Etepa v Baki [2015] PGSC 75; SC1502 (2 December 2015)

SC1502
PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 50 OF 2014

EDWARD ETEPA & 551 OTHERS OF THE KOME TRIBE
Appellants

V

GARI BAKI, PROVINCIAL OPERATION COMMANDER, SOUTHERN HIGHLANDS PROVINCE
First Respondent
SAM INGUBA, THE PAPUA NEW GUINEA POLICE COMMISSIONER
Second Respondent
THOMAS LAPAN, POLICE OFFICER KAGUA DISTRICT, SOUTHERN HIGHLANDS PROVINCE
Third Respondent
ANDREW TRAWNE, PROVINCIAL ELECTORAL RETURNING OFFICER, SOUTHERN HIGHLANDS PROVINCE
Fourth Respondent
REUBEN KAIULO, PAPUA NEW GUINEA ELECTORAL COMMISSIONER
Fifth Respondent
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Respondent

Waigani: Manuhu J, Kariko J and Murray J
2015: 26^th October & 2^nd December

SUPREME COURT - APPEAL – dismissal of claim for disclosing no reasonable cause of action – claim for negligence - tribal fight between two tribes arising from dispute at polling booth - alleged failure of electoral commission to provide free and fair elections – alleged failure or inaction by police to stop tribal fight - destruction of property owned by a tribe not involved in the tribal fight
PRACTICE & PROCEDURE - dismissal of proceeding following entry of default judgment – whether defence of res judicata or issue estoppel arose – notice of intention to defend & defence filed late - whether defendants entitled to apply for dismissal

Cases cited:
Catholic Diocese Wabag Board of Trustees v Enga Provincial Government (2011) N4562
Hami Yawari v Anderson Agiru (2008) N3983
Joshua Giru v Willie Edo (2007) N5032
Ken Fairweather v Jerry Singirok (2013) SC1293
Lina Kewkali v The State (2011) SC1091
Rupundi Maku v Steven Maliwolo & The State (2012) SC1171
William Mel v Coleman Pakalia & Ors (2005) SC790

Overseas cases:
Hill v Chief Constable of West Yorkshire (1987) UKHL 12 (Hill); (1989) AC 53

Legislation:
National Court Rules

Counsel:
Mr B Koke, for the appellants
Mrs P Nii, for the first, second, third & sixth respondents
No appearance for the fourth & fifth respondents

DECISION

2^nd December, 2015

1. BY THE COURT: This is an appeal against the decision of the National Court at Mt Hagen given on 6^th March 2014 whereby the learned primary Judge dismissed the entire proceedings WS No. 30 of 2006 for not disclosing a reasonable cause of action following an application by the State pursuant to Order 12 Rule 40 of the National Court Rules.

Background

2. In those proceedings, the appellants (as plaintiffs) who are a group of villagers from Kum village in the Mul District of Western Highlands Province claimed damages against the defendants (collectively “the State”) for the destruction of their properties in their village during the course of a fight between two other tribes that started from a polling area in the 2012 national general elections at the Uma Ward, Aiya Local Level Government. The appellants alleged that a polling official from the Electoral Commission failed to properly mark a ballot paper that led to a fight between two groups of supporters that in turn escalated into a fully-blown tribal fight which continued to the applicants’ village where the properties were destroyed. The appellants alleged that the Police failed to provide adequate security at the polling site and failed to prevent the tribal fight occurring. They also alleged that the electoral officer failed to maintain the integrity of the election process which caused the fight. They claimed therefore that the Police and the electoral officer failed in their duty of care and were negligent and as they were servants of the State acting in the course of their duties, the State was vicariously liable for their negligence.

2. When the matter came before the primary Judge, default judgment had already been entered and the matter was pending assessment of damages. On an application by the State, his Honour revisited the issue of liability and dismissed the entire proceedings for not disclosing a reasonable cause of action.

Grounds of appeal

3. The Notice of Appeal lists five (5) grounds of appeal but at the hearing Mr Koke of counsel for the appellants reduced and confined arguments to three grounds that briefly stated are:

(1) That the primary Judge erred in finding that no reasonable cause of action was disclosed; and
(2) That the question of whether there was a reasonable cause of action was previously decided in favour of the appellants and therefore the bar of res judicata applied; and
(3) That the State was not permitted by the National Court Rules to move its application.

Reasonable cause of action

4. In relation to the first ground of appeal, we stress that the appellants have only challenged the primary Judge’s determination that the pleadings disclosed no reasonable cause of action. The appellants argue that their cause of action being the tort of negligence was clearly pleaded in the Statement of Claim. Both in the National Court and on this appeal, the appellants firstly contended that an electoral officer breached his duty to ensure a free and fair election by wrongly marking a ballot paper. This breach of duty caused the argument leading to the tribal fight and the eventual destruction of the appellants’ property in their village some distance away from the polling area. The second leg of their claim was that the Police who have a duty to maintain law and order failed their duty by not providing adequate policemen to stop the fight.

5. It is appropriate therefore that we refer to the pleadings. After introducing the parties in paragraphs 1-7 of the Statement of Claim, the remaining paragraphs purport to plead the facts giving rise to the claim for damages and the basis for the claims. The pleadings are poorly drafted, somewhat convoluted, confusing and not easy-reading. After careful analysis however, it would appear that the appellants claim is for negligence alleging that:

• The electoral officer breached a duty of care to provide a free and fair election (paragraphs 10-13 of the Statement of Claim):
  
  10. The Fourth and Fifth Defendants are being sued under Sections 15 and 16 of the constitution to organize and conduct all elections for Parliament and the legislative arms of the Local-level Governments and make available staff or officials necessary for the discharge of the functions conferred on the Electoral Commission.
      
  11. The First, Second and Third Defendants are further sued for failure to provide effective and complete security whilst the Fourth and Fifth Defendants are sued for failure to ascertain the complete integrity of the electoral process for reasons that the security and integrity of the election process are often interrelated, and that the integrity of the election relies heavily on the security of the election process to preserve the integrity in the essence of s. (1) (a) (b) (c) of the Constitution and consequently the actions and omissions of the Defendants’ herein constitutes breaches of the Section 130, (1) (2) (3) (c ) (d) (e) of the Constitution and therefore this suit dwells on this total negligence of those provisions in the Constitution by the Defendants herein.
      
  12. Further the First, Second and Third Defendants together with the Fourth and Fifth Defendants failed to take great care in ensuing that their personal conduct and performance of their entrusted responsibilities is done professionally, competently, efficiently and beyond questions and therefore in not doing so, they failed to safeguard the integrity and security of a free and fair election in accordance with the provision of the Constitution mentioned in Paragraph 11.
      
  13. The Fourth and Fifth Defendants are further being sued for violation of Section 125 (a) (i) (ii) (iii) (iv) Section (1) & (2), Section (127) (1) (2) and Section (128) (1) (a) (b) (c) (2) (4) of the Constitution and Section 218 (1) of the Organic Law on National Election where error and omissions of the election officials questions the integrity of the votes cast at an election and the election process as a whole, then provided those errors or omissions to be material in that those error and omissions did affect the election in which the whole election has failed on the polling at Uma Ward, Aiya Local Level Government Council, Kagua/Erave Electorate in the Southern Highlands Province and the State through its agencies here declared election process in the electorate a failed election. (Our underlining)
      
• The Police failed to maintain law and order (paragraphs 9,11, 18 and 20 of the Statement of Claim):
  
  9. The First and Second Defendants are being sued under Sections 196 and 197(1), (a) (b) (2) of the Constitution for losses and damages occasioned to the Plaintiffs by breaches of the Constitution for total negligence of duty to preserve peace and good order in the country; and maintain and, as necessary, enforce the law in an impartial and objective manner.
     
  11. The First, Second and Third Defendants are further sued for failure to provide effective and complete security whilst the Fourth and Fifth Defendants are sued for failure to ascertain the complete integrity of the electoral process for reasons that the security and integrity of the election process are often interrelated, and that the integrity of the election relies heavily on the security of the election process to preserve the integrity in the essence of s. (1) (a) (b) (c ) of the Constitution and consequently the actions and omissions of the Defendants’ herein constitutes breaches of the Section 130, (1) (2) (3) (c ) (d) (e) of the Constitution and therefore this suit dwells on this total negligence of those provisions in the Constitution by the Defendants herein.
      
  18. In the circumstances, the First, Second and Sixth Defendants through the First and Second Defendant were under duty of care in giving instructions or commands to policemen and women under their care and control and command to oversee that the carrying out their commands and instructions are obeyed but they failed breaching the Constitutional provisions mentioned above.
      
  20. The First, Second and Third Defendants have failed miserably to comply with constitutional function as in s.197 (1) (a) (b) to charge, protect, care and command control of the polling booth of the Uma and Sumi wards respectively and this error or omission has resulted in the destruction of the Plaintiff’s properties, premises, houses, buildings, trade stores, schools, churches and effects inside, cutting and destroying food crops and adversely multiple deaths and injuries to men, women and children. To a larger extend able children and students are missing out in vital education which will have adverse effects to a prosperous society.

(Our underlining)

6. His Honour the primary Judge addressed both allegations of breach of duty. In his judgment he stated (Appeal Book, Volume 2, page 586:1-2):

“... it is pleaded that the plaintiffs suffered the consequences of a professionally incompetent and implemented electoral process ... and in the absence of electoral officers and police officers, ballot boxes and ballot papers were hijacked by the supporters of candidates, et cetera. And on that day, a dispute erupted and led to a fight and eventually led to a tribal warfare.

The claim boils down to a claim that the State should be held vicariously liable for the inaction or the negligence of the police ... to ensure that sufficient police are sent to wherever it may be necessary to ensure a safe and fair election.”

7. His Honour then went on to discuss relevant case authorities and in particular Lina Kewkali v The State (2011) SC1091 and Rupundi Maku v Steven Maliwolo & The State (2012) SC1171 upon which he based his decision. In Lina Kewakali’s case, the Supreme Court determined that where vicarious liability is claimed against the State, the alleged principal tort feasor must be named and the nexus or connection pleaded in support of the claim. In Rupundu Maku’s case, it was held that the Police do not owe any duty of care to the public at large and that no such duty of care can be found if it is against wider policy issues, such as where it may adversely affect the way in which the police carry out their duties for fear of litigation. In that case the Supreme Court applied Hill v Chief Constable of West Yorkshire (1987) UKHL 12 (Hill); (1989) AC 53 which at common law is settled authority for the proposition that:

(1) there is no general duty of care owed by the Police to individual members of the public to identify and apprehend a criminal; and

(2) as a matter of public policy the Police are ordinarily immune from actions for negligence in respect of their activities in the investigation and suppression of crime.

8. Her Honour Thompson AJ also approved the principles pronounced in Hill -v- Chief Constable of West Yorkshire (supra) in her decision in Catholic Diocese Wabag Board of Trustees v Enga Provincial Government (2011) N4562 which was delivered a year before the Rupundu Maku’s case. In that earlier case her Honour dismissed the plaintiff’s claim for damages for properties destroyed by a certain tribe during a fight involving several tribes. Her Honour firstly affirmed that the law of negligence requires a plaintiff to prove:

(1) The defendant owed him a duty of care,
(2) The defendant breached that duty, and
(3) As a result of that breach, the plaintiff has suffered loss.

9. In the present case, the appellants have not established either in the trial or in this Court that the Electoral Commission owed them the duty of care alleged. It has not even been shown whether they are eligible voters or candidates of the elections and how that alleged duty of care to provide a free and fair election was breached. We are unable to see how one instance of a failure by an electoral officer to properly mark a ballot paper can amount to a breach of the alleged duty of care to provide a free and fair election, which duty of care we hasten to add does not, in our view, exist in law.

10. We are of the opinion that the question of whether the Police breached a duty of care to provide law and order is answered by the relevant principles pronounced in Maku’s case. Where two tribes have by their own choice developed a dispute at a polling booth into a fully-blown tribal fight resulting in destruction of property belonging to a third party not involved in the fight, we find no legal basis for a claim for damages by that third party against the Police for the inaction or the negligence of Police in not providing adequate number of policemen to stop the tribal fight. Not only do the Police not owe any duty of care to the public at large but clearly the loss suffered by the appellants was caused by the warring tribes and not the Police. As Thompson AJ observed in the Catholic Diocese Wabag case: “The Police did not destroy the buildings – it was the Ambuli tribesmen who did that. The proximate cause of the loss was the action of the tribesmen, not the inaction of the Defendants.” Those remarks are similarly applicable to the present case. The element of causation in this claim is not established.

11. We find no error in the primary Judge’s decision to dismiss the entire proceedings and dismiss the first ground of the appeal.

Res judicata

12. The appellants submitted that the State had previously moved an application under Order 12 Rule 40 that was refused. They argued therefore that the question of whether a reasonable cause of action was disclosed had already been determined and was therefore res judicata. The doctrine of res judicata does not allow a claim based on a cause of action that has already been determined by a final judgement; see Joshua Giru v Willie Edo (2007) N5032 for the elements of res judicata. We consider the argument advanced for the appellants is properly described as issue estoppel which rule does not permit re-argument of questions of fact or law already determined by the Court; Hami Yawari v Anderson Agiru (2008) N3983.

13. Whether a case of res judicata or issue estoppel arose is a point of law that was not pursued in the National Court. It is well-settled that the Supreme Court takes a strict approach when an appellant seeks to raise a point of law not raised in the court below. Recently in Ken Fairweather v Jerry Singirok (2013) SC1293 the Supreme Court (Mogish J, Cannings J and Poole J) noted that there are conflicting lines of authority as to how the Supreme Court should deal with such a situation – “the strict approach” and “the very strict approach”. The Court stated that:

“34. The strict approach says that a party can raise in the Supreme Court a point of law not put before the National Court, but only if it seeks and obtains the leave of the Supreme Court to do so, this being the approach taken in cases such as Van Der Kreek v Van Der Kreek [1979] PNGLR 185, The Papua Club Inc v Nusaum Holdings Ltd (2005) SC812, Application by Herman Joseph Leahy (2006) SC 855, Telikom PNG Ltd v ICCC (2008) SC906 and Comrade Trustee Services Ltd v Arnold Daugle (2011) SC1105.

35. The very strict approach is the one that says that under no circumstances can a party raise in the Supreme Court a point of law not put before the National Court, this being the approach taken in cases such as MVIT v James Pupune [1993] PNGLR 370, PNGBC v Jeff Tole (2002) SC694, Fly River Provincial Government v Pioneer Health Services Ltd (2003) SC705, Curtain Brothers (PNG) Ltd v University of Papua New Guinea (2005) SC788 and Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853.”

(Our emphasis)

14. We do not consider it necessary to decide now which of the two approaches we endorse. If we apply either approach, the result is the same - the argument on res judicata (or issue estoppel) cannot be raised on this appeal. It was not argued in the National Court and neither has leave been sought and granted to raise it in this Court.

15. Upon reading the transcript of proceedings in the National Court, we find it correct that the appellants referred to an earlier similar application to dismiss but they did not provide particulars of the grounds for that earlier application. They did not actually argue res judicata before the primary Judge. The transcript shows that counsel for the State explained that the previous application was grounded on the claim that the proceeding was not properly filed as a class action. Based on that explanation by the State the bars of res judicata (or issue estoppel) would not apply.

16. We also note that the primary Judge relied largely on the decision of the Rupundi Maku’s case which approved the earlier decision of William Mel v Coleman Pakalia & Ors (2005) SC790 for the proposition that while as a general rule, the entry of default judgment determines the issue of liability and the only issue for determination is assessment of damages, if the facts or cause of action pleaded do not make sense or makes assessment of damages a futile exercise, then the Court may revisit the issue of liability.

17. We dismiss the second ground of the appeal.

Right to make application

18. Finally, the appellants submitted that because the State filed its notice of intention to defend late and it also failed to file a defence, the primary Judge erred in allowing the State to make its application without first obtaining leave. That submission was based on Order 7 Rules 2 and 6 of the National Court Rules. Rule 2 states that a defendant cannot take any steps in a proceeding unless first filing a notice of intention to defend. The effect of Rule 6 is that while the notice may be filed at any time without leave, if it is filed late the defendant cannot take any steps outside of time without the court’s approval.

19. The State filed a notice of intention to defend, albeit late. It was entitled under Rule 2 to argue its application. We accordingly consider the submission by the appellants to be misconceived. In any case, we note and it is conceded by the appellants that the issue was not argued before the primary Judge. For the same reasons discussed earlier in relation to the second ground of appeal, the point of law cannot be determined on this appeal. We also dismiss the third ground of the appeal.

Conclusion

20. We conclude that his Honour the primary Judge made no error in dismissing the proceedings before him. The appeal before us must be dismissed and the Order of the National Court affirmed. Costs will follow the event but only for the respondents who appeared to argue the appeal.

Order

21. Accordingly, we order that:

(1) The appeal is dismissed.
(2) The Order of the National Court of 6^th March 2014 is affirmed.
(3) Costs of the appeal shall be paid by the appellants to the first, second, third and sixth respondents on a party-party basis, to be taxed if not agreed.

_________________________________________________
Parua Lawyers: Lawyer for the appellants
Greg Manda Lawyers: Lawyer for the first, second, third & sixth respondents
Niugini Legal Practice: Lawyer for the fourth & fifth respondents