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Kuli v Tande [2016] PGNC 107; N6275 (12 May 2016)

N6275

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

W.S NO. 1236 OF 1999

BETWEEN:

KUK KULI

Plaintiff

AND:
SENIOR CONSTABLE NICHOLAS TANDE
First Defendant

JOE SIMBRANTAO
Second Defendant

SENIOR CONSTABLE TONY KURE
Third Defendant

CONSTABLE JESSIE AMALKWON
Fourth Defendant

SQUAD COMMANDER MATHEW KAWA
Fifth Defendant

CHRIS GALE
Sixth Defendant

JOHN VUE
Seventh Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Eight Defendant

Mount Hagen: Poole J
2016: 12^th May

PLEADING - The Proper Plaintiff -In An Action-Seeking Damages- For Loss Of Property- Is The Owner Of The Property, -Not The Owner Of Shares -In A Corporate Owner, Which Has A Distinct And Separate- Legal Personality.

PRACTICE -Leave To Reopen A Case, - Add A Further Plaintiff And Adduce Further Evidence 20 Years- After Cause Of Action Arose Will Be Refused- In Light Of The Over-All Importance Of Finality In Litigation.

EVIDENCE - Presence of Uniformed Police- Transported In police vehicles on Two Occasions- Inconsistent with Accidental- or- Unauthorized Presence at Scene- and Indicates Presence- on Authorized Police Operation.

Authorities:

AGC Pacific Limited v Woo Textial International Limited [1992] PNGLR 100
Christopher Smith v Ruma Construction Limited (2002) SC 695
General Accident Fire and Life Assurance Cooperation Limited v Illimo Farm Products Pty Ltd [1990] PNGLR 331.
Saloman v Saloman ([1897] AC 22)

Counsel:
Ms Tamutai,for Plaintiff
Ms Bamin, for Defendant

DECISION
12 May, 2016
1. POOLE J: On the 23^rd of December 2013 the Plaintiff filed an amended Writ and Statement of Claim, by adding parties, pleaded to be tortfesors, which addressed the outstanding pleading issues in the claim which concerns, also, vicarious liability on the part of the (nominal defendant) State.

2. The case pleaded by the Plaintiff is that, on the 13^th of May 1995 and, again, on the 16^th of May 1995, a number of members of RPNGC, servants or agents of the State, entered the service station and store at Kindeng and destroyed, damaged, stole and made away with goods, property, cash, fuel and lubricating oil and, in so doing, caused the Plaintiff to close his business for 9 days and sustain economic lost and he also seeks the value of the looted, damaged or destroyed goods.

3. The claim is for damages for trespass to property and persons, negligence, special damages arising from those heads of claim and, also, for exemplary damages for breach of Constitution Rights.

4. It is the Plaintiff’s case that the police concerned were members of the mobile squad based at Kerewagi and were, at that time, engaged on authorized police operations.

5. The Plaintiff pleads that a considerable number of armed mobile squad police arrived on the 13^th of May 1995 in uniform and in 4 police motor vehicles. They behaved violently to the people at the Kindeng service station and store and damaged motor vehicles and fittings to the service station, took cash from the service station and goods and stock from the store and service station. The Plaintiff specifically pleads that these police came back again, on the morning of Tuesday the 16^th of May 1995, and that they were “involved in a police operation” and were acting in the course of their employment by the State and within the scope of their authority as servants or agents of the State.

6. There is no evidence of the reason the mobile squad attended the service station and store at Kindeng. There is no evidence of lawless behavior by the civilian population who were at the service station and store at Kerewagi before the arrival of the police. But it is claimed that the police spent some time there involved in violent behavior to the people and it is also claimed, in damaging, destroying and looting property. There is evidence that they returned on the 16^th of May and, again, although there is no evidence of any arrest being made, property was damaged and looted and people assaulted and terrorized.

7. Much of the delay in the resolution of this case has been caused by the way in which the lawyers have conducted it. Initially, proceedings were instituted in the name of the Plaintiff only against only the Independent State of Papua New Guinea. This lead to a defence which was, in essence, a general denial. There was an unsuccessful application to struck out the Defence and, following that, a further application made to strike out the Statement of Claim.

8. Pleadings have given rise to numerous interlocutory applications and these, in turn, have caused the filing of lengthy submissions (with extensive annexures which are of doubtful value or relevance).

9. There is only one Plaintiff, suing on his own behalf, but there are affidavits from third parties giving details of loss of their property, theft of money, assault and off being shot by police. These issues, which would be proper in a claim brought by these third parties, are not relevant to one in which only the Plaintiff is making a claim.

10. Affidavits have been filed containing lengthy material about events which are outside the facts pleaded (because they predate them or refer to complaints about police behavior separate in time and later than the facts pleaded in the Statement of Claim) which are utterly irrelevant to the Plaintiff’s claim as pleaded. Further, it is regrettable to have to note that, instead of affidavits being filed which comply with the Rules of Court and in form of admissible evidence, the Court is asked to read extensive stories which appear to be totally hearsay and only contained occasional references to events described in the first person.

11. A Court should not be asked to reach a decision on material which is irrelevant and inadmissible even if not objected to by the other party.

12. It must be noted that the Statement of Claim mentions a claim of “cash money taken from people” and names 3 persons who are not parties nor pleaded as being dependent on the Plaintiff or as having authorized the Plaintiff to sue on their behalf. This is but one example of the haphazard pleading of this claim.

13. In the same way, pleading “that the Defendants assaulted the Plaintiff’s son and others of his clansmen and his storekeeper and his servants” cannot succeed as none of these are parties to the claim. Lawyers for the Defendants failed to make any application at all to have this entirely irrelevant pleading struck out.

14. By this specific pleading of the relationship of the First to the Seventh Defendants with the Eight Defendant, the Plaintiff is bringing his claim clearly within the terms of Section 1 of the Wrongs Act and, as I have noted in a similar case recently, the degree of organization of the police, combined with their arrival at the premises on two separate occasions in uniform and in police vehicles, is quite inconsistent with any explanation for their presence other than it being a result of official orders. In other words, these facts point to the police being on duty and not acting as individual citizens but a servants or agents of the (Eight Defendant) State. I am satisfied that the pleading is sufficient to justify, if evidence should substantiate it, vicarious liability.

15. As I have said, the claim is for damages for trespass goods and persons; for negligence arising by the failure to control the policemen who were members of the Kerewagi mobile squad and or instruct and command those members, supervise and train them in a manner to ensure they carried out their duties as Constables to preserve the peace and prevent criminal behavior in a lawful manner appropriate to a disciplined service and, also, for damages arising from severe breaches to the Constitutional Rights of the Plaintiff, under Sections 41 and 58 of the Constitution.

16. The Defendants pleadings consists of, initially, a very short Defence (filed on the 2^nd of February 2000) which denied the Plaintiff’s Statement of Claim and “says that the alleged raid if true was unauthorized and lawful and therefore the defendant cannot be responsible for actions of policemen which are unlawful and unauthorized.”

17. A mended Defence was filed on the 18^th of August 2005 (more than 5 years later) which contradicted the assertion in the original Defence that the presence of the police at Kindeng was unauthorized. It said, “That people at the Plaintiff’s area acted contrary to the law which warranted the police to act in the manner only to repossess the firearms of the defendant and repeats paragraph 4 and 5 above”.

18. The form of the Amended Defence is improper and contrarily to the Practice Direction which requires words in an original that are not to be relied on in the amended document to be ruled through in red and words which are to be inserted in the text of the amended document to be underlined in red.

19. The evidence used by the Plaintiff to support the facts pleaded in the Amended Statement of Claim may be conveniently summarized as consisting of a considerable number of witness affidavits dealing with events of the 13^th and 16^th of May when police arrived at the Kindeng service station and store, assaulted people and destroyed, stole and looted property. There are also a considerable number of affidavits which are utterly irrelevant to the facts pleaded in the Statement of Claim.

The Law

20. It is trite law that an action for the damages, such as this, may only be brought by a party who has either suffered the damage complained off or who is legally authorized by the party who has suffered the loss to bring the action – either in representative capacity, or as guardian for someone under a disability, or as a duly appointed representative of a corporate plaintiff.

21. In this action the Plaintiff brings the claim as a sole individual. On the 3^rd of December 2010 the Plaintiff filed yet another affidavit and in that affidavit depose that he “wrote to Southern Pacific Insurance on the 29^th of May 1995” and received a response enclosing a multipurpose claim form, which was later completed. The form is annexed to the affidavit. It states that the dates of the loss or damage the subject of the claim and nominates the place or premises where this occurred as being “Kindeng Service Station, Anglimp”. Critically, it clearly identifies the insured owner as being “Kindeng Service Station Trading as Rama Enterprises P/L” and not Kuk Kuli.

22. Indeed, examination of the company extract of Rama Enterprises shows that the Plaintiff was a share holder in that company. He owned 1 out of 3 shares (ie, minority) and was one of 3 directors of the company. He was not company secretary and the company was removed from the register of companies on 21^st of January 2009.

23. The Party which suffered the wrongs for which damages is sought is the owner of the goods – not the owner of shares in a company which owned the goods. It is the owner of the goods who has, if able to satisfy the Court on the balance of probability by admissible evidence, a right to compensation or the damage or loss sustained. The evidence arising from the Plaintiff’s affidavit to which I have just referred shows that the proper Plaintiff in this action has not being named and the Plaintiff’s case, as pleaded, cannot be sustained. This issue of separate legal personality and of the proper Plaintiff to bring an action has been the subject of close examination and clear decision by Courts for many years starting, I suppose in the 1897 English Court of Appeal decision of Saloman v Saloman ([1897] AC 22) and examined, by the Supreme Court of Papua New Guinea, notably in the case of AGC Pacific Limited v Woo Textile International Limited [1992] PNGLR 100.

24. At this late stage the counsel for the Plaintiff has applied for leave to add a further Plaintiff and to reopen the case. As I have indicated, the Plaintiff has already, some years ago, amended, and substantially amended, the Statement of Claim. At this late stage and after extensive delay I am not inclined to give leave for further amendment and reopen the case.

25. It is clear to me that, although particulars of the loss claimed have been pleaded, there is absolutely no evidence at all to support the values claimed for items which were pleaded as lost or destroyed. If it were possible, after 20 years, to produce such evidence the value of such evidence, after such a considerable lapse of time, must be considerably degraded. Further, this matter is now more than 20 years old and there is the over arching consideration of the public interest in the finality of litigation – a matter which has been commented on and reinforced in this jurisdiction on many occasions; see, for example, Christopher Smith v Ruma Construction Limited (2002) SC 695 and General Accident Fire and Life Assurance Cooperation Limited v Illimo Farm Products Pty Ltd [1990] PNGLR 331.
For these reasons, I decline to exercise the Court’s discretion to grant the Plaintiff leave to further amend the Statement of Claim and reopen the case to file further evidence.

26. It is clear to me that, despite the disgraceful behavior and lawless and thuggish conduct of the Mobile Squad, the action pleaded does not disclose a reasonable cause of action by the Plaintiff. Had care been taken and the crucial issue identified this situation would not have arisen. No clearer example can be thought of as showing the need for proper care in pleading. Still, the Plaintiff may not be without other remedy.

27. I find that the Statement of Claim as pleaded has failed to disclose a reasonable cause of action and I exercise the Court’s discretion under Order 8 rule 27 of the National Court Rule to dismiss the action for that reason.

28. The Formal Orders of the Court are:

1. The Plaintiff’s action is dismissed.
2. Each party shall bear its own costs.
____________________________________________________________
Ms Tamutai: Lawyers for the Plaintiffs
Ms Bamin: Lawyers for the Defendant