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Mara v Muikin [2009] PGNC 235; N3971 (15 September 2009)

N3971

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS No. 1433 OF 2005

BETWEEN:

JAMES MARA & Ors
Plaintiffs

AND:

KAKAS MUIKIN, POLICE STATION COMMANDER,
LAIAGAM DISTRICT, ENGA PROVINCE
First Defendant

AND:

SAM INGUBA, COMMISSIONER OF ROYAL
PAPUA NEW GUINEA CONSTABULARY
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Gavara-Nanu, J
2009: 3rd, 4th, 5th & 9th February &
15th September

DAMAGES - General and special damages - Police raid - Default judgment entered - Onus still on the plaintiffs to prove their damages with credible evidence

EVIDENCE - Plaintiffs' oral evidence contradicting their affidavit evidence - Plaintiffs relying on hearsay evidence - Plaintiffs failing to prove their damages on the balance of probabilities.

Cases cited:

Papua New Guinea Cases

Haiveta v. Wingti (No.1) [1994] PNGLR 160
Obed Lalip & Others v The State (1996) N1457
Olympic Stationary Ltd v the State N2144
Paul Tohien v Tau Liu (1998) SC566
The Yange Lagan & Others v The State (1995) N136
Yooken Paklin v The State (2001) N2212

Overseas cases cited:

Homal v. Neuberger Products Ltd [1957] 1 QB 247

Counsels:

A.Tagamasau, for the plaintiffs
S. Lau, for the defendants

15 September, 2009

1. GAVARA-NANU J: Plaintiffs' are claiming general and special damages against the defendants.

2. The plaintiffs' claims arise out of an alleged raid conducted by the members of a Police Mobile Squad at Kasap village in the Laiagam District of Enga Province on 19 and 20 October, 2004. The plaintiffs claim that the members of the Police Mobile Squad who raided their village were under the command of Inspector Felix.

3. The plaintiffs claim that during the raid, their houses, household goods and pigs were destroyed and killed.

4. The plaintiffs make individual claims for damages they allegedly suffered.

5. In total, there are about 51 plaintiffs claiming to have suffered losses in that raid. All of them have sworn affidavits. Six of the plaintiffs' have given sworn evidence at the trial, they are; Mary Kain, Tari Popo, Asi Mara, Joe Wanko, John Mangi and James Mara, who is the principal plaintiff.

6. James Mara has also claimed damages for loss of business, but this claim was abandoned at the trial because it has not been pleaded.

7. The claim for exemplary damages by all the plaintiffs was also abandoned at the trial.

8. Thus, my task here is only to assess general and special damages for the plaintiffs. The fact that the default judgment has been entered against the defendants does not mean that the plaintiffs should be awarded damages as a matter of course. In other words, this trial is not just to decide the quantum of damages for the plaintiffs, it is also for the plaintiffs to first prove their damages with credible evidence. They still have to discharge that onus: Yange Lagan & Others v. The State (1995) N1369, Obed Lalip & Others v. Fred Sikiot and The State (1996) N1457.

9. The plaintiff must prove their damages on the balance of probabilities: Yooken Pakilin v. The State (2001) N2212. This requires the plaintiffs to prove their losses with convincing and credible evidence which must also be commensurate with the seriousness of the matters or issues before the Court. The evidence adduced by the plaintiffs must also be substantial: Haiveta v. Wingti (No.1) [1994] PNGLR 160 and Hornal v. Neuberger Products Ltd [1957] 1 QB 247.

10. Coupled with the burden of proving their losses is that the plaintiffs must also demonstrate that their claims are properly before the Court. This requirement relates to the proceedings as a whole.

11. Thus, even though a default judgment has been entered against the defendants, if the proceedings are found to be improperly brought, this can result in the proceedings being dismissed in their entirety. In this regards issue of a notice under s. 5 of the Claims by and Against the State Act ("CBAS Act") becomes relevant.

12. Probably because default judgment had already been entered against the defendants, notice under s. 5 notice was not raised at the trial. I am also not at all sure whether the plaintiffs had given s. 5 notice for their claims because in my perusal of the material before me, it appears that that notice was not given by the plaintiffs. If s. 5 notice was not given by the plaintiffs, that would invalidate the proceedings and the plaintiffs'action would have no legal basis, for s. 5 notice is a condition precedent to the proceedings being legal and competent. This will leave the proceedings open for summary dismissal: Olympic Stationery Ltd -v- the State N2144 and Paul Tohian -v- Tau Liu (1998) SC 566.

13. However assuming that the plaintiffs did give s. 5 notice before instituting these proceedings, the next question that arises is, have the plaintiffs proved their claims?

14. In other words, have they adduced convincing and credible evidence to prove their claims?

15. Let me deal firstly with those plaintiffs who have given evidence at the trial. Firstly, James Mara, the principal plaintiff in these proceedings. By his admission, he did not witness the alleged raid and destruction to property at Kasak village of Laiagam District of Enga Province, because at all material times, he was in Port Moresby. He went back to this village about two months after the alleged raid. The effect of this is that his evidence regarding the alleged raid of Kasak village and destruction of his properties is all hearsay. There is no independent evidence supporting his claims. The evidence he has adduced in support of his claims is therefore not credible, let alone convincing. The end result is he has not proved his claims on the balance of probabilities: Chris Haiveta -v- Paias Wingti (No.1) (supra). James Mara has also claimed damages for his hospitalization in Port Moresby and living expenses when he was in Port Moresby. He claimed that those expenses arose from poor health conditions he suffered after the alleged raid and destruction of his properties. However, principal claims having been dismissed, the claims for medical expenses and accommodation while in Port Moresby also cannot be sustained and they are also dismissed.

16. Furthermore, there is evidence that plaintiff's hospitalization in Port Moresby was directly related to the assault he suffered before 20 October, 2004. Thus, they bear no relevance and connection to the alleged police raid. The end result is that the plaintiff has failed to prove and substantiate his claims, all his claims are therefore dismissed.

17. In regard to Mangi Kain, his sworn evidence directly contradicts his affidavit evidence. He told the Court that he was shot by the police on his ankle during the alleged police raid, but in his sworn affidavit, he deposed that he was shot on his forearm. His affidavit evidence was put to him in cross examination but he denied that he was shot on the forearm and was adamant that he was shot on the ankle. This is a major inconsistency in his evidence. The end result is that, his evidence is unconvincing and unreliable. There is no independent evidence in support of his claims. He has therefore failed to prove his claims. All his claims are therefore dismissed. There is one other reason why I would dismiss his claims, he is not named as a plaintiff in the proceedings.

18. The next plaintiff that gave evidence at the trial is Tai Pepo, he said on 19 January, 2004, police destroyed his property and on 20 October, 2004, the police killed his pigs and took them to Laiagam Police Station where they cooked them and ate them. He also swore two affidavits. One of the affidavits annexed a photograph of a vacant area where he says his house once stood. There is no evidence as to who took the photograph and when it was taken. The vacant area shown in the photograph has vegetables growing. There is no evidence in the photograph that a house was burnt down in that vacant area. I find the evidence in the photograph unconvincing. In the other affidavit, the plaintiff deposed that a raid was conducted by a Police Mobile Squad under the command of Inspector Felix, he then went on to say that his properties were destroyed, but he does not say how his properties were destroyed and who destroyed them. The first defendant is also not directly implicated. I find this evidence falling short of being credible and convincing. I also find his sworn evidence at the trial incredible. For-instance, he said all the pigs were killed and taken by the police to Laiagam Police Station where they cooked them.

19. There is no independent evidence in support of the claims. He has also failed to prove his claims on the balance of probabilities. All his claims are therefore dismissed.

20. In regard to Asi Mara, in his sworn evidence, he told the Court that during the alleged police raid, he was cutting firewood in the bush so he did not actually see the raid, he said he was told about the raid by other villagers who were fleeing. He said, he too fled with his village people. He only heard gunshots. He said, he and his fellow villagers hid in the bushes. He told the Court that three of his pigs were killed but he did not see who killed them. There is no independent evidence in support of his claims. His own evidence is hearsay, thus, it is not credible. The end result is that, he has failed to prove his claims. I therefore dismiss all his claims.

21. In regard to Job Wanko, he also told the Court that on 19 and 20 October, 2004, he was not in the village because he was working as a general labourer for PTB. He did not see the alleged raid on the two dates. He only heard about the raid from relatives. He also swore two affidavits, one annexed a photograph of a vacant area. He does not know who took the photograph and when it was taken.

22. The vacant area in the photo shows vegetables growing. There is no indication in the photograph that a house was burnt down in the area. There is a man standing in the photograph but the plaintiff does not know who the man is. In his other affidavit, he only says his things were destroyed by the police in a police raid. He does not say who destroyed his things. The first defendant is also not directly implicated. His evidence is clearly hearsay.

23. There is no independent evidence in support of his claim. He has failed to prove his claims. I therefore dismiss all his claims.

24. In regard to John Mangi. He told the Court that on 19 and 20 October, 2004, he was working in his garden and he did not see the alleged raid and he did not see who burnt his house. He said his garden was about two hours walk from the village. He was told of the raid after he returned from the garden. He said, on 19 October, 2004, his house was not destroyed it was destroyed on 20 October, 2004; when he was in his garden. There is no independent evidence in support of his claims. His evidence is all hearsay. It is therefore not credible. He has also failed to prove his claims. I therefore dismiss all his claims.

25. There is one common feature about the evidence given by these six plaintiffs, i.e, according to James Mara, they discussed the case on how they were to pursue and prosecute their claims. Some of those discussions were held only days before the trial. In John Mangi's case, James Mara discussed the case with him on the morning of the trial. All these go to show that these plaintiffs discussed what to say in their evidence. This further discredits all their evidence.

26. In regard to the other plaintiffs, they only relied on their own affidavits. They have not adduced any independent evidence in support of their affidavit evidence. They have sworn affidavits which are similar in terms except for the list of their respective losses. For instance, in all the affidavits, they say Kasak village was raided by a Police Mobile Squad members under the command of Inspector Felix, but none of the affidavits directly implicate the first defendant. In the affidavits they only say their properties were destroyed and looted. But they do not say who destroyed them and how they were destroyed. They do not specifically say the police destroyed their properties. Even if it was the police who destroyed the properties, they do not say how their properties were destroyed, whether they were burnt or chopped down and so on.

27. The date of the raid or raids is also not clear because they all say the raid was conducted or about 19 or 20 October, 2004. They say pigs were killed, but there is no evidence of who killed the pigs and how they were killed. The list of properties allegedly destroyed is staggering. For instance, about all 45 or so plaintiffs say, their pigs were killed, some of them were piglets. One says 15 of his pigs were killed. Another says 40 of his chickens were killed. Another says 52 chickens belonging to him were killed. I find such evidence incredible. It is clear to me that they fabricated their evidence.

28. Some of them swore second affidavits and annexed photographs in which they show vacant areas where they say their houses stood before being burnt down but they do not say who burnt the houses.

29. Affidavits sworn by Killi Popo, Paul Kaul and Peter Kasi, which have been tendered as Exhibits 'D', 'F' and 'C' have been disregarded as these person are not named as plaintiffs in the proceedings. In other words, they are not plaintiffs, thus, they are not parties to the proceedings. They fall into the same category as Mangi Kain. But, even if I had considered their respective affidavits in support of the injuries they say they suffered, from gunshots which they say were fired by the police during the alleged raid on 19 and 20 October, 2004; I would still dismiss their claims because the medical reports they annexed to their affidavits for the injuries they allegedly suffered are all hearsay because the reports were prepared by a Health Extension Officer on 6 March, 2006, which is almost two years after the alleged incident. In Paul Kaul's case, his medical report is also not dated.

31. Also the photocopies of the loose pages of their Adult Health Report Books are inconclusive. Their names appear on those loose pages, but they do not indicate where those Books and records were kept and who prepared those records and when they were prepared. This is an added reason why any claims by Mangi Kain, Paul Kaul, Peter Kasi and Kili Papo would still be dismissed. These observations are only academic because the three are not named in the writ as plaintiffs

31. For the foregoing reasons, I find that the plaintiffs have all failed to prove their claims against the defendants. All their claims are therefore dismissed.

32. The plaintiffs will pay the defendants' costs and incidentals to these proceedings.

Orders accordingly.
______________________________________________
Nobert Kubak & Co Lawyers: Lawyer for Plaintiff/Applicant
Solicitor-General: Lawyer for Defendants