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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO: 756 OF 1996
Between:
KOLAIP PALAPI
for himself and on behalf of the Kessan Clansmen, Laiagam, Enga Province
And:
SERGEANT POKO
(First Defendant)
And:
ROBERT NENTA
(Second Defendant)
And:
INDEPENDENT STATE OF PAPUA NEW GUINEA
(Third Defendant)
Mt. Hagen : Jalina, J.
2000 : 20 October
2001 : 5 June
DAMAGES – Proof of – Claim arising out of Police raid – Assessment following default judgment – Representative action – Evidence by affidavit – No evidence from individual claimants to quantify claim – Claim too vague – Risk of false claim – Only a small part of claim proved – Only a small amount awarded in damages.
Cases Cited:
Livingstone –v- Rawyards Coal (1880) 5 APP Case 25.
Bonham Carter –v- Hyden Park Hotel Ltd (1948) 64 TLR 177.
Peter Wanis –v- Fred Sikiot & The State N1350.
Yange Lagan & Ors –v- The State N1369.
Obed Lalip & Ors –v- Fred Sikiot & The State N1457
P. Dowa for the Plaintiff
5 June 2001
JALINA, J. This is a claim for damages as a result of a police raid at Liop Village, Laiagam in the Enga Province on 16 June 1995. Default judgment was entered against the Defendants on 21st March 1997 when they failed to file their defence. Liability having been determined, the matter has come before me for assessment of damages. In order to appreciate the various aspects of the claim and to determine whether or not the Plaintiffs have proved each claim, it is necessary to set out the statement of claim in full.
"Statement of Claim:
7. The full particulars of the claim are set out as follows:
Building:
Quantity Property Description Total Value
(1x K1500.00) K 6,000.00
(1 x cost K1500.00) K 9,000.00
Materials & labour cost K 7,000.00
Trade store 30m2 K 4,000.00
Animals:
Quantity Property Description Total Value
7 Medium size pigs
(1 x cost K400.00) K 2,800.00
3 Mother dogs K 180.00
5 Medium size goats K 1,000.00
Plants & Other Properties:
Quantity Property Description Total Value
(1 x cost K60.00) K 3,900.00
(1 x cost K10.00) K 1,150.00
(1 x cost K40.00) K 3,240.00
(1 x K100.00 cost) K 3,600.00
(1 x cost K60.00) K 1,860.00
(1 x cost K5.00) K 510.00
(1 bundle cost K30.00) K 2,760.00
(1 x cost K50.00) K 1,800.00
(1 x cost K25.00) K 375.00
13 Large axes
(1 x cost K30.00) K 390.00
(1 x cost K15.00) K 270.00
(1 x cost K6.00) K 204.00
(1 x cost K15.00) K 630.00
151 Light Blankets
(1 x cost K12.00) K 1,812.00
(1 x cost K35.00) K 348.00
48 Large pots K 1,680.00
26 Small pots K 390.00
(1x cost K27.00) K 810.00
370 Plates
(1 x cost K.50) K 555.00
(1 x cost K0.80) K 320.00
(1 x cost K0.70) K 210.00
(1 x cost K1.20) K 228.00
(1 x cost K15.00) K 7,925.00
(1 x cost K12.00) K 3,540.00
(1 x cost K25.00) K 450.00
(1 x cost K12.00) K 4,080.00
201 Meri laplaps
(1 x cost K7.00) K 1,407.00
(1 x cost K4.00) K 1,604.00
20 Pair of men shoe
(1 x cost of K50.00) K 1,000.00
31 Small knives K 93.00
(1 x cost K30.00) K 9,030.00
(1 x cost K5.00) K 10,405.00
(1 x cost K50.00) K 52,700.00
(1 x cost K5.00) K 475.00
(1 x cost K80.00) K 1,648.00
(1 x cost K30.00) K 1,443.00
301 Other trees
(1 x cost K25.00) K 7,525.00
(1 x cost K25.00) K 3,015.00
3000 Kaukau mounds K 30,000.00
Total: K204,672.00
==========
And the Plaintiff Claims:
(a) Damages.
(b) Exemplary Damages.
(c) Special Damages.
(d) Interest.
(e) Cost of these proceedings."
When the matter came before me for assessment of damages there was no "trial" in the normal sense of the word "trial" in that no oral evidence was called and witnesses examined and cross-examined by both parties. The Plaintiff has relied on affidavits that were filed earlier. The Defendants did not file any affidavits.
Having failed to give the relevant notice as required by s.36 of the Evidence Act, the Defendants have also forfeited their right to cross-examine the deponents who had filed affidavits on behalf of the Plaintiffs. So the Plaintiffs’ evidence, prima facie, remain intact. The trial was therefore conducted on the basis of counsel for both parties, by consent, filing written submissions on quantum of damages.
General Damages:
The general principle applicable when the court is considering whether or not damages should be awarded was stated by Lord Blackburn in Livingstone –v- Rawyards Coal (1880) 5 APP Case 25 at 39 which Counsel for the Defendants has referred to:
"When an injury is to be compensated by damages, in settling the sum of money to be given for ........... damages you should as nearly as possible, get at that sum of money which shall put the party who has been injured, or who has suffered, in the same position as he would have been if he had not sustained the wrong for which he is now getting compensation........"
However, the onus is still on the plaintiff to prove his claim. It is not sufficient to make assertions in the Statement of Claim and then expect the Court to award what he claims. In Bonham Carter –v- Hyden Park Hotel Ltd (1948) 64 TLR 177 which Counsel for the Defendants has also referred to, Lord Goddard, CJ. said at p.178:
"The Plaintiff must understand that, if they bring actions for damages, it is for them to prove their damages. It is not enough to write down particulars and so to speak, throw them at the head of the Court, saying .............."This is what I have lost, I ask you to give me these damages, "they have to prove it."
In McGregor on Damages, (Sweet & Maxwell, 13th Edn, 1972, London), the learned author puts the same principles in another way at p.935:
"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."
Those principles are applicable in Papua New Guinea as part of the Common Law which was adopted at independence on 16th September 1975 by virtue of Schedule 2.2 of the Constitution.
The above principle requiring a plaintiff to prove his claim was applied in Peter Wanis –v- Fred Sikiot & The State N1350 dated 1st August 1995 where Woods, J. said at p.1:
"Whilst the State (Defendant) has failed to present any evidence disputing the general claim it is still necessary for the plaintiff to produce appropriate evidence before the Court to support the quantum of the Claim."
In Yange Lagan & Ors –v- The State N1369 dated 15th September 1995, Injia, J. said at p.4:
"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 ex parte 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."
Counsel for the Plaintiff, Mr. Dowa, has relied on the unchallenged affidavits of Kondo Palapi the window of the Plaintiff (who died in May 2000) as well as that of Yako Komain, Buka Waso, Nembot Poko and Mr. Dowa himself and has submitted that the claim was not unreasonable and should be accepted. He further submitted that the Plaintiff was prepared to reduce his claim by ten percent to accommodate depreciation. He also handed to the Court a list of claimants and the approximate value of each person’s loss which I will refer to later in this judgment.
Counsel for the Defendants, Mr. Ovia, whilst conceding that the Defendants have not filed any affidavits in rebuttal, submitted that the Plaintiff was still required to prove his claim. He referred to the affidavits of Yakapus Komain and submitted that it related more to liability and as such it was of no assistance in relation to quantum.
With regard to the affidavits of the Plaintiff’s widow, Kondo Palapi, Mr. Ovia submitted that there was no independent evidence from persons such as insurance assessors and/or valuers to determine the value of the semi-permanent and permanent buildings, the sweet potato mounds and other things in view of the deceased being a well-to-do businessman who was financially capable of engaging such people to carry out an assessment. He did not comment on the other affidavits filed on behalf of the Plaintiff which I have referred to above as they were filed on 19th October 2000 which was just before the hearing.
When I consider the submissions in light of the evidence, I am of the opinion that the Plaintiff has proved only a small part of his claim notwithstanding the fact that the Defendants have not filed any affidavits in rebuttal or cross-examined the deponents who filed evidence in support of his claim.
The affidavits of Nembot Poko and Buka Waso do not assist in determining quantum as they only depose to the fact that they are members of the Kessan tribe who have authorised the Plaintiff to institute these proceedings on their behalf and the proceeds of the judgment would be distributed to them and others if successful. They also depose to the fact that the Plaintiff died in May 2000 and that they have authorised his first wife, Kondo Palapi to proceed with this case. Buka Waso also gives a list of names and says that each claimant lost items to a value of approximately K4,000 but he does not quantify or itemise what each one lost to arrive at the figure of K4,000.00.
Yakapus Komain says that the deceased was an educated man who was a school teacher by profession who later started a business known as Laman Trading. Yakapus Komain further says that the trade store was fully stocked with various general merchandise and was very busy but he cannot say exactly the number of trees, food crops that were damaged and livestock that were killed. His evidence therefore does not assist with the quantum of the claim.
Paulus Dowa says in his affidavit that he has acted for the late Kolaip Palapi for 7 years and came to know him as an outspoken personality who was a teacher and businessman. Mr. Dowa has also annexed to his affidavit instructions that the Plaintiff gave him. That may be so but Mr. Dowa’s affidavit does not assist with quantum.
The instructions from the Plaintiff is about police raid but does not specify who lost what and the approximate value. The instructions do not even specify or itemise what the Plaintiff (the late Mr. Palapi) himself lost in the raid and the approximate value let alone the names of his clansmen, the list of items each one lost and the approximate value.
The two affidavits of the Plaintiff’s widow Kondo Palapi also do not assist with quantum. Apart from saying in her affidavit filed on 19th October 2000 that she discussed the claim with Buka Waso, Nembot Poko and other members of the Kesan Clan she deposes only to the fact that she was authorised by other members of the clan to pursue the claim. In her affidavit filed on 18th July 2000, she gives the personal antecedents of her late husband and in Paragraph 9 she deposes to the fact that police conducted the raid and that she was present during the raid. She says that during the raid police destroyed her family’s four houses, 8 pigs, food crops and trade store fully stocked with goods. But she does not give any estimate of the value of those items. She does not indicate whether the four (4) houses were built of bush materials or permanent materials. Even her late husband (the Plaintiff herein) before he instituted these proceedings in August 1996 failed to itemise and give an estimate of his own properties that were destroyed during the police raid.
Mrs. Kondo Palapi also annexed to her affidavit filed herein on 18th July 2000 particulars of these claims. Interestingly I note that it is the exact replica of matters itemised in the statement of claim. What makes the matters specified or itemised in the statement of claim unreliable for purposes of assessing the quantum of damage is that it does not specify who lost what item so that specific persons can be awarded specific amounts in damages.
She also annexed particulars of various accounts to her affidavit. They reveal transactions in 1997, 1998 and 1999 and therefore do not reflect the true financial standing of the deceased (Plaintiff) at the time of the police raid in June 1995.
During submissions, Mr. Dowa handed to the Court a list which contained the names of the claimants and the amount each of them was claiming. It also showed an amount after giving a discount of 10% for depreciation and a figure for exemplary damages. The list per se does not assist with quantum of damages which has to be proved by each person on the list. The easiest way for each one to have proved the amount specified beside his name was to have filed an affidavit specifying and itemising what he lost and the approximate value and arrived at a total figure.
The Plaintiff with his clansmen and their lawyers had more than four (4) years since filing the writ herein on 1st August 1996 to have done that but they have failed. They also should have filed affidavits from each claimant even after obtaining default judgment and itemised what he lost in the raid and the approximate value but have also failed. The Plaintiff’s lawyers ought to have been aware of this because in Obed Lalip & Ors –v- Fred Sikiot & The State N1457 dated 17th May 1996 in Mt. Hagen where the lawyers in the present case appeared for the plaintiff Injia, J. said at p.7:
"In the past, at the various pre-trial sessions in police raid matters which involve multiple Plaintiffs, I have stressed the need for lawyers and their clients to ensure that claims are properly and clearly pleaded and evidence produced in respect of each item. I have also stressed the need for lawyers and parties to assist the Court in eliminating double-claims and perhaps false claims. I canvassed some of these aspects in Yange Langan & Ors –v- The State N1369 [1995]. I also alluded to some of the relevant principles on assessment of damages of this type of claim."
On the whole of the evidence, the claim in my view is too vague and has the potential to be a false claim. A claimant can easily give a list of names alleging that their properties were destroyed or damaged. But if affidavits are not filed from such persons or they appear in person and testify in Court it cannot be ascertained whether or not that person does exist and the claim is genuine. I accordingly make no award under this head of the claim to the other members of the Plaintiff’s clan. However, there is evidence from Mrs. Kondo Palapi that her family lost four (4) houses, eight (8) pigs, a trade store fully stocked with goods and food crops so I am prepared to make an award in damages. She does not give any approximate value in her affidavit filed herein on 18th July 2000 so I propose to turn to the Statement of Claim for guidance. Under "Building" in paragraph 7 of the Statement of Claim four (4) Enga traditional buildings to a total value of K6,000.00 is indicated. As it is consistent with Mrs. Palapi’s evidence of four (4) houses having been destroyed, I award K6,000.00. She does not indicate whether any personal properties were destroyed with those houses but being as practical as I can I am of the view that those houses being family houses no doubt contained personal properties and as such I award K6,000.00 being K1,500.00 for each house.
With regard to the trade store, there is of course evidence that the late Mr. Palapi was a successful businessman and that it was fully stocked at the time it was destroyed but bearing in mind that the trade store is not a separate item in the Statement of Claim and again doing the best I can, I award K20,000.00.
With regard to the eight (8) pigs the Statement of Claim under the heading "Animals" shows seven (7) medium size pigs to the value of K2,800.00. There is some discrepancy here as the number Mrs. Palapi claims were destroyed is higher than in the Statement of Claim. I consider the seven (7) pigs to be owned by her family so I award K2,800.00.
With regard to the food crops, Mrs. Palapi does not indicate the type and quantity of various food crops so I am prepared to award only a minimal sum of K1,000.00.
I award interest at 8% pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act Ch 52 from 1st August 1996 when the writ was issued to judgment which is today (5th June 2001) which is a period of approximately 4.9 years. So the interest at 8% per annum on K35,800.00 is K2,864.00. The interest over 4.9 years would be K14,033.60.
So the total award to the Plaintiff is as follows:
4 Enga Traditional Buildings - K 6,000.00
Personal Properties at K1,500.00
per building - K 6,000.00
Trade Store - K20,000.00
7 Medium Size Pigs - K 2,800.00
Food Crops - K 1,000.00
Interest - K14,033.60
--------------
TOTAL K49,833.60
========
Special Damages:
Special damages also require proof by evidence. No evidence has been adduced by the Plaintiff or any of his individual clansmen to prove that they suffered special damage as a result of the raid. I accordingly make no award under this head of claim.
Exemplary Damages:
In this case, the Plaintiff has sued the State for the wrongful actions of certain members of the police force. Apart from Sergeant Poko, only the then head of the police force (Robert Nenta) and the State have been sued. None of the individual police officers actually responsible have been sued. Even in respect of Sergeant Poko, except for being named in the writ, there is no evidence to show that he participated in the raid let alone the orders he gave to the policemen whilst acting in his capacity as Commanding Officer of Laiagam Police Station. There is also no evidence to show that those policemen were acting in pursuance of government policy which would render the State liable. In the absence of evidence I do not consider that exemplary damages should be awarded against the Defendants.
I order that the Plaintiff’s costs be paid by the Defendants to be taxed if not agreed.
___________________________________________________________________
Lawyer for the Plaintiff : Paulus Dowa Lawyers
Lawyer for the Defendants : Solicitor General
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