Manase v Andan [2002] PGNC 6; N2408 (19 November 2002)

N2408

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 852 OF 1996

BETWEEN:

PONDE MANASE
Plaintiff

AND:

PETER ANDAN
First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

MT. HAGEN : GAVARA-NANU J.
2002 : 15th, 19th November

DAMAGES – Police raid – Destruction of properties during the raid – Assessment of damages – Need to prove claims with independent evidence – Absence of independent evidence to support claims – Amounts awarded must be reasonable.

Cases cited:
Jonathan Mangope Paraia -v- Jacob Yansuan & 3 Others N1343
George Wagulo -v- The State (24th October, 1996)
Peter Wanis -v- Fred Sikiot & The State N1350

Other cases cited:
Milner -v- Minister for Resources [1947] 2 All ER 372

Counsel:
P. Kunai for the plaintiff.
B. Ovia for the defendants.

GAVARA-NANU J. The plaintiff is claiming damages against the defendants for destroying his two bush material houses with all their contents and his other properties by burning them during a police raid in Kokas Village in Enga Province on 5th October, 1992.

He said the raid was conducted at about mid-night by the members of the Police Moblie Squad No. 6 based in Wabag, under the command of the first defendant.

The plaintiff put the value of the two houses at K 1,000.00 and the total value of their contents at K 334.00.

He said his trade store with all its contents was destroyed. He put the value of the trade store at K 20,500.00; and the total value of its contents at K 3,049.00. The other properties destroyed were two chicken sheds with all their contents. He put the total value of the two chicken sheds and all their contents, which included chickens, boiler chickens, chicken feed, feeding dish, water dish and other items at K 3,236.30. The two chicken sheds were also made of bush materials.

The plaintiff is also claiming K 1,000.00 in economic loss resulting from the destruction of the trade store and the chicken business.

The plaintiff’s overall claim for general damages is K 29,199.60. He is also claiming exemplary damages. The defendants did not deny liability, so the trial was only on the quantum of damages.

The plaintiff gave oral evidence apart from his affidavit, which was tendered in evidence. Other affidavits which were tendered in support of the plaintiff’s claims are from Peter Pyasara, a District Rural Development Officer based in Enga, Yandasi Nien, a Councillor from Kandep Local Government Council, Joseph Yangau, the District Officer with District Administration and Local Level Government Services also based in Enga and Yakop Timothy, also a Councillor from Kandep Local Government Council. All except Joseph Yangau confirmed witnessing the plaintiff’s two houses, trade store and the two chicken sheds being burnt down during the police raid. Mr. Joseph Yangau’s evidence only relates to receiving reports from the people from Kokas village about the police raid and the destruction caused to their properties by the police during the raid.

These affidavits corroborate the plaintiff’s evidence about his houses, trade store and chicken sheds being burnt down, but none of them say anything about their contents. Nor do they put any estimated values on the properties destroyed. So, the plaintiff’s evidence regarding the costs or values of these properties and their contents stand alone. The amounts claimed by the plaintiff are only estimates. In fact, he says that himself in paragraph 6 of his affidavit.

The plaintiff said the amounts claimed for the two houses and the two chicken sheds are for material and labour costs. With respect to their contents, he said, he used their purchase prices to determine their values.

The plaintiff said, the trade store was made of corrugated iron, timber and plywood and the floor was cement. The materials for the trade store were bought from the Steamships and Carpenters hard wares in Mt. Hagen. With respect to its contents, again he said he based their total value on how much he paid for them and the prices at which he sold them to the customers. He said the trade store was 10 meters long and 6 meters wide.

Mr. Kunai conceded that the plaintiff’s evidence required corroboration, and the plaintiff has not adduced any independent evidence in support of his claims. He submitted that, the Court should award half of the amounts claimed. He said, most claims are reasonable, except maybe the amount claimed for the trade store.

Mr. Ovia while agreeing with Mr. Kunai, submitted that some claims should be reduced either by half or less, but the claims for economic loss and the contents of the trade store should be dismissed altogether.

I consider the principles applied in Jonathan Mangope Paraia -v- Jacob Yansuan & 3 Others - N. 1343, George Wagulo -v- The State, (24thOctober, 1996) and Peter Wanis -v- Fred Sikiot & The State – N.1350, to be relevant in determining the plaintiff’s claims and I will respectfully adopt them.

I will consider each head of claim separately.

1. Two bush material houses.
   

There is no evidence as to when these houses were built, and whether the houses were big or small. These are relevant factors when determining depreciation and labour costs. The plaintiff said the people helped him to carry the materials for the houses from long distances in the bushes to the village. He said, he paid the people who helped him carry the materials, but did not say how much he paid them. I accept that there would have been people who helped him to carry materials and build the houses. Taking all these into account including the gaps in the plaintiff’s evidence as I alluded to above, I consider K500.00 to be reasonable. I therefore award K500.00 for this claim.

2. Contents of the two houses.

I accept that the plaintiff would have lost belongings in the two houses destroyed. But, again there is no evidence as to the number of belongings lost, what they were and whether they were old or new. With these gaps and allowing especially for depreciation in value, I award K 250.00 for this claim.

3. Two chicken sheds.

The plaintiff said the sheds were made of bush materials. But he did not say whether they were new or old and how big they were. Again with these gaps in plaintiff’s evidence, I will reduce the amount claimed and award K 1,000.00. I have awarded an amount higher than the amount for the two houses because this claim is higher than for the houses and it relates to business.

4. The contents of the two chicken sheds.

The plaintiff’s evidence in support of the claim for the contents of the two chicken sheds stands uncorroborated because there is no independent evidence to support the claim. The contents include 52 chickens for which he claims K 520.00 at the cost of K 10.00 each and 50 boilers for which he claims K 500.00 also at the cost of K 10.00 each. The prices for other items appear to be for new ones. For instance, he has valued the two feeding buckets at K15.00 each, two feeding dishes at K 15.00 each, one Coleman lamp at K 56.00, four drums of fuel at K 150.00 each, two spades at K 22.00 each, four bags of stock feed at K 30.00 each and so on.

There is no evidence as to whether these items were new. He said, all the invoices for these items were burnt in the fire, so he could not produce them.

The other item he is claiming for is the wire roll. For such item, the plaintiff could have produced a photograph of it. I reiterate what this Court has always said, in respect of such claims. The plaintiffs must produce some proof to support the claims, because when no proof is provided, it is open for the Courts to treat the claims with suspicion. The Courts place great reliance on the honesty and good faith of the plaintiffs when determining such claims, because there is always the possibility that the claims may be bogus. Indeed, it is not without reason to think that the plaintiffs can make bogus claims by taking advantage of the police raids.

Taking all these into account I consider that K 2,000.00 would have been the value of all the contents. But I will reduce this amount further by K 250.00 for depreciation. I therefore award K1,750.00 for this claim.

5. Trade store and its contents.

I will consider these claims together. The plaintiff said, all the invoices for the building materials and other goods he bought for the trade store were burnt together with his trade store license. He said, his pass book was also destroyed by fire.

The plaintiff is not totally an unsophisticated illiterate villager, because he is a qualified Medical Orderly. So he has some education and thus would have had some basic idea of keeping proper records of all his business transactions including, banking.

He said, he could not obtain copies of the invoices of the building materials for the trade store from where he bought them because it is now ten years since he bought them. I can accept that explanation but I see no reason why the carpenter who the plaintiff said built the trade store could not be called to at least testify on the types of materials he used to build the trade store and their estimated costs. When probed on this by Mr. Ovia, the plaintiff said he does not know where the carpenter is. It was in his interest for the carpenter to give evidence to corroborate his claims, as that would have greatly assisted the Court in determining this claim, as was the case in Jonathan Mangope Paraia -v- Jacob Yansuan & 3 Ors (supra). If the carpenter could not be found after diligent search then someone who has seen the trade store could have given evidence in support of this claim.

As to the trade store license, I also see no reason why the plaintiff could not obtain a copy from the authority which issued it. In respect of the trade store goods, the plaintiff obviously ordered goods from the wholesale stores or some other bigger stores. So, I see no reason why he could not go to those stores and get copies of the invoices issued to the plaintiff for those goods. Obtaining copies of those invoices for his trade store goods was not beyond his ability.

Alternatively, he could have gone to the stores where he bought the goods and obtained the prices of the types of goods which were destroyed by fire, so that at least the Court can have some credible guidance in determining their value.

By his own evidence, he knew how to run the business and keep records of all his business transactions. The office he had in the trade store stands to testify to that fact. I also see no reason why he could not go to the bank where he had his pass book account and get records of his savings. These are serious gaps in the plaintiff’s evidence, which must affect his claim.

The plaintiff said the trade store was five years old when it was destroyed. This evidence appears contradictory because the plaintiff also said he bought the building materials for the trade store ten years ago. So one is left to wonder as to whether it took him five years to build the trade store. In any case, he is claiming K 20,500.00, but Mr Kunai submitted that the amount claimed should be reduced by half. Mr. Ovia agreed on that point.

In the circumstances, I consider that at the highest, the reasonable value of the trade store at the time it was constructed would have been about K 12,000.00. After five years, the store would have substantially depreciated. Then there was very high possibility of poor workmanship. This is highly likely because the trade store was built in the village, and there is no evidence that the carpenter who built the trade store was qualified and had used proper tools. These features, differ significantly from those in Jonathan Mangope Paraia -v- Jacob Yansuan & 3 Ors (supra). In that case, the carpenter was able to give evidence about the workmanship on the house he built, the types of tools he used and his qualifications as a carpenter. I have no doubt that, those features had positive bearing on the trial judge’s mind in awarding K 18,000.00 for the house which was destroyed. The amount claimed there was K40,000.00 and the house was a semi permanent L40 type.

In the instant case, no such evidence as those adduced in Jonathan Mangope Paraia -v- Jacob Yansuan & 3 Ors (supra), have been adduced by the plaintiff. This is crucial to the plaintiff’s case. The plaintiff must get what he deserves by the evidence he has adduced. He has the onus to prove his claims on the balance of probability. The plaintiff has in that respect failed to prove to the Court that all the amounts claimed for the trade store and it’s contents are within reasonable probability true, see; Milner -v- Minister for Resources [1947] 2 All E.R 372 at page 373.

In the circumstances and for the reasons given, I have decided that the fair and reasonable amount in damages for the trade store is K4,000.00. As to the contents, I consider amount of K1,500.00 to be fair and reasonable. Thus the total amount awarded in damages for the trade store and it’s contents is K 5,500.00.

6. Economic loss.

The plaintiff claims K 1,000.00 in economic loss. I consider this reasonable. I therefore award K 1,000.00 as claimed.

7. Exemplary damages.

I am of the firm view that the plaintiff is entitled to this claim. The act of burning down the houses and other properties belonging to the plaintiff by the police may have been beyond the scope of their duties, but, such actions were done in the course of executing their duties and they being servants of the State, the State is vicariously liable for such actions. Further more this was a serious breach of the plaintiff’s constitutional right as to the protection of his properties from unjust deprivation. Thus for this claim, I award a nominal amount of K 1,000.00 against the defendants.

The summary of damages awarded is as follows:-

1. Two bush material houses - K 500.00

2. Contents of the two bush material houses - K 250.00

3. Two chicken sheds - K 1,000.00

4. Contents of the two chicken sheds - K 1,750.00

5. Trade store and it’s contents - K 5,500.00

6. Economic loss - K 1,000.00

7. Exemplary damages - K 1,000.00

Total - K 11,100.00

8. Interest.

I award interest at 4%, because in my view, there has been an inordinate delay by the plaintiff in prosecuting his claims. The interest is to be calculated from the date of the writ, which is 19th June, 1996, to the date of the judgment, which is today, 19th November, 2002. That is a period of 6 years 5 months.

9. Calculation of interest.

4% of K 11,100.00 = K 444.00 per annum

6 years x K 444.00 = K 2,664.00

K 444.00 - 12 = K 37.00

5 months x K 37.00 = K 185.00

Total interest = K 2,664.00 + K185.00 = K 2,849.00

I award K 2,849.00 in interests.

Thus, the total amount awarded to the plaintiff in damages and interests is K 13,849.00.

The defendants to pay the plaintiff’s costs.
_____________________________________________________________________
Lawyers for the plaintiff : Kunai & Co. Lawyers
Lawyers for the defendants : Solicitor General