SC2349

PAPUA NEW GUINEA
[IN THE SUPRME COURT OF JUSTICE]

SCA NO. 16 OF 2020

BETWEEN
WAKE GOI
Appellant

AND
BANK SOUTH PACIFIC LIMITED
Respondent

Waigani: Kandakasi DCJ, Makail & Miviri, JJ
2021: 25th November
2023: 6th February

SUPREME COURT APPEAL – Appeal against dismissal of proceeding – Dismissal of proceeding after a contested trial on liability – Breach of fiduciary duty – Duty of banker to customer – Duty of confidentiality –Release of copies of customer’s bank statements to third party – Proof of breach – Defence of lawful authority – Banker acted on a search warrant to release copies of bank statements – Proof of liability 

EVIDENCE – Onus of proof – Reversal of burden of proof – Lack of pleadings – Evidence adduced unsupported by pleadings – Reduction of probative value of evidence – Lack of direct evidence – Circumstantial evidence – Principles governing – Inferences based on conjectures and assumptions – Defence under no obligation to disprove liability

 PLEADINGS – Purpose and object of – Fully disclose the case the defendant must meet – A plaintiff duty bound to discover before suit and properly plead his case – Defendant raising factual issue against what is pleaded – Plaintiff under obligation seek and secure amendments – Evidence of matters not pleaded or subject of interrogatories – Court entitled to disregard and or have little or no weight 

Cases Cited:
Papua New Guinean Cases

Wake Goi v. Bank of South Pacific Limited (2020) N8271
Pija Grannies Limited v. Rural Development Bank Limited (2011) SC1327
Soakofa Trading Limited & Ken Petakin v. Bank South Pacific Limited (2021) SC2068 
Task Guard Limited v. Foulton (2016) SC1560 
Bomai v. Takela (2016) N6332
PNGBC v. Jeff Tole (2002) SC694
Motor Vehicle Insurance (PNG) Trust v. Etape [1995] PNGLR 214
Motor Vehicle Insurance (PNG) Trust v. Pupune [1993] PNGLR 370
Waima v. Motor Vehicle Insurance (PNG) Trust [1992] PNGLR 254
Neville Bourne v. Manasseh Voeto [1977] PNGLR 298
Waranaka v. Dusava (2009) SC980
Powi v. Kaku (2022) SC2290
Juali v The State (2001) SC667
Danga v. Motor Vehicle Insurance (PNG) Trust (1997) N1665
Nara v. State (2007) SC1314
Paulus Pawa v The State [1981] PNGLR 498
The State v Tom Morris [1981] PNGLR 493
 
Overseas Cases

Tournier v. National Provincial and Union Bank of England [1924] 1 KB 461 
Jarvis v. Moy, Davies, Smith, Vandervell & Co (No 3) [1936] 1 KB 399 

Counsel:
Mr. P. H. Pato, for the Appellant
Mr. A. H. Waffi, for the Respondent

JUDGMENT
6th February, 2023
1.	BY THE COURT: This appeal raises seven questions mainly on the question of pleadings, calling of evidence and findings of fact in a civil proceeding before the National Court. The proceeding concerns an alleged breach by the respondent of its fiduciary duty to the appellant not to disclose appellant’s account details to members of the police without a search warrant and or a court order. After a careful consideration of each of the grounds of appeal and the issues they raise, the Court is of the opinion that a determination of grounds of appeal lies in the application of the principles of pleading and the burden of proof the parties have in a civil case.  
2.	The appeal arises from a dismissal of proceedings after a contested trial on liability.  The decision of the trial Court is published as Wake Goi v. Bank of South Pacific Limited (2020) N8271.
3.	An action of this nature is based on the special relationship a banker and customer enjoy in the conduct of banking business where a duty of care is implied upon a bank.  Where a breach has occurred, an action may be brought by the customer against his or her bank for breach of contract: Tournier v. National Provincial and Union Bank of England [1924] 1 KB 461( the Tournier Case). An action may also be brought in negligence: Pija Grannies Limited v. Rural Development Bank Limited (2011) SC1327; Soakofa Trading Limited & Ken Petakin v. Bank South Pacific Limited (2021) SC2068 and Jarvis v. Moy, Davies, Smith, Vandervell & Co (No 3) [1936] 1 KB 399.  The contentious issue between the parties in the trial Court was not about the cause of action but establishing the alleged breach of duty of care.
Background Facts
4.	The appellant was at the relevant time a member of Parliament representing the people of Jimi in the Jiwaka Province.  In the National Court the appellant alleged that the respondent breached its fiduciary duty when it divulged information about his bank accounts between November 2012 and March 2013 to members of the police, as that was without a search warrant  or a court order.  Relevantly the allegation is pleaded at paragraph 8 of the statement of claim in the following terms:
“…..the police obtained statements of the Plaintiff from both accounts…….from the Defendant’s Mt Hagen branch without first obtaining Search Warrant or any lawful order.” (Underlining added).
5.	The details of the two accounts were:  
	5.1.	Goroka BSP Branch Cheque Account No: 1001324361; and
	5.2.	Mt Hagen BSP Branch Savings Account No: 1000790157.
6.	It was the appellant’s claim that members of the police acted on a complaint of one Mr Mai Dop, the former Member for Jimi Open in Jiwaka Province to obtain copies of the bank statements from the respondent.  After obtaining them, they used them to charge him with misappropriation of K13,104,266.00 on 18th March 2013.  Subsequently, the charge was dismissed by the National Court, and he was discharged.

7.	Significantly, in its statement of defence the respondents pleaded that it released or provided copies of the appellant’s bank statements to the members of the police based on lawful authority in response to a search warrant.  The defence of lawful authority is pleaded at paragraph 6 of the statement of defence as follows:
“…….the Defendant:
(a)	admits that it released to Police copies of the statements of the accounts numbered 1000790157 and 1001324361 and says that it did so only for the period 6 November 2007 to 20 November 2012;

(b)	says that it was compelled by law to do so, pursuant to a Search Warrant issued by the District Court at Mt Hagen on 11 February 2013.” (Underlining added).
8.	In his reply the appellant pleaded at paragraph 3 that “……the statements of his two bank accounts with the Defendant were released to the police before the Search Warrants…….were obtained and served on the Defendant.”  (Underlining added).
9.	However, the reply fell short of stating the exact date the respondent released or provided copies of the bank statements to the members of the police and when the members of the police obtained the search warrant from the District Court.
Grounds of Appeal
10.	Turning to the grounds of appeal, they may be conveniently set out in three broad categories:
1.	Application of the Law on Circumstantial Evidence in Civil Proceedings
Ground 3.1(i) & (ii) alleged that while the law on circumstantial evidence is commonly applied in criminal proceedings, in the case of Task Guard Limited v. Foulton (2016) SC1560 the Supreme Court held that it may apply in civil proceedings.  The National Court also adopted this view in the case of Bomai v. Takela (2016) N6332.  The learned trial judge erred in law when he failed to follow these decisions, in particular, the latter one where he was bound to follow and hold that the respondent released or provided copies of bank statements to the members of the police prior to the latter obtaining a search warrant.

2.	Lack of Pleadings
Grounds 3.2, 3.3(i), (ii) & (iii) and 3.4(i) & (ii) in totality alleged that the learned trial judge erred in law and fact when he failed to hold that:
(a)	it was pleaded or alternatively, when the pleading in the statement of claim is read in totality, it may be inferred that one of the members of the police had prior knowledge of the appellant’s bank accounts details;
(b)	it was not necessary to plead that the search warrant was not amended or an application for a new search warrant was made because it was not revealed until at the trial and formed one of the issues for determination;
(c)	the issue of whether the respondent acted on an invalid search warrant was properly raised at trial and open to him to hold in favour of the appellant;
(d)	the respondent failed to disclose during discovery, the existence of the search warrant; and
(e)	it was not necessary to plead that the search warrant was not returned to the District Court after it was executed because it was not revealed until at the trial and formed one of the issues for determination.
3.	Failure to apply Circumstantial Evidence 
Grounds 3.4(iii), 3.5, 3.6 and 3.7 in totality alleged that the learned trial judge erred in law and fact when he failed to rely on circumstantial evidence and hold that the respondent released or provided copies of the bank statements to the members of the police prior to the latter obtaining a search warrant because:
(a)	the respondent did not adduce evidence to counter the evidence of one of the appellant’s witnesses that the search warrant was not returned to the District Court after it was executed (served) on the respondent;
(b)	the appellant gave evidence that it was unknown when the respondent printed and released or provided copies of the bank statements to the members of the police;		
(c)	the officers of the respondent did not properly vet, verify, approve and execute the search warrant;	
(d)	the copies of the bank statements were released or provided to the members of the police in Mt Hagen while the search warrant was served at its Goroka Branch and was undergoing, vetting, verification and approval;
(e)	the respondent’s witnesses gave conflicting accounts on when the search warrant was served, transmitted, vetted, approved and actioned; and
(f)	the appellant’s witnesses’ evidence was consistent but was disregarded.  If it were accepted, it would lead to the conclusion that the respondent released or provided copies of the bank statements to the members of the police prior to its Mt Hagen Branch being served a search warrant.
Issues
11.	At trial, evidence from the Clerk of the Mt Hagen District Court revealed that members of the police applied and obtained a search warrant from the Mt Hagen District Court on 12th February 2013.  The search warrant is identified as SW No 32 of 2013 (“Search Warrant”).
12.	The evidence of the existence of the search warrant altered the issue for determination at trial from being whether the respondent had acted without lawful authority to release or provide copies of the bank statements to the members of the police to one of whether the search warrant was issued after the respondent released or provided copies of the bank statements to the members of the police.
13.	Given the departure from the pleaded allegation, first, it became necessary to determine whether it was open to the appellant to take up the issue of whether the search warrant was issued after the release of the copies of bank statements to the members of the police and secondly, whether the appellant adduced evidence to establish that the search warrant was obtained after the respondent released or provided copies of the bank statements to the members of the police.  
Pleadings on Search Warrant
14.	In his decision of 27th March 2020, the learned trial judge held that the appellant failed to prove liability on the balance of probabilities and dismissed the proceeding. One of the reasons for that decision was that, the appellant did not plead that, the members of the police applied and obtained the search warrant from the Mt Hagen District Court on 12th February 2013, and that, it was after the respondent released or provided copies of the bank statements to the members of the police that they obtained the search warrant from the District Court.  
15.	The appellant contended that the learned trial judge erred in arriving at this conclusion.  He contended that the evidence of the respondent’s witnesses, namely the Internal Investigator and, also that of the Manager Legal Division revealed that the respondent released or provided copies of the bank statements to the members of the police prior to the latter obtaining the search warrant from the Mt Hagen District Court.
16.	The appellant also contended that there was no evidence from the respondent to counter the evidence of one of his witnesses that it was a requirement for the search warrant to be returned after it was executed (served on the respondent) and recorded on the District Court’s Electronic Case Management System (“DCECMS”) and that it was not returned to the Mt Hagen District Court after it was executed and recorded on the DCECMS.
17.	The Court disagrees with the appellant’s contentions.  In totality, it overlooks the significance of the role pleadings play in civil proceedings and how they direct the kind of evidence that will be adduced at trial to prove the allegation pleaded.  Where there are no pleadings to ground an allegation, it is open to the Court to disregard the allegation.  If the Court decides to consider such evidence, its probative value is often diminished or of less value and may be disregarded.
18.	The significance of the probative value of evidence cannot be understated because inherent in any litigation where a decision will have an adverse impact on a party’s right or interest is the right to a fair hearing or trial.  The right is universally accepted as the opportunity to be heard in defence to an allegation. In the context of civil litigation, a defendant is entitled to know the case it will meet at the hearing or trial through the matters pleaded with sufficient particulars. For further discussions on pleadings, their purpose and or object and the effect of a lack of proper pleadings: See PNGBC v. Jeff Tole (2002) SC694; Motor Vehicle Insurance (PNG) Trust v. Etape [1995] PNGLR 214; Motor Vehicle Insurance (PNG) Trust v. Pupune [1993] PNGLR 370 and Waima v. Motor Vehicle Insurance (PNG) Trust [1992] PNGLR 254.
19.	Where an allegation in the statement of claim is controverted by a defendant in its statement of defence and it is necessary to amend the allegation, a plaintiff is obliged to seek an appropriate amendment to the allegation and if granted amend the pleadings accordingly and proceed  Order 8, rules 50 and 51 of the National Court Rules allows a plaintiff to apply by motion for leave of the Court to amend the allegation pleaded in a statement of claim to bring to the notice of the defendant the allegation of fact that is in issue.   
20.	In the present case, the Court notes that first, the appellant pleaded that the respondent released or provided copies of the bank statements to the members of the police without a search warrant or court order.  He did not plead that the respondent released or provided copies of the bank statements to the members of the police prior to them obtaining the search warrant.  
21.	As the respondent relied on the defence of lawful authority pursuant to the search warrant to release or provide copies of the bank statements to the members of the police, it had controverted the allegation that it released or provided copies of the bank statements to the members of the police without a search warrant.  The controverted allegation is further reinforced at paragraph 3 of the appellant’s reply where he alleged that the copies of the bank statements were released or provided to the members of the police prior to the issuance of the search warrant. 
22.	The consequence of this is that the decision by the appellant to take up the allegation that the respondent released or provided copies of the bank statements to the members of the police prior to the issuance of the search warrant significantly altered the original allegation that the respondent released or provided copies of the bank statements to the members of the police without a search warrant or a court order.  
23.	The undisputed fact that the respondent disclosed to the appellant in its statement of defence at the pleading stages of the proceedings of the existence of a search warrant and the appellant’s acknowledgement in his reply of its existence was sufficient notice to him to make further enquiries without delay as to its existence and details by way of further and better particulars (Order 8, rule 29), or discovery (Order 9, rules 1, 2 & 7), or interrogatories (Order 9, rules 17, 18 & 21) and or admissions (Order 9, rules 29 & 30) of the National Court Rules.  These were various options and resources the appellant had and could have utilized to obtain further information about the search warrant which would have enabled him to review his position before the trial and the take the appropriate corrective steps.  
24.	Thirdly, he did not apply for and obtain leave to amend his statement of claim and add the allegations of:
(a)	Prior knowledge of bank account details by a member of the police.
(b)	Search warrant was not amended or application for a new search warrant was not made by the members of the police.
 (c)	As a consequence of (b), the search warrant relied upon by the respondent to release or provide copies of the bank statements to the members of the police was invalid.
(d)	It was a requirement for the search warrant to be returned after it was executed and recorded on the DCECMS and it was not done.
25.	The above are significant allegations because they go towards establishing a link or connection between the date of the issuance of the search warrant and date of release of the copies of bank statements to the members of the police and required clear pleading to give the respondent the opportunity to respond to them.  Additionally, they go towards establishing that the search warrant was defective and invalid.
26.	The information about the first three additional allegations of fact were within reach of the appellant and should have been obtained had he diligently requested them from the members of the police and respondent by way of further and better particulars (Order 8, rule 29), or discovery (Order 9, rules 1, 2 & 7), or interrogatories (Order 9, rules 17, 18 & 21) and or admissions (Order 9, rules 29 & 30) of the National Court Rules.  As to the fourth additional allegation of fact, that information was available when he interviewed and was preparing the affidavit of the Clerk of Court and should have been taken up without delay to amend the statement of claim. 

27.	Moreover, an action for breach of fiduciary duty by a customer against its banker is a serious matter because of the special relationship a customer and banker enjoy.  Given that, a customer needs to first establish prior to commencement of proceeding the absence of lawful authority, for example, a requirement by law, or the absence of a search warrant or court order to release a customer’s confidential information.  Had the appellant diligently made enquiries about the search warrant prior to commencement of proceeding, its existence would have been revealed. That would have  assisted him to reconsider whether it was necessary to sue the banker at all.
28.	The appellant failed to take up any of the options that were open and available to him and cannot now justify his failure by claiming that he was unaware of the existence of the search warrant until at trial.  In contending as he did, he has erroneously shifted the burden of proof from himself to the respondent and has prejudiced the respondent in its defence of acting under lawful authority pursuant to a search warrant to release the bank statements.
29.	Turning now to the specific grounds relied upon by the appellant under the second category on lack of pleadings. 
	(a)	Prior knowledge of bank account details 
Based on the above reasons for want of pleadings, the Court upholds the learned trial judge’s decision to disregard this allegation on the ground that it was not pleaded. Holding otherwise would be tantamount to breaching of the rules and principles on pleadings.
(b)	Search Warrant was not amended or application for a new Search Warrant was not made
	The Court repeats the reasons given above.
 (c)	Invalid Search Warrant was properly raised at trial 
		The Court repeats the reasons given above.
(d)	Failure to disclose during discovery the existence of the Search Warrant 
The Court repeats the reasons given above.  In addition, the Court is unable to find in the Appeal Book a copy of a Notice of Discovery which required the respondent to give discovery of the search warrant to support the appellant’s contention under this ground.
(e)	Return of the Search Warrant to the District Court after it was executed
		The Court repeats the reasons given above.
30.	In respect of the first issue posed at [13] above, the Court finds no error by the learned trial judge to hold that it was not open to the appellant to take up the issue of whether the search warrant was issued after the respondent released or provided copies of the bank statements to the members of the police.
Circumstantial Evidence
31.	We now turn to the second issue. That issue is captured in the third broad category of grounds of appeal at [10.3] above.  The issue is,  whether the appellant adduced any circumstantial evidence which established the facts he is now claiming in this appeal The only evidence adduced by the appellant and was available for the National Court to act on was from the Clerk of the District Court. 
32.	The undisputed evidence of the Clerk of the Mt Hagen District Court was that the members of the police applied and obtained a search warrant on 12th February 2013.  The evidence of the other two witnesses Bill Kundala and Nathan Gomae are not relevant because neither of them witnessed the members of the police serve the search warrant on the respondent.  Moreover, they did not observe the respondent releasing or providing copies of the bank statements to the members of the police prior to 12th February 2013. The only exception to that is Mr Gomae’s assertion that a date(s) must be printed on the copies of the bank statements to show when they were printed by the officers of the respondent and released.  In this case, he claims that was not done. But this does not go into the core of the factual issue under consideration. 
33.	Clearly, this was a case in which the appellant sought to shift the burden of proof to the respondent without admitting into evidence appropriate admissible evidence to establish his case. The appellant tried to do that by relying on the evidence of the respondent’s witnesses to piece together the missing evidence. The respondent called two witnesses who were cross-examined in relation to factual matters deposed to in their respective affidavits:
•	Jeffery Emang, Legal Officer; and
•	Tau Naime, Internal Investigator.
34.	In addition, the appellant referred to various email exchanges between the Managers and officers of the respondent in Goroka, Mt Hagen and Port Moresby.  Significantly, the appellant relied on those exchanges between the Internal Investigator and the Manager, Legal Division and invited the learned trial judge to draw inferences and find that the respondent breached its fiduciary duty of care when it released or provided the bank statements prior to the issuance of the search warrant based on the following:  
•	The date of the search warrant was 12th February 2013, and it is unknown when the respondent printed and released or provided copies of the bank statements to the members of the police.  The absence of dates printed on the bank statements could infer that they were released or provided prior to the members of the police obtaining the search warrant.  

•	As the respondent was able to provide the bank statements of the specific bank accounts, a member of the police by the name of Constable Nick Tangele must have had prior knowledge of the details of his bank accounts.

•	As the search warrant did not include additional information in relation to the account and signature records, the respondent failed to amend the search warrant to include them or obtain a new one.

As it was necessary for the search warrant to be returned to the Mt Hagen District Court after its execution, the respondent failed to return the search warrant to the District Court after it was executed.

•	As it was necessary to disclose the date of printing of the bank statements, the respondent failed to ascertain when the bank statements were printed.

•	As it was necessary to disclose the name of the bank officer who released the bank statements, the respondent failed to disclose the name of the bank officer who released the bank statements to the members of the police.

•	As the search warrant was directed at the appellant’s bank accounts, the respondent failed to serve the search warrant on the appellant.

•	As it was alleged that Detective Senior Constable Nick Tangele was the person who obtained the search warrant, the respondent failed to call him as a star witness.

•	Based on the Supreme Court decision in Task Guard Limited v. Foulton (supra) the learned trial judge was bound to assess the evidence based on circumstantial evidence.  A finding based on circumstantial evidence is not unprecedented but would be consistent with the decision of the National Court in Bomai v. Takela (supra) where the National Court applied circumstantial evidence to make appropriate inferences and findings.
35.	The Court is of the view that the appellant’s contention is based on an erroneous application of the burden of proof by reversing the burden of proof from himself to the respondent.  It is settled law that he who alleges must prove it: See Neville Bourne v. Manasseh Voeto [1977] PNGLR 298; Waranaka v. Dusava (2009) SC980 and Powi v. Kaku (2022) SC2290. It is also settled law that, only when a prima facie case is made out the burden shifts to a defendant or respondent to rebut the case against him or her: Juali v The State (2001) SC667.  Where no prima facie case is made out against a defendant, a defendant need not go into evidence and can as a matter of law make submissions on whether a case has been made out against him or her and succeed as did the defendant in Danga v. Motor Vehicle Insurance (PNG) Trust (1997) N1665. Hence, the respondent was under no obligation to disprove its alleged liability.  The onus was on the appellant as the plaintiff to first plead and then establish the claim against the respondent.  What the appellant did was an attempt to piece together from the respondent’s evidence the missing evidence that he ought to have adduced.  It was a case of inferences based on conjectures and assumptions rather than solid evidence to prove breach of the duty of care alleged.
36.	 Furthermore, while the appellant, Mr Kundala and Mr Gomae’s evidence were not tested in or subjected to vigorous cross-examination, it does not necessarily follow that the statements in their affidavits must be accepted as proof of the allegations.  The Court has the overriding discretion to decide how much weight to give to the statements in their respective affidavits.  In this case, the learned trial judge gave no weight to the affidavits or disregarded them because they were unsupported by the pleadings.
37.	As the Court pointed out at [17] and [18] above, pleadings drive the evidence at trial and determine the probative value to be attached to the evidence. If the appellant formed the view that dates printed on the copies of the bank statements were necessary to establish that the search warrant was obtained after the respondent released or provided copies of the bank statements to the members of the police, he was under an obligation to plead it in his statement of claim and then adduce evidence to prove it.  
38.	For these reasons, we are of the view that it was within the learned trial judge’s discretion to disregard that aspect of the evidence.  This effectively left the appellant with no evidence to build his case upon and have his case established against the respondent.  
Application of Circumstantial Evidence in Civil proceedings
39.	If however, the evidence in question were considered, in our considered view, that was not capable of presenting only the inference  the appellant wanted which was that, the absence of dates printed on copies of the bank statements meant the bank release those statements or provided them to the members of the police prior to their obtaining the search warrant.  The opposite view was equally open to the National Court to find.  
40.	Where a case is based purely on circumstantial evidence the law is well settled in our jurisdiction especially in the criminal cases.  The decision of this Court for example, in Nara v. State (2007) SC1314 (per Kandakasi J (as he then was) at [18] is on point:
“…where a case is based on circumstantial evidence the accused must be acquitted unless such a person’s guilt is the only rational and reasonable inference open within the four corners of the circumstantial evidence that is actually before the Court on the required standard of prove, beyond any reasonable doubt. This means the Court must consider only the evidence properly adduced and presented before the Court and nothing else.”
41.	The appellant’s argument on this point is that the decision of this Court in Task Guard Limited v. Foulton (supra), is authority for the proposition that these principles apply in a civil case.  This is not accurate.   That case was an appeal from a decision of the National Court dismissing the appellant’s proceedings for want of prosecution.  The principles governing circumstantial evidence were not discussed, nor adopted and applied.  Hence, we are of the view that the decision under consideration does not support the appellant.
42.	The Court does however find the decision of the National Court in Bomai v. Takela (supra) is directly on point.  There, the Court specifically at [15] stated the relevant principles as they apply in a criminal case and held at [16] that:
“Whilst noting that the above principles relate to criminal law, they nevertheless apply to civil cases, the balance of proof being on the balance of probability. I draw inferences from the findings of fact and I find that the first defendant committed the tort in the course of his employment and therefore the second defendant is vicariously liable to the plaintiff.”
43.	The principles in question concern what use a court must make of evidence that is properly adduced and is before a court.  Where the evidence does not directly establish a factual matter in dispute, the court can make use of other evidence that are properly admitted into evidence and are properly before the Court. The Court can draw inferences as are open to it on such admitted facts.  Accordingly, we are of the view that the principle on circumstantial evidence applies to civil proceedings subject to appropriate modifications. Such modifications are necessary given the difference that existence between civil and criminal cases.  In this regard, it is necessary to note that, unlike in a criminal case, a plaintiff in a civil case is required to plead with sufficient particulars the entirety of his claim.  That means, if the plaintiff’s claim is based purely on circumstantial evidence that must be pleaded with sufficient particulars to enable the defendant to properly meet it.  Where a plaintiff fails to so plead, as we already noted, he cannot call evidence, and if he or she does, the Court will either disregard or place little or no weight to it.  Given that difference and the principle of he who alleges must prove it, we are of the view that where a plaintiff fails to establish by its own evidence his or her claim as pleaded originally or as may be amended, the principles governing circumstantial cannot be invoked to find for such a failing plaintiff. 

44.	We now turn to the appellant’s claims of failure by the respondent to disclose the name of the bank officer who released copies of the bank statements to the members of the police, that the respondent failed to serve a copy of the search warrant on the appellant and that the respondent should have called Detective Senior Constable Nick Tangele as a star witness. Unless summoned or ordered by the Court through the discovery process, the respondent was under no obligation to do what the appellant is claiming. These are yet further examples of the appellant trying to shift the burden of proof from himself to the respondent. They are also further matters not properly supported by any foundation in the pleadings.

45.	Finally, as to the contention that the respondent failed to call Detective Senior Constable Tangele as a star witness, the Court upholds the learned trial judge’s decision to disregard it because the respondent was under no obligation.  This proceeds from the well accepted rule that there is no property in a witness.  If the respondent did not call Detective Senior Constable Tangele and if the appellant formed a view that Detective Senior Constable Tangele had information in relation to when the search warrant was served on the respondent, it was up to the appellant to call him and should have called him.  If the witness refused, the appellant had the option of having him summoned to give evidence.    
46.	The learned trial judge correctly pointed out this at [96] of the judgment:
“Otherwise, it was possible for the plaintiff to have made an application to the Court to call Detective Senior Constable Tangele to give evidence in the interest if justice: The State v. Theo Yandalin & 2 Ors (1995) N1329. No such application was made by the plaintiff………”.	
47.	For the foregoing reasons and in summary this Court finds against the appellant on the second issue posed at [13] above.  This Court instead finds nothing wrong in the learned trial judge’s finding and decision and upholds the learned trial judge’s finding that the appellant failed to adduce credible and admissible evidence to establish that the search warrant was obtained after the respondent released or provided copies of the bank statements to the members of the police. 
Conclusion

48.	The present case falls into a group of cases where, by choice, a litigant has disregarded the abundance of resources available to him in our civil practice and procedure as enshrined in the National Court Rules. It was open to the appellant to utilise the relevant rules to investigate the core of his complaint and collate appropriate evidence to present before having the matter listed for trial.  It is obvious, the appellant’s case was litigated based on an erroneous understanding and application of correct principles of law and including his erroneous attempt at shifting the burden of proof and law on a case based on circumstantial evidence.  This was without the support of any law be it substantive or procedural.  The facts clearly established that the bank acted under a lawful search warrant.  If there was any problem associated with that, the duty was on the appellant to properly plead it, call evidence and establish it.  That he failed to do.  

49.	For these reasons the Court finds the appeal is without merit and it must be dismissed.  Consequently, the Court further finds no error on the part of the learned trial judge’s, decision and his reasons for the decision and uphold it.   

Costs

50.	Costs are usually discretionary. Usually, costs would follow the event.  Since the appellant has lost the appeal in its entirety, he must bear the respondent’s costs.  That takes care of the costs and inconvenience the respondent has been forced to bear and for the appellant’s inadequate pre-trial preparation and misunderstanding and misapplication of the burden of proof in litigating his case against the respondent.  The appellant is therefore, ordered to pay costs of the appeal on party/party basis, to be taxed, if not agreed. 

Order
51.	The formal terms of the final order are:
1.	The appeal is dismissed.

2.	The judgment of the National Court of 27th March 2020 is affirmed.	
3.	The appellant shall pay the costs of the appeal on party/party basis, to be taxed, if not agreed.
	
4.	Time shall be abridged.
________________________________________________________________
Parkers Legal: Lawyers for the Appellant
BSP Ltd In-house Legal Counsel: Lawyers for the Respondent