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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS NO. 1793 OF 2006
BETWEEN
DAVID IMIG, DAVID YAPATI & TUMU ANDAKE for and on behalf of themselves and 48 Others
Plaintiffs
AND
JOHN TUKA
First Defendant
AND
KIMBE URBAN LOCAL-LEVEL GOVERNMENT
Second Defendant
AND
IDON KULUGIO
Third Defendant
AND
MARK KALKAL
Fourth Defendant
AND
CHRIS SMITH
Fifth Defendant
AND
STEVEN BUNGA
Sixth Defendant
AND
THE PROVINCIAL POLICE COMMANDER – WEST NEW BRITAIN PROVINCE
Seventh Defendant
AND
THE ASSISTANT POLICE COMMISSIONER – ISLANDS REGION
Eighth Defendant
AND
THE COMMISSIONER OF POLCE
Ninth Defendant
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Tenth Defendant
WAIGANI: MAKAIL J
15 MARCH & 24 MAY 2022; 4 FEBRUARY 2025
ASSESSMENT OF DAMAGES – Trespass to property – Negligence – Police raid – Special damages – Loss of property – Loss of income – General damages – Breach of constitutional rights – Stress and inconvenience – Proof of – Award of damages – Discount of 40% of award for involvement of members of the public in raid
ASSESSMENT OF DAMAGES – Special damages – Out of pocket expenses – Substantial sum of K2 million sought in submissions – Lack of pleadings – Out-of-pocket expenses incurred in pursuing claim – Special damages for out-of-pocket expenses sought in violation of strict requirements to plead it with particulars – Out-of-pocket expenses refused – National Court Rules – Order 8, rule 34
Cases cited
Nil
Counsel
Mr J Kolo for plaintiffs
No appearance, for first, second, fourth, fifth & seventh defendants
Mrs R Gelu for third, sixth, eighth, ninth & tenth defendants
JUDGMENT
1. MAKAIL J: This is a trial on assessment of damages on paper, after a default judgment was entered against the defendants on 17th August 2010, the proceeding itself having been commenced on 13th December 2006. For different reasons, one of them being out of court settlement negotiations, the matter was not listed for trial on assessment of damages until the Court took the initiative to put to the parties and it was agreed at the pre-trial conference and listings on 15th March 2022, that the trial be on paper with written submissions to be filed and decision to follow suit. The parties were directed to file written submissions by 17th May 2022 and the plaintiffs have liberty to file submissions in reply by 24th May 2022 with decision reserved to a date for parties to be advised. The plaintiffs filed written submissions on 17th May 2022 and supplementary submissions on 24th May 2022. The third, sixth, eighth, ninth and tenth defendants did not file any submissions.
Background Facts
2. This is an action based on the tort of trespass and negligence for the destruction and loss of property commenced by the three plaintiffs David Imig, David Yapati and Tumu Andake for and on behalf of themselves and 48 other plaintiffs as a class action against the defendants following a raid at Kimbe Town over a period of two days from 03rd to 04th September 2006.
3. The cause of the raid was from a fight between a local villager and a street vendor from Enga Province at Section 10 next to Kimbe Town. The local villager was the instigator, and it led to the relatives of the street vendor reporting the matter to the police at Kimbe Police Station and requested for police intervention to stop further attacks. The members of the police attended at Section 10 but did not stop the further attacks by members of the public on the property of the plaintiffs. Instead, they joined in and destroyed the plaintiffs’ properties. In addition, they looted the plaintiffs’ properties.
Plaintiffs’ Evidence
4. The plaintiffs rely on fifty-three affidavits. Fifty-one of them by the plaintiffs and two by independent witnesses, one by accountant Mr David Wapung and registered valuer Mr Patrick Wansakai Seso. It is not necessary to restate the contents of the affidavits but will be referred to in the course of the judgment. The defendants did not file any affidavits.
Principles on Assessment of Damages
5. The plaintiffs’ counsel articulated the principles on assessment of damages in his written submissions and the Court will be guided by them.
Relief Sought
6. However, it is important to be reminded that one of the principles of assessment of damages is that a plaintiff must plead the allegation of fact it seeks to prove at trial to put the defence on notice. Similarly, a plaintiff must plead the relief it seeks to be granted by the Court. Where the pleadings in relation to an allegation of fact and relief are materially lacking, it is not open to the plaintiff to adduce evidence to prove the allegation or be awarded a relief. Where a plaintiff seeks to rely on the allegation and/or relief, it is at liberty to amend the pleadings with leave of the Court under Order 8, rule 50 of the National Court Rules (“NCR”).
7. In the present case, according to the prayer for relief at paragraph 29(1) to (6) of the statement of claim, the plaintiffs pray for the following relief:
(a) General damages for trespass and/negligence and assault.
(b) Special damages for loss of property.
(c) Declaration that the conduct of the defendants in conducting the raid on the plaintiffs’ properties is harsh and oppressive, disproportionate to the particular circumstances and not reasonably justifiable in a democratic society.
(d) Exemplary damages for breach of constitutional rights.
(e) Interest.
(f) Legal costs.
8. If proved, the plaintiffs will be granted the relief sought at paragraph 29 of the statement of claim. Any relief not pleaded and sought will be disregarded.
Special Damages
9. In this case, counsel submits that the total sum claimed for properties destroyed and/or looted for each plaintiff is reduced by 70% for discount due to uncertainties associated with running of business, lack of regulatory compliance with company and tax requirements and general vicissitudes of life including long delaying in the prosecution of the proceedings and a further 25% for depreciation in value of the assets including the total sum sought as follows:
70% Discount
(a) Late David Imig – K7,560,720.00
Loss of trade store, snooker tables, poultry and buildings.
(b) Late David Yapati – K9,976,104.00
Loss of trade store, snooker tables, poultry and buildings.
(c) Leo Nambis – K3,334,968.00
Loss of trade store, poultry and buildings.
(d) Josiah Wassay – K3,053,000.00
Loss of trade store and buildings
(e) Reo Pea – K11,000.00
Loss of buildings.
(f) Kalu Pea – K819,000.00
Loss of trade store and informal market.
(g) Benny Awake – K424,220.00
Loss of informal marketing, poultry and buildings.
(h) Maso Aiyok – K574,200.00
Loss of trade store and other buildings.
(i) Retired Segreant Joe Perema – K411,494.00
Loss of trade store, poultry and buildings.
(j) Marcus Alta – K73,900.00
Loss of informal market and buildings.
(k) Henry Yapen – K112,700.00
Loss of informal marketing and buildings.
(l) Tumu Andake – K81,400.00
Loss of trade store, poultry and buildings.
(m) Fox Kurai – K396,890.00
Loss of trade store, snooker tables, poultry and buildings.
(n) Pius Karawe – K250,900.00
Loss of informal marketing, second-hand clothing and residential buildings.
(o) Yapis Yakait – K172,980.00
Loss of informal marketing, second-hand clothing and residential buildings.
(p) Dominic Kurai – K172,180.00
Loss of informal marketing, second-hand clothing and residential buildings.
(q) Mathew Ipatas – K136,880.00
Loss of informal marketing, second-hand clothing and residential buildings.
(r) Yai Tipin – K136,850.00
Loss of informal marketing, second-hand clothing and residential buildings.
(s) Steven Tumu – K73,400.00
Loss of informal marketing, second-hand clothing and residential buildings.
(t) Wesley Kitori – K39,052.00
Loss of poultry and residential building.
(u) Paul Petro – K285,000.00
Loss of trade store, informal marketing and buildings.
(v) Lenep Pea – K72,380.00
Loss of informal marketing and buildings.
(w) Depeson Wassey – K90,232.00
Loss of poultry and buildings.
(x) Wear Mart Ltd – K3,834,700.00
Loss of second-hand shop and buildings.
(y) Red Hills Limited – K1,804,100.00
Loss of mini super-market and buildings.
(z) Paul S. Nao – K175,000.00
Loss of poultry, second-hand clothing and buildings.
(aa) Alex Saflue – K75,852.00
Loss of poultry, buildings and other properties.
(bb) Laiswan Tumu – K62,452.00
Loss of poultry and buildings.
(cc) Willie Mann – K50,220.00
Loss of poultry, buildings and other properties.
(dd) Teskie Yapati – K93,920.00
Loss of poultry, buildings and other properties.
(ee) Nancy Pea – K75,780.00
Loss of poultry, buildings and other properties.
(ff) Geof Kiamferoh – K56,800.00
Loss of poultry, buildings and other properties.
(gg) Talota Nambis – K87,640.00
Loss of poultry, buildings and other properties.
(hh) Mark Amen – K72,300.00
Loss of informal marketing and other properties.
(ii) Amos Sakaito – K72,300.00
Loss of informal marketing and other properties.
(jj) John Kandar – K72,000.00
Loss of informal marketing and other properties.
(kk) Luke Amos – K58,060.00
Loss of second-hand clothing and other properties.
(ll) Simon Bekel – K186,320.00
Loss of second-hand clothing, informal marketing and properties.
(mm) Yasara Was – K201,950.00
Loss of poultry, informal marketing, second-hand clothing and buildings.
(nn) Rickey Solomon – K393,100.00
Loss of informal marketing, second-hand clothing and properties.
(oo) Late Buka Pea – K72,308.00
Loss of poultry, buildings and other properties.
(pp) Masel Mioni – K168,544.00
Loss of poultry, second-hand clothing, building and other properties.
(qq) Frank Pambuti – K213,500.00
Loss of informal marketing, second-hand clothing and properties.
(rr) Harvey Hareta – K200,560.00
Loss of second-hand clothing and other properties.
(ss) Lip Yak – K214,700.00
Loss of informal marketing, second-hand clothing and properties.
(tt) Lukas Lar – K71,500.00
Loss of informal marketing and properties.
(uu) Alex Kurai – K48,920.00
Loss of poultry, buildings and other properties.
(vv) Mark Ikiri – K47,390.00
Loss of poultry, buildings and other properties.
(ww) Jacksen Nisarap – K96,360.00
Loss of poultry, buildings and other properties.
(xx) Kela Karapus – K253,770.00
Loss of poultry, second-hand clothing, buildings and other properties.
(yy) Joe Kunai – K575,350.00
Loss of trade store, building and other properties.
Grand Total: K25,428,646.00
Less Depreciation of 25%
25% of K25,428,464.00 is K6,357,116.00. Deduct K6,357,116,00 from K25,428,464.00 gives a final sum of K19,053,348.00.
10. For special damages, the plaintiffs seek a total sum of K19,053,348.00.
11. From a perusal of the affidavits and written submissions of the plaintiffs’ counsel it is abundantly clear that the plaintiffs’
property loss under the claim for special damages can be put into six main groups. These are:
(a) Buildings and Houses.
(b) Mini Supermarket and Trade store.
(c) Informal market.
(d) Second-hand clothes.
(e) Snooker-table.
(f) Poultry (Live chicken sales).
Value of Property Loss
12. According to the plaintiffs, the total computation of losses is derived from the accountant’s report and valuer’s report. First, it is noted from the valuer’s report that there has been a delay of approximately four years between the date of the raid of 03rd and 04th September 2006 and 31st August 2010 when the valuer inspected the site and interviewed the plaintiffs. In my view, the delay reduces the accuracy of the description of the property and value of the property because the information provided to the valuer is second-hand information and what he observed during inspection is not contemporaneous to the raid.
13. Secondly, the report is very brief and does not give details of the building materials used to build the buildings and houses, mini-supermarkets and trade stores except a general reference to concrete, hard timber floor, weatherboard wall and corrugated iron gable roof for 27 plaintiffs. In addition, the report does not state source of the value of each building and house. Thirdly, not all the buildings and houses were razed down in the fire because some were partially damaged.
14. Finally, while I note that the plaintiffs have described the type of buildings and houses which they have built and some of them like late David Imig have tendered photographs to show the remains of the buildings and houses following the aftermath of the raid, I am not satisfied that it is sufficient to rely on this evidence to put a value on the buildings and houses.
15. Based on these discrepancies in the report, I am of the view, the valuation of the buildings and houses is largely based on guesswork resulting in the valuation being over inflated.
Loss of Income
16. For loss of income from the money-making ventures of the plaintiffs from sale of goods from mini-supermarkets and trade stores, sales from second-hand clothing business, poultry sales to income from game of snooker business, the accountant’s report suffers from the same discrepancies identified in the case of the valuer’s report. First, it is very brief and does not give details of the goods destroyed or looted from the mini-supermarkets and trade stores and the expected number of goods projected in future sales to work out the value of the total number of goods to be sold except a general reference to the value of the goods.
17. Secondly, it lacks details of the number of items lost during the raid and number of items projected to be sold in future to work out the value of the total number of items to be sold. In addition, the report does not state the source of the value of the items lost
18. Thirdly, it lacks details of the number of chickens lost and the expected number of chickens projected in future sales to work out the value of total number of chickens to be sold. Similarly, the report does not state the source of the value of each store good and chicken. For example, there is no information provided by the accountant in relation to the sale price of a chicken from a poultry farmer for comparison and verification. Finally, and similarly, the report lacks details of the daily income generated from a game of snooker. This is important because it is not uncommon that not everyday the operators of the snooker business will be open for business.
19. Based on these discrepancies in the report, I conclude that the value of the store goods, poultry sales and earnings from game of snooker business are largely based on guesswork resulting on the valuation being over inflated.
20. While I note the plaintiffs’ concession to reduce the claim in the total sum K25,428,464.00 by 70% for discount and depreciation of 25% to K19,053,348.00, even so, the final sum is not supported by evidence. The evidence that is lacking is outlined at [12], [13], [14], 16], [17] and [18] above.
21. However, that does not mean the plaintiffs will not be awarded any damages for the loss of their property and business. Doing the best as I can, I propose to reduce the sum of K19,053,348.00 by 50% on account of the lack of evidence outlined above and the involvement of the members of the public in the raid. Fifty percent (50%) of K19,053,348.00 is K9,526,674.00. Deducting K9,526,674.00 from K19,053,348.00 leaves a balance of K9,526,674.00. I award K9,526,674.00 as special damages.
22. Each plaintiff is awarded special damages by adopting the following formular in the case of the lead plaintiff late David Imig:
(a) Total sum sought less 70% for discount – K7,560,720.00.
(b) K7,560,720.00 less 25% for depreciation of K1,850,180.00 – K5,670,540.00.
(c) K5,670,540.00 less 50% for lack of evidence and involvement of members of the public in the raid of K2,835,270.00 – K2,835,270.00.
23. I direct counsel for the parties to calculate the sum due for the rest of the plaintiffs based in the above formular and further order that there shall be a judgment for each plaintiff accordingly.
General Damages
24. The plaintiffs’ counsel submits that the plaintiffs seek general damages for breach of constitutional rights, stress and inconvenience caused by defendants. The counsel submits a sum of K5,000.00 for each plaintiff is appropriate to award giving a total sum of K255,000.00.
25. I accept that the destruction and looting of the plaintiffs’ property and businesses by the defendants is totally unacceptable and discriminatory. The actions of the members of the police led by defendants constitute a violation of the plaintiffs’ right to freedom from inhuman treatment and right to protection from unjust deprivation of property under Sections 36 and 53(1) of the Constitution respectively. Their actions are also harsh and oppressive under Section 41 of the Constitution and must be condemned, in the strongest possible terms because many of the plaintiffs have lost their homes and businesses and are now homeless and penniless. They will have to look for alternative accommodation, food and clothing for their survival.
26. However, I will award a discounted sum of K3,000.00 to each plaintiff because the raid was not only conducted by the defendants but also members of the public. Multiply K3,000.00 for each plaintiff by 51 plaintiffs gives a total sum of K153,000.00. This sum is awarded.
Special Damages – Out of Pocket Expenses
27. The plaintiffs’ counsel submits that the next head of damages the plaintiffs seek is special damages for out-of-pocket expenses in the total sum of K2,000,000.00 for one of the lead plaintiffs Mr Tumu Andake in living and following up on the case for the last 11 years and 9 months in Port Moresby including five trips and five witnesses travel costs from Kimbe to Port Moresby and return, taxi and bus fares, telephone costs, stationaries and meals/food.
28. I note that the sum of K2,000,000.00 is quite substantial and is sought in submissions. However, it has not been pleaded in the statement of claim and sought in the prayer for relief. It is sought in violation of the strict requirement to plead it with particulars under Order 8, rule 34 of the NCR. Order 8, rule 34 informs the plaintiffs to:
“Where, in proceedings on a common law claim, a party pleading claims damages which include moneys which he has paid or is liable to pay, he shall give particulars of those moneys.”
29. I think it is unfair and a violation of the defendants’ right to a fair trial to allow the plaintiffs to be awarded damages for out-of-pocket expenses when they have not given prior notice to the defendants that this is what they will be seeking at trial. This head of damages is refused.
Summary of Awards
30. This is a summary of the awards:
(a) Special damages – K 9,526,674.00
(b) General damages– K 153,000.00
-------------------
Total Award K9,679,674.00
-------------------
8% Interest
31. Finally, the plaintiffs’ counsel submits that the plaintiffs are entitled to an award of interest at the rate of 8% from the date of issues of writ of summons to the date of judgment pursuant to the Judicial Proceedings Interest on Debts and Damages) Act 2015.
32. In a case where the State is a party and vicariously liable such as in the present case, the correct applicable pre-judgment and post-judgment interest rate is 2% based on Section 4(1) and Section 6(1) of the Judicial Proceedings (Interest on Debts and Damages) Act 2015. Accordingly, interest is awarded at the rate of 2% on the total judgment sum of K9,679,674.00 from the date of issue of writ to summons to date of judgment and until final settlement.
Costs
33. Finally, the defendants shall pay the plaintiffs’ costs of the proceedings, to be taxed, if not agreed.
Order
34. The final terms of the order of the Court are:
________________________________________________________________
Lawyers for plaintiffs: Kolo & Associates Lawyers
Lawyer for third, sixth, eighth, nineth & tenth defendants: Solicitor General
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