N10019
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1166 OF 2006

BETWEEN:
MAX UMBU PULI
Plaintiff

AND:
INSPECTOR PETER KAWAGE,
Police Station Commander, Tari Police Station
First Defendant

AND:
SUPERINTENDENT SIMON NIHI,
Provincial Police Commander, Southern Highlands Province
Second Defendant

AND:
SAM INGUBA,
Commissioner of Police
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Tamade AJ
2022: 28th June, 4th November

JUDGMENT- liability not addressed by Plaintiff- duty by Plaintiff to plead clearly cause of action against the defendants and State

Cases Cited:

Baikisa v J & Z Trading Ltd [2016] PGNC 13; N6181 
Pinda v Inguba [2012] PGSC 13; SC1181
Kamuri v Pomoso [2021] PGSC 3; SC2071 

Counsel:	

Mr John Kumura, for the Plaintiff
Ms Gabrielle Dusava, for the Defendants

4th November, 2022

1. 	TAMADE, AJ: This is a claim filed in 2006 and it has taken about 16 years to finally be heard at trial for various reasons.

2. 	The Plaintiff’s claim as pleaded in his Writ of Summons filed on 14 August 2006, pleads that he is the legal owner of a motor vehicle described as a Toyota Land Cruiser Registration No. HAG 951 white in colour. The Plaintiff claims that he uses this vehicle to support his trade store for business at his village in the Mul Baiyer District in Western Highlands Province. 

3. 	On 4 April 2004, the Plaintiff alleges that he hired his vehicle to a Paul Olepe to transport the body of a deceased to Tari. Three days later on 7 April 2004, the Plaintiff alleges that the First Defendant in the company of police officers confiscated his vehicle at Tari and impounded the vehicle at the Tari Police Station on allegations that the subject vehicle was involved in an accident which a young girl was injured. The Plaintiff denied allegations of any accident involving a young girl and demanded for the return of his vehicle. The Plaintiff further alleges that the First Defendant demanded the Plaintiff to pay some compensation to the injured girl prior to the release of the vehicle, however this did not happen. As a result, the vehicle remained in the possession of the Tari Police.

4. 	The Plaintiff then aggrieved alleges that in November of 2004, he lodged a complaint at the Mt Hagen Police Station and the police in Mt Hagen took out a search warrant at the District Court in Mt Hagen to compel the return of his vehicle. The Plaintiff alleges that in December of 2004, he attended at the District Court in Mendi and took out a Court Order directed at the Police in Mendi and Tari to recover his vehicle from the Tari police and return to him. This did not happen.

5. 	On 15 February 2005, the Plaintiff alleges that the Senior Magistrate in Mendi District Court wrote to the Second Defendant, the Southern Highlands Provincial Police Commander and requested that they comply with the Orders of the Court. Again, on 26 February 2005, the Second Defendant wrote to the First Defendant as his superior requesting for the release of the subject vehicle and again, that fell on deaf ears. 

6. 	The Plaintiff then proceeded to file these proceedings claiming a sum of K105 210 as the purchase price of the subject vehicle and other related damages.

Liability

7. 	It is Mr Kumura’s submissions at the trial of this matter that liability is not an issue and therefore his submissions were on the aspect of damages. After a review of this file, there is no Court Order in regard to liability whether by default judgment, summary judgment or otherwise.

8. 	Ms Dusava of the State argues that the Court should consider the liability aspect first as liability has not been determined as yet. 

9. 	On 23 September 2011, His Honour Justice David gave a written ruling refusing a default judgment application by the Plaintiff. Subsequently, Court Directions were made for the matter to be settled out of Court and for parties to meet to discuss and finalize the settlement. This however did not happen.

10. 	It is Mr Kumura’s submission that as the Defendants have filed an application seeking to dismiss these proceedings pursuant to section 5 of the Claims By and Against the State Act and as they have not moved that application, they have lost the right to be heard on that application and it is no longer an issue before this Court. I refuse this argument forthright. The State is at liberty to raise the issue of section 5 of the Claims By and Against the State Act at any stage of the proceedings as section 5 of the Claims By and Against the State Act is a precondition to any claim against the State.  Section 5 of the Claims By and Against the State Act is in the following terms:

5. NOTICE OF CLAIMS AGAINST THE STATE.

(1) No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this section by the claimant to–
(a) the Departmental Head of the Department responsible for justice matters; or
(b) the Solicitor-General.
(2) A notice under this section shall be given–
(a) within a period of six months after the occurrence out of which the claim arose; or
(b) where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach; or
(c) within such further period as–
(i) the Principal Legal Adviser; or
(ii) the court before which the action is instituted,
on sufficient cause being shown, allows.
(3) A notice under Subsection (1) shall be given by–
(a) personal service on an officer referred to in Subsection (1); or
(b) leaving the document at the office of the officer with the person apparently occupying the position of personal secretary to that officer between the hours of 7.45 a.m. and 12 noon, or 1.00 p.m. and 4.06 p.m., or such other hours as may from time to time be declared by or under the Public Services (Management) Act 1995 to be the normal public service hours of duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act 1953.

11. 	Ms Dusava has not taken on this argument to advance the State’s case on section 5 of the Claims By and Against the State Act and therefore I will not delve into the issue any further.

12. 	In regard to Mr Kumura’s submissions that liability is a non-issue as parties were directed to settle the matter out of Court and that there were specific directions for the Attorney General to give appropriate instructions to the Solicitor General to settle the matter out of Court, I am of the view that, that does not constitute a finding of liability. I find this submission misleading to the Court, and I refuse this submission.

13. 	The Plaintiff has the onus to prove his claim on liability and has not done so. Mr Kumura’s submissions dived straight into the assessment of damages, and I don’t intend to go there.

14. 	Ms Dusava has submitted that if the Plaintiff is claiming negligence against the Defendants, the Plaintiff has the onus to prove the elements of the tort of negligence. In the case of Baikisa v J & Z Trading Ltd Justice Cannings sets out the following elements of the tort of negligence:

(2) 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. 	I find no pleading in the Plaintiff’s Statement of Claim claiming negligence though one can assume the claim is premised on negligence and Mr Kumura makes no submission on the basis of the claim in liability.

16. 	The second objection by Ms Dusava is that if the Plaintiff is claiming vicarious liability as against the State on the conduct of the Defendants, there is no pleading in the Plaintiff’s Statement of Claim that sets out the conduct of the Defendants that is negligent and the nexus to the State as being vicariously liable as their employer. In the cases of Pinda v Inguba and Kamuri v Pomoso, the Supreme Court has impressed the duty to Plaintiffs to correctly and clearly plead a proper cause of action against the State for the conduct complained of and the nexus tying in the State for vicarious liability. The Plaintiff has failed terribly to do that in this matter opting to jump to the Court’s indulgence on assessment of damages. I uphold the submissions by Ms Dusava that the Plaintiff’s pleadings are incontestably bad as against all Defendants and the claim on liability has been evaded and not proven therefore these proceedings shall be dismissed forthwith.  

17. 	Court, therefore, makes the following orders:

i)	These proceedings are dismissed in their entirety.
ii)	The Plaintiff shall meet the Defendants costs of these proceedings.

Orders accordingly.
_____________________________________________________________
Kumura Lawyers: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the Defendants