Unreported National Court Decisions
N1457
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS NO 60 OF 1994
BETWEEN:
OBED LALIP for himself and on behalf of MARAE KULAP and FRANCIS MINALO - Plaintiffs
And:
FRED SIKIOT - First Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA - Second Defendant>
Mount Hagen
Injia J
22 March 1996
12 April 1996
17 May 1996
DAMAGES - Proof of - Claim arising out of Police raid - Assessment of damages following default judgement - Pleadings - Vague - Evidence - Vague and contradictory - Possible double claim - No damages awarded.
Cases Cited:
Yange Lagan & Ors v The State N 1369 [1995]
Counsel:
D Kwimberi for the Plaintiff
No Appearance for the Defendants
17 May 1996
INJIA J:  This is an ex-parte trial on assessment of damages following entry of default judgement against the Defendants.  The Plaintiffs claim they suffered destruction of his personal properties in a police raid at Porgera which the Plaintiffs claim occurred on 9th February 1993.
The Plaintiff Marae Kulap and Francis Minalo (also known as Francis Minapin) also filed separate proceedings through Kopunye Lawyers in WS No 437/95.  In those proceedings, on 15th September 1995, I awarded damages to them in the sum of K8,021.00 in respect of Marae Kulap and K12,146.00 in respect of Francis Minalo: See Yange Lagan 7 Ors v The State N1369 [1995] at p. 18 and 33 respectively.  Both Plaintiffs gave oral evidence at the trial.  Among the personal properties destroyed for which damages were awarded in respect of Marae Kulap was a sum of K3,900.00 for loss of a trade store building, trade store stock and loss of trade store income and in respect of Francis Minalo, K7,100.00 for a trade store building, trade store stock and loss of trade store income.  After having received judgement in their favour, they pursued this claim with their present lawyers and obtained default judgement.  I raised the prospect of double claim during the pre-trial hearings and Mr Kwimberi and Mr Kopunye both agreed that the same Plaintiffs were involved.  Hence, these two Plaintiffs have decided not to pursue their claim in these proceedings.
But they did file affidavits in support of Mr Obed Lalip’s claim on 16th October 1995.  In their affidavits, it is interesting to note that neither of them mentioned loosing a trade store owned by each one of them. Instead, in para. 2 of his affidavit, Mr Marae Kulap refers to loosing his semi-modern dwelling house with its contents, plus a pig house near “Obed Lalip’s trade store.”  He also says “Obed’s trade store were burnt down completely.”  Francis Minalo says in paragraph 7 of his affidavit “The Plaintiff Mr Obed Laip also had his properties including a trade store...burnt down...”
Obed Lalip filed an affidavit on 17/10/95 in which he gives details of things he lost.  Among them is a claim for a trade store building valued at K15,000.00 and stock valued at K15,000.00.  He has attached receipts of payments for the building materials, trade store stock and a house plan for his trade store.
In paragraph 4 of his affidavit, he says he lost  his semi-modern building valued at K40,000.00 but he does not particularise this item in his list of particulars of lost items which is annexed to his affidavit.
The statement of claim which is pleaded in very broad terms makes reference to inter alia, “buildings, residences...situated at Porgera, in the Enga Province.”  The list of particulars endorsed under paragraph 5 of the statement of claim makes no reference to a semi-modern house at all.
In paragraph 6 of his affidavit, Obed Lalip says he saw his dwelling house and trade store burn to ashes.  But that is not exactly what is pleaded in paragraph 5 (a) of the statement of claim where he merely claims that policemen “Intentionally damaged the said buildings, fittings, equipment and motor vehicles by burning them.”  The word damage implies injury to property which results in diminution of its value, not total loss or destruction such as due to arson.
In the statement of claim, Mr Lalip pleads that he originally comes from Aiyak in the Laiagam District of Enga Province but he does not plead where his properties which were damaged in the raid were situated.
In his affidavit, Mr Lalip says he comes from Aiyak Village, Laiagam in the Enga Province where he is a prominent village leader.  But prior to the establishment of the Porgera Gold Project, he based his business activities in Mount Hagen and during the construction phase of the project, he relocated his business to Porgera from Mount Hagen.
The Plaintiff should have clearly pleaded and given evidence in his affidavit of where exactly at Porgera his trade store and dwelling house was situated when they were damaged in the raid.  This is important in view of the 3 different places in 2 different provinces he based himself and his business activities.
Mr Lalip has produced some pre-9th February 1993 receipts of purchases of various building materials from suppliers in Mount Hagen.  The pre-February 9th 1993 receipts all bear his Mount Hagen postal address (Box 1213 Mount Hagen WHP).  It is not clear from his evidence at what point in time he re-located to Porgera.  This would give me an idea as to which receipts relate to his businesses in Mount Hagen and which receipts relate to his business activities in Porgera.  This distinction is important because it is his business in Porgera, not Mount Hagen, which he claims to have been burnt down and for which he is entitled to damages.
Further, to compound the uncertainty, Mr Lalip has included two receipts, one from Kabuka Trading in Mount Hagen dated 30/9/93 for store goods obtained don credit worth K4,113,95 and another receipt dated 8th May 1993 for K850.00 from Mun Freighters in Mount Hagen for transportation of 8.5 tonnes of store goods from Mount Hagen to Porgera.  Assuming the date of the raid which he says in  his affidavit was 9th February 1993 to be correct, these receipts show that he was still in trade store business in the months following the raid.  Questions arise as to whether he lost his trade store at all.  If he did, did he rebuild it?  If so, when and at what cost?
And speaking of the date of the raid, in para. 5 of the statement of claim the date of the raid reads “or about...February 1993.”  There is no record of any application being made to amend the Writ to fill in the blank date.  In the affidavit of Mr Lalip as well as the affidavit of Mr Marae Kulap and Francis Minalo, they gave the date as 9th February 1993.  In WS 488/94 Mara Kulap & Anor v State and WS 490/94 Francis Minapin & Anor v State they gave evidence that the raid occurred in July 1993 following the fatal shooting of a policemen by warring clansmen.  In their respective writs, the date of the raid is pleaded as 28th July 1993.
It is important for the Plaintiff to plead to and give evidence of the correct date of the raid because of the Plaintiff’s location and relocation of his businesses in the material period.
It is also important for Mr Lalip to clearly plead and produce evidence which distinguishes his house and his trade store from those of Marae Kulap and Francis Minalo in view of the latter’s evidence in their affidavits that Mr Lalip’s business and house and properties are situated next to theirs and their earlier evidence in the earlier proceedings.  It may be that the store and houses may belong to Mr Lalip but Mr Kulap and Minalo are the custodians or it may be the other way around.  It may be that Messrs Minalo and Kulap have received compensation which they are not entitled to receive.
In the past, at the various pre-trial sessions in police raid matters which involve multiple Plaintiffs, I have stressed the need for lawyers and their clients to ensure that claims are properly and clearly pleaded and evidence produced in respect of each item.  I have also stressed the need for lawyers and parties to assist the Court in eliminating double-claims and perhaps false claims.  I canvassed some of these aspects in Yange Lagan & Ors v State N1369 [1995].  I also alluded to some of the relevant principles on assessment of damages of this type of claim.
This is a claim in which I have grave doubts about whether the Plaintiff did in fact suffer any loss at all.  The evidence and pleadings are so confusing, contradicting and inherently suspicious.  The above and other uncertainties surrounding the proof of damages of this claim leads me to the unavoidable conclusions that the Plaintiff, Obed Lalip has not proved his damages on the balance of probabilities standard.
Just because the Plaintiff has obtained default judgement does not mean that he is entitled as of right to receive damages.  He must prove the damages suffered by credible evidence.
For these reasons, I refuse to make any award for damages in favour of the Plaintiff Obed Lalip.
Lawyer for the Plaintiffs: Paulus M Dowa
Lawyer for the Defendants: Solicitor General