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Mulunga v Kami [2011] PGNC 316; N4245 (5 April 2011)

N4245

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1383 OF 2005

BETWEEN

HONKEY PAWA MULUNGA
Plaintiff

AND

CONSTABLE CHARLIE KAMI
First Defendant

AND

THE INDEPNDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Mount Hagen: Makail, J
2011: 22nd February & 05th April

ASSESSMENT OF DAMAGES - Police raid - Trespass to trade store goods - Destruction of - Looting of - Loss of - Proof of - Records of business earnings - Lack of - Grossly inflated value - Reduction of claim by 50%.

Cases cited:
Jonathan Mangope Paraia -v- The State & Ors (1995) N1343
William Mel -v- Coleman Pakalia & Ors (2005) SC790
Motor Vehicles Insurance Trust -v- Salio Tabanto [1995] PNGLR 214
Tabie Mathias Koim -v- The State [1998] PNGLR 247; (1998) N1737
Jackson Tuwi -v- Kenny Taiya & The State (2010) N3901
Yange Lagan & 58 Ors -v- The State & Ors (1995) N1369
Aimon Aure & Ors -v- The State [1996] PNGLR 85; (1995) N1346
Robert Taropen & Ors -v- John Anawe & The State (2010) N3911
Nelson Pawa -v- The State (2009) N3784
Thomas Paraka -v- Thomas Upaiga & The State (2010) N4090
Abel Tomba -v- The State (1997) SC 518
James Liwa & Peter Kuriti -v- Markus Vanimo & The State (2008) N3486
James Gunambo & Anor -v- Sergeant Thomas John Upaiga & The State: WS No 1321 of 2002 (Unnumbered & Unreported Judgment of 25th January 2010)
Pius Pup -v- Joseph Kupo & The State (2010) N3897
Kawi Yawi -v- Torepa Nenga, Anton Sinawai & The State (2002) N2209
Bob Kol -v- The State (2010) N3912

Counsel:

Mr E Wamp, for Plaintiff
Ms J Bamin, for Defendants

JUDGMENT

05th April, 2011

1. MAKAIL, J: This is a judgment on assessment of damages. The plaintiff sued the defendants for damages arising from an alleged police raid in his village on 06th May 2005. His village is called Minimp and is located in Mul District of Western Highlands Province. In the writ of summons, he alleged the first defendant led a group of policemen to his village and broke into his trade store. They seized, looted and destroyed trade store goods valued at K23,566.00. He sought general damages, special damages, exemplary damages and damages for breaches of constitutional rights, interest and legal costs against the defendants.

Plaintiff's evidence

2. In his affidavit sworn on 21st September 2009 and filed on 22nd September 2009 (exhibit "P3"), he deposed on 06th May 2005, the first defendant led a group of policemen to his village. They went to his trade store, broke down the door and went inside. They removed goods and took them away and destroyed some of them. He gave a list of goods that were either destroyed or looted by the policemen. They were:

50 x Roots rice 20 x 1 kg @ K77.50 - K 3,875.00

50 x Roots rice 500 gram @ K40.50 - K 2,025.00

50 x Trukai rice 20 x 1 kg @ K92.50 - K 4,625.00

40 x Trukai rice 500 gram @ K47.70 - K 1,908.00

30 x Dianna Tuna 185 g @ K57.30 - K 1,719.00

30 x Dianna Tuna 380 g @ K62.90 - K 1,887.00

10 x Besta Big 425 g @ K196.50 - K 1,965.00

10 x Besta Small 185 g @ K198.50 - K 1,985.00

8 x Hiway Beef biscuit @ K64.50 - K 516.00

8 x Hiway Beef biscuit @ K49.50 - K 396.00

5 x Large Wopa biscuit @ K54.00 - K 270.00

2 x Oxen Palm 340 g @ K179.50 - K 359.00

4 x Oxen Palm 200 g @ K127.50 - K 510.00

4 x Sita meat 200 g @ K29.50 - K 118.00

5 x Sita meat 300 g @ K33.90 - K 169.50

4 x Small Wopa biscuit @ K54.90 - K 329.40

30 x S/Oil 250 ml @ K53.50 - K 1,605.00

20 x S/Oil 500 ml @ K50.50 - K 1,010.00

30 x S/Oil 1 ml @ K43.50 - K 1,305.00

15 x Kilna original yellow @ K49.90 - K 748.50

15 x Kilna laundry @ K49.90 - K 748.50

10 x Han Was soap @ K34.20 - K 342.00

5 x B29 150 x 35 g @ K46.00 - K 230.00

25 x Maggie noodles 100 x 80 g @ K76.50 - K 1,912.00

10 x Maggie cube carton @ K107.00 - K 1,070.00

4 x Twisties @ K20.90 - K 83.60

5 x Gold Nuggets @ K22.90 - K 114.50

15 x Ramu Sugar 20 x 500 g @ K41.50 - K 622.50

=========

Total K32,449.00
=========

3. In his oral evidence, he said, after the first defendant and the policemen left, he conducted a stock take of the goods that were destroyed and seized by the policemen. He came up with the list of goods as set out in his affidavit and said, the value of the goods was based on a quotation he obtained from Dae Won Trading Limited in Mt Hagen where he usually purchased his store goods. He knew the goods that were destroyed or seized by the policemen because he regularly does stock takes at the end of each month to see whether he needed to resupply the stock in trade. As the raid occurred on 05th May 2005 which was soon after the stock take for the previous month, that was the reason he knew the exact quantity and type of goods in the trade store at the material time.

4. As he remembered the quantity and type of goods, he went back to Dae Won Trading Limited in Mt Hagen and obtained a quotation. The quotation gave an accurate value of the lost goods because it was based on the current purchase prices of each good. In his further oral evidence, he said he increased the claim from K23,566.00 to K32,449.00 because of inflation. He produced a copy of the quotation and a couple of photographs of two buildings but was unable to produce invoices and receipts of payment of the goods as they were destroyed in the raid. According to one of the photographs, one of the buildings was a semi-permanent one. The frames appeared to have been made of sawn timbers and the walls from "pitpit" blinds. It has a corrugated iron roof.

5. He denied suggestions by counsel for the defendants in cross-examination that according to one of the photographs that showed the building that housed the trade store, the building was too small and to house the large number of goods he was claiming. He maintained the trade store building was big enough to house the goods that were lost during the police raid. He also said, during the raid he lost cash of K486.00 and alleged the policemen stole it. The money was from the sale of goods from the trade store.

6. His evidence was corroborated by two witnesses. In the affidavit of Simon Pai sworn on 21st September 2009 and filed on 22nd September 2009 (exhibit 'P1") and affidavit of David Onum sworn on 21st September 2009 and filed 22nd September 2009 (exhibit "P2"), they deposed that the plaintiff owned and operated a trade store in Minimp village.

7. They further deposed on 06th May 2005, they were in the village when the first defendant led a group of policemen to the village. There were about 11 to 12 of them and they came in two motor vehicles. One was a blue Toyota land-cruiser open back and the other was a white Toyota 10 seater land-cruiser. They were armed with firearms and fired shots into the air. They broke down the door of the plaintiff's trade store and went inside. They removed large quantities of trade store goods and took them away in the two motor vehicles. Some policemen destroyed some of the goods by cutting open bags of rice, bags of flour and sugar and threw them all over the ground.

8. They said, the plaintiff was not the only victim of the police raid. There were other people and properties destroyed by the policemen. George Pawa was one of them. The policemen also broke into his house and looted his personal items. The other was their local community school called Yaraka. The policemen went to the school and destroyed the school's properties. They also assaulted villagers by booting them, hitting them with fan belts and chased them away.

Defence's evidence

9. The defendants had not offered any evidence to deny or refute the plaintiff's claim. However, this does not mean the Court should simply accept the evidence of the plaintiff and his witnesses and find in his favour: see Jonathan Mangope Paraia -v- The State & Ors (1995) N1343.

Issue

10. The issue is, has the plaintiff proven his losses under each of the head of damages?

The Law

11. The burden of proof rests on the plaintiff and it is upon him to discharge that burden on the balance of probabilities which is the required standard of proof in civil cases. The Supreme Court in William Mel -v- Coleman Pakalia & Ors (2005) SC790 referred to the following principles of assessment of damages which I find helpful to this case and adopt:

"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.)"

General damages

12. I deal first with the claim for general damages. As default judgment has been entered against the defendants, from the facts pleaded in the statement of claim and the proven facts are, first the plaintiff operated a trade store and secondly, lost goods from his trade store in the raid conducted by the first defendant and a group of policemen at Minimp village on 05th May 2005. They broke down his trade store, seized, looted and destroyed goods inside it.

13. In the statement of claim, he claimed K23,566.00 as total value of the loss of goods of various description and cash of K486.00. However, in his evidence at paragraph 3 of his affidavit, he claimed K32,449.00. There is a difference of K8,883.00. He said the difference reflected inflation. In his submission, his counsel submitted the Court award K32,449.00 as this amount took into account the rise in costs between the date of the raid and the date of trial and it is only fair and reasonable the plaintiff be compensated at the present day costs of these goods.

14. This submission appeals to me but there is one significant problem with it. The plaintiff did not plead in the statement of claim and ask in the prayer for relief the sum of K32,449.00. He only claimed a sum of K23,566.00. In failing to plead K32,449.00, he has given the defendants and of course the Court, the impression and led them to believe he was only claiming K23,566.00. If he intended to claim K32,449.00 because of inflation, he should have amended K23,566.00 to K32,449.00 and that would have put the defendants and the Court on notice of the amount he actually seeks from the defendants. For it is trite law that a party is entitled to lead evidence and seek relief only if it has pleaded it: see Motor Vehicles Insurance Trust -v- Salio Tabanto [1995] PNGLR 214 and Tabie Mathias Koim & Ors -v- The State & Ors [1998] PNGLR 247; (1998) N1737 and Jackson Tuwi -v- Kenny Taiya & The State (2010) N3901.

15. For this reason, I will assess damages based on K23,566.00. Turning to the assessment, the first point I make is, according to the list of goods lost by the plaintiff during the raid, it appears the plaintiff has lost a large quantity of goods. I say this because he claimed a large quantity per item in the list. For example, he claimed 50 bags of 20 x 1 kg Roots rice and 50 bags of 20 x 1kg Trukai rice and so forth.

16. Counsel for the defendants submitted the claim for loss of goods in the sum of K23,566.00 should be dismissed in its entirety because it has been grossly inflated. She pointed to the photograph of the trade store building and submitted it appeared too small to cater for a large quantity of goods such as those claimed by the plaintiff. Based on one of the photographs in evidence before the Court, I find the trade store is a semi-permanent building. It is a small building. Its frames are made of sawn timbers and the walls from "pitpit" blinds. It has a corrugated iron roof but there is no evidence of electricity connection to it.

17. Based on the description of the building, I must agree with the defendants' counsel submission that the building cannot sufficiently house a large quantity of goods such as those that the plaintiff is claiming. In my view, the large quantity of goods suggests the plaintiff was operating a medium to large business enterprise and that would require a bigger building to house them. The building that has been suggested, in my view, is too small to house such a large quantity of goods.

18. For this reason, I find the plaintiff's evidence in relation to the large quantity of goods has been exaggerated and this has grossly inflated the value of the loss. But that does not mean, I must reject the evidence of the plaintiff in its entirety as was suggested by counsel for the defendants in her submissions. Rather, most of his evidence is good and based on them, I find the plaintiff is entitled to some compensation for the loss but it will be less than what he is claiming.

19. In Yange Lagan & 58 Ors -v- The State & Ors (1995) N1369, a police raid claim against the State, one of the plaintiffs named Veronica Andale claimed loss of trade store goods. She claimed K4,000.00. Injia, J (as he then was) made the following observations in relation to proof of loss of trade store goods which I find very pertinent here and adopt:

"In relation to the stock, all she said was that the monthly new stock was K3,200.00 (plus say another K800.00 for existing stock which makes K4,000.00). In a village environment, a trade store built at K6,557.00 with turnover of K3,200.00 new stock per month is a recognisable size of modern commercial venture. There is no evidence of the store having a trade store licence, no evidence of income tax returns, no evidence of any banking activity as to the monthly expenditure of substantial cash payment for stock, no evidence from someone who constructed the trade store and the expenditure on materials and labour, etc. The list compiled by Mr Lai is only secondary to the plaintiff's evidence. The primary evidence of the plaintiff is general or vague. On the evidence, I am not satisfied that a semi-modern trade store worth that figure in building materials, labour and stock was burnt down. Nevertheless, I will award a nominal sum to compensate the plaintiff for the loss of a village-type trade store. In remote villages many buildings of many shapes and sizes are used as trade stores. Strict business code of conduct is not the order of the day. Many operate without trading licences. Most do not file tax returns. Many operate on an off-and-on basis. Incomes received are not saved in bank accounts. Stocks fluctuate with the occurrence of unforseen events occasioning expenditure of earnings and savings. That is the order of the day in remote villages. It would be unfair to let the plaintiff go without damages. I will award K2,000.00 for the building and K1,500.00 for stock. I consider that in a village environment, a village trade store would be built and operated for a sum in the vicinity of these figures. I realise that this is an arbitrary figure but as I said Jonathan Mangope Paraia v The State & Others, once the plaintiff has proven that she lost a village-type trade store, she is entitled to damages; she cannot be allowed to go without a remedy. As Vaughan Williams LJ put it in Chaplin v Hicks [191] 2 KB 786 at p. 792:

"The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages."

In the circumstances of the instant case, its the duty of the Court to arrive at a probable value of the house. As Devlin J said in Biggin v Permanite [1951] 1 KB 422 at 438:

"Where precise evidence is obtainable, the Court naturally expects to have it (but) where it is not, the Court must do the best it can."

20. Assessing the evidence of the plaintiff in accordance with these principles, His Honour reduced the claim from K4,000.00 to K1,500.00. In the present case, the plaintiff's counsel submitted the claim of K23,566.00 be reduced by 20% while counsel for the defendants as noted earlier, submitted the claim be dismissed in its entirety. There are no independent evidence of financial records such as statement of profit and loss, bank statements, receipts of payment and tax returns to establish that the plaintiff ran a trade store that generated the kind of income to sustain a business enterprise of that description. The absence of such evidence must result in the reduction of the award.

21. Then I must also take into account that stock fluctuate due to unforeseen events occasioning expenditure and earnings, and no proper business records are kept by trade store operators in village settings. I accept the plaintiff's evidence all the invoices and receipts of payment of the goods were destroyed in the raid and could not be produced to verify the claim. The nearest probable independent piece of evidence is the quotation from Dae Won Trading Limited. It gives a rough estimate of the prices of each item but that is all. The quotation does not mean the plaintiff purchased these items. The evidence of that comes from the plaintiff. That is the difficulty the Court is faced with if it were to rely on the quotation to determine the prices of each item.

22. There is simply no independent evidence of statement of profit and loss, bank statement, receipts of payment and tax returns to verify the claim. All the Court has is the plaintiff's evidence at paragraph 3 of his affidavit that he lost this much during the raid. In the absence of the independent evidence, coupled with the grossly inflated value of the claim, and doing the best as I can, I will reduce the claim by 50%. This will come to K11,783.00 and this is the amount I shall award to him as general damages.

23. He also claimed loss of cash of K486.00. A claim for loss of cash must be supported by clear and admissible evidence. The evidence must not be vague, unclear and tainted with uncertainty. The evidence must establish the source of the cash and the reason for keeping it. If it was derived from a business enterprise such as a trade store or a PMV business, at least some independent evidence such as business records to prove its source may be relevant and necessary: see Aimon Aure & Ors -v- The State [1996] PNGLR 85; (1995) N1346, Tabie Mathias Koim's case (supra), Robert Taropen & Ors -v- John Anawe & The State (2010) N3911, Nelson Pawa -v- The State (2009) N3784 and Thomas Paraka -v- Thomas Upaiga & The State (2010) N4090.

24. In Nelson Pawa's case (supra), I awarded K12,000.00 for cash stolen during a police raid at the premises of the plaintiff at Porgera. I did so because I was satisfied the money was proceeds from the plaintiff's PMV business. In the present case, the plaintiff said he lost K486.00 during the raid by the policemen. He said the money was cash on hand held in the trade store from the sale of goods. His counsel submitted based on this evidence, the Court should award this amount. I am satisfied there is clear and uncontroverted evidence from the plaintiff the money was derived from the trade store business and was cash on hand at the time of the raid. I award this amount. This brings the total award of damages under this head to K12,269.00.

Special damages

25. The plaintiff also claimed special damages. He claimed loss of cash of K486.00. This aspect of the claimed has been addressed under the claim for general damages. He made no other claims under this head of claim. Accordingly, I make no further awards.

Exemplary damages

26. The plaintiff further claimed exemplary damages. Exemplary damages are punitive in nature. In essence, it is awarded to punish the perpetrator of the wrong. Section 12 of the Claims By and Against the State Act, 1996 provides that no exemplary damages shall be awarded against the State unless it appears to the Court that regardless of the nature of the claim, there has been a breach of constitutional rights so severe or continuous as to warrant an award of exemplary damages. This remedy is awarded at the discretion of the Court.

27. Based on the evidence before the Court, I am not satisfied an award of exemplary damages should be made against the State. I follow the decision of the Supreme Court in Abel Tomba -v- The State (1997) SC518, where the Supreme Court was reluctant to award exemplary damages against the State for abuse of power by members of the disciplined forces. In my opinion, the facts of this case do not warrant an award of exemplary damages against the State because although the raid on the plaintiff's trade store was unjustified, harsh and oppressive, it was a one off incident.

28. On the other hand, the plaintiff's two witnesses have identified and named the first defendant as the commander of the group of policemen that raided the plaintiff's trade store. He should be the one ordered to pay exemplary damages and I so order. In deciding the amount to be awarded as exemplary damages, I have had recourse to my own judgment in James Liwa & Peter Kuriti -v- Markus Vanimo & The State (2008) N3486, where I awarded K2,000.00 as exemplary damages against the first and second defendants who were members of the police force. In that case, the first and second defendants confiscated the plaintiffs' PMV licence and a driver's licence without any lawful reason. I found their actions unlawful and ordered them to pay exemplary damages.

29. I awarded the same amount in James Gunambo & Anor –v- Sergeant Thomas John Upaiga & The State: WS No 1321 of 2002 (Unnumbered & Unreported Judgment of 25th January 2010) and Pius Pup –v- Joseph Kupo & The State (2010) N3897. In the circumstances, I award K2,000.00 as exemplary damages which shall be personally paid by the first defendant.

Damages for breaches of constitutional rights

30. Next, the plaintiff claimed damages for breaches of Constitutional rights. Every person in this country has rights to be protected from inhuman treatment, free from arbitrary search and entry and protection from unjust deprivation of property. In Robert Taropen's case (supra), a police raid case at Mamale village, Laiagam in Enga Province, I observed at p 8 that:

"As every person in this country has rights to be protected from inhuman treatment, free from arbitrary search and entry and protection from unjust deprivation of property, the actions of the members of the police were a serious violation of the plaintiffs' rights. In my view also, the actions of the members of the police can be best described as inhuman and cruel and done without any regard or respect to the dignity of mankind. In the circumstances, it is only fair that the plaintiffs be compensated by an award of damages for these breaches and this Court having wide powers to enforce breaches of Constitutional rights under sections 57 and 58 of the Constitution may award a reasonable award of damages to compensate the plaintiffs for the breaches of their Constitutional rights."

31. The present case is one of those cases where members of the police force have yet again violated citizen's rights. For these reasons, the defendants must be ordered to pay damages to the plaintiff. In my view, the manner in which the members of the police destroyed and looted the plaintiff's property was inhuman and cruel. This is a serious case of violation of Constitutional rights.

32. What is a fair and reasonable amount to award as damages under this head of claim?

33. A significant number of reported cases had come before the National Court in recent past where the Court had awarded damages from K2,000.00 and upwards. In Nelson Pawa's case (supra), I awarded K5,000.00, in Kawi Yawi -v- Torepa Nenga, Anton Sinawai & The State (2002) N2209 Jalina, J awarded K2,000.00, in James Gunambo's case (supra) I awarded K2,000.00, in Robert Taropen's case (supra), I awarded K3,000.00 to each plaintiff and in Bob Kol -v- The State (2010) N3912, I awarded K8,000.00.

34. In the present case, counsel for the plaintiff submitted K3,000.00 as a fair and reasonable amount to award. I agree. I award that amount.

Interest

35. Finally, as the plaintiff also claimed interest pursuant to the provisions of the Judicial Proceedings (Interest on Debts and Damages) Act, Ch 52, in the exercise of the Court's discretion, I shall award interest at 8% on the principal judgment comprising of general damages and damages for breaches of constitutional rights of K15,269.00 from the date of issue of writ of summons of 05th September 2005 to date of judgment at a total of 2,036 days which gives K6,811.95. I award this sum.

Summary

36. To summarise, I award the following:

1. General damages

(loss of trade store goods and cash) - K12,269.00

2. Special damages - K nil

3. Exemplary damages - K 2,000.00

4. Breaches of Constitutional rights - K 3,000.00

5. Interest at 8% - K 6,811.95

37. I also order the defendants to pay the plaintiff's legal cost of the proceedings to be taxed if not agreed. Time shall be abridged.
Judgment and orders accordingly.

_______________________________
Kunai & Co Lawyers: Lawyers for Plaintiff
Acting Solicitor-General: Lawyers for Defendants