Pok v State [2007] PGSC 21; SC864 (22 May 2007)

SC864

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 04 OF 2002

BETWEEN:

MATHEW POK, ELIZABETH POK AND 23 OTHERS
Appellants

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Respondent

AND:

PAUL VAN STEVEN
Second Respondent

AND:

KINGSLEY DOLE DOLE
Third Respondent

AND:

LUKE AMBEGINI
Fourth Respondent

Waigani: Injia DCJ, Gavara-Nanu and Davani JJ.
2006: 26 April
2007: 22 May

Counsel

A. Manase, for the Appellants
H.D. Kiele, for the Respondents

DECISION

22 May, 2007

1. BY THE COURT: The appellants appeal against the whole of the judgment of the Mount Hagen National Court handed down on 18 December, 2001 where the court dismissed the whole of the plaintiffs/appellants (‘appellants’) claim with costs for the defendants/respondents (‘respondents’).

1. Background

2. The appellants claim in the National Court is for damages arising out of an alleged police raid upon Kalanga, Bunum, Wo and Sigri villages in Banz, Western highlands Province, on 16th and 17 January, 1995. The raid was allegedly conducted by policemen based at the Mount Hagen Police Station and Koban Plantation where they assaulted villagers, caused destruction to their villages by setting houses on fire, destroying trade stores, vehicles, looted properties and killed domesticated animals which included pigs and cassowaries.
   

3. But the amended statement of claim only pleads alleged attacks by the respondents upon the appellants on 16 January, 1995. We discuss the significance of this later below.

4. The appellants seek that the National Courts orders be quashed, that the matter be remitted to the National Court for rehearing on liability and for re-assessment of damages. Alternatively, the appellants ask this court to make a finding on liability with damages to be assessed.

2. National Court trial

5. The trial judge has outlined in his written, numbered judgment, the basis of the plaintiffs claim which is that "the claim for damages relate to destruction by members of the Police Force to properties including houses, trade stores, vehicles, pigs, cassowaries, chickens and cattle of (sic) the plaintiffs. They also claim damages for assault, trespass and conversion, distress and frustration, false imprisonment and unlawful custody, loss of profits, exemplary damages, interest and cost." (see p.2 of decision).

6. The trial judge noted that the respondents did not file any affidavits, only cross-examining the appellants on the contents of eleven of their (plaintiffs) affidavits, which were tendered by consent. The trial judge also considered the respondents Defence which was basically that the respondents’ actions were to protect Koban plantation and its properties together with the lives of its employees because the first plaintiff and his tribesman were advancing towards the plantation to destroy it. (see p. 3 of decision).

7. The respondents Defence filed on 13 September, 1995 is twofold;

1. That the respondents were at Koban plantation but only to protect its properties and employees from attacks by the appellants and their tribesmen.

2. Alternatively, even if the appellants did suffer injuries, that the respondents are justified and excused by law because they were only carrying out their lawful duties in protecting the plantation and its employees.

3. Appeal

8. The Supreme Courts powers on appeal are set out at s.6 and s.16 of the Supreme Court Act (‘SCA’) which reads;

"6. Appeal to be by way of rehearing

(1) An appeal to the Supreme Court shall be by way of rehearing on the evidence given in the court the decision of which is appealed against, subject to the right of the Supreme Court –

• (a) to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it; and
  
• (b) to draw inferences of fact.
  

(2) For the purposes of hearing and determining an appeal, the Supreme Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court."

"16. Decision, etc., on appeal.

On the hearing of an appeal, the Supreme Court shall inquire into the matter and may –

(a) adjourn the hearing from time to time; or

(b) affirm, reverse or modify the judgment; or

(c) give such judgment as ought to have been given in the first instance; or

(d) remit the case in whole or in part for further hearing; or

(e) order a new trial."

9. The appellants assert that the grounds of appeal raise serious errors of fact and law by the trial judge in his observations and conclusions. They submit that this Supreme Court is empowered by s. 6 of the SCA to hear the appeal by way of rehearing, on the evidence given in the National Court. The appellants submit that in accordance with s. 6 of the SCA, this court has all the powers, authority and jurisdiction of a National Court Judge. Considering the effusion of time since the decision in the trial court (18 December, 2001) and the fact that witnesses for both sides may not be available, we will exercise our powers under s. 16 of the SCA to review all the evidence filed before the National Court and make a decision on both liability and quantum.

10. No doubt, this court must review the evidence of the court below to then make a just finding.

11. Before us are 8 lengthy grounds of appeal which we summarize to be that the trial judge had erred on both fact and law when he held;

i. That Joseph Apa Kurie was "voluntarily carrying men who were advancing to Koban plantation".

ii. That the answers given in the respondent’s cross-examination of the appellants’ witnesses Thomas Rovi, Mathew Pok and Gus Kanspal could not have warranted the court to make a finding that the three witnesses were travelling to Koban.

iii. The appellants’ evidence favoured them because the bulk of their evidence was tendered by consent.

iv. There was no evidence on which the trial judge could rightfully make a finding of "volenti non fit injuria".

v. That it was unreasonable for the trial judge to conclude the way he did relying on the assumption that because no women and children were injured, that the appellants were in all likelihood, travelling to Koban Plantation to attack the respondents and those therein and that it was reasonable for the respondents to use force to prevent or usurp such an attack.

vi. That the appellants sustained injuries and their properties were destroyed by the respondents because the respondents were pursuing them whilst not undertaking lawful duties;

vii. That the appellants should have been awarded damages because the trial judge had already found that they had suffered injuries.

viii. That generally, the lack of evidence from the respondents was sufficient for the trial judge to make a finding on the balance of probabilities that the respondents were liable for damage to properties and injuries to the appellants.

12. We consider all grounds of appeal together but to be grouped under the subheadings "Liability" and "Quantum".

13. Mr Manase for the appellants submit that the trial judge’s conclusions were erroneous. The trial judge’s conclusions are based on his review and analysis of evidence before him. He considered the affidavits of plaintiff Thomas Rai, Paul Nombrol, Peter Mek, Thomas Opo, Mek Opiune, Joseph Apa Kuie and Mathew Pok. He found there to be inconsistencies in all appellants evidence and which formed the basis of his findings, on which this appeal is based. This was after all deponents were cross-examined by defendants counsel, Mr Ovia.

14. In this case, although the appellants’ affidavits were all tendered by consent, several deponents were cross-examined. That does not mean their evidence was accepted by the respondents, rather the respondents took issue with their evidence. This situation is in direct contrast with one where the other parties evidence is tendered and not challenged in cross-examination (see Haiveta v. Wingti (No.1) [1994] PNGLR 160, National Court, per Sheehan .J where that court held that evidence not challenged should be taken to have been accepted). But are the answers elicited from the appellants in cross-examination sufficient to warrant the decision now being appealed against?

15. According to the well established principle in Browne v Dunn (1894) 6 R 67, if it is intended to suggest that a witness is not speaking the truth on a particular matter, his attention must be directed to the matter by cross-examination so that he may have an opportunity of giving any explanation of it open to him, unless he has had notice beforehand that the credibility of his story is impeached, or unless, probably it is so intrinsically and patently incredible as to be unworthy of examination. And as Lord Hershel said in Browne v Dunn (supra) "it is absolutely essential to the proper conduct of a cause".

16. Therefore, in order for a party’s claim to be considered credible, the party must in fairness put its case to the other side’s witnesses by way of cross-examination. Was this sufficiently done by counsel for the defendants? We will answer that in our discussion on "Analysis of evidence on liability".

i. Analysis of evidence on Liability

17. First, the evidence in relation to liability is contained in several affidavits, which we refer to later below. The amended statement of claim filed by the plaintiffs pleads an incident that occurred on or about 16 January, 1995 when the second, third and fourth defendants acting under the second defendants instructions and whilst in the course of their employment, "wrongfully assaulted, shot at and/or locked in custody and entered upon the village and tribal lands, and highlands houses stores of the plaintiffs and destroyed assaulted and or shot at the persons ..." (see par. 4 of amended statement of claim).

18. By its Defence, the defendants plead that they were safeguarding property and were acting when under threat or when threatened and attacked by the plaintiffs.

19. It is necessary that we outline the affidavits that were tendered by consent or that were tendered and cross-examination conducted. These are;

Affidavits and exhibits tendered by consent

1.	Gus & Pennie Kanspoi	- 11th Plaintiff	Exhibit "A"
2.	John Dare	- 13th Plaintiff	Exhibit "B
3.	Wulup Tony	- 14th Plaintiff	Exhibit "C"
4.	Ding John	- 15th Plaintiff	Exhibit "D"
5.	Mek Kei	- 16th Plaintiff	- Exhibit "E"
6.	Nekints Kei	- 17th Plaintiff	Exhibit "F"
7.	Gispe Thomas	- 18th Plaintiff	Exhibit "G"
7.	Mark Moli & Robert Plak	- 24th Plaintiffs	Exhibit "H"
8.	Dola Dom	- 4th Plaintiff	- Exhibit "O"
9.	Elizabeth Ombx	- 4th Plaintiff	- Exhibit "P"
10.	Simon Pap	- 6th Plaintiff	- Exhibit "Q"
11.	Francis Nambis	- 7th Plaintiff	Exhibit "R"
12.	Opints Nop	- 8th Plaintiff	Exhibit "S"
13.	Elizabeth Kanjip	- 9th Plaintiff	Exhibit "T"
14.	Mek Opiune		Exhibit "I"
15.	Munumb Ombin		Exhibit "J"
16.	Thomas Opo		Exhibit "K
17.	Opints Nop 3 photographs		Exhibit "S1"
18.	Dola Doma
	3 photographs 14 Empty Bullet shells		Exhibit "Q1" Exhibit "Q2"

Affidavits subjected to cross-examination

1.	Mathew Pok	1st Plaintiff	Exhibit "L"
2.	John Nepi	2nd Plaintiff	Exhibit "M"
3.	Senes Nop	3rd Plaintiff	Exhibit "N"
4.	Peter Mek	10th Plaintiff	Exhibit "W"
5.	Raphael Du	12th Plaintiff	Exhibit "U"
6.	Paul Nombrol	19th Plaintiff	Exhibit "V"
	3 photographs of vehicle		Exhibit "V1"
7.	Mathew Kopi Kar	20th Plaintiff	Exhibit "X"
8.	Joseph Apa Kule	22nd Plaintiff	Exhibit "Y"
	photographs of vehicle		Exhibit "Y1"
9	Thomas Rai		Exhibit "Z"

20. There are two settings, on 16 January, 1995 at Koban plantation and on 17 January, 1995, at several villages. We note that the names of the villages allegedly attacked and destroyed, are not pleaded in the amended statement of claim. Neither is "17 January 1995" pleaded in the statement of claim.

21. We deal first with the events of 16 January, 1995.

i.i 16 January 1995 – What happened on 16 January 1995?

22. The respondents claim to have attacked the appellants whilst in pursuit of their lawful duties. Although they did not bring any evidence to support this claim, some cross-examination was conducted by respondents counsel. Was this cross-examination sufficient to establish that the respondents are not liable because they were pursuing appellants who were undertaking or were about to undertake an illegal activity? Or was the cross-examination so inadequate that the trial court could not and should not have formed the conclusions that it did?

23. First, the affidavits tendered by consent confirm the following to have occurred.

• On 16 January, 1995, at about 10am, Mathew Pok was attacked and severely beaten by the police, for no reason. (see Gus Kanspol’s affidavit sworn on 13 June 1997).
  
• On 16 January 1995, at about 6am, the police destroyed the home of one Tony Wulup and destroyed food crops, for no reason. The affidavit does not state where the attack took place. (see Tony Wulup’s affidavit sworn on 13 June 1997).
  
• On 16 January, 1995 at about 6.00 – 6.30am, Mek Kei’s houses and properties were destroyed by the police for no reason. The affidavit does not state where the attack took place. (see Mek Kei’s affidavit sworn on 13 June 1997).
  
• On 16 January, 1995 at about 6.00am, Nekints Kei’s home and properties were destroyed by the police for no reason. The affidavit does not state where the attack took place. (see Nekints Kei’s affidavit sworn on 13 June 1997).
  
• On 16 January, 1995 at about 6am, one Gispe Thomas witnessed policemen destroying his properties, his home and kill his domesticated animals. The affidavit does not state where this attack took place. (see Gispe Thomas’s affidavit sworn on 13 June 1997).
  
• On 16 January, 1995 at about 9.30am, policemen broke into Mark Moli’s house and set it alight destroying everything. The affidavit does not state where the attack took place (see Mark Moli’s affidavit sworn on 13 June 1997).
  
• On 16 January, 1995 at about 9.00am, Mek Opiue was in a yellow Dyna truck driving into Koban plantation when a policeman fired a warning shot followed by other policemen, shooting at will. One Robert Kumie was shot in the face. The driver turned the Dyna truck and they drove away from Koban plantation. (see affidavit of Mek Opiue sworn on 13 June 1997.
  
• On 16 January, 1995 at about 10am, Munumb Ombia witnessed policemen destroy one Mathew Pok’s home and damage his two vehicles, a 25 seater coaster bus and a Mitsubishi red pajero. He also saw policemen assault Mathew Pok using a gun barrel and their booted feet. The affidavit does not state where the attacks took place, although he deposes that this happened whilst he was standing at the junction leading to Mathew Pok’s house. (see Munumb Ombia’s affidavit sworn on 13 June 1997).
  
• On 16 January, 1995, one Thomas Opo was seated in a Yellow Dyna driving towards Koban plantation. At the gate to the Koban plantation, a Caucasian police officer fired warning shots into the air after which he signalled other policemen to fire at the yellow Dyna truck. Robert Kumie was injured. The affidavit deposes further that "most of our boys received minor injuries to their bodies." The affidavit does not state the year the incident occurred. (see affidavit of Thomas Opo sworn on 13 June 1997).
  
• On 16 January, 1995, at about 9am, Dola Dom was in his garden next to his house when he heard gun shots from the direction of the Banz – Kimial head turn off to Kalang plantation. He ran away together with a lot of other people. When he returned after about 30 minutes, he saw that his house, garden and properties were destroyed. The affidavit does not state where he was standing. (see affidavit of Dola Dom sworn on 13 June 1997).
  
• On 16 January, 1995, at about 9.00am, Elizabeth Omb was doing her laundry when she heard gun shots on the highway. Three police vehicles arrived at her village and one of them drove into the door of her house. A policeman pointed a gun at her, threatened her and told her to run. She did. When she returned about 30 minutes later, her house including all her properties in the house were completely destroyed. (see Elizabeth Omb’s affidavit sworn on 13 June 1997).
  
• On 16 January, 1995, at about 9.30am, Simon Pap was in his trade store at Kalanga when he heard gun shots. Shortly thereafter, three police cars stopped in front of his shop. Two uniformed policemen fired at him. Simon Pap ran away in fear. Whilst away and in hiding, he saw them destroy his shop, take goods from his shop and kill his domesticated animals including pigs and live chickens. (see Simon Pap’s affidavit sworn on 13 June 1997).
  
• On 16 January, 1995, at about 9.30am, Francis Nambis was in his house when he heard gun shots. He saw three police cars head toward his village. The vehicles stopped, policemen alighted from the vehicles and began destroying everything, from houses to animals. They also burnt down his home and all his properties including 3 pigs. The affidavit does not state where this attack took place. (see affidavit of Francis Nambis sworn on 13 June 1997).
  
• On 16 January, 1995 at about 9.30am, whilst digging a drain next to his house, Opints Nop heard gun shots coming from the Kumiel Banz Highway. Three police cars drove up to where he was and policemen began firing their guns. The policemen told him to run so he did. Whilst in hiding, he saw the policemen set his house on fire and kill his animals including 2 cassowaries. The affidavit does not state where this attack took place. (see affidavit of Opints Nop sworn on 13 June 1997).
  
• On 16 January, 1995, at about 9.30am, Elizabeth Kanjip heard gunshots and soon thereafter, saw three police vehicles heading towards her village. She ran away and hid. When she returned about half an hour later, she saw that her home had been raided and things stolen. The affidavit does not state where this attack took place. (see affidavit of Elizabeth Kanjip sworn on 13 June 1997).
  

24. The evidence on liability gleaned from witnesses who were subjected to cross-examination is as follows;

• Mathew Pok deposed in his affidavit sworn on 13 June, 1997 that about 9.30am on the morning of 16 January, 1995, he was standing with others on the roadside when three police cars drove by, stopped, a policeman alighted, then kicked and punched him for no reason. This led to other policemen doing the same thing to him. They also broke the windscreen and glass to his grey Toyota Hilux Reg no. HAA 848.
  

Mathew Pok was also injured in the leg by a bullet fired by a policeman. Thereafter they drove him to his house where they subsequently broke into his home, and killed his three pigs and broke all the glass to his 35 seater Coaster bus. At the same time, they also damaged his red Mitsubishi pajero. His home was also destroyed in the process.

In cross-examination, Mr Ovia for the defendants asked Mathew Pok if he was with several other men at Koban Plantation. He denied that. He also denied that he was arrested and charged the night before by police, on charges of rape and robbery.

Mr. Ovia also put to the witness that the charges against him were dropped because the manager of the plantation and his wife, being key witnesses, were transferred out of Hagen because they feared for their lives. Mathew Pok denied that. Although Mr. Ovia said he would bring witnesses to verify these claims, he did not.

John Nepi deposed in his affidavit sworn on 13 June 1997 that he was in his shop when the respondents destroyed his shop and other properties including livestock.

In cross-examination, Mr Ovia asked him if he lodged a complaint with the police after the raid. He said he did but that they did not give him a complaint number. He also said he was never charged by the police.

A discrepancy in the timing of the raid was also pointed out to this witness by Mr Ovia. This was because he, Mathew Pok, maintained in evidence that the raid occurred at 9am in the morning, not 6am as was pointed out by the appellants other witnesses. In re-examination, he said that an earlier witness who told the court that the raid occurred at 6am lived in a village called Kalanga and he lived in a village called Bunuwau which villages are some distances apart.

• By his affidavit sworn on 13 June, 1997, Senes Nop deposes that at about 9.30am on 16 January, 1995, he was cleaning his coffee garden which was next to his house when he heard gunshots coming from the direction of the Kimil – Banz Highway. Shortly, three police vehicles drove into his yard. The policemen told him to run, he did and they fired shots at him. He ran to his coffee garden to hide and whilst there, he saw the policemen burn his house to the ground. All his properties were destroyed.
  

In cross-examination, Mr Ovia asked if he was in the company of other men on the night of 15 January, 1995. The witness denied that. Mr Ovia also put to him that the manager of the plantation identified him as being on the company premises that night. He denied that. Again, when told that the police were pursuing him because he was at the Koban plantation on the night of 15 January 1995, he denied that. He also denied claims of being in possession of stolen properties from Koban plantation.

• By his affidavit sworn on 13 June, 1997, Raphael Du deposes that on 16 January, 1995, at about 9.00am, he was standing on the back of a Mitsubishi Canter truck driving towards Koban plantation. At the gate of the plantation, the second defendant who was in police uniform, fired warning shots into the air. One policeman fired directly at the truck hitting him on his right leg. He jumped off the truck and ran into the coffee plantation to hide.
  

In cross-examination, Mr Ovia asked him if he was an employee of Koban plantation to which he said no. When asked if he was in the company of other men at the back of the Mitsubishi Canter truck, he said ‘yes’. He said there were between 10 and 20 men. He also said there was another truck loaded with men travelling behind them. He agreed that if he had not gone with the men, he would not have sustained these injuries. He also said the two truck loads of men went to Koban plantation "for nothing" but the police shot at them anyway.

• In his affidavit sworn on 13 June, 1997, Paul Nombual deposed that on 16 December, 1995, at about 9.00am, he was standing on the back of a blue dyna which was travelling towards Koban plantation. They "were still moving slowly towards the gate" when the second defendant fired warning shots into the air. Upon his signal, other policemen began firing at them. A shot fired by a policeman hit him in his leg forcing him to jump off the truck.
  

In cross-examination, he told the court that whilst the vehicle was travelling slowly towards the Koban plantation gate, the policemen then started firing at the vehicle. He was also asked if he was aware of an incident of stealing and looting at Koban plantation the night before. He said ‘no’.

• By his affidavit sworn on 3 September, 1997, Peter Mek deposes that on 16 September, 1995 at about 9.00am, he was driving towards Koban plantation in his yellow Mitsubishi Canter, when he stopped not far from the gate. He saw the second defendant firing his pistol in the air.
  

Other policemen then began firing shots. Three men who were sitting in front of the truck were injured by the bullets.

In cross-examination, he agreed that there were two trucks that were heading towards Koban plantation and that there was looting and stealing of properties the night before at the Koban plantation. He said he went to Koban plantation to assist his in-law move out. He also agreed that if he had not gone to the plantation, he would not have been injured. But he did not give his in-law’s name or whether the in-law was an employee of Koban plantation.

• By his affidavit sworn on 3 June, 1997, Joseph Apa Kuie deposes that on the morning of 16 January, 1995, he was driving his blue Mitsubishi Canter Dyna when a group of young men stopped him and ordered him to drive to Koban plantation. His 2 sons, daughter and wife were also in the truck with him. Near the gate to the Koban plantation, the second defendant and other policemen began shooting at him.
  

In cross-examination, when asked by Mr Ovia if he was forced to drive to Koban, he said he had passengers in the car so he had to go there.

• By his affidavit sworn on 13 June, 1997, Thomas Rai deposes that on 16 January, 1995, at about 9.00am he was on the back of a blue Mitsubishi Dyna Reg. no. LAA 535 travelling towards Koban plantation when he was stopped by the second defendant at the gate to Koban plantation. He said the vehicle was still moving when policemen began firing directly at them. He was shot in the leg at that time.
  

In cross-examination, he said he was in the vehicle because he was travelling with his uncle Joseph Apa, the owner of the truck. He said his uncle was travelling to Koban so he went with him.

i.ii 17 January 1995 – What happened on 17 January, 1995?

25. A witness Mathew Kopi Kar (affidavit sworn on 13 June, 1997), deposes only to being attacked by the police at about 5.30 on the morning of 17 January, 1995. But the 17 January, 1995 is not pleaded in the statement of claim. What is the effect of that? In Madiu Andrew v Mineral Resources Development Co. Ltd (2004) N2601, Kandakasi .J said;

"Pleadings in a civil claim play a very vital role. They lay the foundation for a claim and dictate the kind of evidence the parties can call and the grant of a relief subject to evidence proving it. ..Both this court and the Supreme Court have denied plaintiffs grants of reliefs that have no foundation in the pleadings even if there is evidence of it."

26. Again, in relation to pleadings, Lord Justice Scott in Bruce v Oldhams Press Ltd [1936] 3 ALLER 287 and 249 also said (and relied on by Sakora .J in Paul John v Gerd Lindhardt and Servicom Pty Limited (1999) N1938) the plaintiff must plead all facts;

"...necessary for the purpose of formulating a complete cause of action, and if any one ‘material’ statement is omitted, the statement of claim is bad."

27. A party cannot obtain relief which has not been sought or requested in the pleading - see London Passenger Transport Board v Moscrop [1942] 1 All ER 97 per Lord Russel of Killowen at p105; and cases must be decided on the issues on the record and the record must be amended if it is desired to raise other issues - see Blay v Pollard and Morris [1930] 1 KB 628 at 634 per Scrutton LJ. Both cases were cited by Pratt J in the Supreme Court in Ume More & Ors v University of Papua New Guinea [1985] PNGLR 401 at 405.

28. The cross-examination conducted by Mr Ovia attempted to show several things;

i. That Koban plantation was the scene of looting and rape the night before, on 15 January, 1995 and a lot of people were involved.

Peter Mek states this in cross-examination and this is not disputed by any other evidence.

ii. That the police were at Koban plantation to protect it.

There is no firm or clear evidence for us to safely form that conclusion. But the fact that the plantation was the subject of attacks the night before makes it safe for us to infer that the police were there to protect it.

iii. On 16 January, 1995, 2 trucks loaded with men travelled to Koban plantation. They were at the Koban plantation gate when they were attacked by the respondents.

There are conflicting answers given by the appellants in cross-examination, as to the number of trucks travelling to Koban plantation and the people sitting in those trucks. But we will accept the evidence of Joseph Apa Kuie, Thomas Rei and Raphael Du because their evidence is very nearly the same, that 2 truck loads of men travelled to Koban plantation on 16 January, 1995.

Joseph Apa Kuie’s evidence is that a group of young men ordered him to stop his Blue Mitsubishi Canter Dyna, to pick them up and to drive them to Koban plantation. Thomas Rai confirms that to be the case but contradicts Joseph Kuie’s evidence when he said his uncle (Joseph Kuie) was travelling to Koban so he went with him. Joseph Apa Kuie was not asked by his lawyer if he stopped to pick Thomas Rai, to clarify this uncertainty or contradiction i.e a group of young man ordered him to stop. The conclusion we reach here is that he is withholding certain information and only telling the Court what he wants the Court to hear. We believe he is hiding something, the fact that there were other ulterior reasons for travelling to Koban plantation.

Raphael Du’s evidence confirms that there were 2 truck loads full of men travelling to Koban. Why would 2 truck loads be travelling there and why did the police attack them? Appellants counsel did not illicit any evidence from the appellants to show why 2 full truck loads of men were travelling to Koban plantation. Furthermore, the evidence that he brought is contradictory in a lot of respects. The appellants have also carefully skirted that issue, only focusing on the attacks upon them by the respondents. So we are left with a scenario where we know that two truck loads of men approached Koban plantation and the police who were there, fired shots at them. Based on the clear evidence, we can safely infer that the police were armed and awaiting a possible confrontation because of the events of the previous night.

iv. The timing and place of the attacks is also an issue that must be rectified. We say this because of the following;

- 4 witnesses say the attacks took place on 16 January, 1995 between 6am to 6.30am. But they do not say where. So we do not know if those attacks were at their home villages or other locations.

- 16 witnesses say the attacks took place on 16 January, 1995, between 9.00am and 10.00am. And these attacks occurred after the confrontation at the Koban plantation.

The issue now is, did the respondents, more specifically the second respondent attack some appellants at 6.00am, at unknown locations, rush back to Koban plantation, then again attack the other appellants between 9.00am and 10am at Koban plantation?

29. And how can the second respondent be at the locations where the attacks took place at 6am (see affidavits of Tony Wulup, Mek Kei, Nekints Kei and Gispe Thomas) then be at Koban plantation at 9.00am – 10.00am (see affidavits of Mek Opiue) then attack villagers and their properties at other locations between 9.00am and 10.00am (see affidavits of Mark Moli, Mek Opiue, Dola Dom, Elizabeth Omb, Simon Pap, Francis Nambis, Opints Nop, Elizabeth Kanjip) and at the same time be at Koban plantation. The difficulty we have is that appellants counsel did not produce evidence to show:-

- Where the attacks took place;

- The distance from Koban plantation to the various villages or locations or one village or location where the attacks allegedly took place;

- How long it would take for a vehicle to travel from Koban plantation to those villages or locations and back.

30. It calls into question the genuineness of the whole claim. No doubt 2 truck loads of men travelled to Koban plantation and there was a contingent of policemen waiting there. But did they travel there after the 6.00am attacks? Or did the 6.00am attacks occur at all? There is no evidence to show that the 2 truck loads were travelling there (to Koban plantation) after the 6.00am attacks. There is no evidence to that effect from the appellants. Nor have the appellants explained how the second defendant can be in two places at once i.e Koban plantation and at the same time, attacking the appellants at another or other locations between 9.00 and 9.30am.

31. We are placed in a very difficult position because the evidence on liability is not only confusing but to a large extent, very contradictory.

Conclusion

32. As to the pleaded grounds of appeal, generally the trial judge could have erred in his reasoning especially in relation to his having formed conclusions that lacked foundation e.g – Because women and children were not in the vehicle, that it was reasonable to infer that the men were out to attack Koban plantation.

33. But the trial judge was correct when he said the following;

i. "No doubt, to shift all the blame to the police, he does not say why a truck load of people and himself were going to Koban plantation that morning." (pg. 3 of decision).

The evidence from all appellants is very general. None of them say why they were going to Koban plantation. Even after there was evidence before the court that 2 truck loads of men travelled to Koban plantation and that Koban plantation was raided the night before, the appellants still did not say why. They appear to have avoided answering that.

ii. "It appears that Joseph Apa Kuie was voluntarily carrying men who were advancing towards Koban plantation." (p.5 of decision).

Joseph Apa Kuie’s own brother said in his evidence that his brother was going to Koban plantation so he went with him. Why did his brother not say that Joseph Apa Kuie was forced to take some men in his truck and forced to drive to Koban plantation which is Joseph Apa Kuie’s evidence to the court. This question remains unanswered. Only the contradictory evidence remains.

Additionally, the amended statement of claim pleads the 16 January, 1995 as being the date the alleged raids occurred. This leaves the court in a situation where the contradictory evidence on timing in relation to attacks at 6.00am, 9.00am to 9.30am and the impossibility of the second defendant being in the same place at the same time, very glaring indeed.

34. And what of the evidence of the other plaintiffs who say they were attacked by police and had their homes and properties destroyed? Are the defendants responsible for these losses?

35. First, the inference to be drawn from the evidence is that the police may have given chase, following the 2 trucks. But apart from there being no contradictory evidence on the times the chases occurred, neither the statement of claim nor the appellants affidavits state where the alleged attacks took place. So, there is a gap between the confrontation at Koban plantation to where the attacks took place. Again, not only is there a gap, but the evidence on the time frames within which and during which the attacks took place, is very contradictory, evidence which I have already covered (see p.17, p.18 and p.19 of these reasons). Therefore, the position at law is that if a matter is not pleaded, it should not be raised at trial. The dates and locations of the attacks are very important aspects of the statement of claim and must be pleaded. The appellants cannot call evidence on matters not pleaded.

36. In relation to liability, the plaintiffs/appellants must show, on the balance of probabilities, that the respondents are at fault, that they inflicted injuries upon the appellants and destroyed their properties, for no reason.

37. Upon a close examination of the evidence before the trial judge, we agree with him that the evidence before the Court was vague and contradictory in material respects such that the evidence for the plaintiff lacked weight. We are satisfied that although the trial judge may have erred on the basis for reaching the conclusion that he did, that there was no substantial miscarriage of justice arising from that because the evidence on the whole was vague, contradictory, generally unsatisfactory and did not warrant a finding of liability in favour of the plaintiff.

38. The appellants claim on liability must fail for these reasons. It is therefore not necessary for us to consider the claim for damages.

Formal orders

39. We order that;

1. The appeal be dismissed;

2. The appellants pay all respondents costs of the appeal.

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Steeles Lawyers: Lawyer for the Appellants
Solicitor-General’s Office: Lawyer for the Respondents