N9859

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 919 OF 2013 (CC1)

BETWEEN:
MECK KAKI
- Plaintiff-

AND:
ENGA PROVINCIAL GOVERNMENT
-First Defendant-

AND:
NELSON NEA
ADVISOR, LAW AND ORDER DIVISION OF ENGA PROVINCIAL GOVERNMENT
-Second Defendant-

AND:
PHILIP WELIA
ENGA PROVINCIAL POLICE COMMANDER
-Third Defendant-

AND:
MARTIN KELLY
ENGA RURAL POLICE COMMANDER
-Fourth Defendant-

AND:
MATHEW UVOVO
ENGA PROVINCIAL POLICE COMMANDER
-Fifth Defendant-

AND:
MATHEW KOROP
WAPENAMANDA POLICE STATION COMMANDER
-Sixth Defendant-

AND:
THE INDEPENENT STATE OF PAPUA NEW GUINEA
-Seventh Defendant-

Waigani: Tamade AJ
2022: 26th April, 12th August

NEGLIGENCE– alleged failure or inaction by police to attend and stop tribal fight – tribal fight between two enemy tribes – tribal fight resulted in destruction of property by enemy tribe – police not responsible for destruction of property.

PRACTICE & PROCEDURE – default judgment entered considering pleadings when assessing damages after grant of default judgement – 
no cause of action as against the Police and the State for destruction of property as a result of tribal fight

Cases Cited

The following cases are cited in the judgment:

Mel v Pakalia [2005] PGSC 36; SC790 
Maku v Maliwolo [2012] PGSC 5; SC1171 
Wapi v Ialy [2014] PGSC 32; SC1370 
Baikisa v J & Z Trading Ltd [2016] PGNC 13; N6181 
Rombil v Pitpit [2018] PGNC 244; N7344 

Counsels:	

Mr Frank Yapao, for the Plaintiff
Ms Charity Kuson, for the Defendants

12th August, 2022

1.	TAMADE AJ: Default judgment was entered in this matter on 18 May 2015, and it has taken the Plaintiff some seven years to finally set the matter down for trial on assessment of damages.  This is a decision after the trial held on 26 April 2022 on assessment of damages.

2.	The Plaintiff claims that he is a Reserve Police Chief Sergeant with the Royal PNG Constabulary and at the material time, he was attached to the Wabag Police Station in Enga Province. The Plaintiff also claims that he is a leader and an elder in the community.

3.	On 16 March 2013, there was tribal fighting in Pina Village between the members of the Wapukin and Ambulin tribes regarding the death of two men from the Wapukin tribe which resulted in many houses being set on fire on that day. 

4.	On 18 March 2013, the First Defendant sent the Second, Third, Fourth, Fifth, and Sixth Defendants to Pina Village to stop the fighting. The Defendants cautioned the Wapukin and the Ambulin tribesmen not to cross over the Lai River which is near Wabag and told the tribes to hand over the two murder suspects from the Sikin Tribe who surrendered and were in the custody of the Plaintiff and his tribe.

5.	The Plaintiff says that he arranged for the two murder suspects to be handed over to the Police on 10 March 2013 however the police never attended to take custody of the suspects. On 20 March 2013, the waring tribes of Wapukin and Ambulin retaliated against the Sikin tribe, which is the Plaintiff’s tribe and many were wounded, properties were destroyed and it is alleged that two lives were lost. 

6.	The Plaintiff, therefore, claims that in the tribal attack on 20 March 2013, his L40 house worth over K350 000 at Pina Village was destroyed and all personal items in the house were stolen. The Plaintiff also claims loss of his piggery, coffee trees, and other losses.

7.	The Plaintiff claims that had the police attended at Pina village before 20 March 2013, the Plaintiff would not have suffered such loss from the tribal fight and that the Defendants failed in their duty as police officers to attend at Pina Village and take into custody the two murder suspects who were kept in custody in Pina village by the Plaintiff and his tribe. The Plaintiff, therefore, claims damages for losses in the tribal fight as a result.

8.	Ms Kuson for the Defendants has raised the issue to revisit liability even after the grant of the default judgment stating that no reasonable cause of action is disclosed in the Statement of Claim as the facts do not support a claim for negligence on the part of the Defendants as police officers.

9.	The case of Mel v Pakalia sets out the principles the Court should take into account in a hearing for assessment of damages even after judgment has been entered by default. These are:

“The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person’s case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)

• Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia J.)

• The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. (Peter Wanis v Fred Sikiot and The State (1995) N1350, National Court, Woods J.)

• The same principles apply after default judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence. (Yange Lagan and Others v The State (1995) N1369, National Court, Injia J.)

• If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, National Court, Injia J.)

• Where default judgment is granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1993] PNGLR 370, Supreme Court, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, National Court, Injia J.)

• The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the Court must do the best it can. (Jonathan Mangope Paraia v The State (1995) N1343, National Court, Injia J.)”

10.	The case of Maku v Maliwolo decided by the Supreme Court referred to in the Mel v Pakalia case and gives the Court the exception to revisit the issue of liability after the grant of default judgement where no reasonable cause of action is disclosed in the pleadings. The Supreme Court said this: 

“As a general rule, a default judgment entered by consent or otherwise determines the issue of liability and the only issue for determination by the Court is assessment of damages. Therefore, it is not open to the Court to revisit or relook at the issue of liability. However, there is an exception in cases where the pleadings do not disclose a cause of action in law. William Mel -v- Coleman Pakalia, The Police & The State (2005) SC790; Titus Wambun -v- The Commissioner of Police & The State (2009) N3787 and Keith Reith -v- Murray Hallam and Allcad Pty Ltd (1995) N1337 referred to.”

11.	The position by the Supreme Court in the exceptions to revisit liability after the grant of default judgment is echoed again in the Supreme Court case of Wapi v Ialy where the Supreme Court said:

“ Given the above, we are of the view that where a judgment, be it default or otherwise, has been entered, and a primary judge determines, after concluding a hearing to assess damages, that the plaintiff has not sufficiently proved his loss or that no cause of action is disclosed in the statement of claim or that the pleadings are defective or that the claim is frivolous or vexatious or is an abuse of process, he is entitled to refuse to make an award of damages. This is in accord with him being able to consider the question of liability for the damages claimed. To dismiss the entire proceeding however, in the absence of any application to set aside, as in this case, the effect of which is to review the decision to enter judgment and to set such judgment aside, is in our respectful view, to fall into error.”

12.	A Court therefore has the duty in assessing damages to carefully consider the pleadings, whether the cause of action is properly pleaded and made out or whether there is a cause of action warranting determination and whether the evidence supports the claims etc as are the considerations the Court is duty bound to consider. 

13.	The Defendants have raised the issue that the facts do not support a cause of action of negligence as against police officers. In my previous decision of Toyaga Limited v The State and Ors, I considered a similar issue of revisiting the issue of liability after the grant of default judgment where there is a contest on the pleadings failing to disclose a reasonable cause of action in law. In the Toyaga case, I discussed the public policy considerations around imposing a duty on the Fire Service Department in the country and its officers. This is akin in my view to the roles of the Police Force in the country as to a claim in negligence and each case presented will be considered on its own merits.

14.	Justice Cannings in the case of Baikisa v J & Z Trading Ltd, sets out the elements in a cause of action for negligence as:

“To establish a cause of action in negligence, a plaintiff must prove the elements of the tort:
(a) the defendant owed a duty of care to the plaintiff;
(b) the defendant breached that duty (acted negligently);
(c) the breach of duty caused damage to the plaintiff; and
(d) the type of damage was not too remote.”

15.	Ms Kuson of the Defendants submits that the nexus is far-fetched as between the conduct of the policemen complained of and what transpired on that day in this case which was an all-out tribal warfare. Ms Kuson submits that the police do not owe a duty of care in negligence pursuant to public policy considerations. 

16.	The Supreme Court in the case of Maku v Maliwolo considered a case where the Plaintiffs sued the State for negligence as a result of police not stopping a tribal fight and the Plaintiffs suffered loss of property etc as a result of being attacked by an enemy tribe. The Supreme Court said this in relation to the duty of care and the discharge of duties of policemen and especially in the context of tribal warfare in this country:

37. The common law is consistent with section 197 of the Constitution where the police have a responsibility for maintaining law and order but are subject to no specific requirement as to the way in which they do it. The common law in England prior to Independence is applicable where appropriate in PNG as part of the underlying law pursuant to Schedule 2.2 of the Constitution. In our view, these principles developed in Hill's case and adopted by the Courts of other common law jurisdictions such as Australia, Fiji, Kiribati, Tonga and very recently, PNG, are sound, appropriate and consistent with the Constitution and we would adopt and apply them in this case.

38. These principles are sound, appropriate and consistent with the Constitution because if the law were to impose or create specific duty of care on the police in the discharge or performance of their duties, it will result in all manner of litigation against them and the State. It is common knowledge the police force has inadequate manpower and resources to maintain law and order in the country. Time and again, police manpower and resources have been stretched to the limit, and in our view, it would be unwise and inappropriate to impose or subject them to specific requirements as to the way they discharge or perform their duties.

39. In the present case, the destruction and looting of the appellants' property was done by the enemy tribe. The police were not the ones who destroyed and looted the appellants' property. The allegation that the police owed them a duty of care to protect their lives and property and should have attended and stopped the tribal fight does not exist in law because the police owe no duty of care to the public at large and it is against public policy. As the appellants have failed to establish the existence of a duty of care, there cannot be a breach of that duty by the respondents. It follows the respondents cannot be liable for the damages caused by the enemy tribe.

17.	I adopt the position of the law in the Maku v Maliwolo case and find that the destruction to the Plaintiff’s properties, his house, his piggery and the destruction to his village was caused by the enemy tribe. It was not caused by the conduct of the police. The Defendants cannot be liable for negligence when there is no direct causal connection to the tribal fight.  I also adopt the public policy considerations that the police should not be subjected to specific requirements as to the manner in which they discharge their duties.   The claims for negligence against the Police are far-fetched and far remote. At the time the enemy tribe attacked, the Plaintiff can be seen as belonging to the Sikin tribe and not a police officer as him and his tribesmen held captive two people from the Wapukin and Ambulin tribe to hand over to the police. The acts of tribal warfare in this country especially in the highland’s region can be senseless and unfortunate leaving behind loss and destruction in its path.

18.	I find that there is no cause of action in negligence as against the Defendants in a tribal warfare and therefore taking the approach in Rombil v Pitpit following the Supreme Court authorities discussed herein, the claim by the Plaintiff is hereby refused.

19.	The Court therefore makes the following orders:

i)	The Plaintiff’s claim for damages is refused.
ii)	The Plaintiff shall meet the Defendants costs of these proceedings to be taxed if not agreed.

Orders accordingly.
________________________________________________________________
Fydan Lawyers: Lawyers for the Plaintiff 	
Office of the Solicitor General: Lawyers for the Defendants