Tabie Mathias Koim and 28 Others v The State, Chief Insp. Jim Onopia, Sergeant Joe Bulhage, Constable Dala Mentai and Constable Miamel Dage

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 26 February 1998
• Court: National Court
• Citation: [1998] PNGLR 247
• Year: 1998
• Judgement Number: N1737

National Court: Injia J

Judgment Delivered: 26 February 1998

N1737

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 97 OF 1996

BETWEEN: TABIE MATHIAS KOIM

& 28 OTHERS

- Plaintiff -

AND: THE STATE

- First Defendant -

AND: CHIEF INSP. JIM ONOPIA,

SGT. JOE BULHAGE,

CONST. DALA MENTAI & CONST. MIAMEL DAGE

- Second Defendants -

MOUNT HAGEN: INJIA, J

1997: September 24th

1998: February 26th

Practice and procedure - Writ - Pleadings - Facts - Damages Claim in police raid cases - Leading evidence in facts pleaded or not pleaded in Writ.

Damages - Proof of damages in default judgment cases - Exemplary damages and compensatory damages - duplication of damages - Refused to award separate damages.

Cases cited in the judgment:

M.V.I.T. -v- Tobanato [1995] PNGLR 214

Waima -v- M.V.I.T. [1992] PNGLR 254

M.V.I.T. -v- Pupune [1993] PNGLR 370

Jonathan Mangope Praia -v- The State N1343 (1995)

Yange Lagan -v- The State N.1369 (1995)

James Koimo -v- The State N1322 (1995)

Abel Tomba -v- The State SC 518 (1997)

P. Dowa for Plaintiff.

No appearance for the Defendants.

26th February 1998:

INJIA, J. This is an exparte trial, with leave, on assessment of damages following entry of default judgment against the defendants on 07/06/96 and 09/09/96. Evidence was completed on 24th September 1997 and parties were directed to file written submissions on the evidence. The plaintiff filed his on 12 December 1997.

On record, it appears that the parties have assumed that the matter was for trial on both liability and quantum of damages. However, there is default judgments on file which appear not to have been set aside. If they were set aside, nevertheless, on the evidence of the plaintiff before me, I am satisfied that the raid, search and destruction of property was unlawful. I find in favour of the plaintiff on the issue of liability.

The evidence for the plaintiff consists of the affidavits of Tapie Peter Ungal sworn on 19/05/97 (exhibit “A”); Gene Gende sworn on 19/04/97 (Exhibit “B”); Anna Tabil sworn on 19/05/97 (Exhibit “C”); Toni More sworn on 19/04/97 (Exhibit “D”); Kopi Sipa sworn on 19/04/97 (Exhibit “E”); Micah Koim More sworn on 02/05/97 (Exhibit “F”); Benson Kopi sworn on 19/04/97 (Exhibit “G”); Saina Koim sworn on 19/04/97 (Exhibit “H”); Tom Kupu Peter sworn on 02/05/97 (Exhibit “I”); Paul Tabie sworn on 19/04/97 (Exhibit “J”) and Thomas Gotuna sworn on 25/05/97 (Exhibit “K”). In addition, Thomas Gotuna gave oral evidence. There is an affidavit of “Tabie Mathias Koim” sworn on 19/05/97 and filed on 21/05/97 but it is not in evidence as Mr. Kopunye did not seek to tender this affidavit into evidence at the time of trial. This is correctly reflected out in Mr. Kopunye’s written submissions in which he sets out a list of affidavits admitted into evidence, which list does not include the affidavit of “Tabie Mathias Koim.” I do not know if he is the principal plaintiff in the proceedings either because in the Writ, he is named “Tabie Mathias Koim” as well as “Tabie Mathias Kiom.”

Civil actions for damages commenced in the National Court is governed by the National Court Rules. The rules provided therein must be complied with by lawyers or parties. Among them, plaintiffs’ names must be correctly and accurately spelt out. Where default judgment is granted for damages to be assessed on a given set of facts as pleaded in the statement of claim endorsed on the Writ, the evidence must support the facts pleaded. No evidence will be allowed in support of facts which are not pleaded: MVIT -v- Tabanato [1995] PNGLR 215 at 221; Waima -v- MVIT [1992] PNGLR 254 & MVIT -v- Pupune [1993] PNGLR 370.

Plaintiffs must prove the damage they claim to have suffered. A default judgment does not relieve the plaintiff from proving his loss. It is not sufficient for the plaintiff to simply provide a list of items he lost and say...