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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SCA NO 17 OF 2022
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Appellant
V
GEORGE WAUGULO
First Respondent
MARK IPUIA
Second Respondent
WAIGANI: KANGWIA J, WOOD J, WAWUN-KUVI J
26 NOVEMBER 2024; 27 FEBRUARY 2025
CIVIL APPEAL- claims by and against the state- trial-pleadings- whether the trial judge considered the issue of defective pleadings?
CIVIL APPEAL- claims by and against the state-trial-abuse of process-whether the trial judge failed to consider the issue of multiplicity of proceedings?
CIVIL APPEAL- claim by and against the state- trial-evidence-findings of fact- whether the whether trial judge erred in findings on liability and assessment of damages?
Cases cited
Bonu Bonu v The State [1997] PGSC 11; SC528
Balbal v State [2007] PGSC 16; SC860
Bluewater International Ltd v Mumu [2019] PGSC 41; SC1798
Catherine Popo v Papua New Guinea Electricity Commission (2014) SC1360
Covec (PNG) Ltd. v Kama [2020] PGSC 9; SC1912
Esso Petroleum Co. Ltd. v Southport Corporation [1956] AC 218
Gihiye v State [2016] PGSC 64; SC1546
Global Customs & Forwarding Ltd v Samson [2023] PGSC 80; SC2428
GR Logging Ltd v Dotaona [2018] PGSC 34; SC1690
Hewali v Papua New Guinea Police Force [2002] PGNC 95; N2233
In R v Morrissey 1995 Canlii (ON CA)
Joseph v Rami [2021] PGSC 62; SC2138
Kamuri v Pomoso [2021] PGSC 3; SC2071
Kauba v Willie [2021] PGSC 78; SC2162
Kaurigova v Perone [2008] PGSC 45; SC964
Keka v Yafaet [2018] PGSC 18; SC1673
Kibeto v Soloma [2024] PGSC 47; SC2580
Kinumbo v Nindiwi [2021] PGNC 386; N9251
Kisa v Taleok [2016] PGNC 343; N6561
Kisa v Talok [2017] PGSC 51; SC1650
Kuli v State (2004) N2592
Liri v State [2007] PGSC 3; SC883
Maps Tuna Ltd v Manus Provincial Government [ 2007] PGSC 23; SC857
Mindll v Kuimo (2021) N9214
Nare v Independent State of Papua New Guinea [2017] PGSC 9; SC1584
Niap v Papua New Guinea Harbours Ltd [2009] PGNC 39; N3672
Olga v Wingti [2008] PGSC 24; SC938
Paga Hill Development Co (PNG) Ltd v Parkop [2019] PGSC 106; SC1877
Pakui v Independent State of Papua New Guinea [2006] PGNC 219; N2977
Pamenda Ipi Pangu v. Mark Korr (2015) N6069
Papua New Guinea Banking Corporation (PNGBC) v Tole [2002] PGSC 8; SC694
Paul Tohian & The State v Tau Liu (1998) SC566
Paul Tohian & The State v Tau Liu (1998) SC566
Pinda v Inguba [2012]PGSC 13; SC1181
R v Chanmany, 2016 ONCA 576
Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) SC906
Thomas v Emad [2021] PGSC 115; SC2171
Tipar v Malpo [2011] PGNC 48; N4272
Tondoa v Toropo (2022) N9383
Tulia v Lama (1998) N1824
Tuna Canners Ltd v Sengi [2022] PGSC 49; SC2232
Ume v Watson [2020] PGNC 407; N8669
Waranaka v Dusava [2009]; PGSC 11; SC980
Counsel
P Ohuma for the appellant
H Maliso for the second respondent
No appearance for first respondent
“Paragraphs 6,7,8 pleaded that a fight broke out between two tribes in the middle of a singsing place in Tulipato village where injuries included injuries inflicted on the body of a policeman who was a member of a travelling police unit between Wabag and Porgera. In other words, there was a law and order problem which police attended to purposely to interview, apprehend and arrest the offenders”.
“the plaintiff further explain that there was another police raid in the same village on 30 September 1992. He instituted proceedings at Mt Hagen National Court in 1994 in WS NO 874 of 1994 as principal plaintiff. It is a different claim to this one”.
“GENERAL LIABILITY OF THE STATE IN TORT.
(1) Subject to this Division, the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject–
(a) in respect of torts committed by its servants and agents; and
(b) in respect of any breach of the duties that a person owes to his servants or agents under the underlying law by reason of being their employer; and
(c) in respect of any breach of the duties attaching under the underlying law to the ownership, occupation, possession or control of property.
(2) Proceedings do not lie against the State by virtue of Subsection (1)(a) in respect of an act or omission of a servant or agent of the State unless the act or omission would, apart from this Division, have given rise to a cause of action in tort against the servant or agent or his estate.
(3) Where the State is bound by a statutory duty that is binding also on persons other than the State and its officers, then, subject to this Division, the State is, in respect of a failure to comply with that duty, subject to all liabilities in tort (if any) to which it would be subject if it were a private person of full age and capacity.
(4) Where functions are conferred or imposed on an officer of the State as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government.
(5) An Act or subordinate enactment that negatives or limits the amount of the liability of a Department of the Government or officer of the State in respect of a tort committed by the Department or officer applies, in the case of proceedings against the State under this section in respect of a tort committed by the Department or officer, in relation to the State as it would have applied in relation to the Department or officer if the proceedings against the State had been proceedings against the Department or officer.
(6) Proceedings do not lie against the State by virtue of this section in respect of anything done or omitted to be done by a person while discharging or purporting to discharge responsibilities of a judicial nature vested in him, or responsibilities that he has in connection with the execution of judicial process”.
“In a case of illegal police raid, for the second respondent (the State) to be held vicariously liable in damages for the negligent acts or omissions of policemen, the appellant must plead 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 when they conducted the raid: section 1(1) & (4) of the Wrongs (Miscellaneous Provisions) Act, Ch 297”.
2. The failure to plead 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 when they conducted the raid is a point of law and it was open to the trial judge to consider it, notwithstanding the entry of default judgment and trial on assessment of damages”.
53. WOOD J: I have had the opportunity of reading the judgment of
Justice Kangwia and agree with the reasoning and decision of His Honour. I will go further and add my comments as follows.
54. It is necessary to consider the manner in which National Court proceeding WS No. 595 of 1997 was commenced, the factual background as summarised by Justice Kangwia, the matters that transpired since the filing of the proceeding as well as the matters I have detailed below. The matters summarised by Justice Kangwia, in my view, raise the issue of whether the proceeding is genuine.
55. Just because a plaintiff commences a proceeding in the National Court, it needs to be examined very carefully to consider if there is a cause of action. It is also necessary to consider if there is a factual basis to the claim. As part of that process, the National Court and Supreme Court have an inherent duty to look further, where there are doubts in the mind of a Judge, about whether a claim is genuine, or to put it another way, whether the facts can support such a claim. I set out below my observations about the claim in the National Court proceeding.
56. Noting that the Amended Writ of Summons and Statement of Claim filed on 24 August 2009 (the Amended Claim) sought damages in the amount of K3,508,924 (for property lost and destroyed), K30,333,249 (for loss of business inclusive of period ended from 23 September 1992 to 23 September 2008), exemplary damages as well as other relief, it was critical that the Amended Claim properly particularise the details of the lodge and service station, including all relevant details about their location, who owned them and the level of damage (whcther totally or partially destroyed). This was not done.
57. In the second respondent’s affidavit filed in the National Court proceeding on 12 September 2006, he states that the sources of income to build the service station and hotel at his village came from trucking and plant hire contracts that he had with the Porgera Joint Venture (the PJV) and three different names, which he cited as ‘Maso Family Contract No. MVC 007, Mecca No. 3 Pty Ltd Contract No. ICC 003 and Mecca No. 4 Pty Ltd Contract No. (not available)’. The second respondent attached several documents to his affidavit, which he claims were a letter from the PJV to his accountants, a receipt issued by the Internal Revenue Commission (the IRC) as well details of a payment made by the PJV. On a close examination of those documents, the documents seen to have been simply ‘thrown together’ and put in an affidavit.
58. The documents are very difficult to decipher, they do not support what the second respondent claims and half of the documents are illegible. For example, in the letter or notice which constitutes annexure A and which is entitled ‘Business Income Tax Deduction Certificate’, because there is no logo or other context provided, I cannot be satisfied that it is a letter from the PJV. The document also states, ‘However, as per attached summary of payments made a total of K1,935,360-00 has been paid to you in 1990 alone. Therefore, for your tax return purposes, you are required to use this figure.’ It is difficult to understand what the document is said to be evidence about. Moreso, the attached ‘summary of payments’ were not attached to annexure A.
59. By way of further example, annexure B to the affidavit is stated to be an ‘Income Tax Deduction Certificate’, but not even the name of the person or company, in whose favour the certificate is made, is mentioned on the certificate.
60. The Amended Claim is poorly pleaded (including for the reasons detailed by Justice Kangwia). As well, the Amended Claim refers interchangeably to alleged loss and damage by the plaintiff (the second respondent) and plaintiffs (noting that there are 556 other plaintiffs listed in the schedule to the Amended Claim). In this regard, for this and other reasons stated below, I am not satisfied that the second respondent was the sole owner of the service station and the lodge.
61. While it is not beyond the realms of possibility that an individual may own a service station or lodge in their own name, due to higher rates of income tax for individuals, as opposed to the tax rate for companies, I consider it would be very rare, if indeed dubious, that the service station and lodge (which were stated to be of such high value), were owned by the plaintiff in his personal capacity. Due to the absence of any evidence, such as notices or certificates issued by the IRC to the second respondent, I am not satisfied that he was the owner of the service station or the lodge.
62. I am also concerned that the Amended Claim is very lacking in pleadings and particulars about the alleged raid by police. Paragraph 14 refers to ‘... full details of each of the plaintiffs’ damages, which have been collated and put together in a form of bound book consisting of 275 pages’, however, there was no evidence of that material in the appeal documents. Furthermore, the so-called ‘Particulars’ at paragraph 15 of the Amended Claim are vague and lacking in detail.
63. It is important to note that the affidavits in support of the National Court proceeding do not provide any detail whatsoever about the alleged level of extent of the destruction of the service station and the lodge. In other words, there is no detailed description as to whether they were damaged in part or fully destroyed. It is also most unsatisfactory that no photographs, sketches or diagrams of the alleged damage were put into evidence.
64. On the basis of the alleged raid having been conducted on
23 September 1992, I consider it essential that any report in support of the claim for the destruction, loss or damage of the service
station and the 77 room lodge be compiled after the alleged police raid. This is important for a number of reasons, including to
confirm that indeed the buildings were destroyed or damaged (either in part or whole) and to give a realistic appraisal of the re-building
costs of those buildings. I note that an affidavit of Noah Kana was filed in the National Court proceeding on 16 December 2005.
Attached to his affidavit was a Valuation Report dated 25 July 1992 (the Valuation Report). Of note, there is no explanation as to why the Valuation Report was compiled, including why it was compiled just under two months
before the alleged police raid. While Mr Kana refers to himself as a valuer, there was no evidence in the body of his affidavit
or the Valuation Report that he is, or was, a registered valuer in accordance with the provisions of the Valuation Act Chapter 327.
Accordingly, I consider the Valuation Report is of no evidentiary value. Even if I was wrong on this issue (which I consider I
am not), at the very least, I consider the trial Judge should not have accepted the uncontested evidence of Mr Kana, in circumstances
where there were other concerns about the veracity of the claim, which I have referred to above. In this regard, I do not accept
Mr Kana’s affidavit of evidence that the police raid occurred or of any alleged loss or damage.
65. I also note that Cain Kupe swore an affidavit in the proceeding, which was filed on 2 March 2006, in which he says he was engaged as the builder to construct the second respondent’s service station and retail station. He states that he was employed by the second respondent to construct the service station and lodge between January 1990 to 1992. Importantly, there was no evidence from Mr Kupe after the alleged police raid to state the level of damage of the service station or the lodge. I consider the trial Judge should not have accepted the uncontested evidence of Mr Kupe, in circumstances where there were other concerns about the veracity of the claim, which I have referred to above. In this regard, I do not accept Mr Kupe’s affidavit of evidence that the police raid occurred or of any alleged loss or damage.
66. An affidavit of Karlus Kepakan was filed in the National Court proceeding on 5 May 2009, in which he deposes he is a Registered Tax Agent. Notably, he deposes that on or about 15 April 2009, he was approached by the second respondent to prepare an analysis of his economic loss in relation to the police raid on 23 September 1992. Notably, the affidavit was prepared about 16 and a half years after the police raid.
67. While Mr Kepakan states in his affidavit that he prepared his projections, ‘... from information furnished to me by the plaintiffs’, it is important to note that no reference was made in the affidavit as to the nature of that information. Critically, there was no evidence in the affidavit to prove that the second respondent owned the service station or the lodge, including for example, any annual returns or other documents that were lodged by the second respondent with the IRC to support that claim. There were simply no IRC documents annexed to the affidavit, nor any other documents such as receipts, invoices or profit and loss statements. In effect, I find the affidavit to be of no evidentiary value and I reject it.
68. Likewise, I consider the trial Judge should not have accepted the uncontested evidence of Mr Kepekan, in circumstances where there were other concerns about the veracity of the claim, which I have referred to above. In this regard, I do not accept Mr Kepekan’s affidavit of evidence that the police raid occurred or of any alleged loss or damage.
69. The plaintiff also arranged for a number of witnesses to sign affidavits in April 2006, which were filed in the National Court proceeding. In other words, the affidavits were signed nearly 14 years after the alleged police raid. About half of the affidavits were signed by subsistence farmers and I cannot therefore be satisfied in the circumstances that they were all literate, that they spoke English, that the affidavits were in their words, or that they really understood the affidavits which they were being asked to sign. Of note, the affidavits were all very general in nature. In the circumstances, I consider the affidavits have no evidentiary value and cannot be accepted as evidence that any police raid did occur on 23 September 1992.
70. I note that no-where in the second respondent’s evidence did he provide any evidence as to whether the service station and the lodge were insured, or if they were, whether there were any insurance payouts that were received by the plaintiff. While it is not beyond the realms of possibility that no insurance polices were in place, there was also no evidence as to whether the service station and the lodge were the subject of mortgages to a bank or other financial institution, and in which case, whether it was a terms of those loans and mortgages that the buildings be insured. For the other reasons detailed above, I consider this adds to the lack of credibility of the Amended Claim.
71. In conclusion, I consider there was no sufficient or credible evidence that was tendered by the second respondent in the National Court proceeding to support the Amended Claim. In other words, I consider there was no sufficient or credible evidence to support his claim that the police raid took place or that any loss or damage was suffered by him.
72. I agree with the decision of Justice Kangwia to quash the finding on vicarious liability against the appellant.
73. Furthermore, based on the additional reasons I have stated above, I consider the appeal should be allowed. Based on the provisions of section 16(c) of the Supreme Court Act, I would also propose that the whole of National Court proceeding WS No. 595 of 1997 be dismissed and that the second respondent should pay the appellant’s costs of and incidental to that National Court proceeding and this appeal.
74. WAWUN-KUVI J: I have read the draft by Kangwia J and Wood J. I agree that the findings on liability should be quashed. These are my reasons.
The issues
75. The issues that arose out of the appeal were as follows:
Did the trial judge fail to consider the issue of res judicata and multiplicity of proceedings?
76. To resolve the issue of res judicata and the multiplicity of proceedings, I must first address whether the trial judge erred in his factual findings. The basis for this stems from the rejection of the appellant's evidence on trial, evidence which challenged the veracity of the claim.
The findings
77. I am reminded that the Supreme Court interferes only in the clearest of cases with the findings of fact of a trial judge. The reluctance stems from the recognition that the trial judge when it comes to oral evidence, is in a better position to assess demeanour and credibility: Kibeto v Soloma [2024] PGSC 47; SC2580, Gihiye v State [2016] PGSC 64; SC1546, Olga v Wingti [2008] PGSC 24; SC938, Liri v State [2007] PGSC 3; SC883; and Waranaka v Dusava [2009]; PGSC 11; SC980.
78. Here, however, the trial was conducted by affidavits, and no witnesses gave oral evidence. The findings followed from the assessment of the affidavits. In this regard, I refer to the statement of the Court in Tuna Canners Ltd v Sengi [2022] PGSC 49; SC2232, where it was held:
“(2) A finding of fact by a trial judge based on the credibility of a witness may only be set aside on appeal where incontrovertible facts or uncontested testimony demonstrate that the judge's conclusions are erroneous or where the decision at the trial was glaringly improbable, contrary to compelling inferences, or palpably or manifestly wrong: Karo Gamoga v The State [1981] PNGLR 443; Peter Wawaru Waranaka v Gabriel Dusava (2008) SC942; Beng v The State [1977] PNGLR 115; Michael Tenarum Balbal v The State (2007) SC860; Waranaka v Dusava [2009] PGSC 11; SC980; Fox v Percy (2003) CLR 118; Devries v Australian National Railways Commission (1992) 177 CLR 472.”
79. The conduct of the trial on paper left no room for the testing of the evidence through the process of cross-examination. This would not have posed a significant challenge for the trial judge had it not been for a serious dispute over the facts. The second respondent contended that police destroyed his 77-bedroom lodge, houses, administration block, and service station by fire. The appellant's position was that the second respondent did not own any such properties, and whatever he may have owned were destroyed in a different raid that the appellant settled. This conflict posed a challenge that the trial judge had to address. The trial judge acknowledged this by posing the question, "The issue then is whose version should be accepted?".
80. The second respondent relied on several of his affidavits and affidavits from his witnesses. The appellant’s case at trial rested on two affidavits, namely, Charity Kuson, a lawyer with the Office of the Solicitor General, and Constable Wasa Apia, a police officer based at Mulitaka Police Station, also from Tulipato Village.
81. The trial judge accepted the second respondent's evidence with his witnesses. He reasoned that they were eyewitnesses to the raid and destruction. Conversely, he rejected the evidence of Constable Apia and Charity Kuson.
82. Having perused the appeal book, I find that the trial judge fell into error when he rejected the evidence of Constable Apia and Charity Kuson.
83. In the instance of Constable Aipia, the trial judge rejected his evidence reasoning:
“18. As for the defendants’ sole witness Constable Wasa Aipe, his evidence is strained with credibility because first, after all these years and when he was on the verge of dying he was approached by the defendants to give a statement and he does not explain why it took him that long to do it. Second, the statement does not refute the assertions made by the plaintiff and his witnesses in relation to the destruction of the plaintiff’s properties. It is too general and vague.
19. Third, two of his daughters have categorially denied the veracity of the statement as it was prepared by someone prior to their father signing it. When it was given to their father to sign, it may be inferred that he was too ill to know what he was signing. This may explain why he did not identify or name the two tribes that he claimed were responsible for the plaintiff’s property losses. If there was any truth in his assertion that the plaintiff was not the owner of the fuel service station, he did not even identify the owner of the “village hut fuel outlet”.
84. These findings were not based on evidence but speculation. Speculation involves theorizing in the absence of evidentiary support. Speculation occurs when a conclusion is reached in the absence of positive, proven, objective facts from which an inference may be drawn: R v Chanmany, 2016 ONCA 576 adopted. In R v Morrissey 1995 Canlii (ON CA), the Court said:
“A trier of fact may draw inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from the established facts cannot be made and is condemned as conjecture and speculation. As Chipman J.A. put it in R v. White (1994), 1994 NSCA 77 (Canlii), 89 C.C.C (3d) at p.351, 28 C.R (4th) 160(Nfld. C.A.):
These cases establish that there is a distinction between conjecture and speculation on the one hand and rational conclusions from the whole of the evidence on the other. The failure to observe the distinction involves an error on a question of law.”
85. The trial judge drew two inferences. The first was that Constable Aipia was on the verge of dying and had recently approached the defendants to give the statement. The second was that he was too ill to sign his affidavit and did not know what he was signing.
86. No such inferences were available.
87. The extent of Julie and Betty Aipia's evidence is that police officers and defence personnel arrived at their home and asked them to speak with their father. He heard their voices. He walked out and talked to them. He then got in their vehicle and went away. On his return, he did not offer any explanation. Upon prompting, he stated that he had gone to perform a job-related task. Since the trial took place on paper, nothing can be added or removed from these statements. That is the extent of their admissible evidence. Their statements only indicate that he went of his own volition, that they had no knowledge of his conversation, and that they do not know what happened after he left home. Given his length of service to the police force his response that he went to do something concerning his employment is general and too vague for any conclusions to be drawn. The statements that he went to specifically sign an affidavit, that he was forced to do so, or that others wrote something and gave it to him to sign were based on speculation, assumptions, and/or conjecture and were inadmissible.
88. On the second occasion, the finding that Constable Aipia’s evidence was tainted because he did not come forward earlier and was too sick was not only conjecture but was also inconsistent with the general evidence.
89. According to his daughters, he received an HIV diagnosis in 2017. At trial, the second respondent’s affidavit filed on 31 March 2009 attached Constable Wasa Apia's affidavit deposed on 30 November 1994. That affidavit was deposed two years after 23 September 1992 and 23 years before he was diagnosed. The second respondent chose to attach the affidavit and made no challenge to it, indicating acquiescence that there was a prior consistent statement. What is telling and gives Constable Aipia's affidavit more weight is that 26 years after his initial statement, he had maintained that the second respondent did not suffer property destruction.
90. The trial judge fell into error by engaging in speculative reasoning to reject the evidence of Constable Wasa Aipia. He erred in law by drawing factual conclusions based on speculation, not reasonable inferences.
91. I turn now to the affidavit of Charity Kuson. Her affidavit attached previous rulings and the background material on the police raids at Tulipato village in September 1992. The appellant used the affidavit to show that the principle of res judicata barred the claim and that the second respondent was abusing the court process by engaging in multiple proceedings. However, the trial judge rejected her evidence reasoning:
“The affidavit of Charity Kuson is relevant to explaining the delay in getting the matter ready for trial but not relevant to establishing the facts of the alleged police raid and is disregarded to that extent. As to the submission that the court had previously decided the issue of liability in the related case in Eton Pakui v. The State (supra), there is no specific finding that the plaintiff’s properties were destroyed and set on fire by the members of the police during the raid on 23rd September 1992. Thus, the issue of liability is still alive and must be proved by the plaintiff.”
92. Following this statement, the trial judge accepted the evidence of the second respondent and his witnesses. The approach taken, in my respectful view, was an error.
93. The affidavits from Constable Aipia and Charity Kuson presented a strong defence that warranted a closer examination of the second respondent’s claim. A significant issue which required consideration and was not given at trial was why a claim for a lesser amount took priority over an earlier, more substantial claim.
94. Determining the issue in that manner would have been consistent with the position that the legal burden of proof is on the second respondent; consequently, he must present sufficient evidence, on the balance of probabilities, that he suffered damages because of a police raid, that his claim was different, and that he was not engaging in multiple proceedings. The general principle is that the person asserting a wrong must prove it.
95. On perusal of the appeal book, there was no reasonable explanation given from the second respondent.
96. In Balbal v State [2007] PGSC 16; SC860 following Bonu Bonu v The State [1997] PGSC 11; SC528, the Court found that in circumstances where there is a failure to testify, the trial judge can draw inferences based on common sense.
97. In Waranaka v Dusava (2009) following Balbal v State [2007] PGSC 16; SC860, the Court said:
“The way to receiving, assessing and determining whether or not to accept a witness and his testimony is a well-trodden one. Rules of evidence have much to say and do with the reception or rejection of evidence. Logic and common sense do play an important part in that, as has been noted and applied in many decisions of both this and the National Courts.[3] This is in addition to any serious inconsistencies that might exist in the testimonies of the witnesses called by a party which makes any acceptance of the evidence difficult.[4]” [Emphasis mine]
98. Here, as alluded to by Kangwia, J, it was illogical for a claim of lesser value and later in time to take prominence over a claim with significant value and first in time.
99. Since there was no reasonable explanation and it was illogical to delay a far more significant claim, the questions that arise are whether there is merit in the appellant’s then second defendant’s defence.
Res judicata and multiplicity of proceedings
100. Was the claim estopped by the principle of res judicata and was the second respondent (then plaintiff) engaged in multiple proceedings?
101. The initial Statement of Claim, filed on 4 July 1997, reveals two important things: (1) the second respondent did not claim for his personal property damage; and (2) specifically, the second respondent did not claim that police officers set fire to and destroyed his 77-bedroom lodge, houses, administration building, and service station.
102. The question then becomes since the original Statement of Claim did not contain the material facts regarding the second respondents alleged properties, then did the condition precedent notice under section 5(1) of the Claims By and Against the State Act 1996 (Claims Act) contain those particulars or material facts.
103. On perusal of the notice dated 15 April 1997, it is noted that there are no material facts or particulars giving notice to the State that the second respondent suffered property loss or that during a raid police set fire to his 77-bedroom lodge, houses, administration building, and service station.
104. Material particulars are essential and failure to give sufficient notice is fatal to the claim: Thomas v Emad [2021] PGSC 115; SC2171, Bluewater International Ltd v Mumu [2019] PGSC 41; SC1798, Paga Hill Development Co (PNG) Ltd v Parkop [2019] PGSC 106; SC1877, Kaurigova v Perone [2008] PGSC 45; SC964 and Maps Tuna Ltd v Manus Provincial Government [2007] PGSC 23; SC857 affirming Hewali v Papua New Guinea Police Force [2002] PGNC 95; N2233.
105. In Thomas v Emad (supra), the Court said this:
“12. Further, sufficient details must be included in a s. 5 notice for it to be considered that notice of the intended claim has been validly given to the State. In Daniel Hewali v. Papua New Guinea Police Force (2002) N2233, Kandakasi J (as he then was), as to a notice given pursuant to s. 5 Claims Act stated:
“Such notice must give sufficient details about the impending claim so that the State can carry out its investigations and gather its evidence to properly address the claim once lodged against it. Such details should include dates, time, names of people and places, copies of any correspondence or such other information that could enable the State to carry out its own investigations. Only when notice is given with such details or information, can one safely say that notice of his or her intended claim has been given to the State.”
13. The comments of Kandakasi J (as he then was) concerning the details required for a valid s. 5 notice have been followed in Supreme Court cases including Maps Tuna Ltd v. Manus Provincial Government (2007) SC857 at [35]; Paga Hill Development Co (PNG) Ltd v. Parkop (2019) SC1877 at [7] and Bluewater International Ltd v. Mumu (2019) SC1798 at [44].
..............
15. We are not satisfied that sufficient details of the first respondent’s impending claim against the State had been provided in the purported s. 5 notice and the said documents such that it may safely be said that notice of the first respondent’s intended claim was given to the State.
16. In determining that the purported s. 5 notice gives, “sufficient detail of the occurrence out of which the claims arise”, the primary judge in our view has not followed the Supreme Court cases to which reference has been made and by which he is bound. The primary judge has fallen into error in this regard”.
106. Here, there is no notice to the appellant under section 5(1) of the Claims Act. There were no particulars given to the appellant of the second respondent's suffering personal property loss or harm and specifically there were no particulars that the second respondent suffered loss by fire of a 77-bedroom lodge, houses, administration building, and service station during a police raid commanded by the first respondent.
107. Since notice is a condition precedent, the proceeding should have been dismissed: see Kauba v Willie [2021] PGSC 78; SC2162, Joseph v Rami [2021] PGSC 62; SC2138, Keka v Yafaet [2018] PGSC 18; SC1673 and Paul Tohian & The State v Tau Liu (1998) SC566.
108. On the issue of res judicata and multiplicity of proceedings, the section 5 notice on 15 April 1997 contained a report which particularised the claim. The report also formed the instructions to the initial lawyer who drafted the original Writ.
109. The report divides into an introduction and two parts, each detailing the events of 23 September 1992 and 30 September 1992.
110. The introduction states:
“This report is written following a request by the all tribesman of Kipula Tribe and their respective Village leader Mark Ipuia......
The aim of the report is to give details of the incident and the reactions taken by the police on 23/09/92 and 30/09/92 as two (2) separate raids were done to this respective village (Tulipato).
The following informations were collected during interviews and discussions with Mark Ipuia their respected village leader and his people (KipulaTribe).”
111. The introduction evidently demonstrates that details of the two raids, 23 September and 30 September 1992, were given following discussions and interviews with the second respondent.
112. The events of 30 September 1992 are non-contentious.
113. The claimants in the report are the same as the claimants in WS 643 of 1994: Mark Ipuia v. The State. It was a representative claim. The appellant was found liable, and damages were awarded. It is incontrovertible that the appellant settled that claim.
114. The material facts that led to the claim in WS 643 of 1994 are the same as those used in the instructions to the lawyer and the Section 5 notice for this proceeding below.
115. In WS 874 1994: Mark Ipuai v The State, the second respondent claimed damages for a police raid on 30 September 1992. The court awarded him K119,266.60. It is incontrovertible that the appellant settled this claim.
116. It appears that having recognised that these claims were settled, they did not form part of the original writ filed on 4 July 1997, or the amended writ filed on 19 August 2009.
117. It has been the basis of the claim that the second respondent suffered significant property loss on 23 September 1992. However, as discussed, there is nothing in the report indicating any loss suffered by the second respondent. What is in the report forming the particulars of the section 5 notice is that on 23 September 1992 a stone-throwing incident in which a police officer was struck led to a police raid. The raid led to the rape of five women, the looting and burning of eight trade stores, and the slaughter of livestock, including pigs and chickens by police officers.
118. The itemised property and owners in the report reveal that these were the same parties and the same property loss in WS 569 of 1994, Eton Pakui v. State; see Pakui v. Independent State of Papua New Guinea [2006] PGNC 219; N2977. It is incontrovertible that the matter was litigated, the Court awarded damages, and the appellant settled the claim.
119. These matters demonstrate that the principle of res judicata captures the proceedings styled WS 595 of 1997, subject of this appeal: Global Customs & Forwarding Ltd v Samson [2023] PGSC 80; SC2428 GR Logging Ltd v Dotaona [2018] PGSC 34; SC1690. It follows that the claim was estopped.
120. Consequently, the amendment to the Writ on 19 August 2009, by changing nothing but only one line at paragraph 15(b) with the words “including a 77-bedroom lodge and a service station belonging to the lead plaintiff”, was not proper under the Rules and was clearly an abuse of process.
121. The amendment was not proper for pleading a new cause of action that did not arise out of the same set of facts: See Order 8, rule 55(5) of the National Court Rules; Tipar v Malpo (2009) N3672 and Niap v PNG Harbours Board Ltd (2009) N3672. See also Injia I. & Lay G. (2016). Civil Procedure in the National Court, p. 162.
122. In concluding this issue, the foregoing matters demonstrate (1) since there was no material particulars, there was no notice to the State, (2) the particulars provided in the exiting notice were for proceedings that were litigated and settled by the appellant and (3) the amendment to include the properties was not proper because it introduced a new cause of action.
Were the pleadings defective?
123. Material facts, when properly pleaded, should formulate the cause of action. As Lord Normand said in Esso Petroleum Co. Ltd. v. Southport Corporation [1956] AC 218 at 238: "The function of pleadings is to give notice of the case," which must be done so the other side can focus their evidence on the issue raised. This is settled in this jurisdiction in Covec (PNG) Ltd. v. Kama [2020] PGSC 9; SC1912 following PNGBC v. Jeff Tole (2002) SC694.
124. Gavara-Nanu, J expressed this position in Ume v Watson [2020] PGNC 407; N8669 when he said:
"27. It is an established principle that pleadings must be clear, precise and unambiguous so that the party against whom allegations are made knows what to meet and give the party opportunity to prepare his case to meet those allegations. The pleadings should define with clarity and precision the issues for trial. The pleadings should have two objectives. First is to apprise the opposing party of what allegations or claims to meet. Second is to apprise the court of the issues for trial. See, Jubilee Hambru v. Michael Baur & Ors (2007) N3193. The pleadings should also simplify and narrow down the issues and thereby diminish the expenses for the court and the parties and minimize delay, especially where oral testimony is to be given. The properly prepared pleadings should give fair and sufficient notice of the issues to the opposing party and thereby avoid taking the opposing party by surprise. It is also significant to bear in mind that pleadings are not to be treated as a game of skill between advocates. The way and the manner in which pleadings are framed should ensure that the parties understand the issues, and more significantly, apprise the court fully of the issues for trial. See, Palmer v. Guadagni [1906] UKLawRpCh 114; [1906] 2 Ch. 494 and Esso Petroleum C. Ltd v. Southport Corporation [ 1956] A.C. 218."
125. I accept the submissions by Ms Ohuma for the appellant. The pleadings were general and vague and did not set out the facts that gave rise to the cause of action as per the authorities in Pinda v Inguba (2011) SC1181 and Kamuri v Pomoso (2021) SC2071.
126. As said previously, the pleadings do not contain any material facts in relation the actions of the first respondent and other police officers regarding a 77-bedroom lodge, houses, administration building and service station belonging to the second respondent. The appellant had no notice.
127. The trial judge fell into error when he did not consider the following:
“61. The Court in Kewakali did acknowledge the difficulty of naming the perpetrators, particularly as they might well wish to avoid detection. Nevertheless, the naming of senior officers who may well have had no knowledge of their junior officers’ activities is not only otiose but contrary to principle. To be named as a defendant a person must be alleged to be a tortfeasor or a person or body vicariously liable for the acts of a principal tortfeasor. A senior officer is not vicariously liable for the acts of his or her subordinates. He or she can only be liable if directing or authorising the tortious conduct.”
128. From the foregoing matters, it is evident that there was no scope for the defendants to put forward a defence because the pleadings did show a cause of action.
129. For all the foregoing reasons, the appeal is allowed and the findings on liability are quashed. It follows that the findings on damages are also quashed.
130. I adopted the Orders proposed by Kangwia J.
FINAL ORDERS
131. The Court Orders:
Lawyer for the appellant: Solicitor General
Lawyers for the second respondent: H Maliso Legal Practice
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