Kuli (trading as Wakepo Trading) v Kaldagasa [2020] PGNC 95; N8306 (11 March 2020)

N8306

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 367 OF 2010
BETWEEN
JACKY KULI trading as WAKEPO TRADING
Plaintiff

AND
PETO KALDAGASA – LIQUOR LICENSING INSPECTOR
First Defendant

AND
NATHANIEL MARK - THE MOROBE LIQUOR LICENSING INSPECTOR
Second defendant

AND
G.TALAS ANSUA - THE MOROBE LIQUOR LICENSING COMMISION CHAIRMAN
Third Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Lae: Dowa AJ
2020: 5^th & 11^th March
      

DAMAGES – assessment of damages – liability established through entry of default judgment - plaintiff alleged he was assaulted and unlawfully prosecuted by the defendants and its servants in an unlawful raid – plaintiff as a result suffered loss and damages - plaintiff claims general damages, special damages, exemplary damages, loss of business, cost and interest – each heads of damages assessed – award of judgment sum
Cases Cited:
Papua New Guinea Cases

Abel Tomba -v- State (1997) SC518
Demda Kalo -v- Cornie Akaya & State (2007) N3213
Graham Mappa-v-PNG Electricity Com (1995) PNGLR171
Hambru -V- Michael Buar & State (2007) N3193
John Kalaut & State (1997) N1634
Kala-v- Joseph Kupo & State (2009)
Kawage -v-Mvil (2016)
Kerr -v- Motor Vehicles Insurance (PNG) Trust (1979) PNGLR251
Kinsim Business Group Inc-v Joseph Homwafi (1997) N1634
Marshall Kennedy -v -Coca Cola Amatil (2011) N4946
Peter Wanis -v-The State (1995) N1250
Saa -v- Yarra & State (2014) N5700
Teine Molomb -v- State (2005) N286
Topo -v- Kaman & State (2009) N3773

Overseas Cases

Livingstone-v-Rawyards Coal Co.(1908)5App.Cas 25(HL)

Counsel

J Kusip, for the Plaintiff
T Berem, for the First, Second & Third Defendants

DECISION

11^th March, 2020

1. DOWA AJ: This is a judgement on assessment of damages. Liability was resolved through entry of judgement given on 10^th September 2018.

2. The parties agreed to present their respective submissions on evidence and pleadings before the court. The Plaintiff tendered his Affidavits without objection. The Plaintiff was not cross examined. The defendants did not file any Affidavits in reply.

FACTS

3. At all material times, particularly in the month of June 2004, the Plaintiff was the owner of a liquor club based at Bundi Camp, Lae. On 17^th June 2004, the defendants together with the members of the police force raided the Plaintiffs premises known then as JK Club. The defendants with the assistance of the police confiscated the following:

1. 24 cartoon of SP brown beer @ K 4.50/bottle totalling K 2592.00
2. 4 cartoons Ice bottle @ K 5.20/bottle totalling K 499.20
3. 1 cartoon doop dark rum 175ml @ K36.80/bottle totalling K 883.20

4. During the raid the Plaintiff was also threatened and assaulted. The Plaintiff was then arrested, charged and subsequently prosecuted at the Lae District Court. The charge was dismissed by the Lae District Court after the Court found the Plaintiff had a valid Liquor Licence. At that time the Plaintiff had a Liquor Licence No L168H-16-178 issued by the Morobe Provincial Liquor Licensing Commission on 16^th June, 2004, just 24 hours earlier. The Licence was issued for a period of just six (6) months only.

5 The plaintiff was given a new Licence in 2005 which he operated until 2012 when he ceased business.

6. The plaintiff alleged that because of the unlawful raid, assault and unlawful prosecution, by the defendants, he suffered loss and damage.

CLAIM

7. The Plaintiff in his statement of claim sought damages as follows:

1. General Damages K 128,756.00
2. Special Damages K 180,694.80

100. Exemplary Damages K 65,000.00

4. Loss of Business K17,921,119.00
5. Costs K 200, 000.00
6. Interests @ 8%
   

PLEADINGS

8. The amounts claimed are substantial. At the outset I find the pleadings do not support or properly set out how these figures are arrived at. I will say more later in my judgement.

EVIDENCE

9. The Plaintiff relied on the following Affidavits which were tendered into evidence and exhibited P1 to P7:

1. Exhibit P1- Affidavit of Jacky Kuli filed 29 September, 2010
2. Exhibit P2 - Affidavit of Jacky Kuli filed 21 December, 2018
3. Exhibit P3 – Affidavit of Jacky Kuli filed 10 January, 2019
4. Exhibit P4 – Affidavit of Jacky Kuli filed 30 August, 2019
5. Exhibit P5 - Affidavit of Jacky Kuli filed14^th August, 2019
6. Exhibit P6 - Affidavit of Jacky Kuli filed 25 May, 2018
7. Exhibit P7 - Affidavit of Jacky Kuli filed 30 October, 2018
8. Exhibit P8 – Affidavit of Jacky Kuli filed 20 July, 2018.

Studying the Affidavits generally I am of the view that Exhibits P3, P4, P5, P6 and P8 are not relevant for the purposes of assessment. Only Exhibits P1, P2 and P7 are useful.

ISSUES

10. The issues are: Is the Plaintiff entitled to heads of damages claimed. Did the Plaintiff sufficiently plead those heads of damages? Did he bring the necessary evidence to prove his claims? If so, how much should he be awarded?

11. From the undisputed facts the defendants have unlawfully entered the premises of the Plaintiff, confiscated his goods and assaulted him. Liability has been determined. So, yes. The Plaintiff is entitled to damages.

12. How much should the Plaintiff be entitled to. The pleadings are not clear. The heads of damages were not sufficiently particularised.

13. There is no evidence to support the amounts claimed. To his credit the Plaintiff in his three Affidavits admitted he is an ordinary villager. He is not registered with tax office. He kept no records of his business. That the licence he was given was only for six months. His loss of income is for only six months. He was given a new Licence by the defendants in 2005 by way of renewal. He has been trading for more than seven (7) years until he ceased operation in 2012. In a way he conceded his loss is limited to the goods he lost with loss in income for the duration of that licence for six months.

DAMAGES

14. Lawyers for the parties correctly stated the principle governing the law of damages. Any damages in monetary terms be such amounts which put the injured party in the same position as he was before the injury or loss suffered.

15. In Livingstone-v-Rawyards Coal Co.(1908)5App.Cas25(HL), Lord Blackburn said:

“where 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 will put the injured party 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 his compensation”

16. This principle of law is further qualified in the case of Kinsim Business Group Inc-v Joseph Homwafi, John Kalaut & State (1997) N1634. At page 6 of his Judgment, His Honour Bidar AJ said that the principle referred to as Restitutio In Integrum is not absolute. It is qualified to the extent that the injured party gets damages which naturally arise from the wrong done, not those which are too remote; and secondly the injured party has a duty to mitigate his loss.

The Plaintiff has the burden of proving his claim, with appropriate evidence.

GENERAL DAMAGES

17. The first head of damages is general damages. Mr. Kusip, of counsel for the Plaintiff proposed a lump sum of K150,000.00 in his extract of submission without any explanation at all. Mr. Berem, for the Defendants submitted a sum of K10,000.00 for assault and the unnecessary arrest and prosecution. Mr Kusip did not make a reply to Mr Berems submissions. The disparity in the figures gave me the impression that the parties did not appreciate the principles governing general damages.

18. General damages is for pain, suffering and loss of amenities. In Kerr -v- Motor Vehicles Insurance (PNG) Trust (1979) PNGLR251, the Supreme Court in providing a guide on assessment of general damages, held that:

“In assessing general damages for personal injuries under the heading, pain and suffering , loss of amenities etc., the assessment should be made having regard to the prevailing condition of the plaintiff at the time of the injury, and the general standards prevailing in the community.”

19. In the present case the plaintiff pleaded he was assaulted. He did not give particulars of assault. He did not give any detail evidence. He did not provide any medical report. I accept that he was assaulted with minor or superficial injuries without any residual disability. How much should he be awarded. I am guided by the following comparable cases.

20. In George Kala-v- Joseph Kupo & State (2009) the plaintiff was awarded K5000.00 for assault with bruises.

21. In Demda Kalo -v- Cornie Akaya & State (2007) N3213, the plaintiff was awarded K5000.00 for assault with bruises to the face.

22. In Kawage -v-MVIL (2016) the plaintiff sustained a fracture to the ribs with a 15% residual disability, He was awarded K10,000.00 for general damages.

23. In Saa -v- Yarra & State (2014) N5700, the court awarded K2000.00 for a minor assault.

24. So what is the reasonable and fair compensation? The Plaintiff was assaulted and forcefully taken away. There is evidence that his family suffered anxiety and inconvenience. It was a deliberate act by the defendants on an innocent man. The awards referred above were made several years back. Due to inflation, there should be a slight increase. A fair amount should be more than K5000.00 but less than K 10,000.00 consistent with the current comparable verdicts. I am inclined to award K 8,000.00 for general damages.

SPECIAL DAMAGES

25. The amount for special damages submitted by counsel for the Plaintiff in his written submission is K130,000.00 . There is no explanation and no evidence to support that figure. On the other hand, Counsel for defendants submitted that the plaintiff be awarded K2614.00. This figure is confirmed from evidence filed by the Plaintiff in his two Affidavits -Exhibits P1&P7. They comprise of the following:

1. 24 cartons of SP @ K 70/carton K1,680.00
2. 4 cartons of ICE Beer @ K96/carton K 384.00

100. 1 carton Doop/op Duck Rum @ K 550 K 550.00

Total K2,614.00

26. The counsel for Plaintiff did not make a reply to the defendant’s submission on this figure. I accept this lesser amount to be correct. It is pleaded and supported by evidence of the Plaintiff. There shall be an award of K2,614.00 for special damages, for the loss of goods.

ECONOMIC LOSS

27. The Counsel for Plaintiff submitted in his written submission the sum of K150,000.00 for economic loss. There is no evidence to support this amount. I accept the defendants detailed submissions on the case law and authorities relating to economic loss. A plaintiff claiming economic loss has to provide proper financial records. They have to have tax records and be compliant with tax and statutory requirements. Refer: Peter Wanis -v-The State (1995) N1250, Graham Mappa-v-PNG Electricity Com (1995) PNGLR171, Marshall Kennedy -v -Coca Cola Amatil (2011) N4946.

28. On the other hand the defence counsel agreed or conceded to the figure of K 32,649.60. This amount is contained in the two Affidavits of the plaintiff in Exhibits P1 & P7. The detailed calculations are contained in paragraph 10 to16 of the plaintiff’s Affidavit sworn 27th and filed 30^th October, 2018, (Exhibit P7). The figure contained in the plaintiffs Affidavit is K32,659.20. I note the amounts claimed are at the weekly rate of K 1,360.40 for six months amounting to K32,649.60

29. As the defendants have agreed to allow this amount, I am of the view that it is not unreasonable. The Licence was for a definite period of six months. The plaintiff explained he used up the starting capital. His liquor items confiscated by the defendants were not returned. He was unnecessarily kept out of business. There is certainty in the loss. I accept that the plaintiff suffered loss of income in the sum of K32,649.60 and award same.

BREACH OF CONSTITUTIONAL RIGHTS

30. The Plaintiff is seeking damages for violation of his constitutional rights in the following:

1. Right to freedom – section 53
2. Freedom from inhuman treatment – section 36

100. Protection of the law - section 37

4. right to freedom from arbitrary search – section 44
5. right to privacy - section 49
6. Protection from unjust deprivation of property - section 53

31. Under this head of damages, counsel for the Plaintiff submitted a global sum of K130,000.00. There is no explanation how this figure is arrived at. The pleadings are ambiguous too. The cardinal law underpinning civil litigation is that pleadings drive the evidence. In the present case, even the evidence falls short.

32. Counsel for Defendants submitted that any award for alleged breach of constitutional rights be included in the amount awarded for general damages. Mr Berem specifically submitted that the amount be fixed at K10,000.00 for assault and other constitutional rights violations. I am not inclined to accept Mr. Berem’s submissions. Awards can be considered separately under each head of damages to arrive at a more just and equitable figure.

33. From the pleadings and evidence provided the constitutional breaches for right to freedom from inhuman treatment and protection of the law are not established. Whilst the Plaintiffs goods were unjustly deprived, I have already considered the claim under special damages.

34. As for violations against his freedom and privacy, I am of the view that there were breaches, though not so grave. The plaintiff was taken away from his place of privacy, comfort and security. His freedom was taken away even though it was for a short period. He was then charged and subjected to prosecution which lasted for a few more days. So, how much should I award for breach of constitutional rights. In Saa -v- Yarra & State (2014) N5700 the court awarded K6000.00 for breach of constitutional rights. In this case I also award K 6000.00

MALICIOUS PROSECUTION

35. Should an award be made for malicious prosecution? It is not clear whether the actions of the defendants were false or malicious or plainly mistaken. What is clear from the evidence is, the plaintiff, an innocent citizen, was arrested and charged. He was prosecuted but acquitted by the court. In the circumstances, I am inclined to make an award. How much should the Plaintiff be awarded? I am guided by the following cases.

36. In Teine Molomb -v- State (2005) N286 the court awarded K9000.00 for false/malicious prosecution. In Jubilee Hambru -v- Michael Buar & State (2007) N3193 the court awarded K12,000.00. In Topo -v- Kaman & State (2009) N3773, the court awarded K10,000.00 for a more serious matter. In Saa -v- Yarra & State, the court awarded K 2000.00. The present case is less serious than Topo. I consider K 8000.00 to be a reasonable amount in this matter for reasons given above.

EXEMPLARY DAMAGES

36. The Plaintiff submitted the sum of K120,000.00 for exemplary damages. Again, the plaintiff provides no explanation for this amount. The counsel for the defendants submitted an amount of K 10,000.00 be awarded. I am of the view, the amount conceded by the defendants is reasonable. Accordingly, I make an award of K10, 000.00 for exemplary damages. I also note and agree with defence counsel that the two Defendants were carrying out official duties. In accordance with the decision of Abel Tomba -v- State (1997) SC518, their principal employer shall be responsible.

INTEREST

37. The plaintiff submits interest be calculated at 8%. The defendant submits interest be charged at 2% pursuant to Judicial Proceedings (Interest on Debts & Damages) Act 2015. I am inclined to award interest at 2%. Firstly, the defendants are officers of a state agency. In accordance with the decision of the Supreme Court in PNG Power v Augerea (2013) SC 1245. The Morobe Liquor Licensing Commission is a governmental body, set up by a Government for an important public purpose. Secondly, I note the parties, especially the plaintiff, did not do enough to prosecute this matter earlier. In the circumstances, I award interest at 2%.

COSTS

38. The Plaintiff sought a separate award for cost. I am not inclined to make an award. The cost incurred in prosecuting this matter is a matter for parties to agree or to be taxed after judgment. Cost shall be awarded to the Plaintiff on a party/party basis, to be taxed, if not agreed.

SUMMARY

39. In summary the following shall be awarded:

1. general damages K 8,000.00
2. special damages K 2,614.00

100. economic loss K32,649.60

4. exemplary damages K 10,000.00
5. constitutional rights K 6,000.00
6. false/malicious prosecution K 8,000.00

TOTAL K66,263.60

40. I add 2% interest on K66,263.60 per annum since filing of writ (13/04/10) to date of judgement (11/03/20), interest amounts to K13,132.90. The total judgment is K79,396.50.

ORDERS

41. It is ordered that:

(i) Judgment is awarded to the Plaintiff in the sum of K79,396.50

(ii) The Defendant shall pay the Plaintiff’s cost, to be taxed if not agreed.

(iii) Time be abridged.
_______________________________________________________________
Kusip Lawyers : Lawyer for the Plaintiff
Berem Lawyers : Lawyer for the Defendants