Pena v Were [2004] PGDC 36; DC426 (27 January 2004)

DC426

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 262 OF 1999

BETWEEN

Roy Pena
Complainant

V

Moses Were, Bepi Wena & Joe Anis
First Defendant

The Independent State of Papua New Guinea
Second Defendant

Mt. Hagen: Appa, P.M
2002: 03rd December
2004: 27th January

JUDGEMENT

The complainant claims that the first defendants who were Policemen based at Kagamuga went on duty Patrol to Kinjibi area following a complaint of coffee theft and confiscated five cherry bags which were found on the road side. The five cherry bags were not returned to the complainant so this summons was instituted. The value of the five cherry bags were at K150.00. The complainant also claims for loss of business and exemplary damages.

The defendant denied liability so the case went for trial. By consent of both lawyers, their respective affidavits were admitted without cross examination, written submissions were filed by both lawyers.

Defence was that the first defendants action in confiscating the five cherry bags was justified because they were on lawful duty upon receiving complaint and a Village Court order over coffee theft at Balda Kang Coffee project area. Defence submitted that the five cherry bags were identified by the complainant one Mr. Tei Wukupa and were returned to him. The complainant on the other hand said he traced up for his cherry bags up to Kagamuga Police Station but could not locate them so he lodged his complaint with the Police.

I found upon perusal of the evidence presented by both parties that in principle liability was established on the balance of probabilities for that fact that defence over looked the need to get Mr. Tei Wukupa to testify or even file an affidavit to show that he was the complainant over the coffee theft and that he had obtained a Village Court Order authorizing the Police to confiscate cherry bags. Even then, a village court order itself cannot be used as a Warrant of Execution. Complainant had to obtain a Warrant of Execution to confiscate suspected stolen properties. Defence also over looked the need to produce copy of the Village court order to ascertain whose name was used on the order. There could not be an open order.

On quantum, the complainant originally complained over the confiscating of his five cherry coffee bags at the total value of K150.00. He said he wasted five days looking for those five bags when he should have used the time and the K150.00 buying new coffee cherries. He estimated his total loss of business at K4,520.00. He also asked for exemplary damage at K5,000.00 after counsel for the complainant has cited a number of precedent cases in which comparative exemplary damages were awarded. The complainant also furnished his bank statement to show his earnings from cherry coffee business.

Defence submitted in mitigation that should the court nevertheless finds that there was liability established, the only damage or loss complainant suffered was for the loss of his five cherry coffee bags plus a profit of K200.00. Defence also submitted that exemplary damage claim does not apply in this case because the State could not have sanctioned the actions of the individual policeman involved in this incident. State could only be liable for technical breach. That the bank statement produced by the complainant had no relevancy to ground the claims.

I am persuaded by the defence case that the complainant could only be entitled to a minimum of damage. I say this because from the outset the value of the five cherry coffee bags was K150.00 so why spending five days looking for those bags when instead buy more cherries to make up for the loss. Common sense demands that one has to workout the cost against the loss to be recovered. The complainant had enough money in his bank (as his bank statement shows) to carry on with his cherry business rather than wasting five business days on cherries valued at K150.00. He acted to his own peril.

In relation to exemplary damages, I do agree that the complainant was entitled to it but not at K5,000.00. I allowed part of this claim for the fact that the Policeman should not have used the Village Court Order in place of a Warrant of Execution in confiscating the five cherry coffee bags. Otherwise there was no evidence on any serious aggression or arbitrary action on the part of the Policemen involved. I allow a global figure of K1,000.00 in exemplary damages.

I enter judgement for the complainant for an aggregated sum of K1,350.00 as a reasonable assessment on damages. I allow for 8% interest to start from date of summons to date of settlement and cost of the proceeding as per the District Court Schedule. The judgement debt is to be settled by the state.

Kunai & Co. Lawyers: Complainant
Solicitor General: Defendant