Akefe v Gamato [2024] PGNC 128; N10770 (3 May 2024)

N10770

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 70 OF 2021 (CC1)

BETWEEN
ROBIN AKEFE
Plaintiff

AND
PATILAS GAMATO – Electoral Commissioner of Papua New Guinea
First Defendant

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Defendant

Goroka: Collier J
2024: 3^rd May

CIVIL PRACTICE AND PROCEDURE – application for default judgment pursuant to Order 12 Rule 27 (1) or Order 12 Rule 28 of the National Court Rules or alternatively summary dismissal pursuant to Order 12 Rule 1 or Order 12 Rule 3 of the National Court Rules – claim by plaintiff for damages in respect of services provided to Electoral Commission – no defence filed by defendants – Notice of Motion seeking default judgment filed – whether proceedings invalid because State not named as a defendant – power of Court to direct entry of judgment pursuant to Order 12 Rule 32 National Court Rules – principles concerning exercise of judicial discretion to order default judgment – evidence filed by defendants day before the hearing

Facts

By Writ of Summons and Statement of Claim the plaintiff claimed K138,000.00 for services rendered to the Electoral Commission in the conduct of the election and counting in the 2012 National Election and 2013 Local Level Government Election. The plaintiff claimed that the management of the Goroka Branch of the Electoral Commission, led by Mr James Pia Pia, promised that the plaintiff would be paid at the conclusion of the elections. No payments were forthcoming. The plaintiff relied on various documents from the defendants confirming the debts they owed him. The defendants filed a Notice of Intention to Defend, however did not file a Defence. On 17 March 2023 Mugugia AJ dismissed an application of the defendants to dismiss the proceedings on the basis that they were time barred or alternatively for want of a Section 5 Notice pursuant to the Claims By and Against the State Act 1996. When the parties appeared for trial Counsel submitted that liability findings could be made, with damages assessed after substantive findings made. The defendants submitted however that the proceedings should be dismissed because no Notice of Motion for default judgment had been filed, the State was not a party to the proceedings and the proceedings were accordingly incompetent, and the pleadings were too general and not supported by the evidence. The plaintiff submitted that default judgment could be ordered because a Notice of Motion for default judgment had been filed, a Section 5 Notice had been served, it was unnecessary for the State to be named as a defendant because the Electoral Commission was capable of suing and being sued in its own name, and the pleadings were in proper form and supported by evidence.

Held:

Contrary to the contentions of the defendants, a Notice of Motion seeking default judgment was filed by the plaintiff on 14 April 2023. It was appropriate that a Section 5 Notice be served by the plaintiff, and the plaintiff had plainly done so. It was however unnecessary for the State to be specifically named as a defendant, and in any event that matter had been determined by Mugugia AJ on 17 March 2023. Order 12 Rule 32 empowered the Court to direct the entry of such judgment against the defendants as that to which the plaintiff appears to be entitled. An order for default judgment was an exercise of the Court’s discretion. It was appropriate for an order for default judgment to be made in the circumstances of the case, with the defendants liable for the costs of the plaintiff. The assessment of damages was to be listed for determination by the National Court.

Cases Cited:
Bank of South Pacific Ltd v Tingke [2014] SC1355
Chief Executive Officer, Telikom PNG Ltd v Minji [2023] SC2437
Gregory Tavatune v. Dr. Novette, Christopher Pasmat, Danny Gre and Elias Kapaware of Vanimo General Hospital (2012) N4611
Isoaimo v Aihi [2024] SC2562
Kunton v Junias [2006] SC929
Phannaphen v Pundari [2024] N10750
Yakos v Pundari [2024] N10752
Yopo v Electoral Commission of Papua New Guinea [2014] N5883

Legislation:
Claims By and Against the State Act 1996, s 5
Fraud and Limitation Act 1988, s 16 (1) and (2)
National Court Rules, o 12 rr 25, 27, 32 and 40(1)(c)
Organic Law on National and Local-level Government Elections

Counsel:
Mr R Yombon, for the Plaintiff
Mr K Akeya, for the Defendants

03rd May 2024

1. COLLIER J: Before the Court are
   
   • a Writ of Summons filed by the plaintiff on 8 March 2021 for payment of K138,000.00 for services rendered to the defendants for officers from Henganofi in the conduct of the election and counting in the 2012 National Election and 2013 Local Level Government election; and
     
   • a Notice of Motion filed by the plaintiff on 14 April 2023 seeking default judgment for the plaintiff for K138,000.00, in the alternative for default judgment for damages to be assessed, and in the further alternative, that summary judgment be entered for the plaintiff for the sum of K138,000.00 or for damages to be assessed.
     
2. Materially, in the Writ of Summons the plaintiff claims the following:
   
   1. The Plaintiff is an individual who has legal capacity to sue and be sued and in these proceedings the Plaintiff sues.
      
   2. The First Defendant is the Chief Electoral Commissioner of Papua New Guinea, an adult who has the legal capacity to sue and be sued and in these proceedings he is sued in his official capacity.
      
   3. The Second Defendant has the legal capacity to sue and be sued, hence being sued in these proceedings.
      
   4. The Plaintiff was requested by the management of the Second Defendant’s office at Goroka to provide accommodation, meals and catering services to officers from Henganofi involved in the conduct of the election and counting in the 2012 National Election and 2013 Local Level Government election.
      
   5. The Second Defendant’s management of the Goroka Branch led by James Piapia assured the Plaintiff would be paid at the conclusion of each of the elections.
      
   6. The Plaintiff agreed and provided the services that were required of him particularly, accommodation, catering and security services. Details will be provided at trial when the invoices are tendered as evidence. The agreement referred to above was done orally between the parties.
      
   7. The Plaintiff provided an invoice for K138 000 by way of an invoice dated 12^th September 2013. The Plaintiff waited for payment but the payment was delayed. Every occasion the Plaintiff followed up; he was advised that he would be paid.
      
   8. The Plaintiff was not paid despite several documents from the Defendant confirming his debts. The letters are as follows:
      

a. letter dated 27th October 2015,
b. a hand written note dated 25th February 2017
c. cheque requisition form dated 27th October 2017
d. letter dated 23rd February 2017
e. letter dated 8th February 2017

9. Each of these letters latest being dated February 2017 renewed the Plaintiffs cause of action or claim.

10. The Plaintiff is owed the amount pleaded above despite the services rendered and that the Defendants used or consumed the services. The Defendant is in breach of the agreement to pay him after services provided.

11. The 3^rd July 2020 the Plaintiff served notice under section 5 of the Claims By and Against the State Act 1996 after the National Court granted extension on the 18th June 2020.

The Plaintiff Claims: -
a. K138, 000 owed for services rendered.
b. Interest.
a. Cost.

3. It is useful to set out a brief background and timeline of events in these proceedings before turning to the issues before the Court.
   

BACKGROUND

4. On 17 March 2023 Mugugia AJ ruled on an application to dismiss the proceedings. In that judgment her Honour set out background facts as follows:
   

FACTUAL BACKGROUND

2. The Plaintiff's claim is that the management of the Second Defendant’s office in Goroka requested him to provide accommodation, meals and catering services to officers from Henganofi who were involved in the conduct of the election and counting in the 2012 National Election, and 2013 Local Level Government election.

3. The allegation is that the Second Defendant’s officer one James Piapia assured the Plaintiff that he would be paid at the conclusion of the elections. The Plaintiff agreed and provided the services that were required. This was based on an oral agreement. The Plaintiff provided an invoice dated 12^th September 2013 for K 138,000.00. Payment of this invoice was not made and delayed. This resulted in the institution of the current proceedings.

5. The defendants filed a notice of intention to defend on 12 February 2022. At no point in these proceedings has a defence been filed by the defendants.
   
6. On 2 February 2023, the defendants filed a Notice of Motion seeking dismissal of the entire proceedings as being time barred pursuant to s 16 (1) and (2) of the Fraud and Limitation Act 1988, or alternatively dismissal for want of Section 5 Notice pursuant to the Claims By and Against the State Act 1996. That Notice of Motion was heard and dismissed by her Honour Mugugia AJ on 14 March 2023 and 17 March 2023 respectively.
   
7. The matter was listed for summary determination by his Honour Kandakasi DCJ on 8 December 2023. Further orders of his Honour on 13 March 2024 adjourned the matter to 14 March 2024. Finally, his Honour ordered on 14 March 2024 that the matter be adjourned to be heard before me.
   
8. I note that Mr Akeya twice sought adjournment of the hearing conducted on 1 May 2024 but withdrew his request upon the Court seeking confirmation of the same. The first time at a callover conducted on Monday 29 April 2024, Mr Akeya indicated that his client was not ready to proceed to hearing in that week, but later when asked if he would be seeking an adjournment said that he had intended to seek a month’s adjournment but would instead make oral submissions at a hearing listed in that week. The hearing was consequently set down to be heard on Wednesday 1 May 2024. Again, at a callover for a different matter in which Mr Akeya was acting, on the morning of Wednesday 1 May 2024, Mr Akeya indicated to the Court, without Mr Yombon present, that he would be seeking a two-week adjournment of this matter at the hearing that afternoon. When the parties returned at 1:30pm for hearing of the matter, I asked Mr Akeya if he still intended to seek an adjournment of the matter and he replied that we would not be seeking the adjournment and would be prepared to proceed with the hearing.
   
9. The hearing was conducted on the question of liability only, with the assessment of damages to be conducted at a later date.
   

SUBMISSIONS OF THE PLAINTIFF

10. The plaintiff relied on three affidavits of Mr Robin Akefe, one filed on 13 March 2023, two filed on 27 March 2023, as well as the affidavit of search of Ms Regina Maso filed 14 April 2023 and the affidavit of service of Mr Cedric Sinia filed on 2 December 2022.
    
11. The plaintiff submitted in relation to liability, in summary that:
    
    • A judgment should be entered for the plaintiff as there was no defence before the Court and a defence cannot be made out with only evidence in the absence of pleadings.
    • The plaintiff was engaged for the provision of services and it was agreed by oral contract that the defendants would pay for the provided services at a later date when funds were made available.
    • That the monies sought are owed by the defendants, has been admitted by the second defendant’s employees namely by letters of 27 October 2015 and 8 February 2017 from Mr James Pia Pia, the Election Manager of the second defendant’s Goroka branch.
    • A requisition for the monies was drafted by the Election Manager in Goroka, however a cheque was never raised nor delivered to the plaintiff.
    • If Mr Pia Pia had no authority or knowledge to admit to the money being owed, that should have been pleaded in a defence. Mr Pia Pia wrote the letters using the Electoral Commission letterhead which indicated his authority to have made such admissions.
    • The Electoral Commission is an agent of the State and has capacity to be sued in its own right. The State was not added as a party as the issue was between the plaintiff and the Electoral Commission and if the State had been joined, they would have been a nominal defendant.
      

SUBMISSIONS OF THE DEFENDANTS

12. No defence nor written submissions were filed by the defendants. The defendants relied upon the affidavit of Mr Steven G. Kaupa, filed on 30 April 2024. Counsel for the defendants, Mr Akeya, made oral submissions in relation to process and procedure. Those submissions were in summary:
    
    • For default judgment or summary judgment to be sought there needed to be a Notice of Motion filed to that effect. There was no such Notice of Motion filed in these proceedings.
    • The plaintiff had no cause of action against the defendants.
    • The State was not a party to proceedings, thus a valid notice pursuant to s 5 of the Claims By and Against the State Act 1996 could not have been served. The State not being added as a party was an abuse of process under Order 12 Rule 40(1)(c) of the National Court Rules and the proceeding could be dismissed.
      
    • The pleadings were too general and are not supported by the evidence.
      
      • There was no letter of engagement of the plaintiff’s services on file to prove the contract existed and the monies were owed.
      • James Pia Pia was the Election Manager from 2016 to 2017, not at the relevant time, being 2012 to 2013. He therefore had no knowledge of whether the plaintiff was owed money and acted without authority. The Election Manager from 2012 to 2013, Jimmy Alluyn was not mentioned in the pleadings or evidence. Mr Pia Pia was also not named as a party to the proceedings.
      • The Goroka Electoral Commission Office does not have any record of any request for the plaintiff to provide the services for which the monies are sought.
        

CONSIDERATION

13. The plaintiff sought an order by the Court that the defendants were liable to pay the plaintiff K138,000.00 in damages with interest at a rate of 8% per annum and that the defendants pay the plaintiff’s costs of the proceedings.
    
14. It is convenient to first consider the procedural issues raised by the defendants before turning to the issue of whether the plaintiff has sufficiently proven their case.
    

No Notice of Motion Seeking Default Judgment or Summary Judgment

15. Although it was submitted by Mr Akeya that the plaintiff had not filed a Notice of Motion seeking default judgment or summary judgment, this is not the case. Such a Notice of Motion was filed on 14 April 2023 and forms document 21 on the Court file. In any event, the orders of Kandakasi DCJ on 8 December 2023 listed the matter for Summary Determination and the defendants did not ask the Court to vacate that order, nor did the defendants purport to challenge his Honour’s power to make that order. This argument has no merit.
    

The plaintiff had no cause of action against the defendants because the State was not named as defendant

16. This line of submission was objected to by Mr Yombon for attempting to adopt a line of submissions that had already been heard and determined by the Court before her Honour Mugugia AJ, that the matter was res judicata, and that the orders and reasons of her Honour had not been appealed.
    
17. In her reasons, Mugugia AJ observed that the defendants argued before the Court in that instance as follows:
    
    • The State is not named in this proceedings, and there is an error in not naming the State.
    • James Piapia who is the agent or employee of the Second Defendant's office in Goroka is not named as a defendant, and therefore the Plaintiff s claim is not properly before the Court.
    • The Defendants have no knowledge of services provided by the Plaintiff through James Piapia. The Plaintiff should sue James Piapia for the services rendered.
      
    • The cause of action arose back in 2012. The cause of action arose when the Plaintiff provided the invoice. The Plaintiff filed his proceedings well over eight years. The Plaintiff s claim is time-barred pursuant to Section 16 of the Frauds and Limitations Act, and this Court has the jurisdiction under this section to dismiss the Plaintiff’s claim.
      
18. Although the final point was not put before the Court in this instance, the first three points were again submitted by the defendants before me.
    
19. Her Honour summarised the law in relation to a Section 5 Notice as follows:
    

9. Notice to the State under Section 5 of the Claims By and Against the State Act 1996 is a condition precedent to instituting a claim against the State. If no Section 5 notice is issued prior to bringing an action against the State, the proceedings is bound to be dismissed for being an abuse of the process of the Court.

20. In her ruling, her Honour stated as follows:
    

26. The alternative order sought by the Defendants is for dismissal of the proceedings for want of Section 5 Notice to the State. I have considered the documents placed before me, and Counsels’ submissions on this issue. 1 agree with Mr Yombon that Section 5 Notice is not an issue. The proceedings will not be dismissed based on this ground.

21. Additionally, in relation to the issues surrounding cause of action, her Honour identified the cause of action as follows:
    

Identification of a cause of action - What is the Plaintiff's cause of action?

18. The Plaintiff’s pleading is that there was an oral agreement between the Plaintiff and the Second Defendant’s officer James Piapia. I find that the Plaintiff's cause of action against the Defendants is breach of agreement (contract).

22. Although her Honour Mugugia AJ did not provide specific reasons for her decision in relation to this issue, her Honour did make a finding that the Section 5 Notice was not an issue.
    
23. Plainly in circumstances where the Electoral Commission is a defendant to proceedings it is necessary that a Section 5 Notice be served: see for example Yopo v Electoral Commission of Papua New Guinea [2014] N5883. The service of the Section 5 Notice in this case was pleaded. That the Section 5 Notice was served is supported by evidence of Regina Maso in her affidavit filed 13 March 2023.
    
24. That a Section 5 Notice was served does not mean however that it is strictly necessary that the State be named as a defendant in circumstances where the Electoral Commission is a party. Certainly, in such cases as Isoaimo v Aihi [2024] SC2562, Yakos v Pundari [2024] N10752 and Phannaphen v Pundari [2024] N10750 where the Electoral Commission was or had been a defendant the State was not specifically named. I understand that the Electoral Commission, which is established under the Organic Law on National and Local-level Government Elections, is an entity which can sue and be sued under its own name.
    
25. Before Mugugia AJ the defendants similarly argued that the failure to name the State as a defendant meant that the proceedings should be dismissed. Her Honour plainly was not persuaded by that argument. As the defendants have not sought to appeal the decision of Mugugia AJ, I find that the issue is res judicata, and it is improper to consider this line of submission further.
    

Merits of application for default judgment

26. Order 12 Rule 25 of the National Court Rules materially provides:
    

25. Default

A defendant shall be in default for the purposes of this Division –
(a) ... or
(b) where he is required to file a defence and the time for him to his defence has expired but he has not filed his defence; or
(c) ...

27. Order 12 Rule 27 of the National Court Rules provides as follows:
    

27. Liquidated demand

(1) Where the plaintiff's claim for relief against a defendant in default is for a liquidated demand only, the plaintiff may enter judgement against that defendant for a sum not exceeding the sum claimed in the statement of claim on that demand and for costs.
...

28. It is not in dispute that no defence was filed by the defendants in terms of Order 12 Rule 25 of the National Court Rules. Further, by his Notice of Motion filed on 14 April 2023 the plaintiff has sought orders including for default judgment.
    
29. Order 12 Rule 32 of the National Court Rules provides that:
    

32. General.
(1) Whatever claims for relief are made by a plaintiff, where a defendant is in default, the Court may, on application by the plaintiff, direct the entry of such judgement against that defendant as the plaintiff appears to be entitled to on his writ of summons.
(2) Notwithstanding Sub-rule (1), the Court shall not, under that Sub-rule, direct the entry of judgement for the possession of land unless satisfied of the matters mentioned in Rule 30(2) and (4).

30. Plainly an order for default judgment is an exercise of the Court’s discretion: see for example Chief Executive Officer, Telikom PNG Ltd v Minji [2023] SC2437 at [29]-[30], Bank of South Pacific Ltd v Tingke [2014] SC1355 at [9], Kunton v Junias [2006] SC929. Examples of considerations which may influence the exercise of the Court’s discretion were set out in Kunton v Junias at [21] as follows:
    
    • whether the statement of claim raises serious allegations of fraud or deceit, in which case the interests of justice may require those allegations to be proved by evidence in a trial before judgment is given on the merits (Bala Kitipa v Vincent Auali, Supply and Tenders Board of Western Highlands Provincial Government and Others (1998) N1773);
    • the extent of the default by the defendant (John Kunkene v Michael Rangsu and The State (1999) N1917);
    • whether the defendant appears to have a good defence (Kunkene);
    • whether the statement of claim amounts to an abuse of process (Eliakim Laki and 167 Others v Maurice Alaluku and Others (2000) N2001);
    • whether the pleadings are vague, ie whether the statement of claim discloses a reasonable cause of action (Eliakim Laki and 167 Others v Maurice Alaluku and Others (2000) N2001, Urban Giru v Luke Muta and Others (2005) N2877);
    • whether the plaintiff has prosecuted his case diligently (Tiaga Bomson v Kerry Hart (2003) N2428);
    • whether the entry of judgment would prejudice the rights of co-defendants (Kante Mininga v The State & Others (1996) N1458, Beecroft No 51 Ltd trading as Ronnie's Hot Bread v Neville Seeto and Others (2004) N2561);
    • whether the interests of justice would be served by the entry of default judgment (Urban Giru v Luke Muta and Others (2005) N2877).
      
31. I also note comments of Davani J in Gregory Tavatune v. Dr. Novette, Christopher Pasmat, Danny Gre and Elias Kapaware of Vanimo General Hospital (2012) N4611, where her Honour said:
    

40. ...the entering of default judgment is not just a matter of placing ticks and crosses in boxes but is one where the Court must ensure that the basic fundamentals or prerequisites to the filing and service of a Writ of Summons and Statement of Claim is fully satisfied, before default judgment is entered. These are:

Section 5 notice has been properly issued (if the State is a defendant).
All the parties to the action have been properly named in the writ.
The action is not statute-barred.
There is a cause of action on which to enter default judgment.
All the requirements for a default judgment have been met e.g the giving of the notice, recent search of the Court file, proper service of the Writ of Summons and Statement of Claim upon the named defendants, etc.

40. The court should only enter default judgment after these requirements have been satisfied.

32. In the present case, as I have noted, the defendants have filed no defence. The plaintiff has properly served the Writ of Summons and Statement of Claim (as evidenced by the affidavit of service of Cedric Sinia filed on 2 December 2022) as well as a Notice of Motion for default judgment. A Section 5 Notice was properly served (as evidenced by the affidavit of service of Regina Maso filed on 13 March 2023), and the proceedings are not statute-barred (as found by Mugugia AJ at para [25] of her ruling of 17 March 2023). It appears that the plaintiff has properly prosecuted his application.
    
33. On the day before the hearing the defendants filed an affidavit of Mr Steven G Kaupa, sworn 30 April 2024. It is the only affidavit relied upon by the defendants in these proceedings. The plaintiff did not object to that affidavit, but plainly much of it is inadmissible, being opinion, and in the nature of submissions. It also appears to be an attempt by the defendants to, via evidence, file a very belated defence.
    
34. To the extent that I am prepared to accept Mr Kaupa’s evidence, he relevantly deposed:
    
    • He is currently an Election Manager of Eastern Highlands Province and employed by the Electoral Commission of Papua New Guinea.
    • He had personal knowledge and records of the PNG Electoral Commission office based in Goroka, Eastern Highlands Province.
    • The Goroka Electoral Commission Office did not have records of the plaintiff’s claim against the defendants.
    • From 2012 to 2013 Jimmy Alluyn was the Goroka Electoral Commission Election Manager, from 2014 to 2015 Janet Rueben was the Goroka Election Manager, and from 2016 to 2017 James Pia Pia was appointed as Goroka Election Manager.
    • There was no record indicating that the Election Manager in 2012 had written a formal request asking the plaintiff to provide the services he claimed to have provided.
      
35. This evidence does not persuade me that the plaintiff’s statement of claim is vague, fails to disclose a reasonable cause of action, or is unsupported by credible evidence. The Statement of Claim pleads facts which support the findings that the defendants entered into an oral contract with the plaintiff, in the amount he has claimed, and that the defendants are liable to pay him for the services he provided to them.
    
36. In particular, I note the affidavit of Robin Akefe filed 27 March 2023, where he deposed:

4. I accommodated 22 officials for 30 days in my premises from 15th July 2012 through August 2012. I also provided other services including meals security, laundry and cash advance as approved by the Electoral Manager.
5. The total monetary value for the services I rendered was K138 400. The breakup is as follows: -

a. Accommodation	K 79 200
b. Meals (both breakfast & dinner)	K 55 200
c. Security Services	K 1000
d. Laundry	K 1000
e. Cash advance	K 2000
f. Final mumu	K 5700
Total:	K 138 400

...
7. The election manager endorsed both copies of the invoice. I was verbally assured of the payment as other service providers, and I waited.
...

12. I did not receive a payment to date. The electoral office did not deny owing me the money as can be noted from the letters and assurance given to me, however, my payment is being somehow delayed.

37. I also note annexures C, D and E to that affidavit, being:
    
    • C - a letter dated 27 October 2015 with the Electoral Commission PNG letterhead from Mr Pia Pia to the Director of Finance at the PNG Electoral Commission seeking that the monies claimed by the plaintiff be paid to Mr Akefe.
    • D – a requisition for expenditure to the Director of Finance in the amount claimed signed by “EM Goroka” date 27 October 2015.
    • E – a letter dated 8 February 2017 with the Electoral Commission PNG letterhead from Mr Pia Pia to the Director of Finance at the PNG Electoral Commission again seeking that the monies claimed by the plaintiff be paid to Mr Akefe and describing him as “very genuine”. The letter was signed by and stamped with the official stamp of the PNG Electoral Commission Provicial Election Manager, Mr Pia Pia.
      
38. I find this evidence to be credible and to be sufficient in supporting the plaintiff’s submissions as to the monies owed and the acceptance of outstanding payment by an authorised agent of the second defendant.
    

CONCLUSION

39. I am satisfied that it is a proper exercise of my judicial discretion to order default judgment in favour of the plaintiff.
    
40. At the hearing Counsel made submissions in respect of liability. I agreed that it was appropriate for me to make findings as to liability prior to the parties being heard in respect of damages. It is now proper that the matter be listed before a Judge of the National Court for a hearing in respect of damages.
    
41. I also consider that it is appropriate that costs follow the event, and that the defendants pay the costs of the plaintiff of and incidental to the proceedings to date on a party-party basis.
    

THE COURT ORDERS THAT:

(1) Default judgment be entered in favour of the plaintiff in respect of the Writ of Summons filed on 8 March 2021 in WS No. 70 of 2021.
(2) The defendants are liable to pay the plaintiff damages, to be assessed at a further hearing before a Judge of the National Court of Justice in Goroka.
(3) The defendants pay the costs of the plaintiff of and incidental to the proceedings to date on a party-party basis.
(4) The matter be listed at a date to be advised for determination of damages pursuant to Order 2 of these Orders.

Setao Lawyers: Lawyer for Plaintiff
Ponepai Lawyers: Lawyer for Defendants