N11071

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 736 OF 2010

JONA PARO 
Plaintiff

-V-

APELE PORE
Defendant

Waigani:  Kariko, J
2023: 24th May, 13th June
2024: 8th March

DAMAGES – assessment of – claim not particularized – sufficiency of pleadings – lack of supporting evidence 

The plaintiff sought repayment of her monies alleged to have been converted by the defendant, and further asked for damages. After liability was established regarding her claim in conversion and the repayment ordered, a separate hearing was held on the claim for damages. 

Held:

1.	In a civil action, a claim, defence or relief that has not been properly pleaded, cannot be raised.

2.	A claim for damages must be clearly pleaded and established by relevant evidence.   
  
Cases Cited:
Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694
The Central Bank of PNG v Gabriel Tugiau (2009) SC1013
Uma More v UPNG [1985] PNGLR 41 
William Mel v Coleman Pakalia and Others (2005) SC790

Counsel:
Mr J Gene, for the Plaintiff
Mr N Kiuk, for the Defendant

TRIAL

This is a trial on assessment of damages.

8th March 2024 

1.	KARIKO, J: The plaintiff and defendant were previously married by custom. In these proceedings, the plaintiff sued the defendant for conversion, and settlement of properties acquired during their marriage, but the latter claim was abandoned. 

2.	Regarding the claim for conversion, the plaintiff alleged she was persuaded by the defendant to deposit K41,212 cash she owned into the defendant’s bank account for safe keeping but the money was not returned to her when she requested it. 

3.	Apart from seeking the reimbursement of the K41,212.00, the plaintiff asked for damages.

4.	On 7 September 2020, I found the defendant liable for conversion of the cash and adjourned for hearing on damages, which was delayed until 13 June 2023 for various reasons including an unsuccessful appeal to the Supreme Court against the finding on liability.

PLEADINGS

5.	In [30] of the plaintiff’s statement of claim, she pleaded for these relief: 

a)	Repayment of her K41, 212.00.
b)	Damages.
c)	Settlement of the properties in Port Moresby.
d)	Costs.
e)	Such other orders the Court deems necessary.

6.	As noted earlier, the main relief that remains for determination is the claim for damages.

EVIDENCE

7.	The hearing was conducted ex parte with the plaintiff presenting her case through five affidavits – two by her, two by her siblings (Mary and Lakari Paro) and the fifth by a church deacon who assisted her pursue her claim (Gideon Aiyu). 

8.	The plaintiff’s first affidavit gave an account of the background facts that are mostly relevant to her cause of action in conversion. 

9.	In her second affidavit, the plaintiff listed expenses she incurred in pursuing this action, including: 

•	legal fees 			- K3,000.00
•	airfares				- K3,500.00
•	bail				- K500.00
•	transport & meals		- K15,000.00
•	Rental accommodation	- K39,000.00
•	Daily expenses			- K109,500.00
Total	- K211,712.00
	
10.	The affidavits of Mary and Lakari Paro are similar in content to the plaintiff’s second affidavit and relevantly state that they were flown to Port Moresby as witnesses and for that purpose, the plaintiff incurred costs for the air tickets (about K700.00 each), accommodation, meals, and transport.

11.	In his affidavit, Gideon Aiyu stated that he assisted the plaintiff pursue her case by providing her rental accommodation, hire vehicle which cost a total of K39,000.00 and K10,000.00 respectively.

ISSUES
	
12.	I accept these to be the issues relevant for determination:

•	Whether the claim for damages has been properly pleaded?
•	If so, does the evidence support the claim?

CONSIDERATION

56.	The relevant principles to apply in considering deciding damages are pertinently set out by the Supreme Court in the case of William Mel v Coleman Pakalia and Others (2005) SC790, and they include:

•	That the plaintiff has the onus of proving his loss on the balance of probabilities. 
•	That corroboration of a claim from an independent source is usually required.
•	That the principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. 

13.	In a civil action, the law is clear that you cannot raise a claim, defence or relief that has not been properly pleaded; Uma More v UPNG [1985] PNGLR 41; Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694.

14.	The only facts pleaded in the statement of claim that could possibly be regarded as the basis for the claim for damages are those found in [30] wherein it is pleaded:

By reason of the conversion the Plaintiff suffered loss and hardship in that she was made homeless and penniless. Further that she is (sic) struggling to make ends meet by selling vegetables in Gordons Market on a daily basis. 
(Emphasis added)

15.	While it is asserted that the plaintiff was going through a difficult period, no particulars of “loss and suffering” are set out, rendering the pleading inadequate as it fails to properly identify the type of damages sought.    

16.	The evidence suggests the claim is for out-of-pocket expenses, but the particulars for air travel, transport/vehicle hire, meal and accommodation, are not pleaded and are not verified by any documentary evidence such as invoices or receipts. Legal fees are also incorrectly claimed, as those and indeed some of the other expenses may be sought if costs are awarded in favour of the plaintiff. 

17.	The plaintiff submitted that the evidence also showed the hardships suffered by the plaintiff in prosecuting this case since 2010. If this means the claim is for general damages (for stress and anxiety), then that has not been properly pleaded either, but even then, the evidence plainly does not corroborate such claim.   

18.	I refer to the case of The Central Bank of PNG v Gabriel Tugiau (2009) SC1013 cited by counsel for the defendant where the Supreme Court stated: 

55. 	….. a plaintiff can only be compensated by way of damages for loss or damages actually suffered. It follows therefore that, damages cannot be allowed as a matter of cause (sic) but only actual losses and damages which are clearly pleaded and established by appropriate evidence as was the case in Peter Aigilo v. The Independent State of Papua New Guinea. 

56. 	In this case, the plaintiff did not plead with any particularity his claim of having suffered stress, anxiety and loss of reputation in the Bank and amongst his peers. He only pleaded in the prayer for relief "damages for psychological effects, stress, embarrassment, shame, defamation of his good reputation and character." That was no pleading at all. The law is clear that, foundation must be laid in the pleadings to properly ground any prayer for relief. Without any such pleadings there can be no award.
(Emphasis added).

19.	I accordingly dismiss the plaintiff’s claim for damages for reasons that she failed to plead the claim properly and sufficiently, and in any case, she did not establish the claim by relevant evidence. 

20.	The defendant was of course earlier found liable for conversion of the plaintiff’s K41,212.00 and he shall be formally ordered to pay her that sum.

INTEREST

21.	It is noted that interest on the judgement sum has not been pleaded in the prayer for relief. However, I also note that this case has taken over 13 years to conclude and accept that the delay cannot be attributed to only one party. In the circumstances, I exercise my discretion pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015 to award 4% interest on the judgment sum to be applied from the date of filing this action, 28th June 2010.

COSTS

22.	Costs of the proceedings, except for those relating to the hearing on damages, shall be awarded in favour of the plaintiff.

ORDER

(1)	The defendant shall pay the plaintiff K41,212.00 as damages for conversion. 
(2)	The plaintiff’s claim for damages is dismissed.
(3)	The defendant shall pay the plaintiff interest of 4% on the judgement sum to be applied from 28th June 2010.
(4)	The defendant shall pay the plaintiff’s costs of the entire proceedings, except for the hearing on damages, on a party-party basis, to be taxed if not agreed.
(5)	The plaintiff shall pay the defendant’s costs of the hearing on damages, on a party-party basis, to be taxed if not agreed.
(6)	Time for entry of this order is abridged to the date of settlement by the Registrar which shall take place forthwith.   

The Public Solicitor: Lawyer for the Plaintiff
Kiuk & Associates Lawyers: Lawyers for the Defendant