Fongemale v Impambonz [2024] PGNC 215; N10879 (8 July 2024)

N10879

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 601 OF 2022

BETWEEN:
AMET ANONGA FONGEMALE
-Plaintiff-

AND
BART IMPAMBONZ MOROBE PROVINCIAL ADMINISTARTOR
-First Defendant-

AND
MOROBE PROVINCIAL GOVERNMENT
-Second Defendant-

Lae: Dowa J
2023: 12^th December,
2024: 8^th July

CONTRACT OF EMPLOYMENT- the plaintiff a former public servant claims for balance of final entitlements- plaintiff has burden of proof on the balance of probabilities that the defendants failed to pay full entitlements due to the plaintiff - to prove damages with credible evidence-calculations for final entitlements need to be verified by official documentation- the fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. assessed and Judgment granted.

Cases Cited:
Yooken Paklin v The State (2001) N2212
Peter Wanis v Fred Sikiot (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) N8266
Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274

Counsel:
E. Tienare, for Plaintiff
No appearance for the Defendants

DECISION

8^th July 2024

1. DOWA J. This is a decision on both issues of liability and damages. The Plaintiff instituted proceedings against Morobe Provincial Government for outstanding unpaid final entitlements.
   

FACTS

2. The Plaintiff is a former public servant in the employ of the Morobe Provincial Administration. She was employed by the Defendants for almost 45 years serving in various capacities until her forced resignation in 2016. Her last position was Assistant Secretary-Community Development, in the Morobe Provincial Administration. She was on a contract of employment and on the lapse of her employment contract, the contract was not extended, and she was unattached. She remained unattached officer as of 13^th July 2013. After remaining unattached for some years without being meaningfully engaged as a senior officer, she resigned on 16^th May 2016. The Defendants accepted her resignation and paid her final entitlements in the sum of K 31, 336.91. The Plaintiff alleges that she was short paid on her final entitlement by K 75,402.81. She instituted the current proceedings to recover the balance of the entitlements.
   

The Proceedings and Hearings

3. The proceedings were filed on 6^th December 2022. Copies of the Writ of Summons were served on the Defendants on 1^st March 2023. The Defendants did not file a Notice of Intention to Defend nor a Defence. On 4^th August 2023, the Plaintiff applied for default judgement, which was refused, requiring the Plaintiff to prove her claim in a substantive trial. On that date, leave was also granted to the Plaintiff to have the Independent State of PNG removed as a party to the proceedings.
   
4. The matter was fixed for trial on 12^th December 2023. Notice of trial and Notice under the Evidence Act were served on the Defendants on 6^th December 2023. Despite being served Notice of Trial, the Defendants did not appear in Court to defend the proceedings. The Plaintiff was granted leave to proceed exparte and the hearing proceeded in the absence of the first and second Defendants.
   

Issues

5. The main issues for consideration are:
   
   1. Whether the defendants are liable
   2. Whether the Plaintiff is entitled to the damages she is seeking
      

Burden of Proof
6. Although the Defendants have defaulted and failed to defend the claim, the Plaintiff is still required to prove liability and 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.

Evidence

7. The Plaintiff relies on the following affidavits:
   
   1. Affidavit In support of Amet Anonga Fongenmale filed on 18.07.23 as document no. 5.-Exhibit P1
   2. Additional Affidavit of Amet Anonga Fongenmale filed on 3.08.23 as document no.8.-Exhibit P2
   3. Further Additional Affidavit of Amet Anonga Fongenmale filed on 27.09.23 as document no.9.-Exhibit P3
      
8. This is the summary of the Plaintiff’s evidence. The Plaintiff is 66 years old. She comes from Naweb District, Morobe Province. She is a former employee of Morobe Provincial Administration. She served the Morobe Provincial Administration in various locations and roles for 45 years. Her last designation was Assistant Secretary- Community Development, Morobe Provincial Administration. She was a contracted Officer. She was displaced and remained unattached on full pay from July 2013 to May 2016 when she resigned. The Plaintiff deposes she resigned because she remained unattached for a long period despite her efforts with the Defendants to have her engaged. On 5^th May 2016, she tendered her resignation. The first Defendant approved her resignation on 13^th May 2016.
   
9. On 7^th December 2016, the Defendants made a deposit of K 31,336.91 into the Plaintiff’s Kundu Account as final entitlements. The Plaintiff deposes she was not happy with the amount of K 31,336.91 for the public service period of 45 years. She deposes she was on salary Grade 14 and according to expert advice and calculations, she is entitled to K106.739.72 net income. Allowing for the payment of K 31,336.91, she now claims the balance of K75,402.81 owing and due to her by the Defendants.
   

Consideration of the issue of liability

10. The Plaintiff’s evidence as to employment history is not challenged. Her last employment position was Assistant Secretary-Community Development. She was on a written contract of employment with the second Defendant. She was on salary Grade 14 in the Public Service, earning a gross salary of K48,855.00 per annum. The last pay slip dated 9^th June 2016 shows she was earning a net salary of K1,323.54.
    
11. On her resignation, the Plaintiff was paid K31,336.91 as her final entitlement directly to her account. The Plaintiff did not produce the final calculation sheet to show how the calculation was done. The Plaintiff did not state in her evidence whether a calculation sheet was ever provided. She only provided a calculation in the statement of claim showing details of the alleged shortfall in the final pay.
    
12. For context and easy reference, the Calculation is set out in full below:
    

PARTICULARS OF ESTIMATED FINAL ENTITILEMENT CALCULATION

WEF: 01.12.14-20.02.15

1. MILON.GROSS: K1633.23

(K1633.23 × 6.0) = K9799.38

Tax @ 15%= K1469.90

(K9799.38-K1469.90) =K8, 329.47

2. MILOL. 20.02.14-30.12.11

6. 2×12.6=30×1.25=37.5÷10=3.8 F/N

Gross: K1633.23 × 3.8= K6,206.27

Tax @ 15%= K930.94

K6,206.27-K930= K5,275.33

3. MILOF (A): 31.12.- 14.12.87 MILOF (B) 20.02.01.01.93

21× 9= 189÷10
18.9 F/N

5×9=45÷10=4.5 K1633.23 × 18.9= K30, 868.04
K1633.23 ×4.5 = k7, 349.53 Tax @15%=K4,630.20
Tax @ 2%=K7, 349.53-K147=K7, 202.53 K30, 868.00-K4,630.20=K K26,237.84

4. EX-GRATIA: 20.02.14-08. 02.71 43×10= 430÷ 10= 43 F/N

Tax @ 15%= K1633.23 ×43= K70,228.89K10,534.33=K59,694.55

SUMMARY

GROSS	TAX	NET
1. K9,799.38	- K1469.90	K8,329.47
2. K6,206.27	- K930.94	K5,275.33
3. (A) K7,349.53	K 147.00	=K7,202.53
4. (B) K30,868.04	- K4,630.20	K26,237.84
5. K70,228.89	- K10,534.33	K59,694.55
K184, 452.11	K17, 712.37	= K106,739.72

13. Should the Court accept the calculations on face value without verification from the Human Resources Department and/or the Department of Industrial Relations to determine the issue of liability, although the calculations, both the format used, and the amounts calculated will become more relevant only when assessing damages.
    
14. For now, and on the issue of liability, I am prepared to accept the Plaintiff’s evidence that she was short paid on her final entitlements. The Plaintiff served the Defendants for 45 years, the later years as a senior public servant. There is sufficient documentary evidence to show the years of service as a senior contract officer. The amount claimed for the shortfall was clearly pleaded and specifically particularized in the statement of claim. The Writ of Summons and Notice of Trial were served on the Defendants, and they chose not to defend the proceedings. I remind myself that the lack of defence and participation by the Defendants should not be held against them. However, it is in their interest to defend the proceedings and assist the Court to arrive at a just conclusion of the matter.
    
15. On the other hand, the Plaintiff has passionately pursued her claim seeking redress for an injustice done to her. Should the Court turn her away from the judgment seat just because of lack of official verification from her former employer. The Plaintiff must prove her claim on the balance of probabilities. That is, that Court must remind itself that it is more probable than not that the Plaintiff has suffered the loss she alleges. I have no reason to doubt that she is a busy body trying to make a fake claim of some sort. She is proven and seasoned public servant. She voluntarily resigned when her employer disengaged her. She saved the Public Service funds for not remaining on the payroll as unattached officer. In the circumstances, I am satisfied on the balance of probabilities that liability against the Defendants is established.
    

Damages

16. Whilst the issue of liability is settled, the Plaintiff is still required to prove damages with credible evidence. In Samot v Yame (Supra), His Honour, David J referring to legal principles to be applied in assessing damages said this at paragraph 46 of his judgment:

“ The Supreme Court in William Mel v Coleman Pakalia (2005) SC790 and the National Court decision of Cannings, J in Steven Naki v AGC (Pacific) Ltd (2006) N5015 summarise or identify a number of legal principles that are applicable in assessing damages where liability is established either following a trial or after the entry of default judgment and these are:

• 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 [1992] PNGLR 254, National Court, Woods J; MVIT v Pupune [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.)
  
• The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims. (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274, National Court, Jalina J.)
  
• The person who has been wronged has a duty to mitigate their losses; though it is the defendant who has the onus of proving failure to mitigate (Dia Kopio v Employment Authority of Enga and Others (1999) N1865, National Court, Hinchliffe J; Coecon v National Fisheries Authority (2002) N2182, National Court, Kandakasi J.)”
  

17. I will adopt and apply these principles in the present case when considering each head of damages sought by the Plaintiff.

18. The Plaintiff claims the following in the statement of claim.

1. Judgment for K75, 402.81 as outstanding unpaid final entitlement.
2. Interest at 8% pursuant to Judicial Proceedings (Interest on Debts and Damages) Act,

c. The cost of proceeding.

19. Without repeating what I stated earlier in the judgement, the Plaintiff has the burden to prove her damages. She did a detailed calculation of what she claims to be the correct format and amount that is owed to her. However, she has not produced the calculation sheet used by the Defendants to calculate the entitlements. If she was not given the calculation sheet, she did not state that in her evidence. In respect of the present calculation, she did not state the source of the calculation. Did she receive the details from the HR department or the Industrial Relations. Again, the source of the evidence for the calculation is lacking.

20. Should the Court then refuse her claim for lack of clarity. In my view grave injustice will be done to the Plaintiff if her claim is dismissed without a remedy. In Jonathan Mangope Paraia v The State (1995) N1343, the National Court, per Injia J, as he then was, after referring to some overseas cases adopted and applied a sound principle of law on assessment of damages as expounded in Samot v Yame (supra) that “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.)”

21. In the present case, the Plaintiff is claiming K 75,402.81. This is calculated from the various heads of the entitlements for Milon, Milof, and Exgratia payments. The gross income figure is K 124,452.11. Tax is fixed at K 17,712.37 leaving a net income of K 106.739.72. The Plaintiff was paid K 31,336.91 in December 2016 and the Plaintiff is now claiming the balance of K 75, 402.81 in this proceeding. Although the calculations are accurate, they must be verified or confirmed by the officers responsible for the payroll. In the absence of official confirmation, I am reluctant to grant the full amount she is asking. By the same token, it will be remiss of me in sending the Plaintiff away empty handed. I will therefore allow a fraction of the claim. Considering all factors like faithful and consistent service and voluntary resignation, I will allow 60% of the claim in favour of the Plaintiff. 60% of K 106,739.72 is K 64,012.83. The Plaintiff has been paid K 31.336.91. The Plaintiff is now entitled to judgment for the balance of K32,675.92. There shall be judgment entered in favour of the Plaintiff in the sum of K 32,675.92

Interest

22. The Plaintiff is claiming interest at 8%. I am inclined to award interest at 4% from the date of filing the proceedings until settlement. Interest is to commence from date of writ of summons, (06/12/2022) to date of judgment (8/07/ 2024) for a period of 580 days. Interest is calculated as follows:

K 32,675.92 x 4/100	=	K 1,307.04
K 1307.04/365 days	=	K 3.58 per day
K 3.58 x 580 days	=	K 2,076.94

23. The total award inclusive of interest is K 34,752.86

Costs

24. The Plaintiff has succeeded in her claim and is therefore entitled to the costs of the proceedings to be taxed, if not agreed.

Orders

25. The Court orders that:

1. Judgment is entered for the Plaintiff in the sum of K 34,752.86 inclusive of interest.
2. Post Judgment interest shall accrue at the rate of 4 % until settlement.
3. The Defendants shall pay the cost of the proceedings to be taxed, if not agreed.
4. Time be abridged.
   

_____________________________________________________________________
The Public Solicitor: Lawyer for the Plaintiff
No appearance for the Defendants