N9836

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 484 OF 2018

BETWEEN:
REX MANGA WAPALIN HOLDINGS LIMITED
(Plaintiff)

AND:
INSPECTOR NOEL LEVI JUNIOR, STATION COMMANDER – PORT MORESBY POLICE STATION
(First Defendant)

AND:
SUPERINTENDANT MICHAEL TILAE, OPERATIONS COMMANDER, NATIONAL CAPITAL DISTIRCT
(Second Defendant)

AND:
GARRY BAKI, COMMISSIONER OF POLICE, ROYAL PAPUA NEW GUINEA CONSTABULARY
(Third Defendant)

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
(Fourth Defendant)

Waigani:  Makail, J
2022:  22nd July & 15th August

LIABILITY – Trespass – Trespass to chattel – Confiscation of liquor and store goods by members of police – Defence of – Sale of liquor during prohibited hours – Liquor (Licensing) Act, 1963 – Section 104.

DAMAGES – Assessment of damages – General damages – Loss of value of liquor stock – Loss of cash – Special damages – Loss of business income –Exemplary or aggravated damages – Damages for breach of constitutional rights – Proof of 

Cases Cited:

Enga Enterprises Pty Ltd v. Parakali (1995) N1359
Tabie Mathias Koim v. The State [1998] PNGLR 247; (1998) N1737
Aimon Aure & Ors v. The State [1996] PNGLR 85; (1995) N1346
Nelson Pawa v. The State (2009) N3784
Robert Taropen & Ors v. John Anawe & The State (2010) N3911
Thomas Paraka v. Thomas Upaiga & The State (2010) N4090
Aimon Aure & Ors v. The State [1996] PNGLR 85; (1995) N1346
Abel Tomba v. The State (1997) SC518
James Liwa & Peter Kuriti v. Markus Vanimo & The State (2008) N3486
Bob Kol v. The State (2010) N3912
Alphonse Alep v. Madang Provincial Government (2011) N4442
Robin Martin v. Andy Bawa & The State (2021) N8947

Counsel:

Mr. J. Samiet, for the Plaintiff
No appearances, for the Defendants

JUDGMENT

15th August, 2022

1.	MAKAIL, J:  This is an ex parte trial on liability and assessment of damages after the defendants failed to attend on the date fixed for trial and despite being given notice of trial. It also means any of the affidavits and written submissions they have filed will be disregarded.

Brief Facts

2.	The cause of action is one of trespass or alternatively, negligence.  It will be decided on the following undisputed facts; the plaintiff is a local company incorporated under the Companies Act 1997 and carries on business in trading of liquor.  It operates its liquor business at its property described as Allotment 64, Section 116, Boroko (Gordons Ridge), 5 Mile, National Capital District or commonly known as 5 Mile White Haus (“the premises”).

3.	It has three liquor shops operating within the premises.  A day-time liquor shop which opens for trading during the day and a night-time liquor shop which opens for trading during the night.  Both day-time and night-time liquor shops sell only assorted beers and various brands of liquor.  The third liquor shop is both day-time and night-time liquor shop, which sells only hardy, spirits and wine.

4.	It holds three different liquor licences for its liquor trading businesses at its premises as follows:

a)	a Club Licence,
b)	a Storekeeper’s Licence, and
c)	a Special Permit.

5.	As holder of these liquor licences, it is authorised to stock, sell, supply, and dispose of liquor from its premises.  The Club Licence authorises it to open for trading or sell liquor from 10:00 am to 10:30 pm from Mondays to Saturdays and close for business on Sunday and declared Public Holidays under the conditions of its licence.

6.	The Storekeeper’s Licence authorises it to open for trading or sell liquor from 10:00 am to 8:30 pm from Mondays to Saturdays and close for business on Sunday and declared Public Holidays under the conditions of its licence.

7.	The Special Permit authorises it to sell liquor to persons above the age of 18 years within its premises which is the subject of a Club Licence at any time under conditions of its licence.  As the holder of the Special Permit, it is authorised to sell liquor at its premises during Public Holidays at closed doors to persons within its premises only, and not to the public.

8.	Its premises is subject to the Liquor (Licensing) Act 1963 and conditions of the three licences to sell, supply and dispose of liquor.

Allegation

9.	The allegation is that, on 1st April 2018 which was Easter Sunday between 6 o’clock and 9 o’clock in the morning, members of the Police under the command and control of the first and second defendants used 13 marked and unmarked police motor vehicles entered, searched, and confiscated all its stock in trade liquor and cash monies.  They also destroyed its liquor shops and other properties.

Defence

10.	The defendants filed a defence.  According to the defence, they admitted that the members of the Police under the command and control of the first and second defendants entered, searched, and confiscated the stock in trade liquor on the subject date and time.  However, they alleged that their actions were not unlawful but justified by law, in that, the plaintiff had opened for business outside the lawful business hours, namely on a Sunday and Public Holiday, it being Easter Sunday.

Finding of Facts

11.	Given the admission in the defence and the unchallenged statements in the affidavits of Anthon Make (Exhibits “P1”, “P3” & “P9”), George Aiok (Exhibits “P2” & “P6”), Esther Frank (Exhibit “P4”), Grace Koel (Exhibit “P5”), Andy Igiman (Exhibit “P7”), Andrew Igiman (Exhibit “P8”) and Rex Manga Wapalin (Exhibit “P10”), it is the finding of the Court that members of the Police under the command and control of the first and second defendants entered the plaintiff’s premises, searched and confiscated the plaintiff’s stock in trade liquor on the morning of Sunday 1st April 2018.

12.	At the material time, the members of the Police and the first and second defendants arrived in marked and unmarked motor vehicles, some of them armed with guns and opened fired into the air and assaulted occupants and employees in the plaintiff’s premises. They removed liquor from the plaintiff’s shops and took them to Boroko Police Station and detained them at the direction of the first and second defendants.  Seven of the employees were arrested and charged.  The charges were later dismissed but the members of the Police did not return all the liquor to the plaintiff.

Issue - Justification

13.	The issue for consideration is whether their actions were justified by law.

Liability

14.	The plaintiff submitted the sell, supply and disposal of liquor is regulated by the Liquor (Licensing) Act 1963 and the conditions of the licences.  One of the conditions is to operate during business hours. Where it has breached the regulation time for business, it will constitute an offence under Section 104 of the Act. Section 104 states:

“ 104. SALE, ETC., OF LIQUOR DURING PROHIBITED HOURS.
(1) A licensee who, during prohibited hours–

(a) sells liquor; or

(b) keeps his licensed premises open for the sale of liquor; or

(c) except as permitted by or under this Act, permits liquor to be consumed   on his licensed premises,

is guilty of an offence.

Penalty: Immediate cancellation of the licence and a fine not exceeding K1,000.00 and in default of payment of the fine, imprisonment for a term of six months, and the court has no discretion to make a lesser order or to impose a lesser sentence.

(2) Subject to Subsections (3) and (4), a person who purchases or obtains liquor from, or consumes liquor on, licensed premises outside trading hours is guilty of an offence.

Penalty: A fine not exceeding K50.00.

(3) It is not an offence against Subsection (2) for a person to purchase, obtain or consume liquor on licensed premises outside trading hours if he–

(a) is the licensee or the manager for the licensee; or

(b) is a member of the licensee’s or manager’s family or an employee of the licensee living, staying or working on the licensed premises; or

(c) is a person entitled under this Act to be supplied with liquor on the licensed premises outside trading hours; or

(d) is a person to whom liquor may be supplied on the licensed premises under a permit.

(4) It is not an offence against Subsection (2) for a person who has purchased or obtained liquor on licensed premises within trading hours to consume the liquor on those premises within 15 minutes after those hours”.

15.	The plaintiff’s submission is upheld.  If it were accepted that the plaintiff was trading liquor outside the business hours because Sunday 1st April 2018 was a Sunday and, also a Public Holiday, it constitutes an offence and the plaintiff’s proprietor, or manager, or employees should have been arrested and charged under Section 104 of the Act.  If found guilty, the licence will be cancelled and will pay a fine not exceeding K1,000.00.  If in default of payment of the fine, will be imprisoned for a term not exceeding 6 months.

16.	But Section 104 does not confer discretion on the first and second defendants and members of the Police to confiscate the liquor stock.  Further, it is not a bar to an action for tort of trespass.  By entering, searching, and removing the liquor stock from the premises of the plaintiff, they committed trespass and are liable in damages.  When they failed to return all the liquor to the plaintiff after the charges against the employees of the plaintiff were dismissed, the trespass continued.

17.	As the members of the Police were directed by the first and second defendants to confiscate the liquor and took them to the Police Station and the employees of the plaintiff were charged, it is the further finding of the Court that they were acting in the course of their employment when they committed trespass and the fourth defendant as their employer is vicariously liable.  There will be, accordingly, a judgment on liability entered against the defendants for trespass.  As for the action in negligence, as it was pleaded in the alternative, it will not be necessary to consider it.

Assessment of Damages

18.	In the writ of summons, the plaintiff pleaded the following relief:

(a)	General damages for:

i.	Trespass.
ii.	Negligence.
iii.	Costs of repairs and
iv.	Loss of business.

(b)	Exemplary/Aggravated damages.

(c)	Damages for breach of Constitutional Rights.

(d)	Interest.

(e)	Costs.

19.	The plaintiff relied on the affidavits of Anthon Make (Exhibits “P1”, “P3” & “P9”), George Aiok (Exhibits “P2” & “P6”), Esther Frank (Exhibit “P4”), Grace Koel (Exhibit “P5”), Andy Igiman (Exhibit “P7”), Andrew Igiman (Exhibit “P8”) and Rex Manga Wapalin (Exhibit “P10”) and photographs of broken locks to the liquor shop and 20-foot storage container and CCTV Camera including assorted store goods, to prove its loss.

20.	Having considered these affidavits and noting that the defendants did not turn up at trial to challenge the veracity of the statements in the affidavits, subject to relevance, hearsay and probative value, they remained unchallenged.  It will be the finding of the Court that the members of the Police led by the first and second defendants entered and removed cartons of beer and other liquor products from the plaintiff’s premises.  After the charges against the plaintiff’s employees were arrested, and charged, and the charges were dismissed, the defendants returned some of the liquor stock, particulars of which are as follows:

(a)	SP Brown – 18 cartons
(b)	Ice Blue Cans – 16 cartons
(c)	SP White Cans – 7 cartons
(d)	SP Big Green Cans – 5 cartons
(e)	Ice Blue Bottle – 7 cartons
(f)	Niugini Ice Lime Cans – 3 cartons
(g)	Export Paradise Green Bottles – 6 cartons
(h)	Heineken Bottles – 5 cartons
(i)	Kundu Cans – 6 cartons
(j)	Ice Lime Bottles – 18 loose bottles 
(k)	Heineken Cans – 12 loose cans 
(j)	Mosko Raspberry Bottle – 5 cartons
(m)	Trade Winds Scotch Whiskey/Cola – 3 cartons
(n)	Chiller Raspberry Bottles – 1 carton
(o)	Strong Bow Bottles – 4 cartons
(p)	Gold Apple – 12 loose bottles
(q)	Elder Flower – 2 cartons
(r)	Jonnie Walker Black Label – 3 loose bottles 
(r)	Export Paradise Green Bottles – 6 cartons
(s)	Trade Winds Scotch Whiskey – 2 loose bottles

21.	It will be the further finding of the Court that members of the Police broke open the locks to the liquor shops and 20 foot-storage containers, destroyed the CCTV Camera at the plaintiff’s day-time store and removed assorted store goods from the shops.

General damages for Trespass

22.	The plaintiff sought a sum of K722,102.30.  It submitted that this is the value of the liquor stock that was confiscated by the defendants.

23.	According to Mr Make, this sum is derived at by deducting the total value of liquor stock looted or confiscated of K741,337.30 from the total value of liquor stock returned after the search and raid of K19,235.00.  The value of each liquor product is derived from the manual journals and system entries posted on Saturday 31st March 2018 after end of month stocktake.  The details are:

(a)	3,237 cartons of assorted SP Brewery products/brands and 59 loose bottles/cans.

(b)	71 cartons of Trade Wind products and 17 loose bottles.

(c)	60 cartons of hardy, spirits and wine products and 38 loose bottles/cans.

24.	In ascertaining a sum to award for loss of goods destroyed or looted by a tortfeasor, in Enga Enterprises Pty Ltd v. Parakali (1995) N1359, Doherty J stated:

“A trespass to chattels is actionable without proof of actual damage.  Where the goods have been destroyed or the Plaintiff is prematurely deprived of them the measure of damages is their value.  Where the goods exist and have been restored but depreciated the measure of damages is costs of repairs, if any, and depreciation.”

25.	While Mr Make has produced manual journals and system entries of 31st March 2018 and its Profit and Loss Statement of year ended 31st December 2017 to support the plaintiff’s purchasing capacity, it is preferrable a more reliable source of information to verify the value of the liquor stock will be a supplier’s pre-order invoice from SP Brewery Wholesale and Trade Winds Wholesale.  Secondly, the Profit and Loss Statement is relevant to ascertain profit and loss of the plaintiff each year, eg, 2018 and not to ascertain the value of the liquor stock.

26.	On the face of it, Mr Make’s assertion of the plaintiff’s strong performance with its purchasing capacity suggest a large and thriving liquor trading business venture in the city of Port Moresby and puts its business investment portfolio amongst the leading million-kina alcohol and beverage retailers in this industry in the country.  Far from it.  The evidence does not support this proposition and the plaintiff has over exaggerated its loss.  For example, Mr Make produced a pre-order invoice from J Mart to one of the plaintiff’s companies named Ambum Zulu Mini Mart Limited for supply of liquor stock in the sum of K50,000.00 dated 23rd March 2018.

27.	Accepting that the plaintiff lost liquor trading stock during the raid, it will be the finding of the Court that a fair and reasonable outcome is to award some damages, but the sum sought will be reduced by 50%.  Discounting the sum of K722,102.30 by 50% for the reasons outlined above, the plaintiff is awarded K361,051.15 as value of the lost liquor trading stock.

28.	For the liquor trading stock which were returned, it is reasonable to award damages to the plaintiff for the period it was without them.  As the liquor stock were identified and marked as Court exhibit in the charge, the value of each product will be allowed.  The total sum is K19,235.00.  Rounding up this sum to K20,000.00, K20,000.00 is awarded.

29.	The total sum awarded for loss of liquor trading stock is K381,051.15.

Loss of Cash of K301,903.00

30.	The plaintiff sought a sum of K301,903.00 as unbanked cash from the trading of liquor stolen by the members of the Police during the raid.  According to Mr Make, this sum of money was from the daily cash taking from 16th March to 31st March 2018 which comprised of:

(a)	K234,668.70 for daily cash taking; and
(b)	K67,234.30 for reserved cash.

31.	The plaintiff submitted that this sum is recoverable and is supported by Mr Make who deposed that cash of K300,000.00 was recounted and balanced during stock-take.  It was stored away in a tin-trunk in the day store until the police raid.  He produced manual of daily cash sales journals and systems generated cash sale reports to verify the sum sought.

32.	In addition, the plaintiff referred to past cases of Tabie Mathias Koim v. The State [1998] PNGLR 247; (1998) N1737, Nelson Pawa v. The State (2009) N3784, Robert Taropen & Ors v. John Anawe & The State (2010) N3911 and Thomas Paraka v. Thomas Upaiga & The State (2010) N4090 where the National Court had awarded damages for lost/stolen cash in police raid cases.

33.	Those cases represented cash lost/stolen ranging from K750.00 to K12,000.00.  In Nelson Pawa (supra), a sum of K12,000.00 was awarded because the Court was satisfied that the money was proceeds from the plaintiff’s PMV business.  In this case, it does not necessarily follow that the plaintiff will be awarded damages to reimburse what it lost as proceeds from its liquor trading business.  Each case must turn on its facts, and in this case, there are factors which make it disguisable from those past cases including the Nelson Pawa case (supra).

34.	First, the Court must evaluate the probative value of Mr Make’s assertion that a large sum of cash would be kept in the premises of the plaintiff as opposed to being deposited in a bank account.  It will be appropriate to note Mr Make provided no explanation as to why the plaintiff did not make use of the electronic banking facilities in the shops and club of the plaintiff, eg. Efpos machine.

35.	Secondly, it will be appropriate to consider why the plaintiff had easy access to banking facilities in the city of Port Moresby and did not deposit the money in the bank.  Finally, it will be appropriate to consider independent evidence from a similar liquor trading business operator of the cash threshold limit for each month or weekly to verify if a substantial amount of cash held by the plaintiff at the time of the police raid was reasonable and prudent business practice.

36.	Given these factors, it will be noted that Mr Make’s assertion in relation to the lost/stolen cash lacked probative value for the following reasons:

(a)	No explanation for lack of use of electronic banking facilities in the shops and club, eg. Efpos machine.

(b)	Easy access to banking facilities in the city but made no use of them; and

(c)	No independent evidence from a similar liquor trading business operator to verify cash threshold limit for each month or weekly.

37.	As Woods J observed in Aimon Aure & Ors v. The State [1996] PNGLR 85; (1995) N1346:

“This Court cannot accept bare assertions of such loss.  First it is not prudent practice to keep large amounts of cash in one’s home and anyone who does that does so at their own risk.  Also large amounts of cash suggest an income, which could be liable for tax and therefore the Court, must require the appropriate evidence of how such large amounts of cash were obtained and of compliance with tax laws.  So couple with instances where large amounts of cash are claimed this court cannot accept that claim without appropriate evidence to support the holding of such amounts of cash”.

38.	Reinforcing what Woods J said, it is not prudent practice for the plaintiff to keep large amounts of cash in the shop and if it does, it is at its own risk.  For the foregoing reasons, it is the finding of the Court that Mr Make’s assertion that the plaintiff generated and held cash of K301,903.00 at its shop at the time of the police raid is exaggerated and will be rejected.  However, as Mr Make has produced photographs which depicted several members of Police removing cash from the cash register, there will be a nominal award of K5,000.00.  This sum is awarded.

Loss of Locks of Liquor Shops and 20 Foot Containers, CCV Camera and Assorted Store Goods

39.	The plaintiff sought damages for loss of locks of liquor shops and 20-foot containers, CCTV Camera, and assorted store goods in the sum of K10,000.00.  Mr Make did not produce an invoice for the locks, CCTV Camera and receipts of payments for the assorted store goods that were destroyed and looted by the members of the Police.  It is necessary and within reach especially when he had easy access to the information in the city of Port Moresby where the suppliers of the products are located.  Discounting the sum sought by 50% for lack of corroboration, the plaintiff is awarded K5,000.00 under this group of damages.

Special Damages – Loss of Business Income

40.	The next group of damages which the plaintiff sought is loss of business income in the sum of K50,000.00.  According to the plaintiff, this sum is derived from sale of liquor had the tort of trespass not occurred.

41.	According to Rex Manga Wapalin, this sum is based on a Profit and Loss Statement of the plaintiff.  Profit and Loss Statement is done by an accountant.  He does not say if he is an accountant by profession and that he prepared it.  If it was prepared by an accountant, he did not state the name of the accountant.  He did not get the accountant to file an affidavit to verify the Profit and Loss Statement.  Without this information, the Profit and Loss Statement is unverified and unreliable.

42.	The other reason is the plaintiff did not produce a copy of its bank statement to support its assertion that its liquor trading business generated income and after deduction of expenses, the surplus is profit.  It goes without saying that the plaintiff bears the onus of proof and for the sum sought to be awarded, it must be based on certainty and accuracy of the information and not sone vague and bundle of list of Profit and Loss Statements which Mr Make has produced.  They are of no assistance in ascertaining loss of the plaintiff when it was out of the liquor trading business after the police raid.

43.	However, given that after the police raid, the liquor stock was confiscated by the defendants, it is reasonable to infer that the plaintiff was out of trading for a while and lost out on earning income from the sale of the liquor stock.  For this reason, a nominal sum of K10,000.00 will be awarded.  This sum is awarded.

Exemplary Damages or Aggravated Damages

44.	The final group of damages sought by the plaintiff is exemplary damages or aggravated damages.  It sought a total sum of K10,000.00, that is, K5,000.00 for the first defendant to pay and K5,000.00 for the second defendant to pay.  This submission is consistent with the general principle that where the conduct of the members of the Police is unjustified and unwarranted and each member of the Police who has been identified will be liable to exemplary damages or aggravated damages: see Abel Tomba v. The State (1997) SC 518 and James Liwa & Peter Kuriti v. Markus Vanimo & The State (2008) N3486.

45.	The plaintiff is awarded exemplary or aggravated damages which shall be personally paid by the first and second defendants. The first defendant is ordered to pay K5,000.00 and the second defendant is also ordered to pay K5,000.00 to pay the plaintiff.

Damages for breach of Constitutional Rights

46.	The plaintiff pleaded and sought damages for breach of constitutional rights.  In the statement of claim it alleged breach of the Search Act freedom from arbitrary search and entry, right to privacy, and protection from unjust deprivation of property under Sections 44, 49 and 53 of the Constitution respectively.

47.	Although in its submissions it did not cover this group of damages and sum to be awarded, the finding of the Court that members of the Police led by the first and second defendants to enter, and destroy the plaintiff’s liquor shop and goods including confiscation of the liquor trading stock is sufficient to make a separate award of damages under this group of damages.

48.	This sum is to compensate the plaintiff for breaches of its rights and freedoms as outlined above and to reinforce the Court’s commitment to protect persons and owners of business ventures from deprivation of their guaranteed rights and freedoms in the Constitution and condemn the actions of the members of the Police.  What they have done was unnecessary, uncalled for and unjustified.  A review of past awards in the police raid cases of Bob Kol v. The State (2010) N3912 where K8,000.00 was awarded, Alphonse Alep v. Madang Provincial Government (2011) N4442 where K15,000.00 was awarded and Robin Martin v. Andy Bawa & The State (2021) N8947 where K18,000.00 was awarded and considering the gravity of the breaches, an appropriate sum to award is K10,000.00.  This sum is awarded.

Summary of Awards 

49.	The following damages were awarded:

(a)	General damages for loss of liquor stock – K381,051.15.
(b)	General damages for loss of cash – K5,000.00.
(c)	General damages for loss of locks, CCTV and assorted store goods – K5,000.00.
(d)	Special damages – Loss of Business Income – K10,000.00	
(e)	Exemplary or aggravated damages – K10,000.00.
(f)	Damages for breach of constitutional rights – K10,000.00.

50.	Except for exemplary or aggravated damages, the total sum for the rest which the defendants will pay to the plaintiff is K421,051.15.

Interest

51.	As the State is vicariously liable, the plaintiff sought interest at rate of 8% per annum from the date of issue of writ to the date of judgment on liability and assessment of damages pursuant to Section 4 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015.

52.	The proposed award of interest is the conventional method of awarding interest.  It is upheld.  As the State is vicariously liable, interest at rate of 2% per annum and not 8% is awarded from the date of issue of writ to date of judgment on liability and assessment of damages on the judgment sum of K421,051.15.

Cost

53.	Finally, the plaintiff sought costs of the proceedings.  As the plaintiff has successfully proved liability and most of the damages, it is awarded costs of the proceedings, to be taxed, if not agreed.

Order

54.	The final orders of the Court are:

1.1.	Judgment on liability is entered against the defendants.

1.2.	Judgment is entered against the defendants in the total sum of K421,051.15.

1.3.	Judgment is entered against the first defendant in the sum of K5,000.00 as exemplary damages.

1.4.	Judgment is entered against the second defendant in sum of K5,000.00 as exemplary damages.

1.5.	Interest is awarded at the rate of 2% per annum on the judgment sum of K421,051.15 from the date of issue of writ to date of judgment on liability and assessment of damages pursuant to Section 4 of the Judicial Proceeding (Interest on Debts and Damages) Act, 2015.

1.6.	The defendants shall pay the costs of the proceeding, to be taxed, if not agreed.
________________________________________________________________
Holingu Lawyers:  Lawyers for the Plaintiff
Solicitor General:  Lawyers for the Defendants