Liwa v Vanimo [2008] PGNC 140; N3486 (24 September 2008)

N3486

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1049 OF 2005

BETWEEN

JAMES LIWA & PETER KURITI
Plaintiffs

AND

MARKIS VANIMO, DAYMAN KALINO & JOHN ANGISA
First Defendants

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Mount Hagen: Makail, AJ
2008: 24 September
: 10 September

DAMAGES - assessment of damages - loss of profit - arising from PMV operation business - small business operator - proof of - two schools of thought - first, need to prove with independent evidence like bank statements, invoices and receipts of payments of expenses - second, where there is no evidence to contradict or disprove affidavit or oral evidence of plaintiff on amount claim - no evidence of payment of taxes - mandatory - relevance of purpose for paying taxes.

Cases Cited:

Papua New Guinea Cases cited
Harding -v- Terepoi Timbers Pty Ltd [1986] PNGLR 128
Joe Naguwean -v- The State [1992] PNGLR 367
Gladess Evelyn Kumar & Ors -v- Peter Wama & Ors [1993] PNGLR 38
James Koimo -v- The State [1995] PNGLR 535
Jonathan Mangope Paraia -v- The State (1995) N1343
Yange Lagan -v- The State (1995) N1369
Albert Baine -v- The State (1995) N1335
Motor Vehicles Insurance Trust -v- Salio Tabanto [1995] PNGLR 214
Aimon Aure & Ors -v- Captain Peter Boko & The State [1996] PNGLR 85
Abel Tomba -v- The State (1997) SC518
Tony Kulam Kapil -v- Commissioner of Police & The State: WS No 1232 of 1998 (Unnumbered & Unreported Judgment of 13 July 2007)
Tabie Mathias Koim & Ors -v- The State & Ors [1998] PNGLR 247
Peter Wanis -v- Fred Sikiot & The State (1995) N1350
Gabriel Mappa -v- PNG Electricity Commissions [1995] PNGLR 170
Kerebal Farming & Trading Pty Ltd -v- Queensland Insurance (PNG) Ltd [1995] PNGLR 401
Kopung Brothers Business Group -v- Sakawar Kasieng [1997] PNGLR 331
Peter Na-al -v- Michael Debege & Fly River Provincial Government (2000) N1958
Yooken Paklin -v- The State (2001) N2212
Peter Aigilo v- Sir Mekere Morauta as Prime Minister & The State (2001) N2103
Kolaip Palapi & Others -v- Sergeant Poko & Others (2001) N2274
Andrew Kewa -v- Johnny Lus and Securimax Security Limited: WS No 415 of 2003 (Unnumbered & Unreported Judgment of 14 March 2007)
Paulus Kei -v- Tony Hasu & The State (2004) N2743
James Liwa & Peter Kuriti -v- Markis Vanimo & The State: WS No 1049 of 2005 (Unnumbered & Unreported Judgment of 10 September 2008)

Overseas Cases cited:
Bonham Cater -v- Hayden Park Hotel [1948] 64 TLR 177

Counsel:
Mr P. Kopunye, for the Plaintiff
Ms J. Tindiwi, for the Defendants

JUDGMENT

24 September, 2008

1. MAKAIL AJ: The Plaintiffs are suing the Defendants for the negligent actions of the First Defendants who are members of the Royal Papua New Guinea Constabulary for confiscating registration documents of their motor vehicle, a 15 seater bus ("bus") and also two driver’s licences on 8 May 2000 in Mt Hagen. The registration documents consisted of Motor Vehicle Third Party Certificates, Land Transport Approvals and a PMV licence and a Class 6 driver’s licence. They claim that despite numerous requests for the return of the documents and licences, the First Defendants did not return them until about two and a half years later. As a result, they claim that they were deprived of using the bus to operate a PMV business and lost money.

2. On 21 November 2007, the Court entered default judgment against the Defendants for their failure to file their Notice of Intention to Defend and Defence. Hence, the matter is before the Court for assessment of damages only.

3. At the close of all evidence, I invited both counsel to make submissions on the appropriate amount of damages I should award to the Plaintiff. Mr Kopunye of counsel for the Plaintiffs presented a written submission and made brief oral submissions. Ms Tindiwi of counsel for the Defendants did likewise and I reserved my judgment to 22 September 2008 but have been unable to have it ready until today and this is my judgment.

EVIDENCE

4. The Plaintiffs rely on the Affidavit of Peter Kuriti sworn on 7 July 2006 and filed on 10 July 2006 to support their claim for damages which was admitted into evidence without objection from the Defendants and marked as Exhibit "P5".

5. The following documents were also admitted into evidence after they were objected to by counsel for the Defendants on the basis of late notice and I heard submissions from both counsel and ruled on the objection: see my ruling in James Liwa & Peter Kuriti -v- Markis Vanimo & The State: WS No 1049 of 2005 (Unnumbered & Unreported Judgment of 10 September 2008):

1. Cargo Receipt No 16297 undated Exhibit "P1"

2. Temporary Permit dated 26 March 1999 Exhibit "P2"

3. Delivery Docket dated 26 March 1999 Exhibit "P3"

4. Hand written note from Peter Kuriti

to the First Defendants dated 22 May 2000 Exhibit "P4"

6. I should also mention here that Mr Kopunye informed the Court that one of the Plaintiffs, James Liwa has since died and so, he would not be relying on the Affidavit of James Liwa to support the claim for damages by the Plaintiffs in the trial. I will return to comment on this aspect later on in the judgment.

7. Counsel for the Defendants cross examined Mr Kuriti on his Affidavit evidence. The Defendant offered no evidence, thus much of the evidence of Mr Kuriti remains unchallenged or not rebutted. I will refer to the relevant parts of Mr Kuriti’s evidence as we go along.

ASSESSMENT OF DAMAGES

8. In terms of assessment of damages, it is now settle law that in a case of assessment of damages whether default judgment is entered or liability is determine after a trial, the onus of proof of the Plaintiff’s loss or losses remains with the Plaintiff. See the cases of Yange Lagan -v- The State (1995) N1369 and Jonathan Mangope Paraia -v- The State (1995) N1343.

9. In Bonham Cater -v- Hayden Park Hotel [1948] 64 TLR 177 at p 178, Lord Goddard CJ said that:

"Plaintiff must understand that if they bring action for damages it is not enough to write down particulars and so to speak, throw them at the hand of court saying - This is what I have lost, I ask you to give me this damages. They have to prove it".

10. In the cases of Albert Baine -v- The State (1995) N1335 and Kopung Brothers Business Group -v- Sakawar Kasieng [1997] PNGLR 331, it was held that corroboration of a claim is usually required and the corroboration must come from an independent source whilst in Peter Wanis -v- Fred Sikiot & The State (1995) N1350 it was held that the principles of proof and corroboration apply even when the Defendant fails to present any evidence disputing the claim.

11. Then in the case of Yooken Paklin -v- The State (2001) N2212, it was held that the Plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the Court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person’s case, that person has the onus of proving the allegation. The other case is Kolaip Palapi & Others -v- Sergeant Poko & Others (2001) N2274 where the Court held that the Court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The Court must only uphold genuine claims.

12. From the Statement of Claim endorsed to the Writ of Summons filed on 11 July 2005, the Plaintiff claims the following damages:

1. Loss of profit	K 64,430.00;
2. Damages for frustration,distress & anxiety	K 5,000.00 - K 10,000.00;
3. Exemplary damages	K 5,000.00 - K 10,000.00;
4. 8% Interest
5. Costs

13. I consider each of the head of damages below.

Loss of profit

14. First, the Plaintiff makes a claim for loss of profit. In his written submissions, Mr Kopunye submits that the Court should award a sum of K186,846.07 after deduction of 15% contingencies from a total net sum of K290,820.00. He submits that this amount is claimed because the Plaintiffs were operating a PMV services using the bus when the First Defendants in the performance of their official duties as police traffic officers confiscated the registration documents and licences from Mr Kuriti and held onto them for two and half years. He further submits that the First Defendants also warned Mr Kuriti not to use the bus until he attends at the police station and sort out the registration of the bus.

15. Mr Kopunye refers me to the case of Gabriel Mappa -v- PNG Electricity Commissions [1995] PNGLR 170 where the Plaintiff sued the Defendant for loss of income after the Plaintiff’s 25 seater bus collided with the Defendant’s motor vehicle. Following a National Court award of loss of income to the Plaintiff, the Defendant appealed to the Supreme Court and the Supreme Court upheld the appeal and remitted the matter to the National Court for re assessment. After the re trial, the National held that as proper business records and tax returns were not presented to the Court, it could not award any damages for loss of income. Based on the evidence presented, the Court only awarded K 1,033.90 for loss of profit.

16. In the other case of Kerekal Farming & Trading Pty Ltd -v- Queensland Insurance (PNG) Ltd [1995] PNGLR 401 which Mr Kopunye refers to, the Plaintiff sued the Defendant, an insurer of motor vehicles for costs of repairs and maintenance and loss of profit arising out of a motor vehicle accident. The Court allowed the claim for costs of repairs and maintenance but disallowed the claim for loss of profit. It held that in order to claim for loss of profit, there is a need to provide financial statements. This is what the Court said on page 405 of the judgment:

"The plaintiff is also claiming loss of profits whilst the vehicle was out of service because of the accident and because of the delay in the defendant meeting the claim. However the plaintiff has not presented any financial statements to show the income received from the operation of the truck. It has merely been stated that the company had a contract for haulage with Placer and was earning an average of K22,000 per month. Then there is a bank deposit book. However there is no evidence of the details of any contract nor of the breakdown of that income namely what were the running costs etc. So how can this court find an amount for loss of profits when there are no detailed figures to support such".

17. Mr Kopunye argues strongly that it is about time where in appropriate cases the National Court should give some concessions to small business operators like in this case, by first not requiring them to produce evidence of tax returns. He argues that this is because small business operators, do not pay income taxes to the Internal Revenue Commission, hence they would not have filed and have records of tax returns with the Internal Revenue Commission. Secondly, the Court should not expect them to provide invoices, receipts of payments, bank statements or financial statements because they do not keep such records in their business operations.

18. For these reasons, he urges me to distinguish this case from the Kerekal Farming’s case (supra) where in Kerekal Farming’s case (supra) it was a big company which had proper records and was able to provide deposit books and paid accountants to prepare their annual tax returns. In the present case, he says that the Plaintiffs are small ordinary villagers and did not need to keep records of invoices, receipts of payments, bank statements, deposit books or financial statements and file annual tax returns for their PMV operation business.

19. He says that in Gabriel Mappa’s case (supra), the Plaintiff was a villager but was able to produce to the Court his savings passbooks. At least there was some evidence of earnings of the Plaintiff in that case but in the present case, he says that the Plaintiffs did not deposit any money collected from the PMV operation because they keep the money at home and simply use it to pay the expenses and any profits they make, they spilt between them.

20. On my part, I have found the case of Andrew Kewa -v- Johnny Lus & Securimax Security Limited: WS No 415 of 2003 (Unnumbered & Unreported Judgment of 14 March 2007), where in that case, after a trial on liability Manuhu J, found the Defendants liable for damage caused to the Plaintiff’s motor vehicle by the Second Defendant’s motor vehicle which was driven at an excessive speed by the First Defendant who lost control and it collided with the Plaintiff’s vehicle which was stationery on the side of the road in Lae on 26 March 2002.

21. In terms of damages, the Plaintiff claimed pre-accident value of the motor vehicle and the Court awarded him K50,000.00. As for loss of income, the Court found that the Plaintiff’s motor vehicle was duly registered and insured as a PMV. From the figures provided by the Plaintiff, his average loss of income per month was K4,320.67. The Court further found that in the absence of any other evidence, it accepted the Plaintiff’s calculations. In accepting the calculations of the Plaintiff, the Court said that the Plaintiff was in a better position to know what he earned. The period from the date of the accident to the final hearing of the case was 59 months and 12 days. The Plaintiff’s total loss of income stood at K254,919.50.

22. As there was no evidence to the contrary, there was no basis for the Court to entertain any doubt and find otherwise. His Honour went on to award the Plaintiff damages for loss of profit in the sum of K304,919.50 plus 8% interest from the date of the institution of the proceeding to the date of judgment.

23. The other case is that of Paulus Kei -v- Tony Hasu & The State (2004) N2743, a case which Ms Tindiwi refers to in her submissions to support her submissions that the Plaintiffs have not proven their claim for loss of profit on the balance of probabilities, as such they should not be entitled to loss of profit.

24. In that case, the Plaintiff was operating a PMV business. His 25 seater bus got involved in an accident with a Toyota Landcruiser owned by the Police Force and driven by the First Defendant at that time. The Plaintiff gave evidence that, in the accident his 25 seater bus was damaged and in order to get it working again, he spent K 14,200.00 for cost of repairs and maintenance. However, he did not produce any receipt of payment for the repairs. The Court nevertheless awarded K14,200.00 for costs of repairs.

25. The Plaintiff also claimed damages for loss of business and profits. He produced his bank statement and his record of daily takings. He said he lost K 13,959.00 from 11 January 2003 to 21 June 2003. However, he did not show if he was paying any income tax to the State. He did not produce any income tax returns as evidence to show that he had paid income tax. The Court noted that while the Plaintiff was running a business, he was not paying any income tax to the State.

26. As income tax is an important consideration to determine loss of profit, I think that was why Salika J made the following observations in Paulus Kei’s case (supra) at page 8:

"I suspect there are many other such operators like the plaintiff who do not pay Income Tax to the State. The State Agency responsible for collecting taxes is the Internal Revenue Commission. It must clamp down on such operators. Any PMV operator or taxi operator whose income is more than K 3,000.00 and who does not pay Income Tax to the State should be penalized for that default see Section 11 of the Income Tax Act. The plaintiff has not produced evidence that he is exempted from paying income tax".

27. I consider that the purpose of paying income tax is a source of revenue for the National Government. For the Plaintiffs and anyone for that matter, section 11 of the Income Tax Act 1959 imposes a mandatory obligation to pay income tax each year. In this case, if the Plaintiffs did pay taxes, there would be records of their tax payments and that would enable the Court to work out the amount of taxes paid. Income taxes would be considered as an outgoing for the Plaintiffs and used together with the other expenses to work out the losses of the Plaintiffs. Again, I find no evidence of payment of income taxes here.

28. In the end, in Paulus Kei’s case (supra), the Court accepted that the PMV made an average of K 635.00 per week. This was based on first, the Plaintiff’s bank statement and record of daily takings and secondly on the Affidavit evidence of the Plaintiff. That sum equated to an average of K 33,020.00 per annum. As the bus was out of business for 22 weeks he therefore lost K 13,959.00 and the Court awarded that amount to the Plaintiff but as the Plaintiff did not pay income tax, the Court also ordered the Plaintiff to refund the income tax calculated on those awards to the Internal Revenue Commission.

29. In the case of Tony Kulam Kapil -v- Commissioner of Police & The State: WS No 1232 of 1998 (Unnumbered & Unreported Judgment of 13 July 2007) Lay J, was faced with a slightly different situation to the one at hand, in that case the Plaintiff claimed inter alia loss of profit from sale of coffee after his motor vehicle, a Hino truck was involved in a fatal road accident at Wabag bridge in the Enga Province on 20 September 1999. The Hino truck was severely damaged and as a result, the Plaintiff could not use it to buy and sell coffee by transporting them to the coffee depot.

30. To support the claim for loss of profit, the Plaintiff brought in an accountant who gave evidence and produced a statement of estimated loss of income. Whilst the Plaintiff was able to produce an accountant’s report on the financial loss of the Plaintiff, the Court was faced with two predicaments when trying to accept the evidence of the accountant which were:

1. The accountant only gave evidence of an estimate of the loss. This indicated that he did not base his statement of loss of income on primary documents like, bank statements, receipts and invoices, contracts and other documents which would show assets being acquired, income due and liabilities incurred by the business.

2. There were no bank statements, no accounts prior to the trading years, no factory indoor receipts of previous sales of coffee and no income tax statements.

31. In the end, the Court simply found that there were no evidence to support the claim for loss of profit and even if the Court were to award a "conservative figure for damages", there were no evidence for the Court to base its award and would really be a guess work.

32. I have laboured to cite at least five past cases which had discussed the question of sufficiency of evidence in cases where the claim is one of loss of profit. Out of these five cases, there appears to me to be two schools of thought in respect of the kind of evidence that needs to be brought before the Court to prove claims for loss of profit arising from business ventures or operations.

33. First, the cases of Graham Mappa (supra), Kerekal Farming & Trading Pty Ltd (supra), Paulus Kei (supra) and Tony Kulam Kapil (supra) show that it is not sufficient to rely on Affidavit or oral evidence of Plaintiffs to prove claims for loss of profit. There must be some independent evidence like financial statement(s) from an accountant to support the claim for loss of profit. If the accountant’s evidence and financial statement(s) are to be relied upon, then they must be based on primary documents like, bank statements, receipts and invoices, contracts and other documents which would show assets acquired, income due and liabilities incurred by the business.

34. The other school of thought is where, if there is no evidence to the contrary or evidence disproving or contradicting the evidence in support of the claim for loss of profit, the Court merely relies on the Affidavit or oral evidence of Plaintiffs to assess an appropriate amount for loss of profit. This means that, whatever amount the Plaintiffs state in their Affidavits or oral evidence unless disproved or contradicted by other evidence may be accepted and relied upon by the Court to calculate the amount of damages. The case Andrew Kewa (supra) followed this line of thinking.

35. Thus, the question is, which school of thought should I follow in the present case? In the present case, I will follow the first school of thought and so that means that I am not satisfied that the Plaintiffs have proven their losses on the balance of probabilities.

36. I say this because first, I am not swayed by the Plaintiffs’ submission that this Court should deviate or depart from its past decisions and give concession to small business operators like the Plaintiffs in the present case by not requiring them to produce evidence of bank statements, invoices and receipts of payments and so forth to prove their claim for loss of profit. I find the Plaintiffs’ contention that they are ordinary villagers and small business operators, hence unable to produce these evidences not only a bad business practice but also a lame excuse in an attempt to avoid their duty to prove their losses.

37. I consider that the present case is identical to the Gabriel Mappa’s case (supra) where I note that the Court only awarded K 1,033.90 for loss of profit. In awarding that amount, I note the Court followed the ruling of the Supreme Court and found that the Plaintiff did not establish his damages by calling sufficient evidence. The only evidence led was a statement by the Plaintiff that his business earned K 1,200.00 per week and this evidence was not accepted. There was no documentary or other kind of evidence to establish that fact apart from some comparison with another similar business run by someone else. There were no bank records, tax returns or balance sheets or other kind of evidence and in their judgment that was not sufficient to establish the damages in law.

38. This is what Woods J said:

"This ruling therefore makes it clear that if you wish to establish matters like loss of profits from the operation of a modern business then it is necessary to comply with the modern law such as produce such records as are required by the law. Thus if you wish to have the advantages of a modern world of business then you must comply with modern matters like tax laws. This would require appropriate business records to show whether any profit over an above business running costs were earned. And then if a profit was earned there is the requirement to pay taxes. The courts have been referring to these requirements in recent years especially in the operation of shop or trade store businesses. And the Supreme Court by its ruling is implying that the same must apply to the operation of a PMV or suchlike public transport business. The evidence before the court in the original trial was that the plaintiff did have a wage or salary earning employment so any profits he earned from the operation of any other business would have required additional taxes to have been paid".

39. There, the Court noted that the only additional evidence produced to the Court at the re trial by way of records of any earning from the PMV is some of the Plaintiff’s savings passbooks for the period between 1987 and 1992. These passbooks show regular deposits of substantial amounts of money with regular withdrawals of around K 2,300.00 which must have been loan repayments to the Bank. Of course these deposits and payments were not in relation to the vehicle the subject of this case as he had only just acquired that vehicle but they did show that the Plaintiff was operating some kind of money earning business.

40. The Court further noted that the evidence did show that the Plaintiff he had been operating a bus business at least since 1987 and in 1989 seemed to be replacing one bus with another one. From the evidence of the Bank it appears that the Plaintiff was a reliable customer and an astute business operator. But the Court asked if that was sufficient evidence to satisfy what the Supreme Court stated as sufficient evidence to establish damages in law.

41. In answering that question, Woods J said:

"Damages in law must include adherence to the law such as the taxation laws. Thus if a person is making profits over and above the running and operating costs which or course would include salary then a person must file the appropriate tax returns and show such profits and pay the appropriate tax. The evidence is quite clear that the plaintiff did not keep any proper business records of income and expenditure and did not disclose any profit for taxation purposes.

Therefore as no proper business records and no tax returns have been produced to the court to show any profit from the operation of the vehicle this court cannot find that there has been any such loss. The mere assertions and the depositing of sums of money in a bank is not sufficient evidence".

42. Following on from that and secondly, I find two factual matters that make this present case different from the Paulus Kei’s case (supra). In the present case, the Plaintiffs’ PMV bus was not involved in a motor vehicle accident. It was simply kept out of service because the First Defendants had confiscated the registration documents and driver’s licences from the Plaintiffs. In Paulus Kei’s case (supra), the Plaintiff’s 25 seater bus was involved in a motor vehicle accident with a police Toyota Landcruiser.

43. In the present case, there is no evidence of the Plaintiffs bank statements and record of daily takings unlike in the Paulus Kei’s case (supra), where the Plaintiff produced his bank statement and his record of daily takings. And so, at least the Court had the benefit of some evidence corroborating the Plaintiff’s evidence that this was how much money the Plaintiff made from the PMV operation business prior to the accident. Here, there is no such evidence being put before me.

44. It is my view that the Plaintiff in the present case must produce sufficient evidence to prove his loss. The evidence should include bank statements or pass book to show how much money is deposited into the account and how much money is withdrawn from the account to pay for the expenses of the PMV operation. Further if they cannot produce Financial Statement from an accountant, then I consider they should provide invoices and receipts of payment of expenses or at least an accounts ledger or book.

45. In my opinion, these are documents that are within the Plaintiffs’ reach and I expect them to be made available. For example, I am sure that when buying fuel for the bus, one would expect the Plaintiffs to obtain receipts of payments for the fuel from the fuel service station. When the receipts are provided, they will enable the Court to work out the total fuel costs of the bus. I note this was not done here.

46. I also consider that another form of independent evidence would be evidence from another PMV operator(s) to at least draw a comparison on the kind of income of PMV operations or services in Mt Hagen. In my view, these would be a helpful piece of evidence to demonstrate to the Court the income derived from this kind of business. Again, the Plaintiffs have not done this here.

47. To my mind, a mere statement in the Affidavit that this is the income of the PMV operation and these are the expenses of the PMV operation without any invoices, receipts of payments or bank statements is not sufficient to justify an award. For to do so will not be seen as adhering to the warning of Lord Goddard CJ where he said in Bonham Cater’s case (supra) at page 178 that "Plaintiff must understand that if they bring action for damages it is not enough to write down particulars and so to speak, throw them at the hand of court saying - This is what I have lost, I ask you to give me this damages. They have to prove it".

48. I say this because apart from the evidence of Mr Kuriti in paragraphs 40,43,41,42 and 43 of his Affidavit (Exhibit "P5") which shows that the Plaintiffs operate the 15 seater bus between the towns of Mt Hagen and Madang route, 3 times a week or six trips a week, which is an income from one trip of K 700.00 giving a total gross income of K4,200.00 per week, there are no independent evidence such as bank statements, receipts and invoices produced to the Court to support Mr Kuriti’s evidence that the Plaintiffs made a total net loss of K 2,520.00 per week or K 7,580.00 per month.

49. What source of information did he base his calculations to say that out of the income of K 4,200.00, a total of K 1,680.00 is for expenses like K 1,200.00 for fuel and K 480.00 for allowances for the bus crew and driver and wages of K 500.00 for bus crew and driver? Then, there is monthly cost of K 1,500.00 or say K 375.00 per week for motor vehicle service and maintenance.

50. Mr Kuriti says that at the end of all the deductions for expenses of operating the PMV business, they make a net profit of K 2,520.00 per week or K 7,580.00 per month. Whilst I’d like to believe Mr Kuriti’s evidence that the Plaintiffs’ gross income and also expenses equated to those figures, I do not have independent evidence to verify that the Plaintiffs after all the expenses, make K 2,520.00 per week. There is not even an invoice or receipt of payment of expense, or a bank statement or pass book put before me to show that this is the kind of money they make and these are the kind of expenses they incur in order for me to confidently say with certainty that the net income of the PMV operation business is K 2,520.00 per week or K 7,580.00 per month.

51. This is where I consider that as this is a PMV operation business, the only way of bringing income would be from the collection of bus fares from passengers and from time to time from money collected from hire of the 15 seater bus. That, I would imagine is at a fixed rate. In this respect, I note in the present case there is no evidence before me to show that the 15 seater bus was put on hire, the rate of hire and the number of hires. Thus, I find that it was used only to collect passengers and money was collected from passengers’ bus fares.

52. But as I said earlier, I can find no evidence of loss of earnings. No invoices, receipts of payments, no bank statements, passbooks or other documentary evidence has been produced to show the rate of the earnings per week or per month from which it can be ascertained that the Plaintiffs were earning that kind of money per week or per month if we are to follow the decision of Woods J in Graham Mappa’s case (supra).

53. Further, it is also the evidence of Mr Kuriti that after he picked up the bus from Lae and drove up to Mt Hagen, he did not use to do PMV operation business right away because he had to organize for its registration. He kept the bus at home in the village until 7 May 2000 when he registered the bus. After he registered it, on 9 May 2000 he drove it to Mt Hagen town and picked up passengers. He was on his way with the passengers to Kagamuga when he was pulled up by the First Defendants just past Wamp Nga fuel service station and had the registration documents confiscated.

54. The Temporary Permit dated 26 March 1999 (Exhibit "P2") seems to suggest that Mr Kuirti picked up the bus at Lae on 26 March 1999. This date is confirmed as the date of pick up by the Delivery Docket issued by the PNG Harbours Board dated 26 March 1999 (Exhibit "P3"). Thus, it appears to me that Mr Kuriti had the vehicle from 26 March 1999 until 8 May 2000 the day the First Defendants confiscated the registration documents and licences from him. The question then is, did he operate a PMV services during that period of time and if so, where is the evidence of that?

55. I consider that this evidence is relevant because it goes to show by comparison the kind of money the Plaintiffs would have been earning from the PMV operations during the period of time the First Defendants confiscated and held the registration documents and licences.

56. I do not see any evidence of the Plaintiffs operating the PMV services during that period except Mr Kuriti’s statement in paragraph 40 and 43 of his Affidavit (Exhibit "P5") that he was earning and paying those kinds of expenses from the income derived from the PMV operations. I am not prepared to accept this evidence. It is vague based on the case of Kolaip Palapi (supra).

57. There is one final and fundamental reason that I am not satisfied on the balance of probabilities that the Plaintiffs lost money during the period when the registration documents and driver’s licences were in the possession of the First Defendants and that is, there is no evidence placed before me to say that the Plaintiffs have been operating a PMV service using the bus other than Mr Kuriti’s evidence that they were operating a PMV business.

58. Let me demonstrate why I say so. If they were operating a PMV business, I consider that they should produce the PMV licence and the Certificate of Third Party Insurance to show that the bus was registered to be on the road and authorized to operate as a PMV bus during that period of time. I would have thought that they would have produced those documents but I note they have not. Now, returning to the point I left incomplete at the beginning of the judgment, even if they did and the evidence of these documents are contained in the Affidavit of James Liwa, they are cannot rely upon them because first, this witness is dead, hence not called to give evidence and secondly, Mr Kopunye informed the Court that he would not be relying on this witnesses’ Affidavit at the trial. As those mentioned documents are annexed to that Affidavit, I am of the view that I cannot rely on them.

59. The view I take seems consistent with the view of Manuhu J in Andrew Kewa’s case (supra). I think in that case, his Honour proceeded on the basis that there were evidences of a PMV licence and Certificate of Third Party Insurance to show that the bus was registered to be on the road and authorized to operate as a PMV bus when he said at the last page of the Judgment that "[O]n loss of income, the Plaintiff’s vehicle was duly registered and insured as a PMV. From there, his Honour went on to assess the loss of profit based on the Plaintiff’s average loss of income per month of K 4,320.67 for 59 months and 12 days at K254,919.50. (Underlining is mine).

60. Taking that to be the case and following it here, I find that the Plaintiffs did not place before me evidences of PMV licence and Certificate of Third Party Insurance to show that the bus was registered to operate as a PMV during that period of time. Accordingly, I find that the Plaintiffs were not operating a PMV operation business at that time in order to claim loss of profit out of the PMV operation business.

61. Even if the Plaintiffs did loss money, the question then is, is there sufficient evidence for the Court to make a "conservative figure" or amount of damages as was done by Injia J (as he then was) in Yange Lagan -v- Police & The State (1995) N1369, a case of illegal police raid where he said:

"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 K 2,000.00 for the building and K 1,500.00 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] UKLawRpKQB 104; [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."

62. I am not satisfied that the Court should make a "conservative figure" or amount of damages as was done by Injia J (as he then was) in Yange Lagan’s case (supra). This is because it is quite difficult to give a precise amount. That is why the Court has said in the past that it is the duty of the Court to arrive at a probable value of the property being destroyed like in that case, a house. Here, it is not a house but a claim for loss of profit and if I am to do that, it would be a guess work just like what Lay J said in Tony Kulam Kapil’s case (supra):

"A more fundamental problem was identified by Injia J (as he then was) in Yange Lagan -v- The State (1995) N1369 where his Honour pointed out that, where the plaintiff does not give evidence in support of his own claim, but relies on evidence from other, such as Mr Laka in this case, the court is left to rely on hearsay. In that case, doing the best they could with the evidence that was available, his Honour awarded a conservative figure for damages. Woods J took the same approach in the case of Peter Wanis -v- Fre Sikiot (1995) N1350. In consider doing that in this case, but there really is quite insufficient evidence to examine whether or not Mr Laka’s figures are supported, or for the court to make its own assessment. If the plaintiff had given evidence which supported the assumptions made by Mr Laka, and that evidence was supported by some documents which tended to confirm the plaintiff’s evidence, there who have been a basis for making an award. As it is, any award would be pure guesswork. I allow nothing for loss of business profits". (Underlining is mine).

63. For all these reasons, I award nothing for loss of profit.

Damages for frustration, distress & anxiety

64. Next, the Plaintiffs claim damages for frustration, distress and anxiety for being put through this dilemma of not having the registration documents and licences for the bus. They claim damages between K5,000.00 and K10,000.00.

65. Mr Kopunye of counsel for the Plaintiff in his written submissions under this head of claim did not refer me to any recent decisions of this Court or the Supreme Court for damages for frustration, distress and anxiety caused by the actions and or omissions of the First Defendants where the Court had awarded damages between K5,000.00 and K10,000.00.

66. He only relies on the following cases to support his submission of K5,000.00 -K10,000.00 for damages for frustration, distress and anxiety, the first one being Harding -v- Terepoi Timbers Pty Ltd [1986] PNGLR 128. In that case, the Plaintiff sued the Defendant for breach of contract of employment and one of the heads of damages was for frustration, distress and hardship. The Court awarded him K1,000.00 under this head of damages.

67. The second case is Joe Naguwean -v- The State [1992] PNGLR 367. In that case, the Plaintiff sued the Defendant for breach of contract of employment. He applied for the position of Parliament Clerk Committee and was accepted but he delayed his resumption of duty in order to do negotiations for better terms and conditions. The position was subsequently given to someone else. The Court awarded him normal damages of K 1,000.00 for frustration and distress.

68. I consider that damages for frustration, distress and anxiety caused by the actions and or omissions of the First Defendants is not recoverable unless there is proof of physical inconvenience caused by the acts and or omissions of a Defendant(s) whether it is a claim based on breach of contract or tort. As the Court said in Gladess Evelyn Kumar & Ors -v- Peter Wama & Ors [1993] PNGLR 38, a case of breach of contract of employment where the Plaintiff sought inter alia, damages for frustration, distress and anxiety against the Defendants and was refused damages under this head:

"The general rule is that damages for disappointment and distress are not recoverable unless they proceed from physical inconvenience caused by the breach or unless the contract is one, the object of which is to provide enjoyment, relaxation or freedom from molestation".

69. In the present case, I am satisfied on the balance of probabilities that the Plaintiffs and in particular, Mr Kuriti underwent some frustration, distress and anxiety as a result of the First Defendant’s actions in confiscating and not releasing the registration documents and licences in good time. It is Mr Kuriti’s evidence which I accept that on numerous occasions he attended at the Mt Hagen Police Station to talk to the First Defendants and to collect these documents but none of those attendances proved successful for him.

70. This is confirmed by his hand written note to the First Defendants dated 22 May 2000 (Exhibit "P4") where he enquired with them of the whereabouts of the registration documents and licences. Despite his plead for the release of the registration documents and licences in writing, still the First Defendants failed to release them. I have no doubt in my mind that he was frustrated and distressed especially where he had to wait for long hours only to be told to come back next time as the First Defendants were not available to attend to his query at the Police Station.

71. Based on those case authorities cited above I consider that this is not a serious case as that of Peter Aigilo v- Sir Mekere Morauta as Prime Minister & The State (2001) N2103 where Kandakasi J found that the Plaintiff suffered serious medical condition including high blood pressure based on medical report presented in support of this head of damages and awarded the Plaintiff K20,000.00 for frustration, distress and anxiety as a result of the Plaintiff being unceremoniously dismissed as Commissioner of Police by the Defendants in early 1999.

72. I also consider that this present case as not as serious as the one in Peter Na-al -v- Michael Debege & Fly River Provincial Government (2000) N1958 where the Defendants breached the Plaintiff’s contract of employment by not paying his salaries whilst he was on study leave in Australia. He claimed damages for frustration, distress and hardship and Sevua J awarded K 15,000.00 in damages under this head of damages.

73. Bearing in mind the award of K 1,000.00 in the cases of Harding (supra) and Joe Naguwean (supra) and K 20,000.00 in the case of Peter Aigilo (supra) and that of Peter Na-al (supra) where K15,000.00 was awarded, I think K5,000.00 would be a fair and reasonable amount to award under this head of damages and I so order.

Exemplary damages

74. The Plaintiffs also claims K5,000.00 and K10,000.00 as exemplary damages against all the First Defendants and also the Second Defendant. But the law and case authorities now say that for exemplary damages, the Second Defendant cannot be held liable for the wrongful acts and or omissions of its servants and agents. See the cases of Aimon Aure & Ors -v- Captain Peter Boko & The State [1996] PNGLR 85 and Abel Tomba -v- The State (1997) SC518. These were illegal police raid cases but the principle of law is the same as it is now settled that if individual policemen are identified, they must be held liable for exemplary damages.

75. Proceeding on this basis, there is no doubt in my mind that the Plaintiffs’ through Mr Kuriti have identified the First Defendants as the wrong doers. The First Defendants did not attend the trial to deny the allegations made against them but in any case, default judgment has been entered against them and so the question really is how much should they be ordered to pay as exemplary damages to the Plaintiffs?

76. There are three of them and I consider in light of the awards made in the cases of Aimon Aure (supra) and Abel Tomba (supra), they should be ordered to pay K2,000.00 each to the Plaintiffs. This equates to K6,000.00 and I so order. I make no order against the Second Defendant.

Damages breaches of constitutional rights

77. Finally, in the Plaintiffs’ written submissions, Mr Kopunye further submits that the Plaintiffs should be awarded damages for breaches of their constitutional rights as a result of the actions and or omissions of the First Defendants. He refers to the case of James Koimo -v- The State [1995] PNGLR 535 to support his submission under this head of damages where the National Court took into account and awarded exemplary damages as a result of breaches or infringements of the Plaintiffs’ rights based on section 57 (enforcement of guaranteed rights & freedoms) and section 58 (right to compensation) of the Constitution arising out of a illegal police raid instance.

78. In the present case, I refuse to award damages for breaches or infringements of the Plaintiffs’ constitutional rights because the Plaintiffs have not pleaded the particulars of breaches in their Statement of Claim endorsed to the Writ of Summons filed on 11 July 2005. This is because it is now settled law in our jurisdiction that a party or parties are not at liberty to lead evidence and claim damages where they have not pleaded in the Statement of Claim the basis of the claim or claims and vise versa in the case of a Defence for a Defendant(s). See Motor Vehicles Insurance Trust -v- Salio Tabanto [1995] PNGLR 214 and Tabie Mathias Koim & Ors -v- The State & Ors [1998] PNGLR 247.

79. For this reason, I make no award under this head of claim.

8% Interest

80. I add only damages for frustration, distress and anxiety and exemplary damages and they equate to K 11,000.00. I calculate 8% interest based on the principal judgment of K 11,000.00 from date of issue of Writ of Summons of 11 July 2005 to the date of Judgment of 24 September 2008 which gives a total of 1,170 days at K 2,819.70.

Costs

81. I also award costs to the Plaintiffs to be taxed if not agreed.

SUMMARY

82. In summary, I award the following:

1. Loss of profit	K nil;
2. Damages for frustration, distress & anxiety	K 5,000.00
3. Exemplary damages	K 6,000.00
4. 8% Interest	K 2,819.70
5. Costs
Total	K 13,819.70

ORDERS

I formally order as follows:

1. Judgment is entered against the First Defendants in the sum of K 6, 000.00.

2. Judgment is entered against the First and Second Defendants in the sum of K 5, 000.00.

3. The First and Second Defendants shall pay 8% interest calculated from the date of issue of the Writ of Summons to the date of Judgment at K 2,819.70.

4. The Defendants shall pay the Plaintiffs’ costs of the proceeding to be taxed if not agreed.

5. Time for entry of these Orders be abridged to the date of settlement by the Registrar which shall take place forthwith.

____________________________________________

Kopunye Lawyers: Lawyers for the Plaintiff
Acting Solicitor General: Lawyers for the Defendants