backhoe to demolish the perimeter fencing. The fence was destroyed. The Plaintiff deposed that it cost him about K 51,727.36. to put up the fence and as a result he suffered loss of K 51,727.36.
14. A complaint was lodged with police. The defendant was charged with wilful destruction of property and was sentenced to one year prison term. The sentence was suspended, and he was placed on good behaviour bond, and in addition to this the Plaintiff paid K 10,000.00 compensation to the plaintiff witnessed by the District Court officials.
15. In response to the defence and crossclaim by the defendant, the Plaintiff said the District Court did not exhaustively deal with damages he suffered. The learned Magistrate did not have the necessary jurisdiction and suggested to the Plaintiff to commence recovery proceedings in the National Court if he wished for the damage to the property. He said the cost for damage exceeded the jurisdiction of the District Court and he is free to institute these proceedings in the National Court. Finally in respect of the cross claim for the outstanding rental fees, the Plaintiff said the annual fees were not negotiated and there is no agreement in place for the rates to be increased from K500.00. The defendant failed to initiate a meeting for a review and any increase of the rent was done without his knowledge and input.
The defendants Evidence
16. The Defendant relies on the following affidavits:
17. The defendant deposed that the Plaintiff was allowed to settle on his customary land under the customary land usage agreement. The plaintiff was allowed only to build a residential home. He was not permitted to construct a galvanised perimeter fence. Secondly, the plaintiff breached the terms of the customary land lease agreement by not paying the yearly rental which was outstanding at k 32,500.00 at the time of these proceedings.
18. Further, the Defendant deposed that the District Court made an order that the Defendant pay for the damages done to the fence. He paid K10, 000.00 to the Plaintiff on 14th June 2019 and the claim is therefore settled in full and nothing outstanding.
19. In respect of the crossclaim, the defendant seeks judgment for K 32,500.00 for the outstanding rental payments for the years 2007-2020 at various rates claimed in the Crossclaim.
Consideration of the issues
20. On 28 February 2018, the Defendant engaged a backhoe and wilfully destroyed the Plaintiff’s perimeter security fence. There is no dispute as to the wilful destruction of the fence by the defendant. The defendant’s contention is that the plaintiff was not allowed to erect a permanent fence on the customary land. The Defendant contends further that he has already paid K10,000.00 to the Plaintiff in full compensation for the damage.
21. The Plaintiff has been living on the property for more than 15 years by 2018. Between 2014 and 2015, the Plaintiff put up the perimeter security fence over a 20m x 40 m area. The Plaintiff deposed that the fence was necessary to secure his property, for he has built on the demised premises a high covenant residential home. The fence was constructed by galvanised V-Crim fencing with steel posts. According to the Plaintiff’s evidence it took him more than six months from late 2014 to May 2015 to construct the fence. I have perused the Customary Land Usage Agreement executed by the parties and note that nothing in the agreement prevents the Plaintiff from making a permanent galvanized perimeter fence. There is no evidence of objection by the defendant.to the construction of the fence by the Plaintiff. There is no evidence of the defendant requesting the Plaintiff to pull down the fence. The fence was built in 2015 and it took the defendant three years to show his objections. More interestingly, the fence was taken down in the absence of the Plaintiff who was away in his home province, a cowardice act.
22. I take judicial notice that the matter was dealt with by the District Court in its criminal jurisdiction. The Defendant was charged for wilful destruction of property under section 444(1) of the Criminal Code Act and was found guilty and convicted. A certificate of conviction was produced in evidence which is relevant and has probative value in establishing liability.
23. The defendant has raised the defence of res judicata. In defending the proceedings, the Defendant pleaded that the District Court made an order that the Defendant pay for the damage done to the Plaintiff’s property. He paid K10, 000.00 on 14th June 2019 and submits that the claim is settled in full, and the Plaintiff is estopped from raising the issue again.
24. The Defendant’s defence is based on the common law principle of res judicata. The basic principles on the doctrine of res judicata are set out by the common law. They are adopted and applied in the cases Titi Christian v Rabbie Namaliu (1996) SC1583, National Airline Commission v Lysenko [1990] PNGLR 266; AGC (Pacific) Ltd v Sir Albert Kipalan (2000) N1944, Kundu Consultants Ltd v The State (2001) N2128 and Telikom PNG Ltd v ICCC (2008) SC906.
25. Four basic principles emerge from the above cases which a party relying on the defence of res judicata must show to succeed:
ii. The issues(s) in both cases are the same.
26. I will apply the above principles to the present case. Firstly, the parties are not the same. Although the Plaintiff was the complainant, the criminal proceedings were initiated by the police informant. Secondly, the issues before the District Court exercising criminal jurisdiction are not the same. The issue before the District Court was whether the defendant was guilty of a criminal offense whereas the issue before this Court is whether the defendant is liable for damages in a civil suit.
27. Thirdly, the decision of the District Court did not extinguish the foundation of the claim. The decision was restricted to the finding of the guilt of the defendant and sentence. I note from the depositions of the District Court proceedings, especially the decision of 17th October 2019 that the Court did not make any specific order directing the defendant to pay damages. although a sum of K10,000.00 was paid by the defendant to the Plaintiff sometime later. On the other hand, the learned Magistrate being aware of his lack of jurisdiction, noted a suggestion in his decision that the Plaintiff, if he wishes, can institute recovery proceedings in the National Court. In the absence of a specific order, I find that the District Court decision did not in any way extinguish the Plaintiff’s claim. Finally, the District Court did not have jurisdiction to decide in satisfaction of the Plaintiff’s claim. Even an order for compensation for K10,000.00 would fall short of the value for damage done to the Plaintiff’s property which exceeded the civil jurisdiction of the District Court.
28. For the foregoing reasons, I find the defendant has not established the defence on res judicata. On the other hand, I find the Plaintiff has proved his claim on the balance of probabilities that on 28th February 2018, the defendant engaged a backhoe from Dekenai Construction which at his request and authorisation destroyed the Plaintiff’s perimeter fence to his residential property.
I find the defendant liable.
29. Whilst the issue of liability is settled, the Plaintiff is still required to prove damages with credible evidence. Ref: Yooken Paklin v The State (2001) N2212, Peter Wanis v Fred Sikiot and The State (1995) N1350, Enaia Lanyat v State (1996) N1481; Obed Lalip v Fred Sekiot and The State (1996) N1457; Jonathan Mangope Paraia v The State (1995) N1343, and Samot v Yame (2020) N8266.
30. In the statement of claim, the Plaintiff claims the following heads of damages:
31. It is important to observe at this stage that counsel for the parties made no submissions on quantum. To that end, counsel did not assist the Court, nor did they represent their respective parties well.
General Damages
32. General damages are usually awarded for pain and suffering. The present case is an appropriate one for an award. However, the Plaintiff did not present evidence in support, although he pleaded a relief under this head of damages in the statement of claim. I also note, the counsel for the Plaintiff made no submissions. It seems the Plaintiff has abandoned this head of damages and thus no award shall be made.
Cost for Damage to property. K 51,727.36
33. The Plaintiff claims K 51,727.36 under this head of damages. This amount comprises of K31,727.36 for fencing materials and K20,000.00 for labour and equipment hire. The Plaintiff produced 26 invoices and receipts for payments totalling the sum of K31,727.36. The tax invoices and payment receipts were all issued in the name of the Plaintiff. They were issued on various dates between 20th November 2014 and 22nd April 2015 being the relevant period of construction of the fence. The materials particularised or described in the relevant invoices are consistent with or for the purpose of constructing a galvanized fencing. I am satisfied that the Plaintiff did incur these costs for the materials and accept them as credible evidence. The Plaintiff has there proved his claim for the material cost in the sum of k 31,727.36. I note that the fence was about three years old when destroyed. Should the Court allow for depreciation on the materials. Weighing this against the cost of replacement due to the continuous inflation, I will not allow a deduction.
34. As for the K20,000.00, the Plaintiff deposed that he engaged the youth in the neighbourhood which cost him K12,000.00 for the relevant period and spent the balance for the hire of equipment like genset, welding machine, grinders, and protective hand gloves. It is difficult to ascertain the exact cost for the labour and equipment. He did not provide further particulars. Despite the difficulty in ascertaining the figures, I accept that it did cost the Plaintiff for labour and equipment. I will allow 50% of the claim, that is K10,000.00. The total amount allowed under this head of damages is K41,727.36.
Out of pocket expenses
35. The Plaintiff claims K325.00 being for out-of-pocket expenses. Although the claim was pleaded, no evidence was presented and therefore no award shall be made.
Interest
36. The Plaintiff is claiming interest. I will allow interest at the rate of 8% on the amount assessed. Interest is to commence from date of writ of summons, (10/10/2019) to date of judgment (02/12/ 2022) for a period of 1148 days. Interest is calculated as follows:
K 41,727.36 x 8/100 = K 3,338.19
K 3,338.19/365 days = K 9.15 per day
K 9.15 x 1148 days = K 10,504.20
37. The final award inclusive of interest to be made in favour of the Plaintiff is K52, 231.56.
Deduction for K 10,000.00
38. The defendant paid K10,000.00 on 14th June 2019. This amount shall be deducted from the judgment of K52,231.56 leaving a balance of K42,231.56.
Cross Claim
39. The defendant cross claims against the Plaintiff a sum of K32, 500. 00 for outstanding annual rental for the land. The amounts are for the years 2007 to 2020. The details of this claim are particularised in paragraph 7 of the cross claim.
40. In response, the Plaintiff submits that there was no agreed sum for the annual rent after the initial term expired. The parties did not meet to review the annual rental and it was not his fault. The Plaintiff submits the increased rental figures claimed by the Cross claimant have not been agreed by the parties.
41. There is no dispute that the Plaintiff has not paid the annual rent since 2009. The initial agreed sum was K500.00 per year for the first five years. The five years expired in May 2007. There is no evidence of parties negotiating for the new rate for the next term. The Defendant/Cross claimant deposed that the annual rents have increased over the years. He has asked the Plaintiff to pay but he has refused. The Defendant/cross claimant has not produced any documentary evidence to show details. The Plaintiff deposed that he did not pay because he was not called upon for a meeting for the review of the rentals by the Defendant. It is noted the new annual rental shows a sharp increase from K500 to K1,500 for the years 2007 to 2011 and thereafter increased further to K3,500 for the period 2017 to 2020. I note there is no evidence of an agreement being reached by the parties. In my view both parties are at fault. It is in their interest to meet and agree on the amount for the rent.
42. In my view the rent is due for an adjustment with a gradual increase, rather than a sudden sharp increase as charged by the Defendant/Cross claimant. However, that is a matter for the parties to negotiate. The absence of an agreement does relieve the Plaintiff from meeting his obligations. On the same token the absence of an agreement should not deny the defendant/cross claimant from being entitled to an increased amount for the annual rent. I am prepared to consider a reasonable figure between K1,000.00 at the lower end and K 2,500.00 at the highest. For the purposes of this claim, I consider K 1,200.00 as appropriate and reasonable given inflation and increases in rentals over the years. The last payment made by the Plaintiff was for the year 2009. The assessed amount shall be for the last 12 years which amounts to K 14,400.00. There shall be an award of K 14,400.00 on the crossclaim.
43. The Defendant/cross claimant is entitled to interest on the cross claim at 8%. Interest is to commence from date of filing of crossclaim, (04/03/2020) to date of judgment (02/12/ 2022) for a period of 1003 days. Interest is calculated as follows:
K 14,400x 8/100 = K 1,152.00
K 1,152/365 days = K 3.16 per day
K 3.16 x 1003 days = K 3,169.48
44. The final award inclusive of interest to be made in favour of the Cross claimant is K 17,569.48.
Set off
45. The amount for the award on the Crossclaim can be set off against part of the award in favour of the Plaintiff. After allowing for the deduction of K 17,569.48 from K 42,231.56, the Plaintiff is entitled to K24,662.08.
Costs
45. Both parties were successful in their respective claims. However, it was the Plaintiff who initiated the proceedings with a successful outcome in his favour. The Plaintiff shall be awarded 50% of the cost after taxation.
Orders
46. The Court orders that:
________________________________________________________________
Public Solicitors Lawyers: Lawyers for the Plaintiff
Kelly Naru Lawyers: Lawyer for the Defendant
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