Wama Kints, Pa Wai, Taia Kolkop, Micheal (Michael] Mapa for Himself and on behalf of Pet Wai, Paul Wapia and Ioka Nui v Senior Constable Pius Nukundi, Sergeant Vonomo Makis, Commissioner for Police and The Independent State of Papua New Guinea (2001) N2113

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 07 May 2001
• Court: National Court
• Citation: (2001) N2113
• Year: 2001
• Judgement Number: N2113

Full Title: Wama Kints, Pa Wai, Taia Kolkop, Micheal [Michael] Mapa for Himself and on behalf of Pet Wai, Paul Wapia and Ioka Nui v Senior Constable Pius Nukundi, Sergeant Vonomo Makis, Commissioner for Police and The Independent State of Papua New Guinea (2001) N2113

National Court: Davani J

Judgment Delivered: 7 May 2001

N2113

PAPUA NEW GUINEA

[In the National Court of Justice]

WS NO. 402 OF 1995

WAMA KINTS

-First Plaintiff-

PA WAI

-Second Plaintiff-

TAIA KOLKOP

-Third Plaintiff-

MICHEAL MAPA for himself and on behalf of PET WAI, PAUL WAPIA, and IOKA NUI

-Fourth Plaintiff-

-V-

Senior Constable PIUS NUKUNDI

-First Defendant-

Sergeant VONOMO MAKIS

-Second Defendant-

COMMISSIONER FOR POLICE.

-Third Defendant-

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

-Fourth Defendant-

Mount Hagen : Davani J

2001 : 7th May

PRACTISE AND PROCEDURE — Use of affidavit in ex-parte proceedings — Weight to be attached to affidavits — Evidence Act Ch. 40 s.35(2), s.37, s.84.

DAMAGES — Circumstances in which damages are assessed where liability is proven and where there is no other evidence to corroborate plaintiffs claims.

Papua New Guinea cases cited:

Liwame v Inspector Yansuan [1996] PNGLR 43.

Kapate Stanford & 30 Ors; Naiven Yato & 9 Ors v George Wagulo & The State.

Yange Langan & 58 Ors v The State

Het Pakena v The State & Ors

Benny Balepa v The Commissioner of Police and The State

Veronica Andale and David Kandakasi v The State

Jonathan Paraia v The State & Ors [1995] PNGLR

James G. Koimo v The State [1995] PNGLR 535

Re Conditions at Buimo Corrective Institution [1988-1989] PNGLR 266

Other cases Cited:

Halsbury 4th Edition

McGregor on Damages (Sweet & Maxwell) 13th Edn 1972 London

Aranson, Reaburn & Weinberg; "Litigation Procedure" "Butterworths Second Edition

Subramainiam v Public Prosecutor (1956) WLR 965

Biggin & Co Ltd v Permanite Ltd (1951) 1 KB 422

Counsel

P. Dowa, for the Plaintiffs

DECISION

(TRIAL)

DAVANI J.: This is a claim for damages by the Plaintiffs against the four (4) defendants, three of whom are policemen and the fourth, being the State.

The claim arose as a result of alleged destruction to property and personal injuries sustained by the Plaintiff, during an alleged police raid on 4 May 1995.

The matter came before me for hearing on both liability and quantum. The state was not represented at the hearing. According to Mr Dowa for the Plaintiff, Mr Tuva of the Solicitor General's Office, for the Defendants could not attend the hearing but would file written submissions. No other reasons were given. I considered that to be unacceptable but proceeded, in any event, after having seen affidavit filed by Mr Dowa confirming that the State had been advised of the hearing date but could not attend. The matter proceeded ex-parte.

Facts

The Writ of Summons and Statement of Claim filed on 26 April 1995 claimed the following:

1. That raid was allegedly conducted by the Defendants, when they raided Togobe village, destroying and looting all Plaintiffs properties worth approximately K37,000.00 and caused extensive damage to the First, Second and Third Plaintiffs properties, coffee gardens and food gardens. It is alleged that the policemen also physically assaulted the third and fourth Plaintiffs.

2. The Plaintiffs claim that they are entitled to:

· K37, 430.06 in damages

· Punitive damages

· Compensatory damages

· General damages

· Damages for loss of business, particularly First Plaintiff and Third Plaintiff.

· Interest pursuant to Judicial Proceedings (Interests on Debts and Damages) Act Chapter 52.

· Costs

· Any other orders.

In support of their claims, each Plaintiff filed an affidavit. The State did not file any affidavits. In the Defendant's Amended Defence filed on 13 March 1996, they deny the Plaintiff's claim saying that any damage occasioned occurred in circumstances other than those alleged. The Defendants then ask the Court for orders that the claim should be dismissed with costs.

It is important that I discuss the background relating to the affidavit evidence before me as the Defendants claim they do not have any of the Plaintiffs affidavits in their possession.

The Plaintiffs rely on all their affidavits filed in Court which were tendered, into evidence in the absence of the Defendants. The Defendants have not filed any affidavit material.

The Defendants claim they do not have the Plaintiffs affidavits. Were these affidavits ever served on the Defendants? There is on the Court file an affidavit of service sworn by Mr Dowa on 24 September 1997 and filed on 25 September 1997 where he states that on 29 August 1997 at 11.55 am he served copies of his clients affidavits on the office of the Solicitor General. He states in that affidavit;

"2. I have on 29 August 1997 at 11.55 am served on the Solicitor General copies of our client's affidavits sworn on 14 August 1997 by personally hand delivering same to Kisolel Kiapin, Secretary to the Solicitor General, at the Solicitor General's Office, 2nd Floor, Central Government Building, Waigani, National Capital District".

This Court must properly consider the aspect of service of the affidavits on the State as this then determines how much weight I should give to these affidavits, considering they have not been tested under cross examination.

As discussed above, Mr Dowa has filed affidavit evidence confirming all affidavits were personally served on the Office of the Solicitor General on 29 August 1997. The question asked is, what became of these affidavits? Did they reach the Action Officer, Mr Tuva? Mr Tuva claims he has not seen them. Was there correspondence from Mr Dowa's office to the Office of the Solicitor General confirming that the affidavits had been served? During Mr Tuva's conversation with Mr Dowa on 7 May 2001, did they discuss the use of affidavits? Mr Dowa deposes in his affidavit of 7 May 2001, that Mr Tuva had agreed that he will not require the deponents to the affidavits for cross examination. Mr Dowa further deposed in his affidavit of 25 September 1997 that he served "his clients affidavits sworn on 14 August 1997" on the Office of the Solicitor General. Which affidavits where they?

I cannot answer any of the questions posed above as I do not have the answers. I expected to be addressed in submission on the matters raised but this did not occur.

Surely, Mr Tuva could not have agreed not to cross-examine the deponents unless he was aware of their evidence. I can assume that because he did not have the Plaintiffs affidavits before him that he was not in a position to disagree. Or I can also assume that Mr Dowa had not informed Mr Tuva of the existence of these affidavits and that Mr Tuva had assumed affidavits were not relied on.

Thus I am faced with a scenario, that with very little assistance from both lawyers, I will have to make the best judgment. To avoid a situation where a party will become a victim of circumstances, I will accept that the affidavits have been served and that because they have not been subject to cross examination, to place the desired weight on them. Because the Defendants did not appear when the trial was called, I proceeded in the Defendants absence. In that situation, the Plaintiffs must prove their claim where the burden of proof is on them. (re par. 506 Halsburys 4th Edition).

I do not agree with Mr Dowa as deposed to in his affidavit of 7 May 2001 that the "evidence is not challenged and has been tendered without objection", and further, that the "… Solicitor General's Office consented to the tendering of the affidavits". I say this because I would expect that Mr Dowa in his submission address the court on the admissibility or otherwise of the matters deposed to in the affidavits and the weight I should give to them considering the burden of proof is now on him to prove his clients claims. Furthermore, this court is given the ultimate discretion under S.35 (2) of the Evidence Act, to allow or disallow the use of an affidavit or any part of an affidavit or to attach such weight as it sees fit on the matters deposed to in the affidavit. (re Liwame -v- Inspector Yansuan [1996] PNGLR 43, pg. 46, 47). In any event, the affidavits were not tendered through the deponents, as is the accepted practice at law, then marked as exhibits, but were handed up to me. It is now for this court to exercise...