N9854

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 247 OF 2007

MADAHA RESENA for and on behalf of the living members of the Nenehi Laurina, Nenehi Idibana and Tubumaga Clans of Tatana Village
Plaintiff

-V-

DR PUKA TEMU, Minister for Lands & Physical Planning
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Kariko, J
2021: 19th April

DAMAGES – assessment of – default judgment – customary land – compulsory acquisition – revisiting liability – proof of damages

After having default judgment entered in his favour, the plaintiff claimed damages for the compulsory acquisition of customary land.

Held: 

1.	After the entry of default judgment, if the facts or the cause of action pleaded do not make sense or would assess damages a futile exercise, the court may inquire further and revisit the issue of liability.

2.	Liability is revisited as: 

(a)	the plaintiff does not have standing as two of the clans he claims to represent dispute this; and 

(b) the procedural requirements of a representative action are not met.

3.	No damages could be awarded as damages cannot be ascertained with certainty. 

Cases cited

Simon Mali v The State (2002) SC690 
Tigam Malewo v Keith Faulkner (2009) SC960
Tohian and The State v Tau Liu (1998) SC566
William Mel v Coleman Pakalia and Others (2005) SC790

Legislation

Land Act

Counsel

Mr A Kuria, for the Plaintiff
Mr J Kerenga, for the Defendants

ASSESSMENT

This was a trial on assessment of damages

1.	KARIKO, J: This was a trial on assessment of damages following the entry of default judgment on 8th August 2007 upon failure by the defendants to file their Defence.

2.	The case concerns the compulsory acquisition of customary land by the State in 2001 for use as the Napanapa Oil Refinery Access Road (the Land). 

PLAINTIFF’S EVIDENCE 

3.	As his evidence, the plaintiff tendered one affidavit deposed to by his counsel, Mr Kuria (Exhibit P1). Annexed to the affidavit are copies of the following documents from the Office of the Valuer General, Department of Lands & Physical Planning:

(1)	Letter dated 10th April 2007 addressed to the plaintiff’s lawyers, Ashurst Lawyers;
(2)	Valuation Report dated 8th June 2013 in respect of 8.77 hectares (ha) of the Land; and 
(3)	Letter dated 11th July 2013 also addressed to Ashurst Lawyers. 

4.	The letter of 10th April 2007 states that of the 29.92ha that comprise the Land, valuation for 21.15ha of it which belonged to four different clans, not the clan purportedly represented by the lead plaintiff, was completed in 2005. The remaining 8.77ha of the Land was not valued due to dispute over its ownership. 

5.	The Valuation Report concerns the 8.77ha of the Land that was not earlier valued. This part of the Land is claimed by Nenehi Laurina, Nenehi Idibana and Tubumaga Clans of Tatana Village, the clans purported represented by the plaintiff in this proceeding.  The 8.77ha was valued at K438,500.00.

6.	The letter of 11th July 2013 explains that while the Court on 14th June 2013 ordered for the Valuer General to value the whole 29.92ha, only 8.77ha was valued, as 21.15 ha was earlier valued in 2007.   

DEFENDANTS’ EVIDENCE 

7.	The defendants produced into evidence two affidavits by Nou Gagoa, Chairman of the Nenehi Laurina Incorporated Land Group (Exhibits D1 and D2).  This Land Group was incorporated in 1998.

8.	In his evidence, the witness confirms that the Local Land Court on 29th July 1993 settled a dispute over the customary ownership of land in respect of the Napanapa Oil Refinery, in particular land known as Idumava Land, whereby it was determined the Land belongs to the Nenehi Laurina, Nenehi Idibana and Tubumaga Clans of Tatana Village. He adds that the three clans separately own different parts of the Land, and he disputes ownership claims by clans from Roku village over the Land.   

9.	He produced a copy of his clan’s claim for compensation dated 8th March 2002 in respect of the Land, that was submitted to the Department of Lands. He also produced a copy of the Department’s letter of acknowledgement to the claim dated 4th December 2002.

10.	There was no progress in the processing of the claim which resulted in the then Prime Minister being asked to intervene in November 2003, but there was still no progress even after that. 

11.	The present proceeding was filed by Madaha Resena without the knowledge nor consent of the Nenehi Laurina clan.

PLEADINGS

12.	In his Statement of Claim, the plaintiff relevantly pleads in the following paragraphs:

[1] - he is the lawful representative of the Nenehi Laurina, Nenehi Idibana and Tubumaga Clans of Tatana.
[2] – the Local Land Court on 29th July 1993 determined the three clans as to be the owners of the Idumava Land.
[3] to [6] – legal challenges were filed against the decision of the Local Land Court but they were unsuccessful.
[7] - by gazettal notice on 3 July 2001, the State compulsorily acquired 29.92ha of the Idumava Land for the Napanapa Oil Refinery access road. 
[8] – pursuant to s.21 of the Land Act, persons claiming a right to compensation in respect of the acquired land, were required to give notice of their interest to the Secretary, Department of Lands and Physical Planning. 

[9] - pursuant to s.21(1) of the Land Act, the plaintiff gave notice of its claim for compensation. 
[10] - the plaintiff has not received any written response from the first defendant, so pursuant to s.21(4) of the Land Act, it is deemed the plaintiff’s claim was accepted. 
 [11] - pursuant to s.30 of the Land Act, the plaintiff claims compensation of K450,355.00, which he claims as the customary owner of the whole of Idumava land, including the Land. 
[12] - the plaintiff gave notice under s.5 of the Claims By and Against the State Act on 13 October 2005, which was acknowledged and accepted by the Acting Solicitor-General on 28 December 2005. 

REVISIT LIABILITY?

13.	In William Mel v Coleman Pakalia and Others (2005) SC790, the Supreme Court explained the procedure the National Court is to adopt in assessment of damages following the entry of default judgment, and stated that the Judge shall:

•	make a cursory inquiry to be satisfied that the facts and the cause of action are pleaded with sufficient clarity; 
•	if the facts and cause of action are reasonably clear, liability should be regarded as proven, and that the default judgment resolves all questions of liability in respect of the matters pleaded in the statement of claim;
•	but if the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability.

14.	The State urged me to revisit liability on grounds that:

•	No notice of intention to make a claim against the State was served pursuant to s.5 of the Claims By and Against the State Act;
•	The plaintiff did not have proper authority and consent of the clans he purportedly acts for;
•	The plaintiff’s right to make a claim in respect of the Land is disputed.

15.	If not for the question of whether or not the plaintiff properly filed this action, I would refuse the invitation to revisit liability. The other arguments of the State are relevant in deciding if any damages should be awarded.

STANDING

16.	In [1] of the Statement of Claim, the plaintiff states he is the lawful representative of the Nenehi Laurina, Nenehi Idibana and Tubumaga Clans of Tatana Village.

17.	In the evidence filed by the defendants, the Nenehi Laurina clan challenges that statement. 

18.	The plaintiff did not produce evidence in support of the pleading, but in submissions, his counsel Mr Kuria informed the Court that the issue of representation was settled in a related proceeding OS No. 161 of 2008. That is a fact not pleaded in the Statement of Claim, undoubtedly for the reason that the other proceeding was filed in 2008, a year after the current action was commenced. Further, the submission concerning OS No. 161 of 2008 was not supported by evidence. 

19.	This proceeding is clearly a representative action. Order 5 Rule 13 (1) National Court Rules provides for representative actions and is as follows:

Where numerous persons have the same interest in any proceedings the proceedings may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.

20.	The leading cases on a representative or class action are Simon Mali v The State (2002) SC 690 and Tigam Malewo v Keith Faulkner (2009) SC960, which held that where a plaintiff is acting in a representative capacity for other persons:

•	all intended plaintiffs (those who he claims to represent) must be named in the originating process;
•	each and every intended plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them;
•	any person who commences proceedings and claims to represent other intended plaintiffs must produce an authority to the court to show that he was authorized by them to file proceedings as a class representative.

21.	A cursory inquiry reveals that none of the practical requirements established by the Supreme Court have been complied with in the present case.

22.	In applying these two Supreme Court cases, the Courts have determined that failure to meet the mandatory procedural requirements of a representative action under Order 5 Rule 13 means the plaintiff lacks standing, no reasonable cause of action is disclosed, and it also amounts to an abuse of process. 

23.	In the circumstances, I revisit liability and find that entry of default judgement was irregular, and therefore set it aside. Furthermore, this proceeding must be dismissed as the plaintiff lacks standing, no reasonable cause of action is disclosed, and it is also an abuse of process. 

24.	In any case and for the following reasons, I would not have awarded anything if I was otherwise obliged to consider damages. 

PRINCIPLES ON ASSESSMENT OF DAMAGES

25.	In assessing damages, I take into account the principles endorsed by the Supreme Court in William Mel v Coleman Pakalia and Others (supra), that:

•	The plaintiff has the onus of proving his loss on the balance of probabilities. 
•	Corroboration of a claim from an independent source is usually required.
•	The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. 
•	The same principles apply after default judgment is entered and the trial is on assessment of damages.
•	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, and a plaintiff may be awarded nothing. 
•	Where default judgment is granted, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. 
•	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. 

SUBMISSIONS ON DAMAGES

26.	As to the question of damages, the plaintiff’s submissions were straight-forward. He has had default judgement entered in his favour in respect of his claim under s.30 of the Land Act, to be compensated for the compulsory acquisition of customary land. The Valuer General has valued the Land at K670,000.00, which amount he claims as compensation. He also seeks interest and costs. 

27.	The defendants argued that no damages should be awarded for these reasons:

•	The proceeding is incompetent for want of a proper notice under s.5 of the Claims By and Against the State Act;
•	the plaintiff has no standing to bring this action on behalf of the three named Clans;
•	there are many issues in relation to the Land that are yet to be resolved, including customary ownership of the Land;
•	the evidence on the valuation is also problematic. It is not clear how the valuation was calculated, what amount is due for each clan, and on what basis.

28.	I have already addressed the issue of standing, so I will only discuss the other points.

SECTION 5 NOTICE

29.	A notice of an intention to make a claim pursuant to s.5 of the Claims By and Against the State Act, is a condition precedent to issuing proceedings against the State; Tohian and The State v Tau Liu (1998) SC566. Failure to properly give the requisite notice renders the proceeding incompetent. 

30.	There is no evidence before me as to whether or not proper notice under s.5 was ever served. As it is a matter considered relevant by the defendants in this trial, they had the onus of producing evidence in support of their contention. As for the plaintiff, I note he pleads in [12] of his Statement of Claim that he gave due notice to the State which was accepted by the Acting Solicitor General.

31.	The defendants’ submissions based on this point, does not hold.

CUSTOMARY OWNERSHIP

32.	The letter from the Valuer General dated 10th April 2007, states that the valuation done was for the Venehako, Kuriu, Gaibudubu and Tanomotu Clans. The evidence by the defendants discloses that these clans are from Roku Village, whose claims to the Land has been challenged by the Tatana villagers. The evidence also notes that there has also been dispute as between the Nenehi Laurina, Nenehi Idibana and Tubumaga Clans of Tatana Village regarding their respective boundaries on the Land.

33.	The plaintiff also did not present evidence as to how the Land is apportioned between the three Tatana clans, and what compensation is due to each of them.

34.	I consider this to be a case where the evidence and pleadings are confusing, contradictory and inherently suspicious. No damages should therefore be awarded.

VALUATION

35.	The evidence in respect of the valuation of the Land poses some serious questions. 

36.	The 2013 valuation was in respect of 21.25ha, conducted for the Venehako, Kuriu. Gaibudubu and Tanomotu Clans, and the area of land each of these clans claimed was separately valued:

Instruction No	Name of Clan	Name of Land	Area of Land 	Land Value	
Acq.531/1	Venehako	Bisogo	6.740ha	K74.100.00	
Acq.531/1	Kuriu	Ohodibuduare	8.540ha	K85,400.00	
Acq.531/1	Gaibudubu	Inapu	5.740ha	K68,900.00	
Acq.531/1	Tanomotu	Hadeava	0.1280ha	K3,200.00	

37.	As noted earlier, these clans are from Roku Village. An obvious question then is, why is the plaintiff claiming compensation based on this valuation? He has not produced evidence to explain this claim.

38.	While 21.15ha was valued at a total of K231,600.00 or K10,950.35 per ha, the remaining 8.77ha of the Land was valued six years later at K438,500.00 or K50,00.00 per ha. What “formula” was applied by the Valuer General in arriving at the two valuations? What area of land did each of the Nenehi Laurina, Nenehi Idibana and Tubumaga Clans claim in respect of the 8.77ha or indeed the whole 29.92ha? What was therefore the apportionment of the valuation between the clans? There is no evidence to answer these important questions when dealing with competing claims over customary land.

39.	It would not be proper or just for the Court to award a lump sum compensation and expect the three claimant clans to share it without dispute. This is an instant where damages cannot be ascertained with certainty, and the court should not award damages in the circumstances.

CONCLUSION

40.	Given my determination regarding representative action, I dismiss this proceeding. Costs shall follow the event.

41.	Even if the proceeding was not dismissed, no damages would be awarded.

ORDER

42.	I order that: 

(1)	Default judgment ordered 8th August 2007 is set aside.
(2)	This proceeding is dismissed as the plaintiff lacks standing, no reasonable cause of action is disclosed, and it is also an abuse of process. 
(3)	Apart from interlocutory orders on costs, the plaintiff shall pay the defendants’ costs of and incidental to this proceeding. 
(4)	The time for entry of these orders is abridged to the time of settlement before the Registrar which shall take place forthwith.
________________________________________________________________
Ashurst Lawyers:	Lawyers for the Plaintiff
Solicitor General: Lawyer for the Defendants