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Mero v Pamben [2010] PGNC 29; N3974 (24 March 2010)

N3974

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 816 OF 1998

BETWEEN

KEN MERO, JOE IBEGA and AGORI OIHIBU
on behalf of themselves and members of the Aguntofi Village
Plaintiffs

AND

TITUS PAMBEN
First Defendant

AND

THOMAS BRIAN
Second Defendant

AND

JOHN NAGERIFA
Third Defendant

AND

PETER KABUINO
Fourth Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Goroka: Salika, DCJ
2010: 12 & 24 March 2010

Civil Suit – Practice and Procedure – Default judgment entered – Damages to be assessed – Settlement negotiations – Defendants counter offer accepted by plaintiffs – Matter left in abeyance – Matter still not resolved – Court assesses damages as previously accepted – Defendants not active participants to settle matter.

Cases Cited

National Capital District Commission v Yama Security Services Pty Limited SC707

Counsel

B. Koningi, for the Plaintiffs
J. Doa, for the Defendants

RULING

24 March, 2010

1. SALIKA, DCJ: The Plaintiffs in this matter are villagers from Aguntofi village in the Henganofi District of the Eastern Highlands Province. They bring this action on behalf of themselves and on behalf of all the villagers of Aguntofi village who suffered damage during police raids at the Aguntofi village on 22 August 1996 and 29 August 1996.

2. The First Defendant was at the material time The Provincial Police Commander for the EHP and a servant and an employee of the Fifth Defendant, the State.

3. The Second and Third Defendants were at the material time police constables based at Henganofi Police Station and as such servants, agents and employees of the Fifth Defendant.

4. The Fourth Defendant was at the time a businessman and leader of Keke village, Henganofi in Eastern Highlands Province.

5. The Fifth Defendant is the Independent State of Papua New Guinea

6. On or about Tuesday 22nd August, 1996 and Thursday 29th August, 1996, the Fourth Defendant and his clansmen and the Fifth Defendant by its servants, agents or employees entered upon the lands and buildings including residences and trade stores belonging to the Plaintiffs and other villagers at Aguntofi village and committed trespass and damages as follows:

(a) Intentionally damaged the said buildings, fittings and equipment, including setting fire to some houses.

(b) Intentionally damaged trees, crops and gardens and chattels belonging to the Plaintiffs.

(c) Killed, seized and carried away life stock, chattels and cash belonging to the Plaintiffs, including two (2) pigs and nine (9) goats and a penicillin bottle of gold.

(d) Intentionally threatened and assaulted the following Plaintiffs by striking them with guns and sticks and punching and kicking them, namely Maso Iko, John Biko, Bonibe Eboti, Ena Tamao, Ukeyao Bonibe, Kiku Kose, Mana Faki, Inivi Maso, Soni Kevin, Loki Rebecca and Mukine Hioja.

(e) Intentionally destroyed and disrupted the funeral arrangements of Mrs Inaru Abagu by pulling the coffin from a 5cms-60cm bed, took away clothing and other items intended to decorate the corpse and the coffin.

7. Further or in the alternative the Fourth Defendant and his clansmen and the Fifth Defendant by its servant’s agents or employees in seizing and carrying away the said life-stock, chattels, cash and gold, etc converted those items to their own use.

8. By reason of the matters afore-alleged, the Plaintiffs have suffered injuries, humiliation, pain and mental distress and were for a time prevented from attending to their gardens and other business and have suffered loss and damages.

And the Plaintiffs claim:

(a) Damages for assault and battery.

(b) Damages for injuries sustained.

(c) Damages for mental distress.

(d) Damages in the total sum of K52,704.00 for destruction and loss of houses and other buildings, tree crops, chattels, cash and life stock and disruption of funeral arrangements.

(e) Damages for loss of production and loss of business.

(f) Interest pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act Chapter 52.

(g) Costs.

9. From the outset this action is a class action. While the actual plaintiffs are listed in schedules 1 and 2 of the Writ of Summons, I do not see any resolution from the plaintiffs that they authorised the 3 lead plaintiffs to sue the defendants and take out the suit on their behalf.

10. Be that as it may, a default judgment was entered on 16 April 1999 by Kirriwom. J with damages to be assessed.

11. The defendants did not take any issue or raise the issue of there being no authorisation by the other plaintiffs to the lead plaintiffs to take out this action.

12. The defendants did not file any notice of intention to defend nor did they file any defence. On that basis a default judgment was entered against them with damages to be assessed.

13. The matter is now for assessment of damages.

14. The parties had in the meantime tried negotiating settlement on the quantum but have not reached any concrete settlement.

15. On 9 April 2007 the then Acting Solicitor-General Mr David Lambu wrote to the plaintiffs lawyers in an effort to settle the matter. While the letter is on a "without prejudice" basis I refer to it here because, the plaintiffs accepted the counter offer put forward by the lawyers for the first, second, third and fifth defendants. I note that in this letter the fourth Defendant is not mentioned at all.

16. I further note in paragraph 6, 7 and 8 of the Statement of Claim that the Fourth Defendant and his clansmen took part in this raid and destruction. It is not stated as to how many of the fourth defendants clansmen were involved.

17. Only 2 policemen are named in the writ of summons as against the fourth defendant and his clansmen.

18. I raise this because if any damages are to be paid they should be apportioned relative to how many were involved and the damage each of them caused. For instance if there were two policemen and 100 men from Keke village involved in the raid and destruction and assaults of the plaintiffs and their properties, then it is only reasonable and fair that the bulk of the compensation be paid for by the 100 Keke men.

19. Going back to the letter of offer by Mr David Lambu to the plaintiffs, the plaintiffs accepted the offer to settle for the amount nominated by Mr Lambu which is K155,459.00 inclusive of interest and costs.

20. Before a consent order could be put before the Court for its endorsement Mr Lambu was replaced as Acting Solicitor-General and Mr Neville Devete became the Acting Solicitor-General.

21. Mr Devete on 8 May 2007 wrote to the plaintiffs lawyers advising that he needed to seek instructions from the Attorney General regarding the offer put by Mr Lambu.

22. Since then, the matter has gone into abeyance and the plaintiffs have had to wait for another 3 years to have this matter dealt with. Further more the defendants have shown little or no interest in resolving this dispute and to bring this litigation to an end.

23. The court when entering default judgment ordered default judgment against the second, third, fourth and the fifth defendants and not the first defendant. This is an important observation because the remaining four defendents all have to pay the damages incurred.

24. The court only ordered the fifth Defendant to pay the costs of the proceedings to be taxed if not agreed.

25. In these types of claims where the State is sued in its vicarious capacity it is usually the State that ends up paying most, or if, not all the damages in almost all cases. In this case, no doubt the plaintiffs have set their eyes on the State to pay for the damages.

26. This case is a bit different in that the Fourth Defendant is not an employee, servant or agent of the State. Whatever damage he is responsible for with his tribesmen or clansmen he and his tribesman and clansmen must pay. The State cannot be held vicariously liable for their actions.

27. In their statement of claim the plaintiffs claim:

(a) damages for assault and battery

(b) damages for injuries sustained.

(c) damages for mental distress.

(d) damages for destruction of houses, buildings, tree crops, chattels, cash, livestock and disruption to funeral arrangements.

(e) damages for loss of production and loss of business.

(f) interest.

(g) costs.

28. The plaintiffs in their endeavour to get a settlement of the matter as soon as possible agreed to the counter offer by the State as assessed through Mr David Lambu to settle for an amount of K155,459.00.

29. Their acceptance of the counter offer is inclusive of all the damages referred to in paragraph 27 above together with interest and costs.

30. The acceptance of the assessment done by Mr Lambu is reasonable in my view considering the comparable decisions of these types of cases which usually run into more than what the plaintiffs in this case have accepted.

31. In this case therefore I assess damages as offered by Mr Lambu and award the following damages as accepted by the plaintiffs:

(a) Damages for loss of all properties K74,116.00

(b) Damages for unlawful assault K36,343.00

(c) Party-Party legal costs K35,000.00

32. The plaintiffs in their amended notice of motion filed on 11 October 2007 seek an order that judgment in the amount of K155,459 be entered in their favour in full and final satisfaction of their claim.

33. In this case I do that and award them what they have asked for.

34. In fairness to the State I will make the following other orders and that is that I will apportion the damages to be paid equally by the State and Peter Kabuino.

35. The State will pay one half of the total damages award while Peter Kabuino will pay the other half of the award. In other words the State will pay K55,229.50 while Peter Kabuino will pay the other K55,229.50 to the plaintiffs.

36. In this matter while this application sought summary judgment under Order 12 rule 38 of the National Court Rules, I am not making these orders under that order and rule because that is not the appropriate National Court Rule to invoke . I refer to the authority of National Capital District Commission v Yama Security Services Pty Limited SC 707 for that contention. Moreover a default judgment has already been ordered with damages to be assessed. Rather I am making this order based on a counter-offer by the State which was accepted by the plaintiffs which I assess as being reasonable under the circumstances in that the defendants have not shown any interest to resolve this matter in the last 3 years. This Court will therefore take the initiative to take the matter to an end.

37. I am mindful of the fact that, the Fourth Defendant did not make any offer. I am also mindful that the Fourth Defendant has not taken any interest in these proceeding and has not played any role in trying to settle this dispute. He was served the writ of summons but failed to file any notice of intention to defend and never filed any defence.

38. Default judgment was also ordered against him. He is therefore obliged to pay as well for, any damages suffered by the plaintiffs which has now been assessed and it is a matter for him to involve his clansmen to help him pay.

39. There must be an end to these proceedings at some point in time soon, and to do that the fourth defendant must pay as well.

40. The Orders of the Court are:-

(i) The plaintiffs are awarded K155,459.00.

(ii) The State will pay K55,229.50 of the total damages awarded.

(iii) Peter Kabuino will pay K55,229.50 of the total damages awarded.

(iv) As ordered the State will also pay the K35,000.00 costs of these proceedings.

(v) The K155,459.00 award is in full and final satisfaction of the plaintiffs claim inclusive of interest and legal costs.

________________________________________
Koningi Lawyers: Lawyer for the Plaintiffs
Solicitor-General: Lawyer for the Defendants