Unreported National Court Decisions
N1369
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS 419 OF 1995
YANGE LAGAN & 58 OTHERS
V
THE STATE
WS 485 OF 1994
VIRONICA ANDALE & DAVID KANDAKASI
V
THE STATE
WS 486 OF 1994
KOMAI NIPI & KANDATO WILSON
V
THE STATE
WS 487 OF 1994
MUNAK ALEPAI & WILLIAM WAPEN
V
THE STATE
WS 488 OF 1994
MARA KULAP & MASINE LEKE
V
THE STATE
WS 489 OF 1994
POKOLI HENNO & WAPEN POKE
V
THE STATE
WS 490 OF 1994
FRANCIS MINAPIN & KAI POKOLI
V
THE STATE
WS 204 OF 1994
HET PAKENA
V
THE STATE
Mount Hagen
Injia J
19 January 1995
2 February 1995
15 September 1995
CIVIL - Damages - Destruction to property in villages in police raid - Damages - Principles applicable - Assessment of damages - Reasonable damages.
PRACTICE AND PROCEDURE - Method of proof of damages in representative actions in claims arising out of police raid of villages.
Cases Cited
Chaplin v Hicks[1911] 2 KB 786
Bonham-Carter v Hayden Park Hotel Ltd [1948] TLR 177
Ashcroft v Curtin [1971] 1 WLR 1731
David Wari Kofowei v The State [1983] PNGLR 449
Tom Amaiu v The State [1983] PNGLR 87
Repas Waim v Motor Vehicles Insurance (PNG) Trust [1992] PNGLR 254
John Tuink Salmon & Others v The State & Others N1272 [1994]
James Koimo v The State N1322 [1995]
Jonathan Mangope Paraia v The State N1343 [1995]
Counsel
P Kopunye for the Plaintiffs
No appearance for the Defendant
JUDGMENT (PART 1)
7 July 1995
INJIA J:  These trial matters on assessment of damage were heard together.  They involve claims for damages arising out of police raid conducted at Paiam village, Pogera, Enga Province on 29 July 1993 in retaliation for the fatal shooting of a policeman allegedly by Paiam clansmen.  Liability is not in issue as Default Judgment was entered against the State in all these matters.  At the trial on assessment of damages, the State was not represented even though according to Mr Kopunye, Notice of Trial in respect of each matter was served on the Solicitor General.  Consequently, the matters were heard exparte.
The plaintiff called one Robert Lai, Jeffrey Ambia and Philipus Pulapia to give oral and documentary evidence in relation to Yange Lagan & Others v The State.  Their evidence also applied to the other matters.  Then for each matter, the respective plaintiffs gave evidence supported by other witnesses.
The general description of the police raid is as follows.  On 28 July 1993, there was a tribal fight between the Paiam clan and the Kugulin clan.  When the police came to stop the fight, the Kugulin clan allegedly shot dead a policeman.  On 29 July 1991, policemen from Pogera and other districts in Enga mobilised themselves and raided the area and destroyed and looted properties belonging to the Angalyane clansmen which occupy the land between the two warring clans.  All the plaintiffs come from the Angalyane clan.  They burnt down or destroyed houses, trade stores, slaughtered pigs, etc.  They also shot dead one Angalyane clansman, one Pakena Pulipia.  The destruction and looting was vicious, deliberate and widespread and created a lot of public uproar and condemnation by the Pogera community.  This prompted an internal police investigation into the raid headed by police officer John Maru of Police Headquarters, Port Moresby.  John Maru, verbally told the people the policemen were wrong.  A report supposedly prepared by him is however not in evidence.  The District Officers at Pogera, the Pogera Area Authority and even Pogera Joint Venture officials were also involved in the investigation of the illegal raid.  The villagers also got together and commissioned other able people to investigate and collate their stories.  Among those who assisted the victims in the investigation are Robert Lai and Jeffrey Ambai.  They operated a service station and trade store at Paiam village and were also victims of the raid.  And because of their knowledge and experience in business and other related areas, they were able to itemise the properties destroyed or lost and attach a monetary value to each item which they provided to the authorities and their lawyer, Mr Kopunye.  Their lawyer went through the list these two men provided and checked and confirmed their value and instituted proceedings in Court.  A list of the items and value lost by each plaintiff is contained in each writ (statement of claim).  Mr Kopunye also tendered into evidence the list he prepared from which the list in each Writ was made up.  Mr Robert Lai and Jeffrey Ambia also tendered in evidence the original lists they prepared which they gave to Mr Kopunye.
Mr Lai also tendered photographs taken by him a week after the raid.
In all these matters, Mr Kopunye has filed written submissions.  From all the evidence before me, I am satisfied that there was a police raid at Paiam village on 29 July 1991 which resulted in the death of Pakena Pulapia and the widespread looting and destruction of personal properties owned by the plaintiff’s and these were done illegally.  The only issue now is whether each plaintiff has proven, on the balance of probabilities, the damage or loss suffered.  I will now deal with each claim separately but the principles applied to one case will also be applicable to other cases.
WS 419/95 YANGE LAGAN & 58 OTHERS V THE STATE
There are 59 plaintiff’s involved.  The evidence in this matter consists of the oral evidence of Robert Lai, Jeffrey Ambia, Yange Lagan, Per Pulapia, Pulapia Nipa and the plaintiffs lawyer Mr Kopunye.  Of these, only Yange Lagan, Per Pulapia and Pulapia Nipa are named as plaintiff’s in the Writ.  Messers Lai and Ambia merely assisted the 59 plaintiffs to investigate and itemise the lost or destroyed items.  Therefore, the evidence of Messers Lai and Ambia and the evidence of Per Pulapia and Pulapia Nipa to the extent that they seek to prove the loss suffered by the other 56 plaintiffs is either hearsay or hearsay upon hearsay.  The 56 plaintiffs are merely identified by their names in the Writ and the various lists produced in Court.  There are photographs supposedly of these plaintiffs standing besides their burnt down or damaged properties but there is no proof from the plaintiffs themselves that they are the persons shown in the photographs.  There are also some handwritten statements describing the particulars of the photographs which appear to have been written by either Mr Lai or Mr Ambia or someone else.
The plaintiff has closed its case and tendered written submissions in respect of each plaintiff.  In the normal course of things, I am required to deliver decision.  The plaintiffs and their counsel appear to have proceeded with this case under the impression that the other 56 plaintiffs evidence was unnecessary in view of the evidence of the 6 above-named witnesses.  In accordance with normal procedure, I am required to deliver judgment.
I am faced with a situation here where the overwhelming majority of plaintiffs in a class action have not given evidence at all.   They have relied on their able and experienced and educated members of their clan or group to collate their story and present it to the Court on their behalf.
In this action as well as in other actions in the nature of class actions which have come before the Court in the past, especially claims arising out of police raid into villages, it is not uncommon to see the representatives of the plaintiffs suing for damages on behalf of their fellow clansmen or relatives.  Many of the plaintiffs do not give oral evidence or  file any affidavits to support their claim.  The approach which plaintiffs seem to be adopting or the plaintiffs have adopted in the present case is that the plaintiff would call a few witnesses to give evidence on their behalf.  Usually, the more able, experienced and educated person would give evidence of his investigation into the plaintiff’s claim, assess the value and present it in Court with the assistance of their lawyer.  These witnesses make representation on behalf of other plaintiffs whose identities are only known to the Court by name through the representatives or with reference to the list provided in the Statement of Claim or list provided to the Court in evidence.  Their identities are unknown.  There are also cases where lawyers seek to tender documents to the Court such as photographs or valuation reports without proper compliance with the Evidence Act.  The Court is then urged to rely on such evidence to make an assessment of damages.  Many of these class action claims involve substantial amounts of money which are calculated and pleaded in the writ.  For instance, the total amount of general damages claimed in this one action is K227,534.90.
Whilst I appreciate that the plaintiffs may be conscious of the enormous amount of Court time taken up to deal with class actions and the need to place only necessary and sufficient evidence before the Court to support the claim, it must be understood that the Court sits to do justice according to law.  Plaintiffs must prove their damages in accordance with established principles as to onus and standard of proof and within the rules of practice and procedure prescribed in the National Court Rules 1987.  There are well established principles as to the onus and standard of proof of damages, some of which I have already referred to recently in Jonathan Mangope Paraia v The State N1343 [19 June 1995].  As I said recently in that case, which is also a case involving a victim of the same police raid, the onus is on the plaintiff to prove, on the balance of probabilities, the damage.  As Lord Goddard CJ said in Bonham - Carter v Hyden Park Hotel Ltd [1948] 64 TLR 177 at 178:
“Plaintiffs must understand that, if they bring actions for damages, it is for them to prove their damage; 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.”
For a more recent example where the above principles were applied, see Ashcroft v Curtin [1971] 1 WLR 1731; [1971] 3 AKER 1208.
In McGregor on Damages, (Sweet & Maxwell, 13th Edn, 1972, London), the learned author puts the same principles in another way:
“The plaintiff has the burden of proving both the fact and the amount of damages before he can recover substantial damages.  This follows from the general rule that the burden of proving a fact is upon him who alleges it and not upon him who denies it, so that where a given allegation forms an essential part of a person’s case, the proof of such allegation falls on him.  Even if the defendant fails to deny the allegations of damage or suffers default, the plaintiff must still prove him loss.”  (p. 935)
In my view, the minimum requirement in any action is for the plaintiff himself to give admissible evidence in support of his claim.  He is not exonerated from this duty in any way by the fact that default judgment has been entered and that the trial on assessment of damage is proceeding exparte or that he has authorised another person to give evidence on his behalf.  When the primary evidence of the plaintiff is lacking, there is a serious gap in the plaintiff’s case, all other evidence being inadmissible as being hearsay or hearsay upon hearsay.
Having considered the issue of the 56 plaintiffs failure to give evidence in the present case, I am of the view that I should re-open the case and grant liberty to Mr Kopunye to file individual affidavits in respect of these 56 plaintiffs within 30 days from today or within such time as extended by the Court upon application.  I will then peruse those affidavits and if I wish to ask any questions on those affidavits, I will require their attendance in Court, otherwise I will proceed to assess damages in respect of all the 59 matters based on the evidence and the written submissions already filed.  I have adopted this course because I did not raise this issue with Mr Kopunye at the time of the hearing so in all fairness, I have decided to give the plaintiffs the opportunity to prove their damage.
WS 485 OF 1994 VIRONICA ANDALE & DAVID KANDAKASI V THE STATE
The plaintiffs Vironica Andale and David Kandakasi both gave oral evidence.  They also provided written statements to Mr Lai which is in evidence.  In addition, they rely on the evidence of Robert Lai, Jeffrey Ambia and other witnesses who gave evidence as to the raid generally.  I am satisfied on their evidence that they are affected by the police raid.  The only issue is as to what damage they suffered and the extent of those damages.
VIRONICA P ANDALE
a. General Damages
(i) Trade Store and Stock In-Trade and Loss of Profit
Her village-type trade store with stock inside which was trading at the material time was burnt down.  In her oral evidence, she described the store as having iron roof, plywood walls, windows and cement floor.  She had been operating the store for many years with herself being the store keeper.  She re-stocked the store for K3,200.00 per month.  Daily earnings from sale of goods is K100-K230.00.  All stock were burnt down.  Also burnt was her tool boxes and spare tyres belonging to her husband and her sewing machine.  She did not give evidence as to the cost of building materials, the specific trade store stock items lost in the fire; and details of her loss of income.  She said she gave the list to Mr Lai who assessed the value.  This list plus two photographs showing the location of the burnt down store taken a few weeks after the fire are in evidence.  (Exhibit “E” and “F” respectively).  The photograph only shows the doorway area of the store.  There is no remnants of the cement floor of the store shown in the photograph.  No burnt corrugated iron roof is shown in the photograph.
The list of items lost in the fire compiled by Mr Lai from instructions received from the plaintiff (Exhibit “E” & “F”) and set out in the Writ is as follows:
a.       Trade Store
30 x timbers 4 x 2 @ K22.60 each	K678.00	 	
50 x timbers 2 x 2 @ K19.40 each	K970.00	 	
80 x timbers 1 x 1 @ K16.80 each	K1,344.00	 	
44 x plywoods @ K17.00 each	K748.00	 	
44 x roofing iron 15ft @ K35.00	K1,540.00	(both wall and roof)	
6 x window frames @ K4.50 each	K27.00	 	
Nails	K150.00	 	
Bush material flooring	K200.00	 	
Transportation cost	K300.00	 	
Labour cost	K600.00	 	
Total	K6,557.00	K6,557.00	
b.       Personal Assets
1 x tools box	K600.00	 	
1 x sewing machine	K180.00	 	
4 x toyota stout spare tyres	K280.00	 	
Various economic food plants	K600.00	 	
Total	K1,660.00	K8,217.00	
c.       Stock in Trade Store
Newly stocked to the value estimated	K4,000.00	 	
Total	K4,000.00	K12,217.00	
Applying the principles as to proof of damages which I set out in WS419 of 1995 Yange Lagan & 58 Others v The State, I am satisfied that a building used as a  trade store was burnt down.  However, I am uncertain as to the value of materials and cost of labour and the stock in the trade store which were burnt in the fire.  The plaintiff has not given evidence on these matters.
In relation to the stock, all she said was that the monthly new stock was K3,200.00 (plus say another K800.00 for existing stock which makes K4,000.00).  In a village environment, a trade store built at K6,557.00 with turnover of K3,200.00 new stock per month is a recognisable size of modern commercial venture.  There is no evidence of the store having a trade store licence, no evidence of income tax returns, no evidence of any banking activity as to the monthly expenditure of substantial cash payment for stock, no evidence from someone who constructed the trade store and the expenditure on materials and labour, etc.  The list compiled by Mr Lai is only secondary to the plaintiff’s evidence.  The primary evidence of the plaintiff is general or vague.  On the evidence, I am not satisfied that a semi-modern trade store worth that figure in building materials, labour and stock was burnt down.  Nevertheless, I will award a nominal sum to compensate the plaintiff for the loss of a village-type trade store.  In remote villages many buildings of many shapes and sizes are used as trade stores.  Strict business code of conduct is not the order of the day.  Many operate without trading licences.  Most do not file tax returns.  Many operate on an off-and-on basis.  Incomes received are not saved in bank accounts.  Stocks fluctuate with the occurrence of unforseen events occasioning expenditure of earnings and savings.  That is the order of the day in remote villages.  It would be unfair to let the plaintiff go without damages.  I will award K2,000.00 for the building and K1,500.00 for stock.  I consider that in a village environment, a village trade store would be built and operated for a sum in the vicinity of these figures.  I realise that this is an arbitrary figure but as I said Jonathan Mangope Paraia v The State & Others, once the plaintiff has proven that she lost a village-type trade store, she is entitled to damages; she cannot be allowed to go without a remedy.  As Vaughan Williams LJ put it in Chaplin v Hicks [1911] 2 KB 786 at p. 792:
“The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages.”
In the circumstances of the instant case, its the duty of the Court to arrive at a probable value of the house.  As Devlin J said in Biggin v Permanite [1951] 1 KB 422 at 438:
“Where precise evidence is obtainable, the Court naturally expects to have it (but) where it is not, the Court must do the best it can.”
The plaintiff also claims economic loss of K24.00 net profit per day from the date of loss to the date of judgment or such time as the Court considers appropriate.  The plaintiff’s evidence is that the gross daily takings from April 1993 - June 1993 were amounts ranging from K100.00 - K245.00 and K24.00 net profit loss.  The plaintiff has not taken any steps to mitigate the loss because she did not have any money to rebuild and re-stock the trade store even though she built the store in 1988 and had been operating it from some years.
If K24.00 net profit loss for the two year period is accepted, then the total economic loss comes to K17,520.00.  The plaintiff has not offered any reduction for contingencies such as the store not operating on any of the days of the week such as Sundays, disruptions due to family commitments, tribal conflicts, and so on or the store operating at a loss.  Loss in business is always a common phenomenon in business.  This is more so in a village environment, where strict business habits and practices is not the order of the day.  In a store like this where there is no evidence of records kept, no banking documents, no regular accounting or stock-takes, etc, it is always difficult to maintain a consistent flow of income.  Be that as it may, I still think the plaintiff is entitled to some damages for economic loss.  I consider that K17,520.00 net profit loss for 2 years is far too excessive for  a village trade store built at K2,500.00 having stock at say K1,500.00 in value is excessive.  I would estimate the loss of aggregate income for at least 6 months at K1,000.000 and I award the same.  I say six months because that is a reasonable period during which she would have operated this trade store profitably in the two years following the destruction.
(ii) Other Personal Properties
As for the plaintiff’s claim for personal assets, there is no evidence to support the value of the tool box, sewing machine and spare tyres.  All I have is a list of them.  The value affixed to them on the list in the writ and in Exhibit “E” is the estimate of Mr Lai which is hearsay or secondary evidence.  As for the amount claimed for economic trees, there is no evidence from the plaintiff that economic trees were burnt or destroyed.  The affidavit of Mr Kopunye which annexes a list of economic tree crops, etc showing their value provided by the Valuer General is there but there is no evidence to show what economic crops, etc were lost.  I decline to award damages for these things.
b. Violation of Constitutional Rights
There is a claim for K1,000.00 for violation of Constitutional rights provided under S. 44 (Freedom from arbitrary search and entry), S. 49 (Right to privacy) and should I add S. 53 (Protection from unjust deprivation of property).  The plaintiff relies on several cases including David Wari Kofowei v The State [1983] PNGLR 449 and Tom Amaiu v The State [1983] PNGLR 87.  However, it is clear from the pleadings in the Writ and the evidence that the same properties which were destroyed were the subject of the search and raid.  Indeed paragraph 9 of the Statement of Claim says the method of the said raid and search were by indiscriminately burning down of houses together with contents and general destruction of properties of the plaintiff for which the plaintiff has already been awarded compensatory damages above.  I decline to make an award for compensatory damages because it would amount to double-damages for the same loss of property for the same reasons I gave recently in the case of James Koimo v The State, Unreported National Court Judgment No N1322 dated 31 May 1995.
c. Exemplary Damages
Finally, the plaintiff claims K1,000.00 for exemplary damages.  For reasons I gave in James Koimo v The State, supra, I am inclined to make an award of K200.00 for exemplary damages.
d. Interest
The plaintiff also claims 8% per annum on all damages from the date of commencement of proceedings to the date of judgment; i.e, 11/7/94 - 15/9/95 (for 430 days).  I award interest at that rate.  The interest awarded is K309.00.
A summary of the awards I have made in favour of Vironica Andale is as follows:
General damages:	Trade store	K2,000.00	
 	Economic loss(loss of store profit)	K1,000.00	
 	Exemplary damages	K200.00	
 	Interest (430 days)	K302.00	
 	Total	K3,502.00	
I award damages to the plaintiff in the sum of K3,502.00 (inclusive of interest).
I also award costs to the plaintiff.
DAVID KANDAKASI
a. Trade Store and Stock In-Trade
The plaintiff is an uneducated villager.  He is claiming general damages for the loss of his village trade store, economic loss of income from the store, damages for violation of constitutional rights and exemplary damages.  I will first deal with compensatory damages.
The evidence here comprises of the oral evidence of the plaintiff himself and the evidence of Robert Lai and Jeffrey Ambia plus the list of items tendered in evidence through Mr Lai (Exhibit “H”) and photograph taken 1 week after the raid showing a picture of the plaintiff at the scene of the burnt down store, (Exhibit “I”).
In the plaintiff’s oral evidence, he described his trade store as a big trade store, much bigger than Vironica Andale’s trade store, built of iron roof, corrugated roofing iron wall, plywood walls, cement floor, 2 windows and fitted with a honda electricity generator which he bought for K1,890.00.  He had completed building it two weeks before the incident and stocked it up with K6,000.00 - K7,000.00 stock and operated it for two days only when it was burnt down. Upon my own questioning, he said he spent K14,000.00 - K15,000.00 only for building materials.  He engaged a carpenter to build it and paid him K3,000.00 for labour cost. He also had a snooker table inside which he bought for K1,800.00.  Earlier on, he said his store was worth K7,000.00.
According to the list prepared in english and the plaintiff’s name signed by the same person who compiled the list (Exhibit “H”), the total cost of materials excluding transportation and labour cost is K8,885.20. Labour (K3,000.00) and transportation (K1,200.00) costs added makes the total K13,085.20.  Stock value is listed as K6,000.00.  The snooker table value is the same.  The statement says that he employed a storekeeper at K80.00 per fortnight.  Whereas in Court, the plaintiff said he employed no one.  In the list, it also says he  employed a security guard at K60.00 per fortnight, whereas in Court he said he did not employ anyone else to assist him as he was only starting to operate the store.  Furthermore, in the list it says he had an electric fryer or electric food warmer which he bought for K850.00 whereas in Court he is silent on this aspect.  Still on another list, an electric freezer valued at K850.00 is set out and trade Store goods are valued at K4,000.00 and the trade store itself is valued at K8,000.00.  In the Writ, the electric freezer is not pleaded.
According to the Writ, the value of building materials including labour, transportation, electric fryer, snooker table and generator and remains of building materials, labour and transportation and stock is K24,474.60.
There is no doubt that the plaintiff lost a modern village trade store.  After seeing the photograph in evidence, I am satisfied that a trade store built of modern building materials was burnt down.  However, the exact type of modern trade store building and cost of materials cannot be ascertained.  Perhaps, the carpenter who built the house could have clarified the cost of the materials.  The plaintiff’s evidence is inconsistent as to the cost of materials.  The evidence as to the value of stock is between K6,000.00 - K8,000.00 but there is no other independent evidence such as bank account records to support this.  In these circumstances, I will do what I have done to Vironica Andale’s case, that is to do the best I can and estimate the value.  I would take what the plaintiff himself said was the value of the store including stock (which he later deviated from) which was that it was worth K7,000.00.  I award K5,000.00 on the basis that a lesser amount may have been paid for stock and materials.
b. Snooker Table and Generator
To these, I would add the value of the generator (K1,890.00) and the snooker table (K1,800.00) less 50% from each item.  There is no other evidence such as an invoice to compare a new item with a second hand.  As both items were bought as second hand price, I would deduct 50% on each item for depreciation and the possibility that a lesser price may have been paid.  I award K945.00 and K900.00 respectively.
c. Electric Fryer
I decline to make an award for an electric fryer because there is no evidence from the plaintiff on this item.
d. Chicken House, Chickens and Chicken Feed
In addition, the plaintiff claims in the writ, K600.00 for a bush material chicken house, 9 chicken stock feed bags worth K30.00 each (K270.00) and 1 tool box worth K400.00.  In his oral evidence, he did not specify the value of the chicken house.  He said he had many chicken stock feed bags inside but did not specify how many and their value.  He went further to say there were 104 chickens valued at K12.00 each.
I will disallow the claim for the 104 chickens because this is not pleaded in the writ: Repas Waim v Motor Vehicles Insurance (PNG) Trust [1992] PNGLR 254.
As for the chicken house and stock feed, there is no evidence from the plaintiff as to the value.  The only mention of their value is in a handwritten list prepared in english which was tendered through Mr Lai (Exhibit “H”) but it is not signed by the plaintiff.  The amounts stated there is the same as the amount in the Writ.  That list is hearsay evidence which I will not accept.  In the circumstances, I am satisfied a bush material chicken house was burnt down.  I am not satisfied 9 bags of chicken feed were burnt because I proceed on the basis that I have not allowed a claim for 104 chickens.  I consider that K600.00 for a chicken house with a capacity to accommodate some 104 chickens is a bit excessive.  I would allow K200.00 only.
e. Tool Box
As for the tool box, there is no evidence from the plaintiff to support his claim.  I disallow that claim.
f. Loss of Trade Store Profit
The plaintiff claims loss of net profit from the trade store up to K50.00 per day from date of loss (29/7/93) to date of judgment.  The total claim for say 2 years is K36,500.00.  In my view, for a small village trade store built and stocked for an amount below K7,000.00, this net profit income is excessive.  Besides, there is no evidence of a trading licence, banking documents, etc to support a recognisable modern commercial venture.  I accept that this plaintiff’s store was bigger than Vironica Andale’s store and therefore the net income was higher.  Also unlike Vironica Andale, the plaintiff in this case had completed the store and put stock in and traded for only 2 days before it was burnt down.   Therefore his estimate of income he has given to this Court would be highly speculative.  He would encounter normal business crisis in the operation of his business during its maiden stages.  Therefore he is not an experienced businessman to be able to give a realistic estimate.  In some documents tendered in evidence through Mr Lai, he has estimated his income at K6,000.00 per month.  In another one of those documents, he has listed daily trade store income he received from 6/5/93 - 15/7/95 at a total of K7,790.00.  That contradicts his oral evidence that he had only traded for 2 days.  In these circumstances, I am not satisfied that he earned or would have earned daily net profit of K50.00 7 days a week for 2 years.  However, I will only award a nominal net profit loss of income for 6 months.  I award K1,500.00.
g. Violation of Constitutional Rights
In relation to the plaintiff’s claim for K1,000.00 for breach of constitutional rights enumerated in Ss. 44, 49 and 53, I refuse to make an award for the same reasons I gave in Vironica Andale’s claim.
h. Exemplary Damages
Also for the same reasons I gave in Vironica Andale’s claim, I award K200.00 for exemplary damages.
i. Interest
I also award 8% interest on the damages awarded.
A summary of the awards made in respect of David Kandakasi is as follows:
General damages	Trade Store & Materials & Stock	K3,000.00	
 	Snooker table	K900.00	
 	Honda generator	K945.00	
Chicken house	 	K200.00	
Economic loss	 	K1,500.00	
Exemplary Damages	 	K200.00	
Interest (430 days)	 	K636.00	
Total	 	K7,381.00	
I award costs to the plaintiff.
WS 486/94 - KOMAI NIPI & KANDATO WILSON V THE STATE
KANDATO WILSON
In the Writ, the plaintiff claims compensatory damages in the sum of K5,231.00 for the loss of his village trade store, K6,628.40 for the loss of a semi permanent four bedroom house and K5,282.80 for personal belongings which were burnt with the dwelling house.  He also claims K1,000.00 for violation of constitutional rights and K1,000.00 for exemplary damages.
The evidence comprises of the oral evidence of the plaintiff himself, Messrs Lai and Ambia and other witnesses in other matters who gave general evidence on the police raid.  Mr Lai tendered several lists of items with their corresponding value. (Exhibit “K”)  He also tendered a photograph showing the burnt down site of the house or store. (Exhibit “L”).
a. Semi-Permanent Dwelling House
In his oral evidence, the plaintiff said it was a 4 bedroom house made of iron roof, plywood wall (inside) and blind wall (outside).  He did not give the value of the house in terms of the cost of materials and transportation and labour.  He said he paid a carpenter K600.00 to build it.
According to the Writ, the value of the house is K6,628.40 which is the same as that provided in one of the lists produced by Mr Lai (Exhibit “K”).  In two other lists provided by Mr Lai (Exhibit “K”), the value of the house is K5,000.00.  The photograph which was taken a week after the raid does not show the remains of any corrugated iron roof or disclose the scene of a big 4-bedroom building.
In these circumstances, I am not satisfied that a semi permanent house valued at K6,628.40 or thereabouts was destroyed.  I am however satisfied that some form of semi-permanent village-type house was destroyed in the raid.  I will award nominal damages of K2,500.00 for this house.
b. Personal Belongings
In the Writ, the plaintiff claims K5,231.00 for personal belongings lost in the fire.  Included in this is K4,000.00 for “Stock at retail price” which I take to be for the trade store.  I will consider this claim when I look at the claim in respect of the trade store.
The remaining amount for personal belongings is therefore K1,231.00.  The plaintiff in his oral evidence only said he lost everything including cooking utensils, beddings and a sewing machine but did not give an estimated value.  Nevertheless, the list of personal items provided in the Writ  which somewhat corresponds to the lists tendered in evidence by Mr Lai (Exhibit “M”) is not unreasonable. I will award K1,231.00 for loss of personal items.
c. Trade Store & Stock
In the Writ, the plaintiff claims K5,231.00 for the trade store which includes K600.00 for labour and K300.00 for transportation.  In addition, there is a claim for K4,000.00 for stock at retail price.  Several lists signed by the plaintiff (Exhibit “K”) provided by Mr Lai shows the cost of the trade store building at K4931.00 and in another list K2,000.00.  As for the stock one of the list shows he had K6,000.00 - K4,000.00 worth of stock inside.  In another document, the total value of store goods inside is specified at K1,800.00.  Also in one of these lists, the only house said to have been lost by the plaintiff is listed as a bush material house valued at K500.00.
The plaintiff in his oral evidence said the trade store was built at a cost of K6,000.00.  It had iron roofing, the outside wall was corrugated iron and inside was plywood and was built on posts.  The same carpenter who built the dwelling house built the store and he paid him another K600.00.  He did not give a break-up of the K6,000.00 in terms of materials and transportation.  In relation to the store stock, he first said he last stocked the store on 26/7/93.  Later he said he took stock-take on 26/7/93.  Still later he said he bought stock at K4,000.00 on 20/7/93 which he added onto existing stock.
There is vague evidence, in some cases conflicting primary and secondary evidence as to the value of the trade store and the stock.  The photograph also does not support a semi-modern village trade store.  Nevertheless, I find that a village trade store made of some modern building materials was burnt down.  I also find that there were some stock inside.  I would award the same damages as I awarded Vironica Andale, that is K2,500.00 for the store and K1,500.00 for the stock in trade store.
d. Loss of Profit
There is oral evidence from the plaintiff that he built the trade store in 1986/1987 and was earning about K100.00 per day.  He employed a store keeper whom he paid about K50.00 per fortnight.  He did not give any evidence as to his daily net profit.  In two lists prepared by Mr Lai bearing the plaintiffs signature (Exhibit “K”), on one list he gives the daily gross income at K110.00 and in another list, he gives daily income figures ranging from K100-K432.00.
In Mr Kopunye’s submissions, he suggests K24.50 net profit loss per day.  If this is accepted, the nett profit loss for the last two years (from date of destruction to the date of judgment) would be K17,885.00.
In my view, given the uncertainty of trade store income in the evidence, it is difficult to say if the net daily income was K24.50 daily on a consistent basis 7 days a week for 365 days in year.  I would think that for a village trade store built at K2,500.00 and stocked up to K1,500.00 at one time and taking into account all possible contingencies, a reasonable award for profit loss for 6 months would be K1,000.00.  I award the same.
e. Constitutional Rights
For the same reasons I gave in Vironica Andale’s case, and David Kandakasi’s case, I decline to make an award for violation of constitutional rights.
f. Exemplary Damages
For the same reasons I gave in Vironica Andale and David Kandakasi’s case, I award K300.00 for exemplary damages.
g. Interest
I award interest at the rate of 8% per annum.
h. Summary Of Damages
A summary of the damages awarded to the plaintiff Kandato Wilson is as follows:
General Damages	Dwelling house	K2,500.00	
 	Personal belongings	K1,231.00	
 	Trade Store building	K2,500.00	
 	Trade Store stock	K1,500.00	
Economic Loss	Loss of Trade Store Stock	K1,000.00	
Exemplary Damages	 	K300.00	
Interest (430 days)	 	K851.00	
Total	 	K9,882.00	
KOMAI NIPI
In the writ the plaintiff claims general damages of K8,628.00 (K6,928.00 for a Trade Store and stock in trade, materials, labour and transportation and K1,700.00 for stock), one bush material pig house (K900.00), 5 pigs valued at K450.00 each, K3,677.40 for a three bedroom bush material dwelling house plus household belongings which include cash crops and trees as well as 2 dogs valued at K60.00 each and another 5 pigs valued at K750.00.  The plaintiff also claim loss of profit from the trade store at K25.00 per day for the 2 years.  He then claims K1,000.00 for breach of Constitutional rights and K1,000.00 for exemplary damages.
a. General Damages
(i) Trade Store
There are 3 lists provided by Mr Lai dated 3/8/93 (Exhibit “N”) which are unsigned by the plaintiff.  The first list shows that the trade store was valued at K5,000.00 and stock valued at K1,700.00 (a total of K6,700.00).  The second list shows the trade store was valued at K6,927.20 and stock was valued at K1,700.00.  The third list dated 10/8/93 shows the trade store was valued at K6,000.00 and stock valued at K4,000.00, plus cash money of K200.00.  One of the lists shows he employed a storekeeper at K60.00 per fortnight and a security for K30.00 per fortnight and the store income was K80.00 per day.
The oral evidence of the plaintiff is that the trade store was built of cement floor, iron roof, iron roofing for outside wall and plywood for inside wall and rough timber from the local sawmill.  He did not give a value of the trade store building in terms of cost of materials, labour and transportation.  He said he had stocked the store the previous day with K2,000.00 and they were burnt before he sold them.  He said he did not employ a storekeeper.  He also said the store income was K120.00 per day and got new stock every month.  According to the photograph taken at the scene of the trade store building (Exhibit “O”), the remains of corrugated iron roof are shown.  On the evidence of the plaintiff and the photograph, I am satisfied that a village trade store built of corrugated iron roof and local sawmill timber was burnt down.  As to its cost in terms of materials, labour and transportation, the various lists give conflicting figures and therefore, I will therefore not accept the various figures given there.  In the absence of any sworn evidence of the plaintiff on those matters, I am once again left to estimate its value.  I estimate the trade store to be valued at K3,000.00.  I award the same.
As for the stock, the oral evidence of the plaintiff conflicts with the two different values given in the three lists.  I think the figures have been inflated.  I think stock valued at not more than K1,000.00 would have been stocked.  I award K1,000.00 for stock.
(ii) Bush Material House “Pig” and Pigs
According to the 2 lists provided (Exhibit “N”) there are two instances where 5 pigs valued at K450.00 each are mentioned.  The list also shows a bush material house valued at K930.00 was burnt.  The plaintiff in his oral evidence says he lost 10 pigs which where all burnt - all valued at K500 - K600 each.  There is no mention of a bush material house which might have been used to keep the  pigs.  It is not clear from all the evidence whether this bush material house was used to keep the 10 pigs or that 5 were kept here and the other 5 kept in the other dwelling bush material house as well.  In the Writ, K2,250.00 for 5 pigs valued at K450.00 each appears twice, once under the category of trade store and the other under the category of bush material dwelling house.  From the evidence, I am unable to conclude whether two sets of 5 pigs valued at K450.00 each were burnt or only one set of 5 pigs.  In the circumstances, I would only award damages for one set of 5 pigs valued at K450.00 each.  I award K2,250.00 for 5 pigs .  I decline to make an award for the bush material house because there is no evidence from the plaintiff to support this claim.
(iii) 2 Dogs
There is no evidence from the plaintiff that he lost 2 dogs.  I disallow K120.00 for the 2 dogs.
(iv) 3 Bedroom Bush Material Dwelling House and Household Contents
The plaintiff’s evidence supports the list provided by Mr Lai.  I am satisfied a bush material dwelling house valued at K600.00 and other household belongings and crops were burnt or destroyed.  I award K1,307.40 for the dwelling house and household belongings.
(v) Loss of Trade Store Net Profit Income
One of the list shows the plaintiff earned between K30.00 - K145.00 gross income per day from the trade store.  Another list shows the daily gross income was K80.00 and monthly income was K2,400.00.  It also shows he employed a store-keeper at K60.00 per fortnight and a security guard for K30.00 a fortnight.  The plaintiff’s oral evidence is that he earned K120.00 per day but did not employ a  store-keeper.  I think the values on the list are inflated just like the employment of a trade store keeper and security is inflated.  Also in the light of the totality of the evidence giving 3 different daily income figures, I am of the view that the figures are being inflated.
Then the daily profit rate of K25.00 per day given by the plaintiff’s lawyer for 2 years would yield a profit income of K18,525.00.  No deduction is offered for contingencies such as loss due to non-operation or from other causes.  I think a village trade store built at K3,000.00 and stocked at K1,000.00 would not render that kind of net profit.  I think a reasonable aggregate profit for at least 6 months operation would be K1,500.00.  I award the same.
(vi) Violation of Constitutional Rights
For the same reasons I gave in Vironica Andale’s case, I refuse to make a separate award for violation of constitutional rights.
(vii) Exemplary Damages
For the same reasons I gave in Vironica Andale’s case, I award K300.00 for exemplary damages.
(viii) Interest
I award interest at the rate of 8% on both general damages and economic loss.
(ix) Summary of Awards
A summary of damages I have awarded is as follows:
General Damages	Trade Store	K3,000.00	
Trade Store stock	K1,000.00	 	
 	5 live pigs	K2,250.00	
 	3 bedroom dwelling house and personal belongings	K 1,307.00	
Economic Loss	 	K1,500.00	
Exemplary Damages	 	K300.00	
Interest (430 days)	 	K882.00	
Total	 	K10,239.00	
WS 488/94 - MARA KULAP & MASINE LEKE V THE STATE
MARA KULAP
In the Writ, the plaintiff claims K840.00 for a bush material dwelling house, K4,288.00 for personal properties, K3,256.80 for a trade store, K1,500.00 for trade store stock, economic loss of K24.50 for daily net profit loss of trade store profit and damages for violation of constitutional rights and exemplary damages.
There are several lists provided by Mr Lai (Exhibit “Q”).  There is also a photograph showing the partial scene of a house with a small piece of metal and security wire suggesting that a modern house was there.  There is no indication in the photograph of extensive damage by fire of the fence and pandanus trees surrounding the building.
a. Bush Material Dwelling House
The plaintiff in his oral evidence said the house was a four bedroom bush material house where he and his three wives and their children lived.  Although he did not give any evidence on the value of this house, I accept the amount given in the list which is K840.00 as being reasonable.  I award K840.00.
b. Personal Properties
(i) Household items
There are 3 categories of personal properties.  First, household items such as clothes, cooking utensils, gardening tools, etc.  The plaintiff in his oral evidence said they left all their properties behind and were burnt.  Their total value was not given in evidence.  According to the list and the Writ, the total value comes to K1,490.00.  I consider this amount reasonable and I award the same.
(ii) Live Animals
The second category is for live animals.  The plaintiff in his evidence claimed he lost 4 pigs but did not give evidence of their size and value.  According to the list and the Writ, they were 4 big size pigs each valued at K450.00 each.  I am satisfied on the evidence that he lost 4 pigs.  I will take them as average size pigs and award K200.00 for each pig.  I award K800.00 for the 4 pigs.
The plaintiff also claims in his evidence he lost 3 dogs.  He said they were burnt.  Later on,  upon questioning by me, he said he lost one mother dog and 2 puppies.  He did not give their respective value.  Upon my questioning, he said he could not tell if they were killed or burnt, they were all gone by the time he returned.  According to the Writ and the list, all 3 dogs are valued at K60.00 each suggesting they were all of the same size.   On the evidence, I am not satisfied he lost any dogs.  I also think it is most likely the dogs were the first animals to apprehend danger and escape.  I refuse to make an award for the dogs.
The plaintiff also claims in the Writ and the list that he lost a cat valued at K60.00.  But he did not give any evidence on this.  Therefore, I refuse to make an award for the cat.
(iii) Food Crops, Trees, etc
The third category is for food crops, pandanus trees, etc.  In the list and the writ, he claims 15 sugar cane, 12 taro plants, 5 banana trees, 20 pandanus trees and 20 kaukau stems and varieties of vegetables were destroyed.  In his oral evidence, the plaintiff said it was a custom in Pogera to have the house surrounded by trees, sugar cane, banana trees, pandanus trees and they were all burnt.  By looking at the photograph which was taken a week after the raid, only the leaves of pandanus trees appear to have been burnt.  All pandanus trees next to the house are intact.  In the circumstances, I think the plaintiff is exaggerating the extent of the damage.  The plaintiff has not given a value of the crops.  According to the list and the writ, the total value is stated at K871.00.  I think that is excessive.  I award K200.00 for the damage to the leaves of the tree crops due to exposure to the heat.
c. Trade Store
In the Writ and the list, the plaintiff claims K3,256.80 for the trade store building excluding stock.  It is described as being built of iron roof, cement floor and bush material timber and plywood shelves.
In his oral evidence, the plaintiff said it was a big store with another 2 room on the inside.  It had iron roof, iron roof wall (outside) and plywood wall (inside).  At that time, he had put new stock of K400.00 plus some old stock.  He engaged a carpenter to build it for a fee of K300.00.  Daily income was K100.00 per day.  He did not mention anything about the building having cement floor.  He also did not give an estimate of the value of the trade store building.  The photograph does not show the remains of a cement floor either.  In the list, he says he engaged a store keeper at K30.00 per fortnight.  In his oral evidence, he denied this.
On the evidence, I am satisfied that a village type trade store with iron roof was burnt.  I am not satisfied it had all the features described in the list and writ and in the plaintiff’s evidence.  I estimate the value of the store to be similar to Vironica Andale’s store.  I award him K2,500.00 for the trade store building.
d. Trade Store Stock
In the Writ and the list, the total stock is stated at K1,500.00.  But the actual stock he says was more than K2,000.00.  In his oral evidence, he said he had just stocked up for K400.00.  No evidence was given as to the value of existing stock prior to the new stock.  There is no evidence as to the monthly average new stock.  In the circumstances, I cannot accept K1,500.00 as the total of the stock which were burnt.  I award K700.00 which I think is a reasonable value of the stock for a trade store of this size.
e. Trade Store Profit Loss
In the Writ, the plaintiff claims K25.00 net profit loss per day.  According to one of the lists, the daily gross income ranges between K20.00 - K58.00.  The plaintiff in his oral evidence said the daily income was K100.00.  He did not state the daily net profit.  These figures conflict each other.  If the plaintiff’s calculation of K25.00 per day is accepted, then for the 2 years, the net profit loss is K18,525.00.  I think this figure is excessive.   A reasonable profit for a village trade store valued at K2,500.00 and stocked with K700.00 at one time is K600.00 for at least 6 months of operation.  I award the K700.00.
f. Breach of Constitutional Rights
For the same reasons I gave in Vironica Andale’s case, I refuse to make an award here.
g. Exemplary Damages
For the same reasons I gave Vironica Andale’s case, I award K200.00 for exemplary damages.
h. Summary of Damages
A summary of the damages I have awarded to Mara Kulap is as follows:
General Damages	Bush material dwelling house	K840.00	
 	Pigs	K800.00	
 	Crops	K200.00	
 	Personal properties	K1,490.00	
 	Trade store building	K2,500.00	
 	Trade store stock	K700.00	
Economic Loss	 	K600.00	
Exemplary Damages	 	K200.00	
Interest	 	K691.00	
Total	 	K8,021.00	
I award costs to the plaintiff.
MASINE LEKE
In the Writ, the plaintiff claims K1,740.00 for a 2 storey bush material dwelling house, K3,600.00 for one 500g gold bottle, K1,264.00 for 2 tool boxes, K3,217.00 for  200 chickens and K3,943.00 for personal belongings.  The plaintiff also claims K1,000.00 for breach of constitutional rights and K1,000.00 for exemplary damages.
a. 1 x 2 Storey (Bush Material) Dwelling House
According to the Writ and one of the lists, this house was built at a  cost of K1,740.00.  Another list shows its value at K1,500.00.  The plaintiff in his evidence said even though he is a qualified carpenter, he engaged another carpenter to build the house for a fee of 2 pigs worth K200.00 and K300.00 respectively because he (the plaintiff) was employed by a company.  The house was built on posts.  It had 5 rooms and measured 8m x 5m.  It had kunai roof.  Underneath the house, he kept chickens which he looked after for selling.  The plaintiff did not give a value of the house in terms of cost of materials and transportation.
In the absence of any other evidence, I am prepared to accept the amount of K1,740.00 as being reasonable.  I award the K1,740.00.
b. 500g Gold Bottle
In the Writ the plaintiff claims K3,600.00 for 500g of gold at K7.20 per gram.  In one of the lists, it says 1 x bottle gold at 50 grams at K3,600.00.  In another list, the plaintiff says 500g of gold worth K3,600.00 and still on the same list he says 500g at K8.20 per gram valued at K4,000.00.  Also in that list, the plaintiff is quoted as saying because he did not expect the raid, he was “busy crushing huge rock of  gold and the 500g at K8.20 per gram: equal K4,000.00”.
In his oral evidence, the plaintiff said the 500g of gold worth K6 - K7.00 per gram was burnt.  He said “I put the gold upstairs when the house was burnt, they got burnt.  Also because kerosene was inside, they were burnt to ashes.”  He brought the gold from Mount Kare and was intending to come to Mount Hagen to sell it but it was burnt only 2 days after he arrived from Mount Kare.
It is my understanding that gold cannot be burnt.  It can only be melted at certain temperature.  There is no evidence that a house fire lasting for several hours can melt gold.  Even if it did, the melted gold would still be recovered after panning the ashes collected from the area in which the gold bottle was situated before the fire.  In my view, 500g of gold would still be found on the ground among the ashes where the gold was placed.  At least it would be easier to pan for the 500g of gold among the burnt down ashes of the house then panning for gold in the mountains or rivers of Mount Kare.  It is most probable that the plaintiff panned for the gold and recovered most, if not, all of it.  In these circumstances, I will only allow 10% of the amount claimed to account for the fact that some gold particles would have not been recovered.  I will award K360.00.
c. Two Tool Boxes
The plaintiff is a carpenter by profession.  It is normal for a village based carpenter to own one tool box.  In the Writ, he claims to have kept 2 tool boxes full of tools valued at K1,264.00 which he kept at his house which were burnt.  There is no explanation in his oral evidence as to why or how he had 2 boxes containing almost identical tools in each box.  Also in his oral evidence, he says he bought the 2 tool boxes for K1,200.00.  Nevertheless, I am inclined to accept what he says because that is his profession and he may have valid reasons for having 2 tool boxes.  I allow K1,200.00 but reduce it by 30% for depreciation for use because he has been a carpenter for many years going back to 1969.  I award K800.00.
d. Chicken Project
In the Writ and the lists, the plaintiff is claiming 200 chickens at K12.00 each (a total of K2,400.00), 8 chicken feed bags at K26.00 each (K208.00) 3 coleman lamps at K60.00 each (K180.00), 1 x 44 gallon kerosene drum at (205 litres) K342.00 and other minor items.  The total amount claimed is K3,217.00.
In his oral evidence, the plaintiff said the 200 chickens were 8 weeks old and “I was selling them for K12.00 each so they were all burnt.” He had 7 chicken feed bags each valued at K32.00 (a total of K224.00).  He said he also lost 3 coleman lamps and a 44 gallon kerosene drum which he bought for K200.00 which were placed inside the chicken house.  These figures conflict with the figures given in the Writ and the lists except for the 200 chickens.  As for the chickens, the plaintiff did not clearly say whether he had sold some of them yet or that he was going to sell them.  As for the 44 gallon kerosene drum, the plaintiff did not say if the 44 gallon drum was actually in use or a new one.  In these circumstances, I am again left to estimate the value of these items.  There is also no receipt to confirm these figures.  I will allow 50% of the claim on the basis that the plaintiff may have sold some of the chickens already, or used some of the kerosene already or that a lesser price may have been paid for the items and for other contingencies such as loss from sale of chicken.  I award K1,500.00.
e. Personal Effects
There are two categories of personal effects.  First, personal properties such as clothes and traditional costumes.  The total claim in the Writ for these items is K2,943.00.  A major component of this claim is K2,199.00 for various types of ladies clothings and traditional costumes.
The plaintiff in his oral evidence said he lost all of his belongings and the personal belongings of his wife and children.  No special mention was made of traditional costumes.  No value was given.
In these circumstances, I am again left to estimate the value of personal belongings.  I accept the value given in the Writ but in respect of the ladies clothes and traditional costumes, I think it is excessive either because their value had depreciated or that lesser prices may have been paid.  I will allow K1,000.00 for those items.  Therefore, the total damages I award for personal effects inclusive of ladies clothes is K1,744.00.
The second type is for 2 live pigs valued at K300.00 and K500.00 respectively, 3 dogs valued at K40.00 each and 2 cats valued at K40.00 each.  In his oral evidence, the plaintiff said he lost some pigs but did not say how many pigs he lost and their value.  He also did not mention anything about loosing dogs or cats.  Therefore, I disallow the claims in respect of the dogs and cats.  As for the pigs, I accept he lost 2 pigs valued at a total of K800.00.  Therefore, I award K800.00.
f. Violation of Constitutional Rights
For the same reasons I gave in Vironica Andale’s case, I disallow this claim.
g. Exemplary Damages
For the same reasons I gave in Vironica Andale’s case, I award K300.00 for exemplary damages.
h. Interest
I award interest at 8% per annum.
i. Summary of Damages
A summary of the damages awarded to Masine Leke is as follows:
General Damages	Dwelling house	K1,740.00	
 	Gold	K360.00	
 	Tool boxes	K800.00	
 	Chicken project, etc	K1,500.00	
 	Personal effects	K1,744.00	
 	Pigs	K800.00	
Exemplary Damages	 	K300.00	
Interest	 	K684.00	
Total	 	K7,927.00	
WS 487/94 - MUNAK LEPAI & WILLIAM WAPEN V THE STATE
MUNAK LEPAI
In the Writ, the plaintiff claims K16,000.00 for a new Mazda 15 seater bus, K156.00 for new spare tyres and K1,870.00 for a bush material dwelling house with household contents which includes tools (K270.00), clothing’s (K400.00), sleeping gears (K390.00), cooking utensils (K200.00) and a sewing machine (K160.00).
He also claims loss of PMV earnings at K200.00 per fortnight from date of incident to the date of judgment, damages for violation of constitutional rights and exemplary damages.
a. Dwelling House and Contents
There is no list from Mr Lai on this other than the list compiled by the plaintiff’s lawyer (Exhibit “Y”).
The plaintiff’s oral evidence is that his dwelling house and personal belongings such as mattresses, a sewing machine and other belongings were burnt.  He gave a complete list of the items to Robert Lai and Jeffrey Ambia.  Robert Lai gave oral evidence in Court in support of the plaintiff but he only gave evidence as to the PMV bus.  The list compiled by the plaintiff’s lawyer is hearsay upon hearsay which I cannot accept.  Nevertheless, accepting what the plaintiff says and looking at the total amount claimed in the Writ, I do not think the sum of K1,870.00 is unreasonable.  I award the same.
b. Mazda 15 Seater PMV Bus
In the Writ, the plaintiff claims K18,026.00 for the loss of a PMV bus.  The various lists he tendered plus a picture of the burnt Mazda bus (Exhibit “V” & “W” & “X”) gives the value of the bus at K16,000.00.  According to these documents, the bus was only 1 year old and was registered until 6 July 1994 and was burnt down on 29 July 1993.
The plaintiff gave oral evidence that he is a businessman who operated two trade stores at Mulitaka, a Petrol Station at Paiam village, another Petrol Station at Katiak village near the Pogera Airport and a red 15 seater Mazda bus.  This bus was burnt by police in the raid.  He bought the bus at PNG Motors in Mt. Hagen but he could not remember the year.  He bought it for K16,000.00 even though the asking price was K18,000.00.  He had used the bus as a PMV for 1 year 2 months before it was burnt.  At times he drove it himself but normally it was driven by his driver who paid K210.00 per fortnight.  He also employed a crew at K80.00 per fortnight. On the 4th week of every month, he put the vehicle in for service at a cost of K300.  - K400.00.  The bus was sometimes used to transport people from Pogera to Mt. Hagen for K15.00 per person or K30.00 per person per return trip.
There are several unsatisfactory features in the plaintiff’s case.  First, there is no pleading in the Writ as to the registration number of the Mazda bus.
Secondly, there is no proper evidence as to the registration number of the bus.  The only reference to this in one of the lists tendered by Mr Lai where it gives the registration number as P480 N.  This evidence is hearsay.
Thirdly, there is no independent evidence, documentary or otherwise, of the purchase by the plaintiff of the bus from PNG Motors, Mt. Hagen at K16,000.00 some one year, 2 months prior to its destruction.  No purchase documents, no registration and third party insurance documents and no PMV permit have been tendered in evidence.  There is some mention in one of the lists supplied by Mr Lai that these documents were given to the plaintiff’s lawyer but they are not in evidence.
But the plaintiff in his oral evidence says he cannot remember the registration number because “it was all burnt”.  In my view, if they were burnt, then copies of these documents or confirmation of these facts can be easily obtained from the PNG Motors, Mt. Hagen or the Traffic Registry in Mount Hagen.  Copies of the PMV Permit or confirmation thereof could also be easily obtained from the local Land Transport Board office in Mount Hagen or Wabag.  It is important to have independent corroborative evidence, especially documentary evidence, to support the plaintiff’s oral evidence as to a recognisable business venture such as a PMV business.  The fact that the PMV is operated by a village man with no strict business code of conduct does not excuse him from complying with the requirements of law as to registration, insurance and PMV permit and licensing of PMV driver’s.  There is also the requirement of law that PMV owners file income tax returns to the authorities.  There is no evidence of this being done in the 1 year period this particular PMV was in operation.  As it was put by Woods J in John Tuink Salmon & Others v The State & Others, N1272 dated 14 October 1994 at p. 2:
“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 plaintiff says that all his records were lost in the destruction of the store however with modern activities there are copies and other records such as copies of documents with the suppliers of substantial quantities of goods such as this large claimed amount of cigarettes...  The Courts cannot find judgment based on mere assertions or assumptions.”
Fourthly, there is no independent evidence that the Mazda bus was driven by a driver who had a current driver’s licence or PMV licence.  The driver has also not been called to support the plaintiff’s story.
Fifthly, there is no independent evidence such as Bank accounts to show the flow of income from the bus for the 1 year, 2 month it was in operation.  It is normal for a businessman in the position of the plaintiff to operate a bank account to operate his business.
Sixthly, the plaintiff is claiming the full purchase price of the vehicle even though he used it for 1 year 2 months before it was destroyed.  He has offered no reduction for depreciation.  It is normal to expect a high rate of depreciation for a vehicle operating in this remote part of the country.
Seventhly, the plaintiff has not called anyone from any of the workshops he took the bus for service every 4th week of the month and paid substantial money for service.  They would also confirm if the bus was being operated monthly as a PMV or otherwise.
On the whole of the evidence.  I am not satisfied that the Mazda bus was a new one or only 1 year 2 months old, that it was running and operated as a PMV at the time of destruction. However, I am satisfied that a Mazda 15 seater bus owned by the plaintiff shown in the photograph was burnt.  In the circumstances, I will only award 20% of the amount claimed as a nominal damages for the body of the Mazda bus only including the spare tyres.  I award K3,200.00.
c. Economic Loss
For the same reasons I have given above, I decline to make an award for economic loss.
d. Violation of Constitutional Rights
For the same reasons I gave in Vironica Andale’s case, I decline to award any damages.
e. Exemplary Damages
For the same reasons I gave in Vironica Andale’s case, I award K200.00 for exemplary damages.
f. Summary of Damages
A summary of the damages awarded to the plaintiff Munak Lepai is as follows:
General Damages	K1,870.00	
Mazda bus and tyres	K3,200.00	
Exemplary Damages	K200.00	
Interest	K497.00	
Total	K5,767.00	
WILLIAM WAPEN
In the Writ, this plaintiff is claiming K14,000.00 for a 15 seater toyota hiace bus which was not burnt but damaged only, K850.00 for a bush material house and K4,526.00 for personal belongings which included 10 diesel drums valued at K132.00 each (K1,320.00), K500.00 for one tool box, and 2 pigs valued at K400.00 each.  The plaintiff is also claiming loss of income from the PMV at K200.00 net profit loss per fortnight for the 6 months the PMV was not operating (total of K2,400.00).  He is also claiming damages for breach of constitutional rights, exemplary damages and interest.
a. 15 Seater Toyota Hiace PMV Bus and Loss of Profit
The documents tendered through Mr Lai are 4 lists of items lost, (Exhibit “Y” and “Cc”), two photographs showing the damaged bus (Exhibit “Z”) and registration and third party insurance documents.  The photograph show one of the tyre of the bus flattened and some dents appear on the side of the vehicle.  Two of the lists show that the bus was valued at K14,000.00 whereas another list shows its value at K18,000.00.  Still another list shows the purchase price of the vehicle at K18,000.00, less K3,000.00 for depreciation for the use of the bus for 2 years and therefore its value as at the time of damage is stated at K15,000.00.
In support of the claim, oral evidence was given by the plaintiff and his brother  and part-owner/driver Mr Wapen Poke and Robert Lai.  The evidence of Robert Lai was given first followed by the plaintiff and Wapen Poke in that order.  At the end, Mr Lai was recalled to clarify some evidence.
The plaintiff’s evidence is that he bought the bus in 1992 at Ela Motors, Mt. Hagen for K18,000.00.  The bus was owned jointly by him and his brother (Wapen Poke) and was registered in his name.  At the time of the incident, he was operating it as a PMV and transporting passengers between Pogera and Mt. Hagen at a return fare of K30.00 per return trip per person.  The bus operated every day of the week between Pogera and Mt. Hagen.   He employed a driver who was paid K100.00 per fortnight and a crew at K80.00 per fortnight.  Neither he nor his brother drove the bus.  The bus was serviced once a month.  At the time of the incident, the police broke all the glass windows and opened the engine and lit a match and burnt it.  The engine of the bus was destroyed and a new engine was bought for K2,000.00.  A mechanic was paid K700.00 to repair the bus.  The bus was not operating for six months when it was being repaired.  Thereafter it was up and running again.
Wapen Poke gave similar evidence to that of the plaintiff except at one stage he said he was the driver of the bus and later he said they employed a driver at K200.00 per fortnight and a crew at K80.00 per fortnight and sometimes he filled in as a crew.  He also went on to say the bus was repaired but it broke down again “because it was burnt” and never used again.
Robert Lai first gave evidence before the plaintiff and Wapen Poke gave their evidence.  His evidence was that the inside of the engine with all the electrical wirings were smashed with stone and later petrol was poured over it and burnt.  The tyres were also burnt.  Six months later, the engine and other parts were replaced at a cost of K2,700 - K3,000.00 (including labour costs).  He was shown by Mr Kopunye a list of items (Exhibit “cc”) showing the value of the bus at K14,000.00.  He said that was the depreciated value whereas the new value was K18,000.00.  Asked by Mr Kopunye if that (K14,000.00) was a mistake, he admitted it was “because the cost of replacement of the engine was K2,700.00.”  He implied that the K2,700.00 should be deducted from the K14,000.00 and the balance of K11,300.00 should actually be claimed.  If that was the case, then in my view, the plaintiff  would only properly claim that K2,700.00, not K11,300.00, because the bus was not destroyed completely.
After the plaintiff and Wapen Poke gave their evidence, Mr Lai sought to rectify the mess he had earlier created.  The following record of what is transpired between Mr Kopunye and Mr Lai and the Court appears in my notes:
“Kopunye	Q.	This vehicle, William Wapen’s vehicle, is the vehicle still operating?	
Lai	A.	Yes.	
Kopunye	Q.	Is it still operating now?	
Lai	A.	Yes, 2 weeks ago, I saw it being pushed along.  It is not moving now.  It is still there.	
Kopunye	To Court	Seek to amend Statement of Claim to amend WS 487/94 paragraph 11 (b) and 13 (e) to show that it was a complete loss.  Also to amend paragraph 13 (d) as to economic loss.	
Court	To Kopunye	Can you cite the specific rules you rely on?	
Kopunye	 	I do not have the N.C.R. with me now.	
Court	 	Make the application in your written submissions and I can rule on it then as part of my deliberations.”	
I have checked Mr Kopunye’s written submissions and noted no such application being made however he has proceeded to make his submissions on the basis that the bus was a complete write-off.
On the whole of the evidence, I am satisfied that the plaintiff was the owner of the 15 seater bus, white in colour, registration No P496N.  But I am not satisfied that the bus was damaged in the manner described by Mr Lai, the plaintiff and Mr Poke.  If it was, then the receipts or other independent evidence for the repair of the bus have not been produced even though there was substantial repair work done by a specified motor mechanic.  I am also not satisfied that the bus was a write-off.  There is no sign of  any burns to the car or the car.  If the engine was set on fire, the whole bus would have been burnt.  If as Mr Lai says the bus was still operating 2 weeks ago, which was on or about the second week of January 1995, then the evidence of Mr Poke and the plaintiff cannot be believed.  The pleadings, the lists and the oral evidence of the three witnesses are so vague or conflicting that it would not be proper to award damages in the sum claimed in the Writ and in the evidence.  I decline to make an award of damages.
For the same reasons, I am not satisfied on the evidence that the bus was being operated as a PMV 7 days a week with full passenger load between Pogera and Mount Hagen.  There is no evidence of a current PMV Permit and there is conflicting evidence of a driver and crew.  There is however evidence of the bus being registered as a PMV because it had “P” registration number but that is not enough.  In the circumstances, I refuse to make an award for economic loss.  I repeat the passage from Woods J in John Tuink Salmon’s case which I quoted in Munak Alepai’s case, that these matters cannot be left to inference.  They must be proved with proper evidence.  Where evidence is produced but the evidence is so vague or contradictory as such that the Court cannot accept its truth, the Court is entitled to find that the loss has not been proved and dismiss the claim for damages.  That is exactly what I have decided to do in this case.
b. Personal Properties
On the evidence, I am satisfied that the plaintiff lost the other personal items mentioned in the list (Exhibit “DD”) which corresponds with the list in the Writ excluding the value of the Mazda bus.  I award K4,526.00 which I consider is reasonable.
c. Bush Material House
Also on the evidence, I am satisfied the plaintiff’s bush material house was burnt.  I award K850.00 which is the amount claimed in the Writ.
d. Violation of Constitutional Rights
For the same reasons I gave in Vironica Andale’s case, I decline to make a separate award under this heading.
e. Exemplary Damages
For the same reasons I gave in Vironica Andale’s case, I award K200.00 for exemplary damages.
f. Interest
I award interest at 8% per annum.
g. Summary of Damages
General Damages	Personal Properties	K4,526.00	
 	Bush material house	K850.00	
Exemplary Damages	 	K200.00	
Interest	 	K526.00	
Total	 	K6,102.00	
I award costs to the plaintiff.
WS 489/94 - POKOLI HENO & WAPEN POKE
POKOLI HENO
In the Writ, the plaintiff is claiming K6,818 for a tool box containing tools, K15,662.00 for a permanent four bedroom dwelling house, and K2,868.00 for personal belongings.  The total claim is for K25,348.00.
There are four separate sets of lists supplied by Mr Lai.  (Exhibit “DD”) Some of the values for each item are different to the main list prepared by Mr Kopunye.
a. Tool Box
The oral evidence of the plaintiff is that he is a carpenter by profession.  Currently, he is unemployed and stays in the village.  At the time of the incident, he also appears to have been unemployed.  Occasionally, he worked for IPA contractors at Pogera.  From 1972 - 1977, he worked as a carpenter in Bougainville.  He is educated to Grade 3 only.  He did not give any evidence as to his qualifications in carpentry.  After the fire, he gave a list of properties to Mr Lai.  His tool box full of tools was burnt, one of such tools was a Lamb lever valued at K1,200.00.  Apart from this tool, he did not give any evidence about the other tools and the value of each tool as well as the total value of the tool box and tools.  He also did not say if the values were the purchase price or depreciated value.
According to one list, the total value of the tool box and contents is K6,818.00.  According to another list, the value of the “tools” is K1,000.00.
On the evidence, I consider that K6,818.00 worth of tools is too much for a single tool box.  Also the tools were no doubt used by the plaintiff as early as 1972 and they would be in bad shape by 1993.  I also think the plaintiff is not a well qualified and skilled carpenter to own tools up to this value.  He is what I might call a village-based carpenter by “experience” only.  In these circumstances, I would only allow K800.00 for one set tool box with complete set of tools which I consider is a fair value of one tool box.
b. Permanent Dwelling House
In his oral evidence, the plaintiff described his house as a four bedroom house with the kitchen room making it 5 rooms in total.  It measured 8m x 6m and had iron roof.  The outside wall was made of roofing iron and blind wall and inside was made of plywood.  It had 5 windows.  It was built on posts.  The plaintiff did not give any figures as to the value of materials, labour and transportation costs.
According to one of the lists, the house itself is valued at K10,535.00.  Another list says the house is K4,000.00.  Still another list says K15,000.00.  There is a photograph (Exhibit “EE”) which shows the plaintiff sitting down at the site of the burnt house with the remains of burnt corrugated iron roof.
In the circumstances, I am satisfied that the plaintiff lost a house which had corrugated iron roof.  But I am not satisfied as to the other features of the house.  I am also not satisfied that the house was built at a cost of K10,000.00 - K15,662.00.  In the absence of any sworn evidence from the plaintiff as to its value, I will do the best I can.  I award K2,000.00 which I think is a reasonable value.
c. Personal Family Belongings
In his oral evidence, the plaintiff said he lost all his family’s personal belongings such as clothes, cooking utensils.  Everything except the clothes he wore that day were burnt.  Also his pandanus trees, taro, sugar cane and other garden crops were burnt.
In one of the lists, the total value of properties is given at around K3,447.00.  Another list says its K2,259.00.  The photograph shows pandanus trees next to the house remaining intact except for some leaves which were burnt.
I think a figure over K3,000.00 is excessive.  I award 1,500.00 in damages for personal belongings which amount I think is still a bit high but as a carpenter and being involved in modern way of life, he would have had more valuable household properties over and above the other villagers.
d. Violation of Constitutional Rights
For the same reasons I gave in Vironica Andale’s case, I decline to make an award here.
e. Exemplary Damages
For the same reasons I gave in Vironica Andale’s case, I award K300.00 for exemplary damages.
f. Interest
I award interest at the rate of 8% per annum.
g. Summary of Damages
A summary of damages I have awarded for this plaintiff is:
General Damages	Tool Box	K800.00	
 	House	K2,000.00	
 	Personal Belongings etc	K1,500.00	
Exemplary Damages	 	K300.00	
Interest	 	K434.00	
Total	 	K5,304.00	
WAPEN POKE
a. Personal Properties
In his oral evidence, the plaintiff said his dwelling house with all his personal belongings were burnt.  He did not describe his house.  He also said he lost 4 spare tyres for a dump truck and 2 spare tyres for the PMV bus owned by his brother (Wilham Wape).  He did not give any financial estimates of the value of these items.
In one of the lists, the plaintiff gives the value of the bush material house as K500.00, the household properties is given at a total of K1,490.00 and spare tyres for a 25 seater bus at K500.00 and spare tyres for the PMV 15 seater bus at K200.00.  The total amount comes to K3,690.00.  Except for the spare tyres of the Dump truck or 25 seater bus, the values attached to the other properties are reasonable and I accept them.  I decline to make an award for the spare tyres for the 25 seater bus because it has not been sufficiently shown by the plaintiff that the ownership of these spare tyres is not related to a 25 seater bus which he owned.
I award K2,190.00.
b. Violation of Constitutional Rights
For the same reasons I gave in Vironica Andale’s case, I decline to make an award here.
c. Exemplary Damage
I award K50.00 for exemplary damages.
d. Interest
I award interest at 8% per annum.
e. Summary of Claims
General Damages	K2,190.00	
Exemplary Damages	K50.00	
Interest	K211.00	
Total	K2,451.00	
WS 490/94 - FRANCIS MINAPIN & KAI POKOLI
FRANCIS MINAPIN
In the Writ, the plaintiff claims K4,742.50 for personal assets, K31,012.00 for a H60 high covenant house, K8,056.00 for a trade store building, K3,000.00 for trade store stock, K1,000.00 for a bush material “cook” house, K3,000.00 for 4 tool boxes and K200.00 one bush material “pig” house.  The total amount comes to K51,010.50.  In addition, he claims damages for violation of constitutional rights and exemplary damages and economic loss from trade store business.
a. High Covenant H60 House
The plaintiff in his oral evidence described his house as a 3 bedroom house measuring 20m x 15m house with iron roofing, outside wall made of iron roof, inside wall made of plywood and built on post.  It had 4 windows (one per room).  A carpenter built it for K4,000.00 in part payment for labour cost. The cost of transportation was K1,200.00.  There is no evidence from the plaintiff as to the total value of the house, no evidence as to any house plan used by the carpenter, and no evidence as to cost of materials.  He said he spoke to Mr Lai and Mr Ambia and they made a list of the building.  There are four lists supplied by Mr Lai (Exhibit II.1-2).  In one list, the value is K31,012.00.  In another list, the value is K30,000.00.  Still in another list, the value is K6,000.00.  There are four photographs (Exhibit “JJ”).  They show the plaintiff standing beside his burnt down house with corrugated iron roof lying around.
On the evidence, I am satisfied that some kind of permanent building with corrugated iron roof was burnt down.  But I am not satisfied that it was a H60 type permanent house, whatever that type of house is.  I am also not satisfied that the house was valued at K31,012.00 because there is no supporting evidence from a qualified carpenter who built the house, there is not one single copy of a receipt or evidence from any established suppliers and there is no banking records to show the movement of substantial amounts of money at one time to build the house.  For instance, for the purchase of timber at a total of say K15,316.00 and iron roof at K3,168.00, if the plaintiff’s copy of the receipts were burnt in the fire, the established suppliers should have their copy of receipts or at least the general information.
I was faced with a similar situation in Jonathan Mangope Paraia v The State N1343 (24 June, 1995) where I was asked to estimate the value of a L40 type house.  In that case, the plaintiff lost the house in the same police raid.  The plaintiff’s evidence was supported by the carpenter who built the house and two District Officers who saw the house before it was burnt.  The plaintiff claimed K40,000.00.  I awarded K18,750.00.  In the instant case, the plaintiff’s evidence is not supported by similar evidence.  Nevertheless, doing the best I can, I estimate the value of the plaintiff’s house at between K3,000.00 - K6,000.00.  I award K5,000.00 which I consider is fair and reasonable.
b. Trade Store Building and Trade Store Stock and Loss of Trade Store Profit
The oral evidence of the plaintiff is that his trade store was big and long.  It was built by a carpenter for a fee.  It was built of iron roof, outside was made of roofing iron and inside was plywood.  There were 2 rooms - one for stock and one for the customers.  It was stocked up one week prior to the incident.  He stocked up once every week.  He employed a storekeeper whom he paid K100.00 per fortnight.  The income was K130 - K140.00 per day.
As to the claim in respect of the trade store building, there is no evidence from the plaintiff as to the cost of the building materials.  There is no evidence from the carpenter who built it and the house plan he used.  The photographs show the remains of (burnt corrugated iron roof) the building.  One of the lists shows the cost of the building at K8,056.00.  Another list shows its value at K7,000.00.  Still another list shows its value at K800.00 only.
In these circumstances, it is difficult to ascertain the precise value of the trade store building.  I am satisfied that a village trade store built of corrugated iron roof was burnt.  I will allocate K1,500.00 for the trade store building.  I award the same.
As to the value of trade store stock, the plaintiff in his oral evidence does not mention anything about the type and value of stock.  With a re-stock at a weekly rate and daily income of K130 - K140.00 per day and a storekeeper employed to operate the store, it sounds like a sizeable business activity.  Two of the lists of stock shows the value at K3,000.00. Another list shows K1,000.00.  One list says the monthly income turnover is K3,000.00.  There is no receipt for major recent purchases of stock, no evidence of trade store licence and income tax returns.  From this I infer that the trade store was a village - type trade store which had some stock.  I would award K700.00 for stock.
As to the plaintiff’s claim for loss of profit, the plaintiff in his oral evidence made no mention of the daily profit margin.  The plaintiff’s lawyer allocates K24.50 as daily net profit.  That would mean that the total net profit loss for the 2 years would come to say K17,858.00.  The plaintiff has not offered any reduction for contingencies such as business loss or for non-operating days.  I think K17,885.00 net profit on a village trade store would be far too excessive.  I would award K600.00 for at least 6 months of operation following the destruction.
c. Bush Material House “Cook”
The plaintiff in his oral evidence said his small kitchen building which he used to bake flour was burnt.  He did not say if it was a bush material house or modern house.  According to one of the lists, he claims K1,000.00.  I think that amount is too excessive for a “small house cook”.  I award K100.00.
d. 1 x Bush Material “Pig house”
The plaintiff in his oral evidence described this house as a big “bush material house” with iron roof.  He did not give an estimate of its value.  In one of the lists, the plaintiff claims K200.00.  I do not think K200.00 is unreasonable.  I award the same.
e. Personal Assets
In the Writ, the plaintiff claims K4,742.50 for various personal household items, clothes and garden crops.  According to one of the lists, the amount claimed is K10,058.50.  Another list shows K4,500.  In his oral evidence, the plaintiff just said he lost all his personal belongings but did not give any value.
The plaintiff is an employee of Placer (PNG) Ltd.  He was employed as a plumber and carpenter and was earning K250.00 per fortnight.  Much of the personal belongings listed in the Writ are modern items.  I am satisfied the plaintiff is capable of owning those items.  However, I am not satisfied the values allocated to each item because it is not clear if they are the depreciated value.  Some items which appear to have substantial value have not been proven in the plaintiff’s oral evidence or appear to have been over-valued, e.g. one water tank valued at K800.00 according to one list and K500.00 according to another list.  In these circumstances, I reduce the plaintiff’s claim by 50%.  I will award K2,400.00.
f. Tool Box
In the Writ, the plaintiff claims K3,000.00 for 4 tool boxes.  According to one of the lists, the plaintiff lost 3 tool boxes at K100.00 each, the total being K300.00 only.
The plaintiff’s oral evidence is that he lost 4 tool boxes - two for plumbing and two motor mechanical tools.  He did not give any value.  It is normal for one village-based plumber to have one tool box.  I would only allow K200.00 for one tool box.  As for the 2 tool boxes for motor mechanics, there is no evidence that he is a motor mechanic.  It is only reasonable that as a driver and owner of a car, he would only have a set of the basic necessary tools.  I would award K100.00 for a set of the basic tools such as screw driver, spanner, pliers, etc.
g. Violation of Constitutional Rights
For the same reasons I gave in Vironica Andale’s case, I decline to make an award.
h. Exemplary Damages
For the same reasons I gave in Vironica Andale’s case, I award K300.00 for exemplary damages.
i. Interest
I award interest at 8% per annum.
j. Summary of Damages
A summary of damages I have awarded to this plaintiff are as follows:
General Damages	H60 Dwelling House	K5,000.00	
 	Trade Store Building	K1,500.00	
 	Trade Store Stock	K700.00	
 	House “Cook”	K100.00	
 	House “Pig”	K200.00	
 	Personal Assets	K2,400.00	
 	Tool Box	K300.00	
Economic Loss	 	K600.00	
Exemplary Damages	 	K300.00	
Interest	 	K1,046.00	
Total	 	K12,146.00	
I award costs to the plaintiff.
KAI POKOLI
In the Writ, the plaintiff claims K10,755.00 for a trade store with 2 bedroom on one side, K1,600.00 for trade store stock, and K936.00 for personal properties.  He also claims economic loss of trade store profit at K24.50 for 2 years, damage for violation of constitutional rights and exemplary damages.
There are sets of 5 lists (Exhibit “LL”, “NN”) and a photograph (Exhibit “MM”) showing the plaintiff standing besides the remains of his burnt down store.  The remains are corrugated iron roof and a tool box.
a. Trade Store with 2 Bedrooms
The plaintiff’s oral evidence is that he paid a carpenter K1,200.00 to build the store in 1987.  He gave cash money of K1,200.00-K1,300.00 to his carpenter every time the carpenter came to Mt. Hagen to purchase the building materials.  The carpenter was not called to support his story.  He did not give a value of the trade store building.  According to one of the lists, the trade store building was valued at K9,000.00.
The plaintiff has not produced one single receipt which supports the purchase of building materials.  Copies of these receipts of major purchases should be available at supply stores in Mt. Hagen.  There is also no evidence of a trading licence being issued to the plaintiff to operate the building as a store.  From the photograph, I am satisfied that a building having iron roof was burnt down.  I would estimate the value of the building at about K2,500.00.  I award the same.
b. Trade Store Stock
In his oral evidence, the plaintiff said he stocked up the store before it was burnt.  The total value of old and new stock burnt was K1,600.00.  The lists provided by Mr Lai does not set out the actual stock and the costs per item.  It merely says K1,600.00 worth of stock was burnt.
As I have already said, there is no evidence of trade store licence being issued so I do not know if the building was in fact operated as a store and whether it had stock inside.
In these circumstances, I would decline to make an award for trade store stock.
c. Loss of Trade Store Profit
In the plaintiff’s oral evidence, he did not give any evidence as to the trade store income.  Having declined to make an award for stock, I also refuse to make an award for loss of profit.
d. Personal Properties
The plaintiff claims damages for loss of personal belongings.  In his oral evidence, he did not give any value.  In the Writ, he claims K936.00 for various items.  One of the lists gives a similar figure.  I do not think the sum of K936.00 is unreasonable.  I award him the same.
e. Violation of Constitutional Rights
For the same reasons I gave in Vironica Andale’s case, I decline to make an award.
f. Exemplary Damages
For the same reasons I gave in Vironica Andale’s case, I award K200.00.
g. Interest
I award interest at the rate of 8% per annum.
h. Summary of Damages
A summary of damages I have awarded to this plaintiff is as follows:
General Damages	Trade Store building	K2,500.00	
 	Personal Properties	K936.00	
Exemplary Damages	 	K300.00	
Interest	 	K352.00	
Total	 	K4,088.00	
I award costs to the plaintiff.
WS 2O4/93 (H) - HET PAKENA V THE STATE
DEPENDENCY CLAIM
The plaintiff is the widow and first wife of the deceased.  She brings an action claiming damages for and on behalf of herself and her daughter (Janet) and on behalf of the deceased’s second wife (Lakela) and her daughter (Lucy) and on behalf of the third wife (Ake) and on behalf of the old parents of the deceased.  Her claim is for dependancy loss, the estate claim, compensatory damages for loss of personal properties which were burnt down, damages for breach of constitutional rights and exemplary damages.
a. Dependency Loss
I am satisfied on the oral evidence of the plaintiff, Lakela Pakena, Robert Lai, Jeffrey Abia, Phillipus Pundapia,  Pulapia Nipi, Pyara Pulapia and Lekela Pakena that the deceased was shot dead by the police.  The medical affidavit evidence of Dr Candy Lombage also supports death caused by a gunshot wound.
I am also satisfied on the oral evidence of these witnesses and the affidavit evidence of Kevin Tapala, the Senior Personnel Officer of Pogera Joint Venture that the deceased was employed by Pogera Joint Venture (PJV) and earned K7,453.42 per annum.  Prior to this, he was employed by BCL on Boungainville.
I am also satisfied on the evidence of the plaintiff and Lakela that the deceased was married to three wives by local custom. The Plaintiff and Lakela had only one female child each, namely, Janet and Lucy.  The third wife is Ake.  She had no children.  Even though Ake’s dependancy claim is pleaded in the writ, she has not pursued her claim in court.  The other witnesses said she re-married only six months after the deceased’s death and is not pursuing her case in Court.  I  therefore dismiss the claim in respect of Ake.
I am now left with the dependency claim of Het and her child Janet and Lakela and her child Lucy plus the dependency claim of the deceased’s old parents, namely Pulipia Nipi (father) and Kaingili Pulapia (mother).  Oral evidence was given by the plaintiff, Het and Pulipia Nipi.  The evidence is that from a fortnightly salary of K250.00, he gave K50.00 to each of his 3 wives use and K10.00 - K20.00 to each children for their use.  As for the old parents,  Pulipi Nipi said he and his wife were given the same as the amount given to each wife.  That means that the deceased ended up giving a total of K270 - K240.00 to the dependants and kept only K10.00 or so for himself.
On the evidence, I am satisfied that these persons depended on the deceased for their support but the figures appear to have been exaggerated.  Mr Kopunye submits a reasonable allowance would be K25.00 weekly to each of the two wives, K15.00 weekly to each of the 2 daughters and K10.00 to each aged parents.  In my opinion, a reasonable apportionment is that whilst the deceased gave K100.00 to all his dependants per fortnight, he kept more than K153.00 for himself.  I would apportion the K100.00 into weekly payments for the dependants as follows:
Het Pakena	K25.00	
Lakale Pakena	K25.00	
Janet Pakena	K15.00	
Lucy Pakena	K15.00	
Kaingili Pulapia	K2.50	
Pulapia Bin	K2.50	
The age of the deceased according to the medical post mortem report is 42 years in 1993.  In his PJV identification card which is in evidence, he appears to be much older.
There is no evidence as to the age of the dependants except for Janet who was born in June 1978.  I will estimate their age from other related evidence.  In respect of Het, she is the first wife and appears to be older than Lakela. She would have married the deceased at the maturity age of 21 years. Het gave birth to Janet in 1978.  She would have been married for a little over a year before she conceived and gave birth to Janet.  Therefore in 1993, Het would have been aged about 37 years but that does not appear to be the case from what Lakela says.  Lakela says she married the deceased in 1971.  Lakela would also have been 21 years before she married.  That means in 1993, Lakela was 43 years old in 1993.  There is some obvious confusion here.  Judging by their appearance and according to my own calculations, Het would be about 42 years old and Lakela would be about 37 years old.  I would estimate the deceased’s age at about 47 years old.
In my report of the two children, Janet was no doubt 15 years old in 1993.  Lucy being the child of the second wife would be much younger.  She is doing Grade 7 in 1995.  So in 1993, she was doing Grade 5.  She was then 12 years old.
In respect of the aged parents, the father appears to be quiet old.  I would estimate his age at 55 years old.  Although I have  not seen the mother, I would estimate her age at say 50 years.  The normal life expectancy of Het and Lakela as well as the old parents is at 60 years.
In relation to contingencies of life, Mr Kopunye has allowed nil deductions for contingencies in respect of each dependant.  I agree with him in respect of the two children and the two aged parents.  In respect of the two wives, they appear to be not so old as to be re-married.  They are mothers of daughters each and their chances of re-marriage are very good.  I do not accept their explanation that they do not want to re-marry because they want to look after their daughters.  Their daughters will grow up and go their own way to marry someone and will no longer be dependant as them.  I would allow for 15% reduction for Het Pakena and 20% for Lakela Pakena on account of prospects of re-marriage.
I calculate dependency loss as follows:
Name of Dependant	Relationship to Deceased	Age at Time of Death of Deceased	Total Dependency Periods	Weekly Economic Loss	Factor at 3%	
Het Pakena	1st Widow	42 years	18 years	K25.00	728-	
Lakale Pakena	2nd Widow	37 years	23 years	K25.00	871-	
Janet Pakena	Daughter	15 years	3 years	K15.00	150-	
Lucy Pakena	Daughter	12 years	6 years	K15.00	287-	
Kaingili Pulapia	Mother	50 years	10 years	K2.50	452-	
Pulapia Bin	Father	55 years	5 years	K2.50	243-	
Name of Dependant	Initial Loss	Less Contingencies of Life	Total Loss/Final Damages	 	
Het Pakena	K18,200.00	K4,550.00 (25%)	K13,650.00	 	
Lakale Pakena	K21,775.00	K10,889.00 (50%)	K10,886.00	 	
Janet Pakena	K2,250.00	Nil	K 2,250.00	 	
Lucy Pakena	K4,305.00	Nil	K 4,305.00	 	
Kaingili Pulapia	K1,130.00	Nil	K 1,130.00	 	
Pulapia Bin	K608.00	Nil	K608.00	 	
							
b. Interest on Past Loss
I apportion part weekly loss from date of commencement of the proceedings to date of judgment at 4% per annum from part losses from 14/4/94 to 15/9/95 (17 months) is as follows:
Name	Past Loss	Interest	
Het Pakena	K1,312.00	K79.00	
Lakale Pakena	K1,091.00	K66.00	
Janet Pakena	K1,066.00	K64.00	
Lucy Pakena	K1,078.00	K70.00	
Kaingili Pulapia	K196.00	K12.00	
Pulapia Bin	K249.00	K15.00	
c. Estate claim
As for the estate claim of K1,500.00, I equally divide up the amount between all the six dependants, i.e. K250.00 to each dependant.
d. Summary of Damages
The total damages awarded to the dependents (inclusive of interest on past loss) is as follows:
Name	Dependancy Loss	Interest on Past Dependancy	Estate Claim Loss	Total Damages	
Het Pakena	K13,650.00	K79.00	K250.00	K13,979.00	
Lakale Pakena	K10,886.00	K66.00	K250.00	K11,202.00	
Janet Pakena	K2,250.00	K64.00	K250.00	K2,564.00	
Lucy Pakena	K4,305.00	K70.00	K250.00	K4,625.00	
Kaingili Pulapia	K1,130.00	K12.00	K250.00	K1,392.00	
Pulapia Bin	K608.00	K15.00	K250.00	K873.00	
LOSS OF PROPERTIES
In the writ, the plaintiff claims a total of K20,059.90 for loss of personal properties which includes a semi permanent 7 bedroom house (K3,000.00), 5 pigs at K350.00 each (K1,750.00) and 12 different tool boxes at K900.00 each.  (K10,800.00).  The claim is inclusive of the entire Pakena Pulipaya, (the deceased) family which includes the 3 wives.
The oral evidence comes from Pulipia Nipi, Pyara Pulapia, Het Pakena and Lakela Pakena plus the general evidence of Robert Lai and Jeffry Ambi.  Pyara Pulapia did not give evidence on specific items lost or destroyed.
Pulapia Nipi is the father of the deceased.  His house was one of 4 houses belonging to the Pulapia family but his house was different from the deceased’s house.  He lost his house and his personal belongings including traditional bilums and singsing costumes.  He had a pig worth K1,000.00 but he did not say if it was burnt or stolen in the raid.  In the writ, the plaintiff made no reference to a house and properties owned by Pulipia Nipi.  The only claim is for one semi-permanent house belonging to the deceased.  I disallow his claim under this writ.  Pulapia Nipi might have been included in WS 419/94 - Yange Langan & 58 Others v State.  If he is, then I will determine his claim when I deal with that claim in future.
The next witnesses Het Pakena and Lakela Pakena gave evidence as to the loss of their personal properties which had been accumulated over years since their time in Bougainville.  I do not find their claims in respect of personal and household belongings unreasonable.  I allow K3,648.90 as per the amounts stated in the writ, namely:
Name	Description	Value	Grand Total	
Pakena Pulapia	 	 	 	
Family	7 x Double mattresses	@ K85.00 each	K599.00	
 	4 x Single mattresses	@ K36.00 each	K144.00	
 	6 x Tiger head blankets	@ K32.00 each	K192.00	
 	10 x Rainbow blankets	@ K12.00 each	K120.00	
 	10 x Pillows	@ K6.58 each	K65.00	
 	7 x Bedsheets	@ K6.50 each	K42.00	
 	5 x Suitcases	@ K85.00 each	K429.00	
 	6 x Copper dishes	@ K15.00 each	K90.00	
 	5 x Cooking pots	@ K30.00 each	K150.00	
 	2 x Tea pots	@ K25.00 each	K50.00	
 	20 x Cups	@ K2.20 each	K44.00	
 	25 x Plates	@ K2.50 each	K62.50	
 	22 x Spoons	@ K1.20 each	K26.40	
 	5 x Cooking knives	@ K2.50 each	K19.00	
 	2 x Frying pans	@ K5.00 each	K10.00	
 	2 x Washing dishes	@ K10.00 each	K20.00	
 	2 x Water buckets	@ K8.00 each	K16.00	
 	3 x Axes	@ K16.00 each	K32.00	
 	3 x Spades	@ K14.00 each	K42.00	
 	4 x Bush knives	@ K6.50 each	K26.00	
 	30 x Meri blouses	@ K15.00 each	K450.00	
 	25 x Dresses	@ K12.00 each	K300.00	
 	15 x Laplaps	@ K8.00 each	K120.00	
 	3 x Clothing for children	@ K50.00 each	K150.00	
 	20 x Pants	@ K1.50 each	K30.00	
 	5 x Yakka trousers PJV	@ K28.00 each	K140.00	
 	5 x Yakka shirts PJV	@ K24.00 each	K120.00	
 	2 x Safety boots PJV	@ K85.00 each	K170.00	
Total:	 	 	K3648.90	
From the above, I deduct 20% for the properties belonging to Ake Pakena.  The plaintiff will have K2,919.00.
In respect of the 1 x semi-permanent 7 bedroom house, there is no specific evidence as to the type of house burnt down.  However, there are photographs which show the remains of burnt iron roof.  The deceased was capable of owning such a house and I allow the amount of K3,000.00 less K1,000.00 for depreciation, the probability that lower  payments were made for building materials and taking into account the possibility that a substantial part of the building materials were local building materials.  I award K2,000.00.
There is a claim for loss of garden crops and trees such as yar trees, pandanus trees and sugar cane crops.  The general evidence is that they were all burnt.  However, judging by some of the photographs, I do not think they were totally destroyed.  I would only allow for 30% of the amount claimed.  I allow K150.00.
a. Tool Boxes
Finally, there is a claim for 12 tool boxes.  There is no evidence on this at all from any of the witnesses.  I refuse to award damages for this item.
b. Animals
There is evidence of 5 pigs being lost valued at K400.00 - K500.00 each.  I allow K1,750.00.  I disallow claim for 2 dogs and 1 pussy cat because there is no evidence to support them.  In any case, its most likely that they escaped the attack.
c. Breach of Constitutional Rights
For the same reasons I gave in Vironica Andale’s case, I refuse to make an award here.
d. Exemplary Damages
For the same reasons I gave in Vironica Andale’s case, I award K300.00 for exemplary damages.
e. Interest
I award interest at the rate of 8%.
f. Summary of Damages
Loss of personal properties	House	K2,000.00	
 	Household items	K2,919.00	
 	Trees and crops	K150.00	
 	Animals	K1,750.00	
Exemplary Damages	 	K300.00	
Interest	 	K671.00	
Total	 	K7,790.00	
g. Apportionment
I order that the sum of K7,790.00 be apportioned between the plaintiffs as follows:
Het Pakena	K2,500.00	
Lakale Pakena	K2,500.00	
Janet Pakena	K1,395.00	
Lucy Pakena	K1,395.00	
I further order that these amounts be added unto their respective dependency awards.
CONCLUSION: FINAL DAMAGES
The final damages each plaintiff will receive is as follows.
Name	Dependancy Loss(including estate claim)	Compensatory Damages	Final Damages	
Het Pakena	K13,979.00	K2,500.00	K16,479.00	
Lakale Pakena	K11,202.00	K2,500.00	K13,702.00	
Janet Pakena	K2,564.00	K1,395.00	K3,959.00	
Lucy Pakena	K4,625.00	K1,395.00	K6,020.00	
Kaingili Pulapia	K1,392.00	Nil	K1,392.00	
Pulapia Bin	K873.00	Nil	K873.00	
I award costs of these proceedings to the plaintiffs.
Lawyer for the Plaintiff: PC Kopunye Lawyers