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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
KOPUNG BROTHERS BUSINESS GROUP
V
SAKAWAR KASIENG; AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
MOUNT HAGEN: LENALIA AJ
10 July, 19 September 1997
Facts
This was a trial on damages caused to the plaintiff’s trade store during a police raid in which the trade store was burnt down to ashes and assorted items removed prior to setting fire to the building.
Held
Papua New Guinea cases cited
Albert Baine v The State (1995) N1335.
Andrew Polipila v The State (1996) WS 113/96.
John Tiunk & Ors v The State & 4 Ors (1994) N1272.
Kofowei v Siviri [1983] PNGLR 449.
Other cases cited
Admiralty Comrs v SS. Valeria [1922] 2 A.C. 242 at 248.
Bonham v Hyden Park Hotel Ltd [1948] 64 J.L.R. 177 & 178.
Darbishire v Warran [1963] EWCA Civ 2; [1963] 1 W.L.R. 1067.
Livingstone v Rawyards Cool Co. [1880] UKHL 3; (1880) 5 App. Cas 25 at 39.
Counsels
P Korowi, for the plaintiff.
J Kumura, for the second defendant.
19 September, 1997
LENALIA AJ. The plaintiff in this matter is a business group incorporated under the Business Group Incorporation Act Ch. No. 144. The creature was created on the 7th of July 1989 and was dissolved by the Registrar of companies on the 27th of December 1995 for failing to comply with requirements pursuant to s 28 (2) (f) of the Business Groups Incorporation Act. The alleged incident took place while the plaintiff was a going concern. The plaintiff’s main dealing then was in the sale of consumable commodities and conducted its business from the building that was allegedly burnt by policemen under the command of Chief Inspector Sakawar Kasieng. The plaintiff commenced proceedings by a writ of summons filed on the 2nd of October 1995 claiming damages for the loss of the building, the stock on hand and assorted items. Included in the claim was a large cash sum alleged to have been either stolen or destroyed by fire.
The defendants denied liability resulting in a trial both on the issues of liability and quantum. The plaintiff relied on five (5) affidavits of five (5) witnesses, namely Paulus Tumbe, Ikai Gikema, Kupul Aure, Aipe Takpe and Brown Par. Prior to commencement of the trial, Mr Kumura consented to the affidavit evidence of the last three witnesses to be tendered and which the Court accepted as part of the plaintiff’s case. Mr Kumura however wanted to cross-examine Paulus Tumbe and Ikai Gikema was both called and cross-examined on certain aspects of their affidavit evidence. In fact, nothing much was derived from cross-examination of the two witnesses except perhaps in the case of witness Paulus Tumbe from whom more confirmed valuation of the property alleged damaged could be elicited.
The plaintiff’s evidence is that on Saturday 23rd April, 1994 a group of policemen under the command of the then Station commander Chief Inspector Sakawar Kasieng of Banz Police Station came to Kopung village in four police vehicles about between 10 am and 11 am trying to arrest a suspect from that village. Village elders were summoned and the first defendant talked to them urging both the village leaders and villagers to assist the police so that the suspect Waine Aure could be apprehended. The suspect was not around in the village and the elders informed police he had absconded to another location. The only defence witness gave evidence that in the course of this conversation and prior to the police leaving for Banz Police Station, an informant came and informed the police commander that there was beer in the trade store nearby. It also happened that during the material time, there was a liquor ban in the whole of Western Highlands probably the whole Highlands Region.
The first defendant after having received this complaint gave verbal orders to those policemen with him to confiscate the beer in the trade store. It was this trade store, which was owned by the plaintiff, the subject of these proceedings. Policemen then acted by using sticks and stones to forcefully open the door. Prior to forcefully opening it, witness Paulus Tumbe offered the same policemen the key to the store but was assaulted and beaten with a gun butt. Once inside the shop, police confiscated the beer and all witnesses say that store goods were also removed. The police convoy then took off to Banz.
The plaintiff’s evidence is that in the afternoon of the same date, policemen returned in four vehicles most probably the same vehicles that were used in the morning. In all, there were about the same number of policemen between fifteen to twenty that came in the morning. This time they came direct to the trade store owned by the plaintiff and set fire to it including three other structures owned by other complainants. In the midst of the policemen was an expatriate police officer that was simply referred to as Mr Paul Vanstaveren. Paulus Tumbe’s evidence is that at the material time, the trade store was fully stocked. Six photographs were taken Exhibits "B1" - "B6" to support and establish the fact that the whole building was completely burnt down. The only remains were burnt corrugated roofing iron.
The defence case consisted of only one witness Jacobus Gori. Constable Gori admitted and confirmed the plaintiff’s evidence that fifteen to twenty policemen under the command of the first defendant went to Kopung village in pursuit of a suspect. Whilst in the village, they received information about a large quantity of liquor being kept at the trade store building owned by the plaintiff. He further admitted that his colleagues used sticks and stones to force open the building. Once inside, the beer was confiscated. Constable Gori denied removing any property from the shop. He also denied going back in the afternoon and burning the trade store. What is clear is that, whilst this only witness may be truthful, there were about twenty policemen and the witness could have been only talking for himself.
There are a number of undisputed facts that worth mentioning. It is agreed that on the 23rd of April 1994, a group of fifteen to twenty policeman under the command of Chief Inspector Kasieng went to Kopung Village in pursuit of a suspect. There were about four police vehicles used in the raid. While in the village police received information that a large quantity of beer was kept in the trade store owned by the plaintiff. That upon receipt of such information, policemen forced open the door of the building got inside and confiscated cartons of beer. Disputed facts include denial of police returning in the afternoon of the date of the incident, denial of burning the building owned by the plaintiff and several other structures. The value of the stock on hand was said by the defence witness to be much less than what the plaintiff is claiming.
From the evidence in support of this claim and from the evidence for the defence, this court is satisfied on the balance of probability that on the material time, and date Chief Inspector Kasieng and a group of policemen entered the Kopung village in pursuit of a suspect. I am further satisfied that the first defendant and his men raided the trade store confiscating a quantity of beer whose owner is not established by the evidence. I am further satisfied that not only beer was removed that morning but some store goods were also removed along with the beer. It is overwhelmingly established by the plaintiff’s evidence from which I am more than satisfied that policemen returned to the Kopung Village the second time on the same date at about 4-5 pm and indiscriminately burnt the trade store building owned by the plaintiff together with several other houses owned by persons who have not claimed or probably have claimed but were never mentioned in this proceedings. I am also satisfied that police force members engaged in this operation were and are employed by the second defendant who by virtue of s 1 (1) (9) and 1 (4) of the Wrongs (Miscellaneous Provisions) Act Ch. No. 297 is clearly liable for the misdeeds of its agents.
Assessment of Damages
The plaintiff claims under three general heads, that for general and exemplary damages and economic loss.
General Damages
Under this head, the plaintiff claims for the loss of the trade store, stock on hand estimated to be in the vicinity of K3,500.00, and a cash sum of K4,600.00 left lying around in the building at the material time. The value of the building is being put at K12,700.00. Paulus Tumbe gave oral evidence to the estimated value of the building saying that the group of young people, which was latter incorporated into a business group, donated K12,700.00 towards the building. The remaining money was spent to buy stock for the trade store when it was newly established. Although one Martin Kepi, a District Business Development Officer, seem to say in his type-written note addressed: "TO WHOM IT MAY CONCERN" that the value of the building was worth K12,700.00, I cannot accept his version basically on the basis that that hand written note cannot be accepted as evidence as it is addressed to the world at large and of course unless it is in a form of affidavit. If I am going to accept Paulus Tumbe’s view that his group raised a total of K12,700.00 and spent some of it to build the building and some money was left over to buys stock then certainly the value of the building must have been less than what the plaintiff now claims. I accept his evidence for the purpose of placing an independent assessment on the value of the trade store building.
Clearly when one person causes harm of any type to another, be it to property or personal injury or financial loss, the normal remedy which the law gives (if in the circumstances of the case, it gives a right of action at all) is a right to recover damages. General damages are presumed by law to flow from the wrong or damage complained of. The law on the nature of damage has been stated from time to time in varying terms by eminent judges both locally and elsewhere. Viscount Dunedin said in Admiralty Comrs v S.S. Valeria [1922] 2 A.C 242 at 248 stated:
"The true method of expression, I think is that in calculating damages you are to consider what is the pecuniary consideration which will make good to the sufferer, as far as, money can do so the loss which he has suffered as the natural result of the wrong done to him".
Lord Blackburn made another well-known statement on the law on damages to property in the case of Livingstone v Rawyards Cool Co. [1880] UKHL 3; (1880) 5 App. Cas. 25 at 29.
"Where an injury is to be compensated by damages, in settling the sum of money to be given ----you should nearly as possible get at the sum of money which will put the person who has been injured----in the same position as he would have been in if he had not sustained the wrong".
Thus it basically means that in cases of damages done to goods or property of any kind, the plaintiff is entitled to recover damages to the extent to which the value of the chattel has been reduced. This may mean the value of the damaged property could usually be ascertainable by reference to costs of repairs if repairs have been done. There is of course no rule of law requiring a plaintiff to do or carry out repairs prior to claiming. In the instant case, no repairs have been carried out and as can be seen from the current trend of law in the vast majority of claims against the State, the judge is faced with the hardest task of placing a value on property where no independent witnesses have been called or where there is no independent assessor. The problem becomes more acute where the vast majority of Papua New Guinean medium entrepreneurs take the risk of not insuring their small-scale businesses. When a small businessman looses some property like in the instant case, it takes ages for that business to recover due to lack of finance.
What is essential is that the plaintiff cannot recover more than the value of his or her loss or destroyed property: Darbishire v Warran [1963] EWCA Civ 2; [1963] 1 W.L.R. 1067.
The case of Kofowei v Siviri [1983] PNGLR 449 clearly sets out the role of policemen as agents of the State and the State’s liability in respect of wrongful actions by police in the name of law. In the instant claim, the State is liable for the wrongful action of the policemen under the command of Chief Inspector Kasieng in the way they burnt the trade store building owned by the then plaintiff. Having alluded to the fact that the value of the building would have been much less than what the plaintiff now claims and the fact that the members of business group collected and donated a total sum of K12,700.00 a greater proportion of this money was spent on labour and the building materials so as transportation to and from Kaupena in the Southern Highlands Province. That piece of evidence from Paulus Tumbe and Ikai Gikema essentially means that, the value as placed by the plaintiff cannot be accepted. In consideration of the value, I would exercise my discretion under Order 10 rr 17 and 18 of the National Court Rules to place the value of the trade store building to be at K8,500.00.
Whilst I am satisfied on the basis of all evidence given in support of this claim that some stock was either looted by policemen on the scene or destroyed by fire the afternoon on the date in question, I am not equally satisfied by the value being placed by the plaintiff at K2,500.00. Evidence shows that most goods were consumable items. Corroborative evidence is required to substantiate the value claimed. There is no evidence to support that figure. From the evidence of both the plaintiff and the defence, I am satisfied that there were some goods. However, the goods would not have valued that much. There is a danger in the valuation of stocked goods when one is faced with estimation without proper accounting evidence. In respect of estimations Woods J said in John Tuink and Ors v The State & 4 Ors (1994) (Unreported) N1272.
"John Tiunk Salamon claimed for the loss of houses and a trade store, loss of personal possessions and trade store goods and damage to a vehicle. He is also claiming for loss of business profits since the incident. Whilst I am satisfied on the basis of his affidavit that the assessment is reasonable with respect to houses and buildings, and personal possessions, and also the vehicle damaged, there is one aspect of trade store goods which I feel need more evidence and this is interrelated with the claim for loss of profits. Included in the trade store goods is K12,785.00 for stock of cigarettes. That seems to be a large item for a trade store and suggest more than just a mere convenience village trade store.
Whilst the Court may be lenient with strict evidentiary matters with village claims once you are claiming for what are major economic activity enterprises the Court is entitled to insist on proper evidence in the nature of ledgers and account books and even taxation returns to comply with the modern laws. The Court cannot find a judgement based on mere assertions or assumptions".
In the instant case, the terms of the above quotation is more so when the plaintiff being a business group incorporated under the laws of this nation, was required by the terms of the Business Groups Incorporation Act to keep proper records of their accounts. There is no evidence to support the proposition that a legally operating store was licenced or some confirmation from some other sources other than that of Martin Kepi to suggest if the plaintiff was operating legally. The law is simply that a plaintiff must prove his damages in accordance with established principles and according to the onus and standard of proof in the civil standard of "proof on the balance of probabilities". Lord Goddard CJ once said in Bonham v Hyden Park Hotel Ltd [1943] 64 T.L.R. 177 at 178:
"Plaintiffs must understand that, if they bring actions for damages, it is for them to prove their damages; it is not enough to write down particulars and so to speak throw them at the head of the Court saying "This is what I have lost" I ask you to give me these damages". They have to prove it".
In Albert Baine v The State (1995) Unreported N133 Woods J said:
"The Court must demand more corroboration of such a value and cannot go merely on the talk of the plaintiff. By analogy if a car is damaged in an accident a court requires an appropriate valuation from a refutable car dealer, if a house in town is destroyed it is usually assessed by an insurance assessor. Whilst I am not expecting an insurance assessor to assess village raid destruction, the Court must have some independent evidence to support estimates of value, such as a coronial inquiry, evidence from people in authority like District Officers who knew the area and who were called to visit the sight immediately after an incident".
Thus in the claim before me, Martin Kepi’s letter addressed to ‘TO WHOM IT MAY CONCERN" cannot be relied on for two reasons. First it is not evidence and secondly, it is not known if the said Martin Kepi comes from the area. I cannot therefore accept the plaintiff’s valuation of the stock on hand. I place the value for stock on hand at K1,000.00.
The third item claimed under general damages is the loss of cash in the sum of K4,600.00. The only witness who ever mentioned the loss of this amount is Paulus Tumbe. He alleges that this sum was either removed by policemen who conducted the raid or was destroyed by fire when police returned in the later part of the day to set fire to the building. One would wonder why was this large amount of cash was kept in the store when such sum would have been expected to be banked away for security sake. I would have expected that a sum of money like this would have been claimed as monies raised from the sale of goods in the trade store. But strange as it is the K4,600.00 cash was supposedly kept in the store for buying coffee cherries on a daily basis for purposes of reselling it to established coffee factories. The question arises as to the credibility of what Paulus Tumbe testified in respect of this cash sum.
Certainly by the time police left Kopung village in the morning, evidence both by the plaintiff’s witnesses and even by the only defence witness establish that the door to the trade store was by then already damaged. Had Paulus Tumbe been concerned about the cash sum he would have immediately called those nearby and even his witness to check for the cash amount. No evidence was called to this effect and yet Paulus Tumbe says that he expects that sum to have been either stolen or destroyed by fire. In an unreported judgement of Andrew Polipila & Ors v The State WS 113/96 at 9 Akuram J said:
"I will not consider the K1,600.00 kept by the plaintiff in the house for his son’s bride price. I am of the view that people must learn to keep such large amounts of money in the banks and not in the house. There is simply no independent evidence to support the plaintiff’s claim".
I accept part of Mr Kumura’s submission that the courts are generally reluctant to award damages for cash claims unless there is of course cogent and independent evidence to substantiate such claims. Paulus Tumbe claims that this cash sum was kept in the store for purposes of purchasing coffee. Unless there was evidence from an independent witness, I would simply refuse that part of the plaintiff’s claim.
The plaintiff also claims the value of two coffee scales and two coleman pressure lamps. The value placed by the plaintiff on the two coffee scales is K600.00. No evidence was lead to establish the original price of the items. Nor was there evidence lead to establish how much was paid for the two-coleman pressure lamps. The pressure lamps are being valued at K144.00. I am not prepared to accept those prices valued by the plaintiff. On the two coffee scales I place a value of K500.00 for both and for the two pressure lamps the Court places a value of K90.00 for both.
There are other sundry items that the plaintiff claims for. Mr Kumura submits that the Court must not entertain this part of the plaintiff’s claims because these other items were not the property of the plaintiff. With respect, my view is that these items were destroyed in the same fire and these items are also particularised in the particulars of claim. I cannot see any reasons why I should not also place a value of such on these items. The plaintiff claims K1,620.00. The Court values these various items at K500.00.
On economic loss, the plaintiff claims K25,500.00. Unfortunately there is once more no evidence to support so large an amount. First there is no evidence to support how much money the plaintiff was making a month from the trade store while the trade store was in operation. It is assumed by witnesses for the plaintiff that monthly profits made from operating the trade store they would have made K1,500.00. The plaintiff basically claims for the months from May 1994 to September 1995 some 17 months times K1,500.00 amounts to K25,500.00. Whilst on this, there is an allegation by the Registrar of Companies that the plaintiff had failed to lodge statement of its assets and liabilities pursuant to S 28 (2) (f) of the Business Groups Incorporation Act. Despite this, loss of business profits was occasioned to the plaintiff’s conduct of its business affairs for which I am entitled, under the National Court Rules to place a value on economic loss. I therefore place a value of K500.00. For the seventeen months while the plaintiff was a going concern, the value placed by the court is simply multiplied by the seventeen months amounts to K10,200.00.
Finally for constitutional breach done to Paulus Tumbe who was called as a witness for the plaintiff, claims K1,000.00. Quite apparently the plaintiff is not Paulus Tumbe and thus I must refuse this head of his claims. He could sue by himself.
What is due to the plaintiff is summarised in the following manner:
(a) trade store building 8,500.00
(b) value of stock on hand 1,000.00
(c) two (2) coffee scales 500.00
(d) two (2) coleman lamps 90.00
(e) sundry items 500.00
(f) economic loss at K750.00
per month x 17 months 10,200.00
The total amount due to the plaintiff is K20,790.00. I therefore enter judgement for the plaintiff in the sum of K20,790.00 due and payable forthwith plus interest to run from the date of issuance of the writ of summons. Costs shall follow the event.
Lawyers for the plaintiff: Kunai & Co. Lawyers.
Lawyers for the defendant: Solicitor General.
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