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PNG Power Ltd v Taia [2013] PGNC 131; N5304 (14 June 2013)

N5304

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 03 2005

BETWEEN:

PNG POWER LIMITED
Appellant

AND:

TOWA TAIA & JOHN KAKAMBO
Respondents

Mount Hagen: Poole, J
2013: 14 June

APPEAL TO NATIONAL COURT – Jurisdiction – Substantial miscarriage of justice (s.320 District Courts Act), - Power to substitute order under Appeal with order of National Court.

Counsel:

Mr Aiwa, for the Appellant
Mr Yawip, for the Respondent

14 June, 2013

1. POOLE, J: The Appellant entered an appeal on the 22nd of December 2004 from a decision of the District Court at Kundiawa made on the 22nd June 2004, after obtaining Leave from the National Court on 14th December 2009 to file and serve the Notice of Appeal within 14 days of that day.

2. The grounds of appeal are stated as being:

1. The Court erred in law in ordering the First Defendant to pay the sum of K6,183.00 to the Complainants when there was no evidence to support their claim for the loss of the coffee trees.

2. There was evidence before the Court that the coffee trees, which were dying were not because of the cutting down of the shade trees, but because of poor maintenance by the Complainants.

3. The Court failed to consider the Affidavit of Rauko Buimeng, the Agronomist from the Coffee Research Institute, whose assessment explained why the Complainants' coffee trees were dying.

4. The Court erred in law and in fact in awarding judgment against the First Defendant, when there was evidence before the Court, that the Complainants received payment from the First Defendant.

5. The Court erred in law when it relied and placed much weight on hearsay evidence of the Complainants.

6. There was evidence of collaboration between the Coffee Industry Corporation Limited's Extension Office in the Kundiawa and the Complainants and the Court erred in law in accepting their evidence.

3. The District Court Order appealed from was:

The defendant, PNG Power Ltd shall pay to the complainant the sum of K5,970.00 plus K213.30 for cost, making a total of K6,183.00 and be paid within one month from the date of the order.

4. The National Court stayed that Order on 2 August, 2005.

5. I have examined the depositions of the District Court and evidence before it and I note:

• The court had before it affidavits by
  

(a) Willie Okul – Complainant's witness – who said Mr Taia was a model farmer who had trouble making repayments for a Coffee Credit Scheme loan due to the fact that a good number of coffee trees were withered, so reducing production.

• The Second Defendant, Mr Unall, the First Defendant's land officer who attended Mr Taia's Coffee garden and expressed the view that the trees wilted because of removal of shade trees planted between pylons of the power transmission lines.
  
• Rauke Buimeng, an agronomist with the Coffee Research Institute, commissioned by the Appellant to assess the coffee gardens of the Respondents. It annexed a 5 page report.
  
• An affidavit of the Respondent, Mr. Taia which annexes a 1½ page letter from Mr. Moses Amuse, an extension officer with the Coffee Industry Corporation, who says Mr. Taia is a good manager of his family and coffee garden and adopts the Coffee Industry Council training programmes.
  
• An affidavit of James Condom who helped cut bushes around a power pylon and says Mr. Taia was present at that time.
  
• An affidavit by Kepi Moses, a coffee Industry Corporation extension officer, who says, at an unspecified date, he inspected 216 coffee trees dried up and another 342 mature trees also dried.
  
• An affidavit by Anna Kakimbo, another extension officer, who also, on an unstated date, inspected Mr. Taia's trees and found 216 mature trees dried out. She expressed the view this was caused by being exposed to direct sunlight.
  
• An affidavit by the Second Respondent, John Kakembo, setting out the facts of the case as he understands it and annexing records of the Respondents' coffee business.
  

6. The Complaint which was before the District Court at Kundiawa was in the following terms:

1. On or about March, 2002 the First and Second Defendants entered the Complainants' village and without the Consent or Authority of the complaints, entered Kaukauna village and proceeded to cut down trees, damaged food gardens and other valuable trees through the complaints coffee for the erection of power pylons no: 145.

7. The First defendants has paid the sum of K726.00 in May 2002 for 22 destroyed coffee trees, bamboos and Casoria trees, and promised to pay further damages to other affected coffee trees 20 meters from both sides of cleaning.

8. A total of 558 coffee tress have died out due to the defendants action valued at K6, 696.00.

9. And the complainants claim:

1. The sum of:K6,696.00 being value of destroyed coffee trees.

The sum of:K2,000.00 General damages

The cost incurred pursuant to this summons/(incidentals): K200.00.

TOTAL: K8,896.00

7. The relevant facts before the magistrate which can be gathered from the affidavits of evidence are:

1. The Appellant did cut down some trees in the vicinity of the Respondent's coffee gardens (as stated in the affidavit of James Kondom).

2. After some time some 558 coffee trees died.

3. The commonly stated value of the trees was K12 per tree.

8. What is not in evidence is the value of production lost or what was the value of the food gardens and bamboo pleaded as destroyed.

9. The law governing Appeals to the National Court from a District Court decision may be summarized as indicated below.

10. Unless the National Court specifically orders it, or the parties agree, the only evidence which the National Court can receive is that which was before the District Court (see 229 of the Act.)
On the hearing of the appeal, the National Court, in civil matters, may affirm, quash or may set aside the District Court Orders appealed from, or substitute for the Order under appeal one which the National Court, on the evidence believes should have been made. It may, also, remit the cause back for hearing for a further hearing (section 230(a)). But, in all this, it shall only allow an Appeal if it appears "There has been a substantial miscarriage of Justice" (section 230(2)).

11. On careful review of the evidence before the District Court I find:

1. The Appellant did cut down trees and, on the balance of probability, from the evidence of Mr Kondom and Mr Taia, these were shade trees.

There is no evidence of damage to food gardens or other valuable trees being cut down.

2. I accept that 558 coffee trees have died. I do not accept that all these trees died only due to the Appellant's actions.

12. In reaching that conclusion I have carefully considered the evidence of Mr Okul, Mr Unall, Mr Moses and Mr Buimeng.

While I have no doubt that extension officers of the Coffee Industry Corporation have a good sound knowledge of recommended management practices for the industry, none of them were, properly, expert witnesses. Mr Buimeng, as a qualified Agronomist, was qualified to give expert evidence into the probable reason for the death of the trees, and did so in a comprehensive assessment which took into account management of the garden, variety of coffee grown, soil type, drainage, fertility of soil, effect of weeds, effect of shade (and its removal) on coffee and, thereafter, reached a conclusion and made recommendations.

13. It is necessary to set out some of the more relevant sections of that report. He stated:

"The effect of shade removal on the mindima coffee was noticed to be significant. However the weeds were neglected, the coffee showing defoliation are on top of the clay soil and water is leaching out too, the main drain maintenance next to the creek need attention and that is the spot where the defoliation symptoms were common."

14. In his conclusion, the agronomist noticed that the factors contributing to the defoliation of the trees included lack of proper practices and identified the need for weed control (because weeds compete for available soil nutrients) regular pruning (both re cycle pruning and maintenance pruning) drainage, fertilizing and shade control. He noted that to the eastern side of the plot there was a well managed plot where healthier coffee trees grew.

15. The agronomist noted, at the end of his report that "shade removal did affect few coffee trees next to the power transmission lines ........... However Casurina shade removal cannot be singled out in this particular case because there are other management practices interacting listed below." He noted "about 90% of the plot near the transmission lines were not weeded. Weeds have the same surface feeder roots as coffee. Failing to control weeds predisposes coffee to stress and secondary or opotimistic pest and diseases may kill a tree." He stated, "all coffee trees are not dying because of the removal of the shade trees" ................ "Assessment made indicates that the deteriorating coffee gardens are the consequences of consistent neglect by the garden owners."

16. I find that:

1. While the Respondents did suffer some loss, it was not solely attributable to negligence by the Appellant and the court did err in ordering payment by the Appellant of the sum of K6,183.00.

2. The coffee trees died because of a combination of factors, only one of which was the loss of shade. The agronomist's report was clear and I accept his expert evidence.

3. The District Court failed to consider, or to consider sufficiently, the expert evidence of the Agronomist.

4. There is insufficient evidence before the District Court for it to be sure that the Respondents had received payment from the Appellant.

5. It is not necessary for me to rule on the remaining two grounds of appeal.

17. In light of the expert evidence of the agronomist, I find that the removal of shade was a major factor leading to the loss of the coffee trees, but the unchecked infestation of weeds (noted as being about 90% of the plot near the transmission lines) and what was described as consistent neglect also was a major cause. To attribute the whole of the loss to the Appellant's removal of shade trees would be a substantial miscarriage of justice with the provisions of section 230 of the National Court Act sufficient to invoke the jurisdiction of this court.

18. Accordingly, under the provisions of section 240(1)(c) of the Act, I quash the decision of the District Court at Kundiawa made on the 22nd June 2004, and, in its place by way of variation, on the evidence, the following Orders:

1. I allow the Appeal on the quantum of the finding and, in its place I attribute a third of the loss of the coffee trees to causes not brought about directly by the negligence of the Appellant on the balance of probability. This mean the Appellant is to pay to the Respondents K4464.00.

2. There is no sufficient evidence of the loss referred to by the Respondents from their gardens being caused by the Appellant.

3. Each party shall bear its own costs.

4. Time abridged.

______________________________________________

Warner Shand Lawyers: Lawyers for the Appellant
Public Solicitors: Lawyers for the Respondents