N7258
PAPUA NEW GUINEA	
[IN THE NATIONAL COURT OF JUSTICE]

 WS NO. 1497 OF 2010  
BETWEEN:
WILLIAM WANI TEPRA    
Plaintiff 

AND:
PETER RANGIL  
First Defendant 

AND:
SENIOR CONSTABLE JOHANNES POYA  
Second Defendant

AND:
GARRY BAKI – COMMISSION OF POLICE  
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA  
Fourth Defendant

Mt Hagen:   Foulds, J
                        2018:   17 May  

Case Cited:

Jack Pinder  v  Sam Inguba and  The Independent State of Papua New Guinea (2012) SC 1181

Legislations Cited:

Wrongs (Miscellaneous Provisions) Act

Counsel:

Mr. Sino, for the Plaintiff 
Mr. Rotep, for the Second, Third and Fourth Defendant 	
	
Reasons for Judgment
17th May, 2018

1.    FOULDS J:	 This is an action for damages in negligence against the four (4) defendants commenced by Writ of Summons filed by the Plaintiff on 30 November 2010.  Mr Sino of Sino & Company Lawyers has carriage of the matter and was counsel for the Plaintiff at the trial, the First Defendant was unrepresented at the trial but filed a defence and cross – claim on 13 December 2011.  The Plaintiff filed a defence to the first defendant's cross-claim on 20 October 2014 and Mr Rotep of the Solicitor General's office has carriage of the matter and was counsel for the Second, Third and Fourth Defendants at the trial. The Second, Third and Fourth Defendants filed a defence on 19 January 2011.

2.   In paragraph 1 of the statement of claim, the Plaintiff alleges, inter-alia, that at all material times:

(a) 	The Plaintiff is an adult male from Rondon Village in Mt. Hagen, Western Highlands Province.   He has the capacity to sue and be sued.  He can sue in his own name, style and capacity. He is suing in his own capacity.
(b)	 The First Defendant is a male adult from Wurup in the Anglimp District of Western Highlands Province. He has the capacity to sue and be sued in his own name, style and capacity. He is sued in his own personal capacity (the first tortfeasor).
(c) 	The Second Defendant is an adult and he has the capacity to sue and be sued. He is a policeman attached to the CID section at Kagamuga Police Station (the second tortfeasor). He is sued in this proceedings for his acts and omissions arising in the course of his employment. (The underlining is mine).

3.     Paragraphs (d) and (e) name the Third and Fourth defendants as the PNG Police Commissioner and the Independent State of Papua New Guinea respectively. They are sued solely to provide a legal nexus between the second tortfeasor and the third and fourth defendants by way of vicarious liability.
	
4.   The statement of claim goes on to plead the cause of action which is centred around the alleged confiscation from the Plaintiff by the First Defendant of a portable sawmill valued by the Plaintiff at K 16,000 and other accessories  and that (in paragraph 10) the Second Defendant was negligent in the discharge of his duties as a policeman, the particulars of which are as follows;

5.   PARTICULARS OF THE SECOND DEFENDANT’S NEGLIGENCE

(1) 	the second defendant was biased and exercised nepotism or favouritism in only hearing the first defendant's complaints and did not care to hear and consider plaintiff's version.
(2) 	the second defendant colluded and conspired with the first defendant who is his tribesman or wantok to confiscate the portable sawmill and all accessories.
(3) 	the second defendant failed to take into consideration the plaintiffs version of the fact (sic).
(4) 	the second defendant did not obtain a search warrant to confiscate the portable sawmill and the accessories.
(5)	 the second defendant did not use a police vehicle but a private vehicle owned the first defendant (sic) to confiscate the portable sawmill and other accessories.
(6) 	the second defendant failed to keep the portable sawmill and other equipment at the police station as exhibits but gave the same to the first defendant on the same date of the illegal confiscation.
(7)	 the second defendant did not lay the criminal charges promptly after a period of over one month after the illegal confiscation. The criminal charges was (sic) laid later to avoid the problem and as a cover up for the illegal confiscation and to avoid dealing with the plaintiff.
(8) 	the second defendant was not diligent in the discharge of his duties to ensure that the necessary evidence is collated and compiled to bring the plaintiff to trial on the criminal charge.
(9) 	there was no probable cause of action against the plaintiff.

6.    In paragraph 11, the Plaintiff alleges the following:

By reason of the aforesaid negligence the Plaintiff has suffered the loss of the sawmill and all other associated equipment and particulars of which are as follows;

7.   The action first came before me for trial on 22 March 2018.  As I have said previously there was no appearance by or on behalf of the First Defendant.  The First Defendant therefore did not and could not lead any evidence at the trial nor be cross-examined.  The Second, Third and Fourth Defendants did not lead any evidence.  Only the Plaintiff gave evidence and that was by way of affidavit filed on 29th November 2016.  He was cross-examined on that affidavit by Mr. Rotep of counsel for the Second, Third and Fourth Defendants
8.   In the course of presentation of the Plaintiff's case, I raised with counsel for the Plaintiff, the Supreme Court case of Jack Pinder v Sam Inguba and  The Independent State of Papua New Guinea (2012) SC1181, particularly paragraphs 10, 11, 12 and 13 on pages 4 and 5 of the reasons for judgement of Yagi,  J., Makail, J.& Kawi, J.  At the risk of being tedious, I set out below those paragraphs in full.

10. 	In this case, the cause of action was based on the tort of negligence. To succeed in having the second respondent held liable for the negligent actions or omissions of the policemen, the National Court has to be satisfied that:
(a) 	the policemen as servant or agents of the second respondent committed the tort of negligence during the course and within the scope of their employment; section 1 (1) (a) of the Wrongs (Miscellaneous Provisions) Act, Ch 297; and
(b) 	the policemen as officers of the second respondent committed the tort of negligence while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law: section 1 (4) of the Wrongs (Miscellaneous Provisions) Act, Ch 297.
11. 	The trial Judge found that the pleadings in the amended statement of claim were lacking because while the appellant pleaded that the respondents were vicariously liable for the acts or omissions of their servants or agents and a bleak or employees pursuant to section 1 (1) of the Wrongs (Miscellaneous Provisions) Act Ch 297, he did not plead that they committed the alleged negligent acts or omissions during the course and within the scope of their employment or while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law.
12. 	We have perused the amended statement of claim and find no statement alleging that the policemen were acting in the course and within the scope of their employment or while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law under the principles of vicarious liability pursuant to section 1 (1) & (4) of the Wrongs (Miscellaneous Provisions) Act, Ch 297. This is a fundamental omission because its omission means that there is no nexus or connection between the policemen and the first respondent and ultimately the second respondent (State) to hold it vicariously liable in damages. (The underlining is mine).
13. 	In other words, if the appellant is alleging that the persons who raided his stores were servants, agents and/or employees of the State because they were policemen, is not sufficient to only plead in the amended statement of claim that they were policemen but also plead that when they raided his stores, they were acting in the course and within the scope of their employment or while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law under the principles of vicariously liability (sic) pursuant to section 1 (1) & (4) of the Wrongs (Miscellaneous Provisions) Act, Ch 297.  In our view, the trial judge was correct in dismissing the proceedings. We dismiss this ground.

9.    This case, in my view, is materially on all fours with paragraphs 10, 11 and 12 of Pinda's case (supra).  Unlike Pinda's case, there are more than two defendants one of whom, the First Defendant, is not alleged to be a policeman. Nor is it is alleged, or is there any evidence that he was negligent. The issue unsupported by evidence, between the Plaintiff and the First Defendant is one of ownership of the mobile sawmill and accessories, not that as a result of the First Defendant's negligence and the Plaintiff was deprived of possession of it.

10.   On the other hand, there is no evidence from any party, particularly the Plaintiff, who was the only person to give evidence, in support of the cross-claim by the First Defendant.  It follows that the cross-claim cannot succeed and must therefore be dismissed in its entirety and judgement be entered on the cross-claim for the Plaintiff against the First Defendant.  

12.   Returning to the Plaintiff’s claim against the First Defendant in the action, there was no evidence against the First Defendant to support the Plaintiff’s claim against him in negligence, nor any other cause of action.  It follows that it must also fail and be dismissed in its entirety and judgement be entered in the action for the First Defendant against the Plaintiff. 

13.  As to the Plaintiff’s claim in the action against the Second, Third and Fourth Defendants, I refer to paragraphs 12 and 13 in Pinda’s case (supra).  I have underlined the final sentence in paragraph 12 because in my view it applies precisely to this case as I found no statement in the Plaintiff’s Statement of Claim alleging that the policemen (the Second, Third and Fourth Defendants) were acting at the material times within the scope of their employment or while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law under the principles of vicarious liability pursuant to section 1 (1) & (4) of the Wrongs (Miscellaneous Provisions) Act, Ch 297.  It follows, in accordance with paragraph 13 in Pinda’s case (supra), the Plaintiff’s action against the Second, Third and Fourth Defendants must be dismissed in its entirety and that there be Judgement for those Defendants in the Plaintiff’s actions against them. 

As I have not made any determination of liability in favour of any party, it is not necessary for me to assess damages and I decline to do so.  

I make the following Orders:

14.  That there be Judgment for the First, Second, Third and Fourth Defendant’s against the Plaintiff in the Action: 

1.	That there be Judgement for the Plaintiff against the First Defendant in the First Defendant’s cross-claim against the Plaintiff.
2.	That the Plaintiff pay the Second, Third and Fourth Defendant’s costs of and incidental to the action.
3.	That the Plaintiff’s costs of and incidental to the cross-claim be paid by the First Defendant. 
________________________________________________________________
Sino & Company Lawyers:   Lawyers for the Plaintiffs	                                Solicitor General’s Office :    Lawyers for the Second, Third & Fourth 
	Defendant