Paraka v Upaiga [2010] PGNC 80; N4090 (14 July 2010)

N4090

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 799 OF 1999

BETWEEN

THOMAS PARAKA
Plaintiff

AND

THOMAS UPAIGA
First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Mount Hagen: Makail, J
2010: 11th May & 14th July

TRESPASS - Liability - Police raid - Destruction and looting of properties - Policemen acting within scope of duty - Liability of State, its servants and agents - Vicarious liability - Wrongs (Miscellaneous Provisions) Act, Ch 297 - Section 1.

REAL PROPERTY - Property dispute - State lease - Grant of title - Proof of - Evidence of - Lack of - Effect of.

DAMAGES - No title to property at time of illegal police raids - Illegal occupation of property - Apportionment or reduction of damages.

Cases cited:

Peter Wanis -v- Fred Sikiot & The State (1995) N1350
Anis Kewa -v- Desmond Kami & The State (2010) N3899
Aimon Aure & Ors -v- The State [1996] PNGLR 85; (1995) N1346
Tabie Mathias Koim -v- The State [1998] PNGLR 247; (1998) N1737
Robert Taropen & Ors -v- John Anawe & The State: WS No 1166 of 2004 (Unnumbered & Unreported Judgment of 08th March 2010)
Nelson Pawa -v- Linus Yumbun, OIC Porgera Police Station & The State (2009) N3784
James Liwa & Peter Kuriti & Markus Vanimo & The State (2008) N3486

Counsel:

Mr P Kunai, for Plaintiff
No appearance for Defendants

JUDGMENT

14th July 2010

1. MAKAIL, J: This is matter came for ex-parte trial on liability and assessment of damages on 11th May 2010 after Mr Waliyo Mapsio of the Solicitor General's office failed to appear at trial despite being aware of the date for trial. The claim arose from four separate incidents of alleged unlawful police raids at the premises of the plaintiff at Warakum in Mt Hagen on 14th August 1998, 15th August 1998, 23rd September 1998 and 11th October 1998 by unidentified members of the police force led by the first defendant. The plaintiff alleged that as a result of the unlawful police raids, he lost various house items including severe damage to his motor vehicles, the first a Mitsubishi Canter truck bearing registration No HAI-903 and the other, a Toyota Dyna truck, bearing registration No P-327R. The defendants denied the claim.

Liability

2. As the defendants had denied the claim, the first issue for determination is liability. In his affidavit sworn on 28th July 2004 and filed on 17th August 2004, (exhibit "P1"), the plaintiff deposed that he is the registered proprietor of the property described as section 49, allotment 73, Mt Hagen and annexed as annexure "A", a copy of the title deed to verify his assertion. From the title deed, it is noted that the property is on State land (State lease - Volume 186, Folio 224) and the transfer and registration of title in the plaintiff's name was effected on 30th December 2002, a worthy and important point to note here as I will return to comment on it later.

He further deposed that policemen acting under the command and control of the first defendant entered his premises on four different occasions and carried out the raids. They were conducted on:

* 14th August 1998,

* 15th August 1998,

* 23rd September 1998, and

* 11th October 1998.

3. On each occasion, the first defendant went with a group of unidentified policemen in a police vehicle described as a Toyota land-cruiser, bearing registration no ZGV-203 and used it to transport some of the properties that they removed from his premises. At paragraph 4 of his affidavit, he outlined the details of the properties that were damaged, destroyed and/ or removed from the premises ranging from household items like mattresses, cooking utensils, radio, deep fridge, video deck to water tank, louvers, door and coffee pulper. He gave a total figure of K45,385.26 as the total value of the properties destroyed and/ or looted by the first defendant and his policemen.

4. At paragraph 5 of his affidavit, he further deposed that the first defendant and his policemen damaged two of his motor vehicles. One of the motor vehicles was a Toyota Dyna, bearing registration No P-327R and the other, a Mitsubishi Canter truck, bearing registration No HAE-903. The first defendant and his policemen damaged the Toyota Dyna's windscreen, bumper bar, mirrors, head and signal lights, doors, side door glasses and many others. He gave a figure of K14,860.63 as the value of the damage. As for the Mitsubishi Canter truck, they damaged the front bumper, windscreen, doors, rear glass, side door glasses, back tray, head and signal lights and many others. He gave a figure of K24,178.04 as the value of damage.

5. To verify the damage of these motor vehicles, he produced two photographs, one for the Mitsubishi Canter truck (exhibit "P4") and the other for the Toyota Dyna truck, (exhibit "P5"). It is noted here that the photographs showed that the motor vehicles were severely damaged. He further deposed at paragraph 6 of his affidavit that, as these motor vehicles were used for PMV business, he lost profit of K14,400.00 for the Mitsubishi Canter truck and K110,822.93 for the Toyota Dyna.

6. Two other witnesses gave evidence to verify his claim that the first defendant and a group of unidentified policemen raided his premises. Both were eyewitnesses of the raids at four different occasions. On each occasion, they saw the first defendant and his policemen damaged and/ or removed the plaintiff's properties. The first one was on 14th August 1998, the second on 15th August 1998, the third on 23rd September 1998 and the final on 11th October 1998. These two witnesses were Makop Tepoka who swore an affidavit to that effect on 06th October 2004 and had it filed on 21st October 2004, (exhibit "P2") and Namba Jip who also swore an affidavit to that effect on 06th October 2004 and had it filed on 21st October 2004, (exhibit "P3").

7. The defendants filed a defence on 16th February 2000. It is noted, in their defence, they admitted that the first defendant and a group of unidentified policemen entered the plaintiff's premises but denied that their entry was illegal. They further alleged they entered it following a complaint from one Tombo Kawa who alleged that, the plaintiff was illegally occupying the property. Secondly, the plaintiff was arrested, charged and convicted by the District Court for unlawfully on premises. Thirdly, they entered the property on two occasions, one on 14th August 1998 and the other on 23rd September 1998 and not on four occasions as alleged by the plaintiff. Finally, on those occasions, they did not damage and/ or loot any of the plaintiff's property. However, they did not call evidence either orally or by affidavits to establish their defence.

8. Be that as it may, in my view, the defence raised a very important matter and that is, there appears to be a dispute in relation to the property which the plaintiff occupied at the time of the alleged raids by the first defendant and his policemen. The defendants alleged in their defence that they acted on a complaint of one Tombo Kawa to enter and evict the plaintiff from the property. They also alleged that the plaintiff was arrested, charged and convicted by the District Court for unlawfully on premises. In my view, the defence raises the question of whether the plaintiff was the legal occupant of the property whether through a tenancy agreement or as the registered proprietor. As the defendants have challenged the plaintiff's right of occupation of the property, the onus then shifts to the plaintiff to prove his right of occupation of the property.

9. Where is his evidence that he was lawfully occupying the property at the material times? This is where I return to what I alluded to earlier, and that is, the plaintiff deposed that he is the registered proprietor of the property and annexed as annexure "A" a copy of the title deed to verify his assertion. From the title deed, it is noted that the transfer and registration of title in his name was effected on 30th December 2002. If the grant of title was made on 30th December 2002, and the alleged raids took place between August and October 1998, how can he say that he was the registered proprietor of the property in 1998? It is obvious to me that he was not the registered proprietor of the property in 1998 because the title of the property was transferred and registered in his name on 30th December 2002, some four years later.

10. The first inference drawn from the defendants' defence and evidence of the plaintiff is that, he was illegally occupying the property. He had no right to remain on it and that may have been the reason for the policemen led by the first defendant to enter and evict him from it. The second inference is, the first defendant and his policemen had a legitimate reason to enter and evict him from the property because he was an illegal occupant. Whether they damaged, destroyed and/ or looted his properties during the eviction is another matter which I will come to discussing in a moment. But for now, I find that the plaintiff was an illegal occupant of the property and partly contributed to his loss by illegally occupying the property at the material times.

11. I now turn to the second issue and that is, did the first defendant and his policemen damage, destroy and/ or loot the plaintiff's properties during the alleged raids? In the absence of any evidence from the defendants to counter the evidence of the plaintiff and his two witnesses, namely Makop Tepoka and Namba Jip, I am satisfied on their evidence that a group of unidentified policemen led by the first defendant entered the premises of the plaintiff and evicted him. In the process, they also damaged, destroyed and/ or looted his properties on 14th August 1998, 15th August 1998, 23rd September 1998 and 11th October 1998. In my view, they acted contrary to or in breach of their primary function or duty to protect lives and property. They must therefore, accept some responsibility for their transgressions.

As to whether they acted within the scope of their duties when they conducted the raids, I have no doubt in my mind that they did because they admitted in their defence that they acted on a complaint of Tombo Kawa to evict the plaintiff. Further, the overwhelming evidence from the plaintiff and his witnesses is, in the process of evicting the plaintiff, they committed the tort of trespass. For these reasons, I find the second defendant vicariously liable for the tortuous actions of the first defendant and his policemen under section 1 of the Wrongs (Miscellaneous Provisions) Act, Ch 297.

Assessment of damages

12. The final issue for determination is the amount of damages to be awarded to the plaintiff. The plaintiff; claimed general damages, special damages, exemplary damages, damages for breaches of constitutional rights, economic loss, interest and costs. I shall consider each below.

General damages

13. For general damages, his claim is in two parts. The first part is for loss of household items, and the second part is for damage to motor vehicles. As noted from his evidence, he gave a figure of K45,384.26 as the value of the destroyed and/ or looted household items but I am not satisfied that the amount truly represented the value of each item destroyed and/ or looted because there are no receipts of payments produced to verify the amounts. For it is trite that the plaintiff bears the onus of proof even though there is no evidence from the defendants disputing the value of the items: see Peter Wanis -v- Fred Sikiot & The State (1995) N1350.

14. Having said that, I am nonetheless prepared to award this amount for two reasons. First, the amount for each item claimed by the plaintiff appears reasonable and conservative and secondly, consistent with awards in past cases of similar nature. In Anis Kewa -v- Desmond Kami & The State (2010) N3899, a police raid case, I took that approach where I observed at pp 7 & 8 that:

"In terms of the value of destroyed items, whilst there are no receipts of payments to verify that the items cost K22,398.81 in total, I am nonetheless prepared to award this amount for two reasons. First, the amount is reasonable when each item is considered against the average purchase price of the same item at shops around town these days. For example, the video screen and the chair like the ones shown in the photographs (exhibits "P1", "P2", "P4" & "P5") would cost about K1,500.00 and K50.00 respectively.

Secondly, when I compare the value of each item in this case with past cases of John Tuink Salamon & Ors -v- George Wauglo & The State [1994] PNGLR 265; (1994) N1272; Peter Wanis -v- Fred Sikiot & The State (1994) N1350; Yange Langa & Ors -v- The State (1995) N1369 and Wama Kints & Ors -v- Senior Constable Pius Nukundi & The State (2001) N2113, the Court in those cases have made similar awards for similar items and so for purposes of consistency, I have decided to apply similar value for each item in this case. This comes up to K22,398.81. For these reasons, I award K22,398.81 as general damages."

15. I am therefore satisfied that the plaintiff has established his damages in the sum of K45,384.26. There is however, one aspect of the claim that I am not satisfied with, and that is the claim for loss of cash of K3,000.00. Whilst the plaintiff stated at paragraph 4 of his affidavit that he lost this amount of money, he did not say why he kept this large amount of money at home at that time. A Court of law would not accept evidence that is vague. In my view, the amount is substantial and the Court cannot accept such bare assertions of loss. In the case of Aimon Aure & Ors -v- The State [1996] PNGLR 85; (1995) N1346, a case of unlawful raid by members of the police and defence force which resulted in loss of several personal items including allegations of theft of huge amounts of cash, Woods, J said:

"This Court cannot accept bare assertions of such loss. First it is not prudent practice to keep large amounts of cash in one's home and anyone who does that does so at their own risk. Also large amounts of cash suggest an income, which could be liable for tax and therefore the Court, must require the appropriate evidence of how such large amounts of cash were obtained and of compliance with tax laws. So couple with instances where large amounts of cash are claimed this court cannot accept that claim without appropriate evidence to support the holding of such amounts of cash."

16. In Tabie Mathias Koim -v- The State [1998] PNGLR 247; (1998) N1737, the plaintiff maintained loosing K750.00 of his own money and his father losing K9,000.00 in a police raid but was not sure whether it was stolen by police or burnt. He did not positively assert a claim for these monies. Injia, J (as he then was) declined an award for the missing cash. I followed the cases of Aimon Aure (supra) and Tabie Mathias Koim (supra) in Robert Taropen & Ors -v- John Anawe & The State: WS No 1166 of 2004 (Unnumbered & Unreported Judgment of 08th March 2010) where I declined an award of K3,000.00 for missing cash although in my earlier decision in Nelson Pawa -v- Linus Yumbun, OIC Porgera Police Station & The State (2009) N3784 I awarded K12,000.00 for cash stolen during a police raid at the premises of the plaintiff at Porgera. I did so because I was satisfied that the money was proceeds from the plaintiff's PMV business.

17. For these reasons, I am not satisfied that the plaintiff in the present case lost K3,000.00 during the raids. I make no award for this claim and shall deduct it from the total sum of K45,384.26. Deducting that amount from K45,384.26 leaves a balance of K42,384.26. I have also decided that any award of general damages should be reduced because the plaintiff contributed to his loss, in that he was an illegal occupant of the property at the material time. As I have found that the first defendant and his policemen had lawful reason to enter and evict the plaintiff from the property, he must therefore bear some responsibility in causing the conflict. I consider that 50% reduction or apportionment of damages is reasonable and also reflects the seriousness of the conflict which gave rise to the raids. 50% of K42,384.26 is K21,192.13. I award this amount for loss of household items.

18. In relation to the claim for damage to motor vehicles, as noted above, the plaintiff claimed K14,860.63 for Mitsubishi Canter truck and K24,178.04 for the Toyota Dyna, giving a total of K39,038.67. He produced two quotations, one from Wamp Nga Motors for K12,928.18 dated 10th September 1998 marked annexure "B" for the Mitsubishi Canter truck and the other, from Wamp Nga Motors for K24,979.30 dated 24th August 1998 marked as annexure "C" for the Toyota Dyna to his affidavit to verify the amounts for each motor vehicle.

19. But I am not satisfied that he is the owner of the motor vehicles because he has not produced any certificate of registration to prove ownership and I do not recall him giving any oral evidence as to when he purchased these motor vehicles or why he was unable to produce the certificate of registration for each motor vehicle. Evidence of ownership is relevant and crucial to a claim for damages for it is trite that he who alleges must prove it and in this case, if the plaintiff claimed that he suffered loss because his motor vehicles were damaged by the first defendant and his policemen, he must first prove that he owned them. In the absence of any evidence proving his ownership of these motor vehicles, I am not satisfied that he has established this claim and dismiss it.

Special damages

20. There is no evidence to prove special damages. In any event, his counsel has abandoned it in his written submissions so I need not consider it.

Exemplary damages

21. For exemplary damages, he wanted the Court to award it because he wanted it to have a strong deterrent effect on other servants and agents of the State and also act as a symbol of indignation by the Court. He claimed K2,000.00 against the first defendant and I see no reason not to award this amount. This amount is also consistent with awards in past cases of James Liwa & Peter Kuriti & Markus Vanimo & The State (2008) N3486 and Anis Kewa (supra). For these reasons, I order the first defendant to personally pay K2,000.00 to the plaintiff as a symbol of the Court's indignation toward this kind of conduct by members of the disciplinary forces.

Damages for breaches of constitutional rights

22. As for damages for breaches of constitutional rights, he asked for K1,000.00, but the difficulty I have with this claim is that, he has not given the specifics of the breaches of his rights under the Constitution in the statement of claim or the amended statement of claim endorsed to the amended writ of summons filed on 09th September 1999, even though there may be some evidence of breaches before the Court. Rules of pleadings give parties in proceedings before the Court a right to have a fair go in Court and where a party makes an allegation against another, it is only fair that it be stated unequivocally in the statement of claim. Order 8, rule 29 of our National Court Rules makes this position unequivocally clear and no submissions have been made by counsel for the plaintiff to persuade me to think otherwise. In my view, the failure to plead specific allegations of breaches of constitutional rights is fatal to a claim and in this case, I find that, as there are no pleadings in the amended statement of claim to enable me to consider an award of damages for breaches of constitutional rights to the plaintiff, I have no choice but to dismiss it.

Economic loss

23. As for economic loss, I am not satisfied that he is the owner of the motor vehicles for the above stated reasons. It follows there is no basis for him to claim economic loss. This claim is therefore, dismissed.

Interest

24. I award interest at 8% from the date of issue of writ of summons of 02nd August 1999 because it is only fair and just that the plaintiff should be awarded interest at that rate to compensate him for the lost time since the unlawful raids in 1998: see section 1 of the Judicial Proceedings (Interest on Debts and Damages) Act, Ch 52. From 02nd August 1999 to date of judgment of 14th July 2010 is 3,990 days. 8% of the total principal judgment of K21,192.13 per annum is K9.28 per day. Multiply that amount by 3,990 days gives K18,513.60. I award this amount.

Conclusion

25. In conclusion, I find the defendants liable and enter judgment in the total sum of K39,705.73 inclusive of 8% interest from date of issue of writ of summons to date of judgment. In addition to that, I enter judgment in the sum of K2,000.00 against the first defendant as exemplary damages.

26. I also order the defendants to pay the plaintiff's costs of the proceeding to be taxed if not agreed and time for entry of these orders shall be abridged.

Judgment and orders accordingly.

________________________________________
Kunai & Co Lawyers: Lawyers for Plaintiff
Acting Solicitor- General: Lawyers for Defendants