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

	Home \| Databases \| WorldLII \| Search \| Feedback National Court of Papua New Guinea

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 of September 1990 t990 the Police under the leadership of the Southern Highlands Provincial Police Commander conducted a raid in and around Wabi Sumi and Aporeages. In an affidavit filed in hese proceedings Supe 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 Sutendent said that that the raid followed a message relayed by radio to the persons responsible for the theft (supposedly residing in the area) requesting returnhe stolen coffee. There was no nse to that rhat radioradio call.

John Anawe Inspector of Police, then the Station Commander at Mendi, also deposed to being present on the raid. He sait in the course of t 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.

Thintiff Benny Balepa comes tmes to this Court seeking damages for the unlawful burning down of his trade store at Wabi Sumi on the 22nd of September 1990. He sahat on that day PolicPolice swept through the area in a destructive raid burning many houses and at least a dozen trade stores including his own. In evidence b the Court, hrt, 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 ho told him that the policeolice were in the area looking for him. Jg his driver in his trucktruck he drove towards his trade ssome 4 kilometres away. On the way h stopped by d by d by two police vehicles and the police officers in those vehicles told hiwas suspected of being in p in possession of stolen property. They od him to accompany tany them. H then taken from his truc truck placed in a police vehicle and a police driver took over his truck. Driving on towards his trade store they came to Wumi whe met the Provinrovincial Police Commander. At the vthe village he hat that many houses were burning and some 10 trade stores on fire. Further on he could see another two trade stores bres burning. The Provincial Police Commander confirmed that he was sted of receiving stolen pron property. The Plaintiff was then taken to his trade store where he found it in flames. There other polehicles ands and police officers there but no civo civilians. H then taken to Mendi.

A Police officer dros truile the Plaintiffntiff and his driver Epo Alo were made to travel on the back of the truck ruck despite protests that Epo Alo should . During the journey rney 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 d azed and was kept in the police compound. The Plaintiff said he was was to be put in a cell but upon the representations of his lawyer he was released the lawyer’s custody and was thus able to obtain medi 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 appearabefore fore the District Court they were eventually dismissed for want of prosecution. The Plai now claims damageamages fo destruction of his goods and premises.

The defence has been a simple denial of the the Plaintiff’s case. The Polcknow the fact that that there was indeed a raid on the Plae Plaintiff’s village and acknowledged that they that indeed they weoking 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”. intendent Kawat says the sthe same. He also said that “...all the [Plaintiff’s] properties were safely removed before the trade store caught f8221;.

Neither Police Officer appeared at the trial rial of this matter though required for cross examination on their affidavits. The evidence of the Plaintiff and his witnesses was therefore uncontradicted. In any casePolice version sion simply does not stand up to any scrutiny. Tid is acknowledged, thougthough without any statement as to what that raid was. Was iaid to que people - se - search premises or both. No ; No explanation wasredfered by the Defence. Nor ware any assertion aimn aim by the Defence that it was in pursuance of any legitimate authority to enter premises eses either with or without warrant.

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. Insr Anawe said neither heer 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 tstruction of the store a lot of other people not police were were with them. Supt. Kawat denied polisporesponsibility. Ne gave any nation or indi indication of any steps to ascertain the cause of the arson which hich seemingly occurred in their presence.

Themains the issue of damages. Thintiff tiff set out this this extent of his loss in hiin his statement of claim.

6000.00

idth="93" vali valign="top">

60.00

450.00

4 x Sets ‘8216;G’ Springs [new]

width="93" vali valign="top">

100.00

Trade Store Building Value		25,000.00
1 x Kne Refrigerator		500.00
Trade Goods on Shelf in Trade Store
10 x Coffee Bags [dried beans at K60.00 a bag]
2 x Coffee Scales300.00 each		60.00
300 x Coffee Bags [empty] at K1.50 each	/div>
120 Empty Bottle Crates at K1.50 each		10.00
Coffee Bag Needles and Threaiv>		30.00
1 x Calculator [Canon Model]	&#160v>	30.00
Truck Parts	Exhaust Pipe	300.00
	Engine [Piston] Head	2,000.00
	HydraHydraulic Jerk	3,000.00
	4 x Seats	600.00
>	.00
Stationary at Stat Store
Personal Effects in Trade Store: 2 x Blankets		20.00
1 x Mattress	75.0>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 Plaintiwn evidence wase was that that was the cost of it to him when he built it. That is what he pleaded as his loss. The claimed val K71,000 at00 at trial came from a valuer who determined thgure on a theoretical basisbasis without knowing the property or sighting the remains, does not change that it was that the Plaintiffally 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. Ainglye items are allowed.owed.

The motor vehicle pare parts totalling K7,900 in the claim were not satisfactorily proved.&#160y are certainly not normal trade store stock in trade some parts were allegedly recovered fred 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 Plaintn evidence asserasserted that he had purchased at discount.

“There is evidence that the body e truck was not damaged but only the engine. The mechanic enic 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 remain police custody fody for some two weeks. It is therefore possihat fhat further damage occurred during that time. The Plaintif his driver gaer gave evidence they picked up the truck from Mendi some two weeks later butailed on the road back to Wabi Sumi. However from them 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] iame obvious the truck was lwas labouring. It was belching whitee ande 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. Instea Alo ts they dr fe a fe a further 10 km or so until the motor seized.

There can be no douo doubt that the damage to the truck was c by taintiffs own driv driving. Whatdamage (if any) that mhat may have occurred during polg police seizure is entirely lost in the completely incompetent use of the truck by the Plaintiff. There e no claim thereforeefore in respect of the Dyne truck.

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

(b) & Loss ofss of income from the tstore0; Thim of K of K1,5001,500 prof profit per month from the share was simply a claim by the Plaintiff without any evidence to support that.

As Cour stated on several occasions, parties claimilaiming long loss ofss of business profits must be able to substantiate each claim by business records, balance sheets of account, Bank accounts or tax returns. A supposedly profitablenessiness 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 ann160; If a Plaintiff chooses to run such businesses without hout 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 rnncerned been party to these proceedings an award under this head may have been possible.

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