N8738
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1268 OF 2017

BETWEEN:
LAWRENCE MANIHORU
Plaintiff

AND:
TURANA OSCAR
Defendant

Lae: Dowa AJ
2020:  26th November & 3rd December

DAMAGES – assessment of damages for loss of motor vehicle left at defendant’s workshop – assessment of damages after entry of default judgment – motor vehicle not repaired in breach of oral agreement – parts of motor vehicle stripped off- Plaintiff has not pleaded ownership of the motor vehicle the subject of these proceedings – valuation done on motor vehicle without physical inspection – valuation reported false and unreliable -  claim cannot be sustained – proceedings are dismissed
Cases Cited:

Enaia Lanyat v State (1996) N1481;
Jonathan Mangope Paraia v The State (1995) N1343, 
Lagan v The State (1995) N1369,
Obed Lalip v Fred Sekiot and The State – N147; 
Papua New Guinea Banking Corporation v Tole (2002) SC694
Peter Wanis v Fred Sikiot and The State (N1350), 
Samot v Yame (2020) N8266.
Yooken Paklin v The State (2001) N2212,

Counsel:

S. Sengi, for the Plaintiff
S. Toggo, for the Defendant

DECISION

3rd December, 2020

1.	DOWA AJ:	The Plaintiff brought these proceedings to recover damages for loss of a motor vehicle left at a mechanical workshop operated by the Defendant.

2.	Default Judgment was entered on 3rd December 2018 and trial was conducted for assessment of damages.

FACTS

3.	The Plaintiff says he is the owner of a motor vehicle, Toyota Land Cruiser, Reg No. EAD 509.

4.	In June 2014, the motor vehicle developed some mechanical problems.  It was brought into the Defendants workshop for repairs.

5.	The Plaintiff alleges it was agreed between the parties that the Defendant would repair the vehicle at the Defendant’s cost and the Plaintiff would pay later and pick up the vehicle thereafter.

6.	The Plaintiff alleges, in breach of the said agreement, the vehicle was not repaired, and parts of the vehicle were stripped off.

7.	As a result, the Plaintiff lost the use of the vehicle, and this is the basis of the proceedings.

	Issues

8.	The issues for consideration is whether the Plaintiff is entitled to the relief claimed in the Statement of Claim.

	Evidence

9.	The Plaintiff gave both oral and affidavit evidence.  His evidence is supported by witness, one Steven Bafic. The Plaintiff says he was given the vehicle by Steven Bafic, his brother in law to look after and sometime later he transferred ownership to him.

10.	In June 2014, he brought the vehicle at the Defendants Mechanical workshop for repairs.  It was agreed between him and the Defendant that the Defendant would do the repairs at his own cost and once the work is completed, the Defendant would issue an invoice for him to settle.

11.	After delivering the vehicle he waited for sometimes and realised that the motor vehicle was not repaired.    Worst Still, major parts of the vehicle were stripped off or removed, rendering the vehicle useless.

12.	He then arranged for a pre-accident value of the vehicle from Ela Motors and instituted recovery proceedings. The market value of the vehicle assessment at Ela Motors was fixed at K75,000.00.

13.	Steven Bafic gave evidence for the Plaintiff.  Mr Bafic is the brother in law of the Plaintiff.  He says he is a teacher by profession.  He purchased this vehicle sometime in 2011 for K13,000.00 as a used vehicle from someone.  He used the vehicle for transporting coffee from his village to Lae City.  As he was working out of Lae, he left the vehicle in the custody of the Plaintiff to use.  He said the vehicle was developing engine problems and since he was still out of Lae, he transferred ownership of the vehicle to the Plaintiff.

14.	Both the Plaintiff, and Steven Bafic could not produce any registration documents at the trial to show ownership.  I will refer to this later in my judgment.

	Submissions of Counsel

15.	The matter was fixed for submissions by counsel on 26th November i2020.  The lawyers for the Plaintiff did not appear.  Mr Toggo, for the Defendant, made brief submissions for the Defence.

16.	Mr Toggo submitted that the Plaintiff did not prove his claim.  Mr Toggo submitted, there is no evidence that the Plaintiff is the owner of the motor vehicle.  There is no evidence of the exact agreement for the repair works.  There is no evidence of the damage suffered by the Plaintiff in monetary terms. There is no credible market value for vehicle when tendered for the repairs.  Mr Toggo submitted that the Plaintiff’s claim be dismissed.

	Reasons for Decision

17.	Whilst default judgment has been entered for the Plaintiff, he is still required to prove damages with credible evidence.  Refer: Lagan v The State (1995) N1369, Yooken Paklin v The State (2001) N2212, Peter Wanis v Fred Sikiot and The State (N1350), Enaia Lanyat v State (1996) N1481; Obed Lalip v Fred Sekiot and The State – N147; Jonathan Mangope Paraia v The State (1995) N1343, and Samot v Yame (2020) N8266.

18.	In Lagan v The State (1995) N1369, Injia J (as he then was) adopted the words of Lord Coddard CJ in Bonham v Hyden Park Hotel Ltd (1948) 64 T LR 177 at page 177 and said:

	“Plaintiffs must understand that, if they bring actions for damages, it is for them to prove their damage; it is not enough to write down particulars and, so to speak, throw them at the head of the Court, saying: ‘This is what I have lost, I ask you to give me these damages.’  They have to prove it.”

19.	In Samot v Yame (Supra), His Honour, David J referring to legal principles to be applied in assessing damages said this at paragraph 46 of his judgment:
“ The Supreme Court in William Mel v Coleman Pakalia (2005) SC790 and the National Court decision of Cannings, J in Steven Naki v AGC (Pacific) Ltd (2006) N5015 summarise or identify a number of legal principles that are applicable in assessing damages where liability is established either following a trial or after the entry of default judgment and 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 [1992] PNGLR 254, National Court, Woods J; MVIT v Pupune [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.)

•	The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims. (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274, National Court, Jalina J.)

•	The person who has been wronged has a duty to mitigate their losses; though it is the defendant who has the onus of proving failure to mitigate (Dia Kopio v Employment Authority of Enga and Others (1999) N1865, National Court, Hinchliffe J; Coecon v National Fisheries Authority (2002) N2182, National Court, Kandakasi J.)”

20.	I will adopt and apply these principles in the present case. In order to succeed in establishing his claim on the balance of probabilities the Plaintiff has to provide proof of the following:

a)	Ownership of motor vehicle
b)	Clear terms of agreement
c)	Evidence and extent of damage
d)	Amount of claim.

	Ownership

21.	The Plaintiff says, he owns the vehicle because his brother in law, Steven Bafic gave the vehicle to him.  Mr Steven Bafic says, he was the original owner.  He purchased the vehicle from someone for K13,000.00 in 2011.  He gave the vehicle away to the Plaintiff in July 2014.  Both the Plaintiff and Mr Bafic did not produce copies of the registration papers to show evidence of ownership.  Mr Bafic produced a reprint of a record of ownership from the office of Motor Vehicle Insurance Ltd.  This document showed the registration name then was one Steven Bafic, and the registration period was for 29th January 2012 to 29th January 2013. There is no evidence of transfer of ownership from Steven Bafic to Lawrence Manihoru. I am not satisfied that the Plaintiff was the owner of the vehicle the subject of these proceedings.  In fact, in the Statement of Claim, the Plaintiff says, he is only care taker of the vehicle belonging to his brother in-law. And the pleadings were not amended to reflect the change in ownership.

	Terms of Agreement

22.	The evidence does not clearly show, what were the terms of the repairs.  What was exactly wrong with the motor vehicle. Was a quotation provided for the job?  How much was it going to cost. What was the condition of the vehicle when it was brought into the workshop?  The Plaintiff failed to provide credible evidence in answering these questions.

	Market Value of the Motor Vehicle

23.	In the Statement of Claim, the Plaintiff claims, the value of the vehicle was K80,000.00.  In his affidavit, he annexed a copy of Market Value for the vehicle from Ela Motors, dated 27th July 2020.  The market value assessed by Ela Motors is K75,000.00.  The valuation report states the valuation was done at the request of the owner. The valuation report says the vehicle was in running condition and has done 120,000km.

24.	During cross-examination it became clear, the valuation was done without the vehicle being brought to Ela Motors.  The document was done by an employee of Ela Motors without the actual inspection of the motor vehicle. The information on the valuation report is false and unreliable. In my view, this is a recent fabrication. I will reject the valuation report.

25.	On the other hand, the evidence from Mr Steven Bafic, shows, the vehicle was purchased from someone for K13,000.00 in 2011.  It had engine problems.  Given the period of time the vehicle was used, it is difficult to ascertain the true condition and value of the vehicle when it was tendered to the Defendant’s workshop.

26.	The evidence is not clear whether the Plaintiff has retrieved the vehicle from the Defendant’s workshop or is still in the workshop.  If it is still there, it is not clear what would be the value of the wreck.  Given the uncertainty, I am not satisfied that the Plaintiff is entitled to the claim of K80,000.00 or any other alternative amount.

27.	For reasons given above, there shall be no award made for the Plaintiff.

          Pleadings

28.	There is another reason why these proceedings be dismissed. The pleadings state the Plaintiff was only care taking this motor vehicle owned by his brother in law. He did not plead that he was the owner of the motor vehicle. Even though in his evidence he says he was given the ownership, the pleadings do not reflect this. The law on pleadings is clear. Unless you plead your claim, you are not entitled to any relief you have not clearly pleaded. The Plaintiff instituted proceedings for a property he did not own.

29.	On the issue of pleadings, the Supreme Court settled the law in the case, Papua New Guinea Banking Corporation v Tole (2002) SC694. The court said:
” First Two Issues – Pleadings
	The first two issues are closely related. They involve the issue of pleadings so they are being dealt with together. The law on pleadings in our jurisdiction is well settled. The principles governing pleadings can easily be summarized in terms of, unless there is foundation in the pleadings of a party, no evidence and damages or relieves of matters not pleaded can be allowed. This is the effect of the judgements of this Court in Motor Vehicles Insurance (PNG) Trust v. John Etape [1995] PNGLR 214 at p.221 and Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370 at pp. 373 –374. These judgements re-affirmed what was always the position at common law and consistently applied in a large number of cases in our country. The list of such cases is long but reference need only be made to cases like that of Repas Waima v. Motor Vehicles Insurance Trust [1992] PNGLR 254 and Carmelita Mary collins v. Motor Vehicles (PNG) Insurance Trust [1990] PNGLR 580 at p. 582 for examples only.
	
	This position follows on from the objects behind the requirements for pleadings. As the judgement in Motor Vehicles Insurance (PNG) Trust v. James Pupune (supra) at p. 374 said in summary, pleadings and particulars have the object or functions of:
	"1. 	they furnish a statement of the case sufficiently clear to allow the 	other party a fair opportunity to meet it;
2.	they define the issues for decision in the litigation and, thereby, enable the relevance and admissibility of evidence to be determined at the trial; and
3.	they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. See Dare v. Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664."
	It is clear law that, where a plaintiff’s claim is special in nature, such as a claim for loss of salaries or wages, they must be specifically pleaded with particulars. Unless that is done, no evidence of matters not pleaded can be allowed and relief granted. That is apparent from the judgements in the James Pupune and John Etape cases. These cases adopted and applied principles enunciated in those terms in authorities such as Ilkiw v. Samuel [1963] 2 All ER 879, per Diplock L J at pp. 980-891 and Pilato v. Metropolitan Water Sewerage and Drainage Board (1959) 76 WN (NSW) 364, per McClemens J at 365. This follows in turn from the fact that, our system of justice is not one of surprises but one of fair play. Reasonable opportunity must be given to each other by the parties to an action to ascertain fully the nature of the other’s case so that, if need be, a defendant can make a payment into Court.”
30.	I adopt and apply the above principles to the present case. The Plaintiff did not plead ownership of the motor vehicle the subject of these proceedings, and therefore this claim cannot be sustained. I will dismiss the proceedings for this reason as well.
	Conclusion

31.	For the foregoing reasons, I am not satisfied that the Plaintiff has proven his claim on the balance of probabilities. I will therefore dismiss the proceedings.

          Orders

1)	The Plaintiffs proceedings are dismissed.
2) 	The Plaintiff shall pay the Defendant’s cost of the proceedings to be taxed if not agreed.
 _______________________________________________________________
Simon Sengi & Associates:	Lawyer for the Plaintiff
Daniels & Associates Lawyers:	Lawyer for the Defendant