Nealy v Eki [2024] PGSC 27; SC2556 (23 April 2024)

SC2556

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 18 OF 2021

GERANG NEALY & OTHERS
Appellants

AND
MIKE EKI FOR AND ON BEHALF OF HIMSELF & OTHERS
Respondent

Waigani: Toliken, Anis and Berrigan JJ
2023: 1^st June
2024: 23^rd April

DAMAGES – Unlawful eviction – Breach of Human Rights – Whether liability should have been revisited following default judgement – Whether trial judge erred in determining amounts awarded for general and property damage.

Cases Cited

William Mel v Coleman Pakalia (2005) SC790
Gaian v Yawing (2018) N7099

Counsel:

R. Mannrai, for the Appellants
F. So, for the Respondents

23^rd April 2024

1. BY THE COURT: The appellants appeal against an assessment of damages following default judgement. The case arose out of an unlawful eviction conducted by Stettin Bay Lumber Company Limited with the assistance and under the guidance of the appellants, all employees of the company, together with off-duty police officers.
   
2. The respondents were employed by Stettin Bay Lumber Company Limited, a logging company established in Kimbe, West New Britain Province. The respondents were employed by the company and were living on the company’s land. In 2015 there was a mass lay-off and the respondents were given notice. In September 2018 the appellants ordered the respondents and their families to come out of their houses. The appellants, whilst under the influence of alcohol, armed with AR rifles and assisted by off-duty police officers, attached chains to the respondents’ houses and destroyed them using a land cruiser and a hammer, pinch bar and chain saw. Default judgement was entered against the appellants on 15 May 2019.
   
3. On 12 December 2020 the National Court awarded K30,000 in damages to each of the 24 respondents, together with 8% interest, comprised of the following: a) K20,000 in general damages; K5000 for breach of human rights; K3000 exemplary damages; and K2000 for loss of property. It refused to award any amount for unpaid entitlements or special damages.
   
4. There were five grounds of appeal, two of which were abandoned. In summary, the appellants contend that the learned trial judge erred in: a) awarding K20,000 in general damages to each of the respondents; b) awarding K2000 for loss of property; and c) awarding damages in circumstances where the claims were convoluted and warranted a revisit of liability.
   

Convoluted claims

5. It is convenient to deal with the last ground first. The appellants contend that the claims were convoluted by a mixture of human rights abuse and employment entitlements which warranted a revisit of liability. They rely on William Mel v Coleman Pakalia (2005) SC790 as authority.
   
6. The contention is misconceived, and William Mel does not assist the appellants.
   
7. The Court in that case held that once default judgment is entered, the facts as pleaded and their legal consequences in terms of establishing the cause of action as pleaded must be regarded as proven. Nevertheless, the trial judge should make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity. If it is reasonably clear what the facts and cause of action are, liability should be regarded as proven. Only if the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability. The plaintiff has the burden of producing admissible and credible evidence of the alleged damage. Any matter not pleaded but introduced at the trial is a matter on which the defendant can take issue on liability.
   
8. Returning to the present case, the learned trial judge expressly considered and was satisfied that the facts and causes of action were pleaded with sufficient clarity. He refused to revisit liability on the basis that the argument had been raised late, without notice and in the absence of a notice of motion and supporting affidavit.
   
9. The trial judge refused to award damages for unpaid employment entitlements on the basis that the pleading was vague and lacking in specificity and that the case was fundamentally one concerning breach of human rights as a result of the eviction exercise.
   
10. We see no error in his Honour’s finding. The fact that the claim for unpaid entitlements was hopelessly vague did not mean that the claim for breach of human rights was also flawed. Nor did it render that claim convoluted or difficult to follow.
    
11. The ground is dismissed.
    

General Damages

12. The appellants submit that the trial judge erred in awarding K20,000 in general damages when the human rights abuses were unclear and not as serious as those in Gaian v Yawing (2018) N7099 on the basis that the main wrongdoers in that case were police officers and the respondents in this case had ample notice that they should vacate the company’s property.
    
13. The trial judge awarded the same amount he awarded in Gaian on the basis that the case was very similar. In that case police raided two villages suspected of harbouring suspects. They threatened the villagers with firearms and then set about burning their homes.
    
14. General damages are awarded for pain and suffering. We make it clear therefore that the sum awarded in every case must be determined on its own facts and circumstances.
    
15. There is evidence in this case to suggest that notice had been given to at least some of the respondents to vacate the land in 2015. There is also evidence that there was an ongoing dispute as to employment entitlements in some cases and that other respondents had remained hoping for future employment. Regardless of whether notice had been given many years earlier, however, the eviction was unlawful. The appellants were armed and under the influence of alcohol when they threatened the respondents before destroying their homes. The breaches of human rights were blatant and serious and the situation must have been distressing for all concerned.
    
16. In the circumstances the appellants have failed to demonstrate an error on the part of the trial judge and the ground is dismissed.
    

Property Loss

17. The appellants submit that the trial judge erred in awarding K2000 to each of the respondents when they produced mere quotations instead of receipts to establish the cost of materials required to build their new homes. Most if not all of the shelters were made from wood and thatched roofs made from coconut, palm trees or leaves which could not have cost K2000. The trial judge admitted in his decision that the claims were exaggerated and not supported by the evidence. K2000 was a windfall and the amount awarded should have been less than K500 or nothing.
    
18. We observe that the trial judge did say that “the claims were exaggerated and not supported by the evidence”. He went on to say, however, that: “I will accommodate my concerns in that regard. I am not saying that they should be awarded nothing but I am looking at these claims with appropriate scepticism and I will award each plaintiff for loss of properties the sum of K2000”. This was against claims ranging from K3734 up to K14,888.
    
19. For obvious reasons a successful plaintiff cannot be expected in every case to establish what they have spent in replacing their property in order to succeed in a claim for damages. They may very well lack the funds required to do so. It is their loss that they are required to establish and invoices and quotes to establish the cost of replacing a similar property may be relevant for this purpose.
    
20. In this case, however, it does appear that houses were reconstructed. A review of the evidence shows that the houses are variable in size and construction material but they cannot be properly described as mere shelters. They appear to be made of timber. Some have tin roofs whilst others have thatch. Invoices have also been produced quoting the price of bedding, clothing and in some cases kitchen ware.
    
21. It appears to us that the trial judge carefully considered the evidence before him. Having regard to the loss of the structures themselves together with at least some of their contents, the appellants have failed to establish that the trial judge erred in awarding K2000 to each of the respondents for the loss of their property.
    
22. This ground is also dismissed.
    
23. Accordingly, we make the following orders.
    

ORDER

1. The appeal is dismissed.
2. The orders of the National Court on 12 December 2020 are affirmed.
3. The appellants shall pay the respondents’ cost of the appeal which may be taxed if not agreed.

___________________________________________________________
Mannrai Lawyers: Lawyers for the Appellants
Ketan Lawyers: Lawyers for the Respondents