Balepa v Commissioner of Police [1995] PGNC 33; N1374 (22 September 1995)

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WS 256 OF 1991
BENNY BALEPA - PLAINTIFF
AND
THE COMMISSIONER OF POLICE - 1ST DEFENDANT
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA - 2ND DEFENDANT

SHEEHAN J: Or the 22nd of September 1990 the Police under the leadership of the Southern Highlands Provincial Police Commander conducted a raid in and around Wabi Sumi and Apore Villages. In an affidavit filed in these proceedings Superintendent Gion C Kawat the then Provincial Police Commander stated that the raids were conducted following the report of the theft of 100 bags of dried coffee.

The purpose of the raid was to search for the stolen coffee and too apprehend the person responsible for stealing it. The Superintendent said that the raid followed a message relayed by radio to the persons responsible for the theft (supposedly residing in the area) requesting return of the stolen coffee. There was no response to that radio call.

John Anawe Inspector of Police, then the Station Commander at Mendi, also deposed to being present on the raid. He said that in the course of this raid, the Plaintiff Mr Benny Balepa was found to be in possession of 20 stolen bags of coffee and was accordingly charged for possession of stolen goods.

The Plaintiff Benny Balepa comes to this Court seeking damages for the unlawful burning down of his trade store at Wabi Sumi on the 22nd of September 1990. He saids that on that day Police swept through the area in a destructive raid burning many houses and at least a dozen trade stores including his own. In evidence before the Court, he said that on the night of the 21st and 22nd September he had been at his home at Wabi Sumi Mission Station. At around 6am on the 22nd he was called by his driver Epo Alo who told him that the police were in the area looking for him. Joining his driver in his truck he drove towards his trade store some 4 kilometres away. On the way he was stopped by two police vehicles and the police officers in those vehicles told him he was suspected of being in possession of stolen property. They ordered him to accompany them. He was then taken from his truck placed in a police vehicle and a police driver took over his truck. Driving on towards his trade store they came to Wabi Sumi where he met the Provincial Police Commander. At the village he saw that many houses were burning and some 10 trade stores were on fire. Further on he could see another two trade stores burning. The Provincial Police Commander confirmed that he was suspected of receiving stolen property. The Plaintiff was then taken to his trade store where he found it in flames. There were other police vehicles and police officers there but no civilians. He was then taken to Mendi.

A Police officer drove his truck while the Plaintiff and his driver Epo Alo were made to travel on the back of the truck despite protests that Epo Alo should drive. During the journey to Mendi the truck became bogged and he again protested at the incompetent driving by the police officer. This resulted in him being assaulted and receiving a broken nose. In Mendi the truck was seized and was kept in the police compound. The Plaintiff said that he was to be put in a cell but upon the representations of his lawyer he was released into the lawyer’s custody and was thus able to obtain medical treatment at Mendi hospital.

Thereafter although charged with receipt of stolen property, possession of cartridges and obstruction, those charges were never pursued. After three appearances before the District Court they were eventually dismissed for want of prosecution. The Plaintiff now claims damages for the destruction of his goods and premises.

The defence has been a simple denial of the Plaintiff’s case. The Police acknowledge the fact that there was indeed a raid on the Plaintiff’s village and acknowledged that they that indeed they were looking to ascertain whether he had been party to robbery or receiving stolen property.

Inspector Anawe and Superintendent Kawat also acknowledge that the Plaintiff’s store was destroyed by fire but they deny Police responsibility.

Inspector Anawe said that “I saw the trade store before and whilst it was burning”. Superintendent Kawat says the same. He also said that “...all the [Plaintiff’s] properties were safely removed before the trade store caught fire”.

Neither Police Officer appeared at the trial of this matter though required for cross examination on their affidavits. The evidence of the Plaintiff and his witnesses was therefore uncontradicted. In any case the Police version simply does not stand up to any scrutiny. The raid is acknowledged, though without any statement as to what that raid was. Was it a raid to question people - search premises or both. No explanation was offered by the Defence. Nor was there any assertion or claim by the Defence that it was in pursuance of any legitimate authority to enter premises either with or without warrant.

I am satisfied that the Plaintiffs description of the raid including the destruction of his property and detention is true and that both were unlawful.

I am satisfied the burning of the Plaintiffs trade store was carried out by police officers during that raid.

The burning of property is acknowledged as having occurred during the raid. Inspector Anawe said neither he nor Supt. Kawat gave orders to burn the store and as far as he knew no police personnel had done so. He said at the time of the destruction of the store a lot of other people not police were with them. Supt. Kawat denied police responsibility. Neither gave any explanation or indication of any steps to ascertain the cause of the arson which seemingly occurred in their presence.

There remains the issue of damages. The Plaintiff set out this extent of his loss in his statement of claim.

Trade Store Building Value		25,000.00
1 x Kerosine Refrigerator		500.00
Trade Goods on Shelf in Trade Store		6000.00
10 x Coffee Bags [dried beans at K60.00 a bag]		60.00
2 x Coffee Scales at K300.00 each		60.00
300 x Coffee Bags [empty] at K1.50 each		450.00
120 Empty Bottle Crates at K1.50 each		10.00
Coffee Bag Needles and Threads		30.00
1 x Calculator [Canon Model]		30.00
Truck Parts	Exhaust Pipe	300.00
	Engine [Piston] Head	2,000.00
	Hydraulic Jerk	3,000.00
	4 x Seats	600.00
	4 x Sets ‘G’ Springs [new]	2,000.00
Stationary at Store		100.00
Personal Effects in Trade Store: 2 x Blankets		20.00
1 x Mattress		75.00
Clothing		20.00
2 x Kerosine Stoves at K30.00 each		60.00
2 x Kerosine [20 Litres] Drums at K12.00 each		24.00

I allow the sum of K25,000 for the loss of the tradestore. The Plaintiffs own evidence was that that was the cost of it to him when he built it. That is what he pleaded as his loss. The claimed value of K71,000 at trial came from a valuer who determined that figure on a theoretical basis without knowing the property or sighting the remains, does not change that it was that the Plaintiff actually lost.

Despite police claims the all goods within the store were removed prior to the fire, I am satisfied the Plaintiff suffered loss of these. It is of course difficult to prove loss of items destroyed in a fire, but on the evidence the store was stocked with an adequate supply of normal trade store goods and appliances. Accordingly those items are allowed.

The motor vehicle parts totalling K7,900 in the claim were not satisfactorily proved. They are certainly not normal trade store stock in trade some parts were allegedly recovered from vehicle damaged in a crash. There was inadequate evidence of these items or their value and they are disallowed.

The Plaintiff claims K25,000 for the loss of this truck though the truck in fact cost K17,000. The Plaintiff in evidence asserted that he had purchased at discount.

“There is evidence that the body of the truck was not damaged but only the engine. The mechanic estimated that it would cost about K10,000 to K11,000...for a new engine fitted.”

That damage the Plaintiff says took place when the police seized the truck and drove it to Mendi on the day of the raid. It remained in police custody for some two weeks. It is therefore possible that further damage occurred during that time. The Plaintiff and his driver gave evidence they picked up the truck from Mendi some two weeks later but it failed on the road back to Wabi Sumi. However from the evidence of Epo Alo the Plaintiff’s driver it is clear that there was total negligence in the manner it was then driven.

Approximately half an hour after leaving Mendi [and near Bui Ebi] it became obvious the truck was labouring. It was belching white smoke and seriously over heating. Despite that, the Plaintiff and driver did not stop at all. Did not stop and check whether for water or to see what the problem was. Instead Epo Alo reports they drove a further 10 km or so until the motor seized.

There can be no doubt that the damage to the truck was caused by the Plaintiffs own driving. Whatever damage (if any) that may have occurred during police seizure is entirely lost in the completely incompetent use of the truck by the Plaintiff. There can be no claim therefore in respect of the Dyne truck.

(a) With the loss of the Dyna truck directly attributed to the actions of the Plaintiff the resulting claims for economic loss must also fail.

(b) Loss of income from the trade store. The claim of K1,500 profit per month from the share was simply a claim by the Plaintiff without any evidence to support that.

As this Court has stated on several occasions, parties claiming loss of business profits must be able to substantiate each claim by business records, balance sheets of account, Bank accounts or tax returns. A supposedly profitable business such as the store, coupled with the Plaintiff's other ventures in coffee and contracting are said to have yielded income in excess of K100,000 per annum. If a Plaintiff chooses to run such businesses without records not even evidence of tax paid, then he or she runs the risk of loss when unable to substantiate the profitability of that business.

Such damages are penal rather than compensatory and it is not appropriate that the State be held liable for the offences of its officers. Had the Police Officers concerned been party to these proceedings an award under this head may have been possible.

The Plaintiff has been put to the total cost of making good his claim in Court. The Defence has been token only, the witnesses needed to sustain the defence offered were not called. There will be an order for costs to the Plaintiff on a solicitor client basis which shall include the out of pocket expenses listed in the claim.

Loss of Trade Store	25,000.00
Loss of Store Contents	10,008.00

National Court of Papua New Guinea

Balepa v Commissioner of Police [1995] PGNC 33; N1374 (22 September 1995)