Pamenda Ipi Pangu v Mak Korr

• Jurisdiction: Papua New Guinea
• Judge: Poole, J
• Judgment Date: 22 September 2015
• Citation: (2015) N6069
• Court: National Court
• Year: 2015
• Judgement Number: N6069

Full : WS NO. 1778 OF 2001; Pamenda Ipi Pangu v Sgnt, Mak Korr and Allan Kundi and Joseph Kupo—Papua New Guinea Police Commissioner and The Independent State of Papua New Guinea (2015) N6069

National Court: Poole, J

Judgment Delivered: 22 September 2015

N6069

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1778 OF 2001

BETWEEN:

PAMENDA IPI PANGU

Plaintiff

AND

SGNT, MAK KORR

First Defendant

AND

ALLAN KUNDI

Second Defendant

AND

JOSEPH KUPO – PAPUA NEW GUINEA POLICE COMMISSIONER

Third Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Mount Hagen: Poole, J

2015: 22nd September

PROCEDURE – Principles for awarding default judgement clear but 13 years delay in applying to set aside defective Judgement establishes equitable bar of laches to such an application.

PLEADING – Absence of credible evidence of value of goods claimed as loss means lack of sufficient proof - Where a cause of action depends on statute, a plaintiff must plead all the facts necessary to establish the claim.

Cases Cited

Papua New Guinea cases

Coecon v The Nation Fisheries Authority and The State [2002] PNGLR 6

Jacob Simbuaken v Navel Egari (2009) N3824

Lina Kawakali v The Independent State of Papua New Guinea (2011) SC1091

Lome v Kundi (2004) N2776

Ludger Mond v Jeffery Nape (2003) N2318

Motor Vehicle Insurance (PNG) Trust v James Pupune [1993] PNGLR 370

Papua New Guinea Banking Cooperation v Tole (2002) SC 694

Overseas Authorities

Read v Brown (1888) 22QBD 128)

Sears v Lawson (1881) Ch. 16 D. 121

Counsel:

Mr Danny Gonnol, for Plaintiff

Ms J.W. Bamin, for the State

22nd September, 2015

1. POOLE J: Background: On the 26th of November 2001 the Plaintiff filed a Writ and Statement of Claim seeking damages as a result of the First Defendant and others unlawfully depriving him of his motor vehicle, converting it to their own use, stealing goods from it, wrongfully arresting and maliciously prosecuting him in the District Court, and for loss of income arising from being deprived of the use of his vehicle. The Statement of Claim was served on the State and on a policeman not named as a party and an Affidavit of service was filed. This, of course, was not the personal service of originating process required by the rules. On the 21st of March 2002, Mr Gonnol, the lawyer then with carriage of the matter for the Plaintiff, searched the Registry file and, because no Notice of Intention to Defend or Defense had been filed, moved the Court for Default Judgment on the 17th of September 2002 without filing further material. This application was granted.

2. It is trite to note that pleadings are not evidence and, without evidence to verify, to the required standard of proof, the facts which the Plaintiff set out in a Statement of Claim, a Court has no proof before it. (see Lome v Kundi (N2076)). Even where the chronology of the pleadings show a default of compliance with the rules, if a Default Judgment cannot be justified in law, the default of the Defendant to enter a Defense stands in the way of the Court exercising a decision to grant a default Judgement.

3. As the Supreme Court said in Lina Kawakali v The Independent State of Papua New Guinea (SC1091):

“In applications for Default Judgement, the Applicant is saying that the Defendant has not complied with the rules of Court and that therefore, the Plaintiff is, as of right, entitled to Default Judgement. A Court hearing an application for Default Judgement, should not just “tick the boxes” so to speak but must also Review the Statement of claim to see if the action is one where Judgment can be entered. Order 12 Rule 32 of the National Court Rules gives a Court a wide discretion to enter or not to enter, Default Judgement. Even when proof of due service of process on a Defendant or proof of the default is established by the Plaintiff/Applicant, the Court still has a discretion to refuse to enter the Default Judgement in cases where, for instance, the fact of the Default Judgement would affect the Rights of other co-defendants or does not disclose a reasonable cause of action or that the Default Judgement cannot be sustained in law.”

4. Although there is a complete absence of pleadings or of relevant evidence from or on behalf of any defendant, the principals upon which an assessment of damages should proceed after entry of Default Judgement are clear and set out, for example, by the Supreme Court in Papua New Guinea Banking Cooperation v Tole (SC 694) and, in the National Court, in Coecon v The National Fisheries Authority and The State (N2182). Those principals are:

Default Judgement resolves all questions of liability which are pleaded in the Statement of Claim;

A matter not pleaded, but raised at trail inter – parties, is one upon which a defendant can contest liability at the trail;

Although the default may establish liability as such, a Plaintiff still has to prove damages by means of credible evidence to satisfy the Court on the balance of probabilities;

Evidence may only be admitted in proof of such facts as have been pleaded in the Statement of Claim.

5. No defendant has taken any action to apply to set aside the Default Judgement. It has been allowed to stand for almost 13 years. In all equity, such an extensive delay must establish a bar against any application now.

Pleadings

6. The Plaintiff, in addition to the Statement of Claim, has filed an Affidavit (on the 18th of November 2004,):

1. The Plaintiff is about 40 years of age, a businessman, resides at East Taraka, Lae, Morbe Province. He originally comes from Tambul, in the Western Highlands Province. He engages in PMV operations, trucking, kai bar & property.

2. The Plaintiff at all material times, is and was the registered owner of a motor vehicle, a Toyato Hilux, Dual Cabin, white in colour, Registration No. LAJ 484 (hereinafter “the motor vehicle”)

3. The First Defendant is a policeman attached to the Minz Police Station in the Western Highlands Province.

4. The Second Defendant is the Western Highlands Provincial Police Commander. He is responsible for all police actions throughout the Western Highlands Province. He is sued in his official capacity as the Provincial Police Commander.

5. The Third Defendant is the Police Commissioner of Papua New Guinea. He is responsible for all police actions or in actions throughout Papua New Guinea.

6. The Fourth Defendant is the Independent State of Papua New Guinea.

7. On the 17th March 2001, the Plaintiff was travelling along the Okuk Highway towards Lae from Mt Hagen in his motor vehicle, described in paragraph 2 above.

8. On the said 17th March 2001, at Kurumul, near Kudjip in the Western Highlands, an unspecified number of policemen, under the command and control of Sergeant Mark Korr, without good cause or reasonable excuse impounded the motor vehicle, together with the cargo on board. In addition, the Defendant demanded and took possession of the motor vehicle’s registration and insurance papers, and the Plaintiff’s driving license.

9. The First Defendant unlawfully and without reasonable excuse demanded and received K100.00 in cash from the Plaintiff, without issuing any official receipt.

10. The First Defendant then told the Plaintiff to go away and come back after one week.

11. The First Defendant, then with the company of an unspecified number of policemen used the motor vehicle, particulars of which are as follows:

a) On 17th March 2001 the First Defendant was seen driving the Plaintiff’s motor vehicle towards Simbu at Waghi Bridge. The First Defendant has a load of door frames.

b) On the 18th March 2001, the First Defendant was seen driving the Plaintiff’s motor vehicle towards Mt Hagen at Minz road junction.

c) On or about 20th March 2001, the First Defendant in the Company of an unspecified number of policemen used the Plaintiff’s motor in a police raid at the Warakar area of Banz.

d) On or about 22nd March 2001, the First Defendant drove or caused to be driven the plaintiff’s motor vehicle to Jimmi District believed to for Police duties. These extensive usage of the Plaintiff’s motor vehicle was never authorized by law or the Plaintiffs and were in fact unlawful.

12. Further, the Plaintiff’s motor vehicle, had cargo and property which were stolen or displaced by the First Defendant and his policemen and never returned when the vehicle was retrieved.

Particulars of Cargo and Property

Cargo & Property	Value of Cargo
a)	2 x bags of potatoe at K500.00	1,000.00
b)	2x empty 44 gallon drums at K100.00	200.00
c)	An empty litre drum at K150.00	150.00
d)	1x tool box with assorted tool kits valued @ K800.00	800.00
e)	1x jack	180.00
f)	1 x wheel spanner	82.00
g)	1 x jack handle	63.00
Sub Total K	2,478.00

13. During the said period; The First Defendant in the company of an unspecified number of policemen unlawfully used the Plaintiff’s vehicle, the following damages were done and accessories removed.

Particulars

a) Left hand side quarter glass was removed or smashed. A...