N6548
		
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

 WS NO. 1324 OF 2001 

		BETWEEN 

JIM KUMIE, WAINE WAPI, TAI GUAN & KOL ARU    
Plaintiffs
 
AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA  
Fist Defendant

AND

INSPECTOR KASIENG & SENIOR CONSTABLE JOHNATHAN KUMAI 
Second Defendant 

Mount Hagen:   Poole, J	
   2016:    18th November 

PLEADING-In absence of evidence of damage and absence of value of property said to have been misappropriated there is no basis for a finding of liability on which to base default judgement – default judgment entered in error.
		
VICARIOUS LIABILITY – no evidence of parties pleaded as alleged tortfeasors at scene of alleged police raid – pleadings are not evidence – Plaintiffs’ claim refused. 

Counsel:	

 Mr Kumai, for Plaintiffs
 Ms Dowa, for the State

18 November, 2016 
Background 
1.    POOLE J:	On the 12th of September 2001 the Plaintiffs filed a Writ and Statement of Claim, naming only the State as the Defendant, claiming damages they said arose when “members of the Royal Papua New Guinea Constabulary from Banz and Minj Police Station conducted an illegal raid or search on the Plaintiffs properties.”  The State neglected to enter a Defence. 
	
2.    In March 2002 all Plaintiffs filed affidavits of evidence.  In none of them is any policeman identified by name or even by role (for example as the officer in charge of a known and designated mobile squad).  The Plaintiff applied for Default Judgment by motion and obtained, on the 12th of July 2002, Judgement on liability for damages to be assessed. 

3.   The matter was not materially advanced, nor where there any changes to pleadings or evidence filed until the 2nd of June 2010.  When the Plaintiffs filed two affidavits of people said to be eye witnesses to the raid in question.  The first witness, Kaipel Komo, said he was in the village on the 18th of October 1996 when “policemen” came to the village.  He describes their actions taking property and says he spoke to them.  He does not identify the squad or station allegedly concerned nor identify any policemen by name, rank or office.  The second witness, Peter Waim gives much the same evidence, but adds the detail that “the police” got the property of the named Plaintiffs. 

4.    By Leave of the Court the Plaintiffs filed and served an Amended Statement of Claim on the 16th of May 2014, adding the second Defendants as parties.  There has been no further material evidence filed.  

5.    The evidence before the Court is that unidentified police where observed at Kulmu village on the 18th of October 1996 and the Plaintiffs ran away.  When they returned they discovered live stock and properties missing and they said the police stole these things.  None of them say they saw any theft.  

6.    Of the two witnesses whose affidavits were filed in 2010, Kaipel Komo says “the other people who were not in their house, had their properties confiscated by the police” and relates some of the things he says was stolen – pigs, spray pumps and a generator for example – but doesn’t identify the owners or the thieves.  The second of these latter affidavits is by Peter Waim and the only additional relevant evidence in his affidavit is;

14.	It is true that the police did get the properties and pigs of these people, Jim Kumie, Waine Wapi, Tai Guan and Kol Aru, who have now brought the police to Court.

7.    The Law applicable to this case is plain.  Again I state; pleadings are not evidence.

8.    The only relevant evidence is the affidavits of the Plaintiffs (all of whom ran away from the village and cannot give an eye witness account of events) and of Kaipel Komo and Peter Waim (neither of whom can give any evidence as identity of “the police” nor of directly seeing any theft).  There is, in short, no evidence upon which to base any finding of damages.  Indeed, in the absence of any evidence whatsoever of the presence of the second Defendants in Kulmu village on the 18th of October 1996, there can be no proper finding of liability and, in the exercise of the Court’s discretion in such matters, I find I am satisfied to the requisite degree that the Default Judgment on liability was entered in error because there was no sufficient evidence of damage upon which to base liability.  I order it be set aside.

9.   There being no, or no sufficient, evidence of damage and absence of evidence of the identity of any tortfeasor I dismiss the Plaintiffs’ claim.
	
Formal Orders	

1.	The Plaintiffs claim is dismissed;
2.	The parties are to bear their own costs.

___________________________________________________
Kopunye Lawyers 	:    Lawyers for the Plaintiffs		
Solicitor General:    Lawyers for the Defendant