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National Court of Papua New Guinea |
N8909
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO 1150 OF 2013
BETWEEN
TAKA HOLDINGS LIMITED trading as TAKA DISTRIBUTORS
Plaintiff
AND
PETER GUINESS, FORMER METROPOLITAN POLICE COMMANDER OF NATIONAL CAPITAL DISTRICT
First Defendant
AND
ANDY BAWA, METROPOLITAN POLICE COMMANDER OF NATIONAL CAPITAL DISTRICT
Second Defendant
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant
Waigani: Makail, J
2021: 11th & 18th May, 1st June & 2nd July
ASSESSMENT OF DAMAGES – Assessment of damages following entry of default judgment – Award of damages – General damages – Special damages – Loss of profit – Proof of – Evidence of – Corroboration of – Lack of – Profit and Loss statement produced but not corroborated by primary documents
Cases Cited:
Papua New Guinea Cases
Yange Langan v. The State (1995) N1369
Jonathan Mangope Paraia v. The State (1995) N1343
Yooken Paklin v. The State (2001) N2212
Albert Baine v. The State (1995) N1335
Kopung Brothers Business Group v. Sakawar Kasieng [1997] PNGLR 331
Peter Wanis v. Fred Sikiot & The State (1995) N1350
Graham Mappa v. Elcom (1992) N1093
James Liwa & Peter Kuriti v. Markus Vanimo & The State (2008) N3486
Overseas cases
Bonham Carter v. Hayden Park Hotel Ltd [1948] 64 TLR 177
Counsel:
Mr. W. Mapiso, for Plaintiff
Mr. T. Mileng, for Defendants
JUDGMENT
2ndJuly, 2021
1. MAKAIL J: This is a trial on assessment of damages following entry of default judgment on 3rd March 2017.
2. The action is based on tort of trespass to property against the members of the police under the command of the first and second defendants while acting in the course of their duties and the third defendant is vicariously liable for their actions and/or omissions under the provisions of the Wrongs (Miscellaneous Provisions) Act, Ch 297.
Brief Facts
3. The plaintiff operates a business under the name of Taka Distributors. On 15th August 2012 at around 12 noon, a police vehicle described as a Land Rover, blue in colour and bearing registration no. ZPD-057 loaded with fully armed policemen confronted the plaintiff’s workers and forcefully shut down the 24 hours Fast Food Outlet.
4. The members of the police alleged that they were acting on an eviction order issued by the Port Moresby District Court on 16th February 2012. The Fast Food Outlet was shut down for four weeks and later re-opened. On 21st January 2013 the Fast Food Outlet was again shut down by the members of the police for a further four weeks. Again, the members of the police alleged that they were acting on an eviction order issued against a Steven Punangi, a tenant of the premises occupied by the plaintiff. It was later discovered that the subject order did not apply to the plaintiff.
5. The plaintiff claims loss of business, goods, stock and equipment as a result of the actions and/or omissions by the members of the police. They also claim interest and legal costs. The particulars of the damages or loss are set out at paragraph 33 of the statement of claim as follows:
(a) Loss of business K 84,266.67
(b) Damaged goods K 40,925.57
(c) Stolen cash K 3,500.00
(d) Flex, B-Mobile and Telikads stolen K 2,900.00
(e) 2 x Bags of new clothes K 5,000.00
(f) Property & equipment damage K 10,000.00
(g) Consultation fees (Accounting and Legal) K 15,000.00
----------------
Total K161,592.24
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6. Furthermore, at paragraph 34 of the statement of claim, the plaintiff makes a separate claim for loss of profit in sum of K292,939.36.
Evidence
7. The plaintiff relies on the following:
(a) Affidavit of Pim Taka sworn and filed 19th April 2017, and
(b) Affidavit of Eddie Maua sworn 14th March 2018 and filed 16th March 2028.
8. The defendants offer no evidence in reply.
Principles of assessment of damages
9. It is trite that an entry of default judgment does not relieve the plaintiff from proving its damages or loss: Yange Langan v. The State (1995) N1369 and Jonathan Mangope Paraia v. The State (1995) N1343.
10. Damages or loss must not be remote and must be mitigated and proved by credible and admissible evidence. A mere assertion in an affidavit is insufficient unless it is corroborated by other independent evidence even in cases where the defendant fails to present any evidence disputing the claim: Yooken Paklin v. The State (2001) N2212, Albert Baine v. The State (1995) N1335, Kopung Brothers Business Group v. Sakawar Kasieng [1997] PNGLR 331 and Peter Wanis v. Fred Sikiot & The State (1995) N1350.
11. Having regard to these principles, I assess the damages sought by the plaintiff.
General damages
12. Under this head of damages, the plaintiff submits that it lost cash, goods, stock, and equipment. As for the goods, stock and equipment, it incurred further costs to replace them.
13. The defendants submit that as a company the plaintiff failed to provide receipts of payments, invoices, bank statements and business records to show that the plaintiff was in possession of such goods, stock and equipment at the time when they were destroyed. For this reason, an award of damages should be refused.
14. It is useful to address each head of damages separately and I do so below:
(a) Loss of business - K 84,266.67
I note the plaintiff’s submission at paragraph 52 of its written submission that it concedes that damages sought for loss of business is not supported by evidence and is abandoned. Consequently, it will be considered as abandoned.
(b) Damaged goods - K 40,925.57
I note at paragraph 54 of the plaintiff’s written submission that it failed to provide particulars or details of the goods that were damaged or destroyed by the members of the police but submits that the lack of particulars or details does not necessarily relieve the defendants as the wrongdoer of the necessity of paying damages. Consistent with past decided cases in Graham Mappa v. Elcom (1992) N1093 and Jonathan Mangope Paraia (supra), where such evidence is lacking, the Court must do the best it can and assess and award a sum to the plaintiff.
I reject the plaintiff’s submission for two reasons. First, as correctly conceded by the plaintiff, it has not provided particulars or details of the goods that were damaged or destroyed by the members of the police. Secondly, it failed to provide the value of each type of good that was damaged or destroyed which would add up to the total sum claimed.
Consequently, the Court has no information of the types of goods that were damaged or destroyed by the members of the police and each of their value. In essence, the evidence supporting this head of damages is vague and insufficient for the Court to assess damages. That is to say, and to adopt the words of Lord Goddard CJ in Bonham Carter v. Hayden Park Hotel Ltd [1948] 64 TLR 177 at page 178, the plaintiff is telling the Court, “this is what I have lost, I ask you to give me the damages”. This sort of assertion will not assist the Court to assess damages with certainty. For these reasons, this head of damages is refused.
(c) Stolen cash - K 3,500.00
I note at paragraph 55 of the plaintiff’s written submission that it seeks to recover a sum of K3,500.00 which it asserts was stolen by the members of the police. However, nowhere in his affidavit does Mr Taka explain why he has kept such a large amount of cash at the property. If it is from the takings from the sale of food at the Fast Food Outlet, he does not expressly state that at paragraphs 49 and 50 of his affidavit. However, as there is no evidence from the defendants to refute his assertion, I am prepared to make an award. The sum I will award will be less than what is sought because of the lack of explanation by Mr Taka for holding such a large sum of money at the property. I award half of the sum claimed which is K1,750.00.
(d) Flex, B-Mobile and Telikads stolen - K 2,900.00
I note at paragraph 56 of the plaintiff’s written submission that it seeks to recover a sum of K2, 900.00 which it asserts was stolen by the members of the police. However, again, nowhere in his affidavit does Mr Taka gives particulars or details of the phone cards in terms of total number and value of each card. For instance, 50 x flex cards at value of K20.00 each from Digicel and secondly, why he has kept them at the property. If they are for sale or for personal use, he does not expressly state that at paragraphs 49 and 50 of his affidavit. However, again, as there is no evidence from the defendants to refute his assertion, I am prepared to make an award. The sum I will award will be less than what is sought because of the lack of evidence highlighted above. I award half of the sum claimed which is K1,450.00.
(e) 2 x Bags of new clothes - K 5,000.00
I note at paragraph 57 of the plaintiff’s written submission that it seeks to recover a sum of K5,000.00 which it asserts was stolen by the members of the police. However, again, nowhere in his affidavit does Mr Taka gives particulars or details of the bags, that is, if they are big bags full of new clothes and secondly, why he has kept them at the property. If they are for sale or for personal use, he does not expressly state that at paragraphs 49 and 50 of his affidavit. However, again, as there is no evidence from the defendants to refute his assertion, I am prepared to make an award. The sum I will award will be less than what is sought because of the lack of evidence identified hereto. I award half of the sum claimed which is K2,500.00.
(f) Property and equipment damage - K 10,000.00
I note the plaintiff’s submission at paragraph 58 of its written submission that it concedes that damages sought for damage to its property and equipment is not supported by evidence and is abandoned. Consequently, it will be considered as abandoned.
(g) Consultation fees (Accounting and Legal) - K 15,000.00
I note the plaintiff’s submission at paragraph 59 of its written submission that it concedes that damages sought for loss of consultation fees for payment of accounting and legal fees is not supported by evidence and is abandoned. Consequently, it will be considered as abandoned.
15. For general damages, the total sum awarded is - K5,700.00.
Loss of Profit
16. For loss of profit, the plaintiff seeks a sum of K292,939.36. According to Mr Taka and the accountant Mr Maua, this sum is derived from deducting all expenses of the plaintiff in the total sum of K144,340.64 and gross profit of K437,280.00. Mr. Maua produces a copy of the Profit and Loss Statement for the eight months period ended 14th August 2012 to corroborate their assertion on the loss of profit.
17. The sum claimed as loss of profit suggest that the plaintiff was running a very successful and lucrative business because there is an average of K36,617.42 net profit per month. This is where I have difficulty in accepting the plaintiff’s submission on the loss of profit. Mr Maua as the accountant of the plaintiff did not state in his affidavit the kind of documents he received from the plaintiff or Mr Taka to prepare the income and expenses of the plaintiff before drawing up the Profit and Loss Statement.
18. The documents are referred to as primary documents or primary source of information and preferably, be identified in an affidavit or better still, copies produced to independently corroborate the information provided in the Profit and Loss Statement as well as the plaintiff’s witnesses’ assertion in the affidavits. These documents are not limited to but include, bank statement, invoices, receipts of payments, lease agreement, payslips, cheque book/slips, motor vehicle registration certificate etc... see James Liwa & Peter Kuriti v. Markus Vanimo & The State (2008) N3486.
19. If the plaintiff had operated a bank account and monies from the sales from the Fast Food Outlet were deposited into it and expenses of the plaintiff were drawn from it, Mr Maua does not say. The bank statement is crucial piece of evidence because money received and expanded by the plaintiff prior to the two shut downs would be displayed on it and add weight to the assertion by Mr Maua at paragraph 3 of his affidavit that “At that time, I did prepare all the necessary statements including a projected cash flow statement from 15th – 30th August 2012, the period in which the fast food outlet was not in operation”.
20. In this case, the primary source of information contained in the bank statement or alternatively, invoices and payment receipts by the plaintiff prior to the two shut downs are missing. Thus, it is open to infer that the Profit and Loss Statement was based on guess work, hence unreliable. Indeed, at paragraph 5 of his affidavit Mr Maua concedes that there was no bank statement when he stated “I am now advised by the Director of the Plaintiff due to oversight on his part, he was not able to obtain the relevant bank Statements from the Plaintiff’s Operating Accounting for the period in question. Recent attempts to obtain these crucial documents were of no avail”.
21. The reason offered for not producing the bank statement is unacceptable and rejected. It is not true that the bank will not provide the bank statement. If a request was made at the earliest, the bank will provide it. If the bank refuses the request, the plaintiff had the option of applying for a subpoena to have it produced.
22. In addition, upon a careful perusal of the Profit and Loss Statement, there are other glaring irregularities, for example one of the expenses of the plaintiff is rental of K44,000.00. I note the accountant did provide a copy of the lease agreement which is annexed to his affidavit and in clause 3, the rent is K5,500.00 per month. However, Mr Taka and the accountant did not produce copies of the invoices and receipts of payment for the months prior to the two shutdowns to corroborate that the plaintiff was paying rent and will continue to pay rent had it not been for the two shutdowns.
23. Another glaring irregularity is the consultation fees of K18,000.00. This expense appears to be a duplication. It is claimed in the Profit and Loss Statement as well as a separate head of damages in this proceeding. Moreover, there is no supporting documents such as an accountant’s invoice and a lawyer’s bill of costs and receipts of payments made either prior or during the period of each shut down to verify the claim. Again, the accountant and lawyer are easily accessible to obtain these documents but the plaintiff failed to attend to them.
24. The next glaring irregularity is the expenses for wages and salaries of K41,000.00. There is no list of employees of the plaintiff and pay slips for the employees to verify the total sum paid to the employees per fortnight. Alternatively, Mr Taka should identify by listing the employees and how much each received as wages or salary in his affidavit.
25. A further glaring irregularity is the expense for the motor vehicles. There is no list of the number of motor vehicles or description of the motor vehicles, copies of the certificates of registration to verify ownership and receipts of payment for operational costs of the motor vehicles such as fuel and oil prior to the two shut downs to make an independent comparison and estimate the projected loss.
26. The other expenses of power, electricity, photocopy etc.. also suffer the same fate. As for income, there is no list of products or goods sold by the plaintiff being produced to add up to the sum indicated in the Profit and Loss Statement. It must also suffer the same fate.
27. I would give some consideration to awarding nominal damages if the plaintiff through its witnesses Mr Taka and Mr Maua provided a list of products or goods being sold and value of each product or goods to enable a proper assessment to be done. There is simply no such information.
28. In summary, again, adopting the words of Lord Goddard CJ in Bonham Carter case (supra) at page 178, the plaintiff is telling the Court, “this is what I have lost I ask you to give me the damages”. This sort of assertion will not assist the Court to assess the damages with certainty. For these reasons, this head of damages is refused.
Interest
29. The plaintiff seeks interest at the rate of 2% under the Judicial Proceedings (Interest on Debts and Damages) Act, 2015. This order is granted. There shall be an award of interest at the rate of 2% on the total judgment sum of K5,700.00 to run from the date of issue of writ to the date of final settlement under Sections 4 and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015.
Costs
30. Finally, the plaintiff seeks an order for costs of the proceeding. It is granted. The defendants shall pay the plaintiff’s costs of the proceeding, to be taxed, if not agreed.
Order
31. The final orders of the Court are:
________________________________________________________________
Guardian Legal Services Lawyers: Lawyers for Plaintiff
Solicitor General: Lawyers for Defendants
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