Jonathan Mangope Paraia v Inspector Jacob Yansuan, as Police Station Commander (Porgera), Chief Superintendent Fred Sheekiot as Provincial Police Commander, Police Commissioner and The Independent State of Papua New Guinea (1995) N1343

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 29 June 1995
• Court: National Court
• Citation: (1995) N1343
• Year: 1995
• Judgement Number: N1343

Full Title: Jonathan Mangope Paraia v Inspector Jacob Yansuan, as Police Station Commander (Porgera), Chief Superintendent Fred Sheekiot as Provincial Police Commander, Police Commissioner and The Independent State of Papua New Guinea (1995) N1343

National Court: Injia J

Judgment Delivered: 29 June 1995

N1343

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 317 OF 1994

BETWEEN

JONATHAN MANGOPE PARAIA

PLAINTIFF

AND

INSPECTOR JACOB YANSUAN AS THE POLICE STATION COMMANDER (POGERA)

FIRST DEFENDANT

AND

CHIEF SUPRINTENDANT FRED SHEEKIOT AS THE PROVINCIAL POLICE COMMANDER

SECOND DEFENDANT

AND

THE POLICE COMMISSIONER

THIRD DEFENDANT

AND

THE STATE

FOURTH DEFENDANT

Mount Hagen

Injia J

23 March 1995

29 June 1995

CIVIL LAW — Damages — Proof of — Duty of plaintiff to prove damage — semi permanent L40 type house built in village environment burnt down by policemen in police raid — Evidence of value of house vague or inconsistent — Duty of Court to determine probable value of house and award reasonable damages.

Cases Cited

Bonham-Carter v Hyden Park Hotel Ltd [1948] TLR 177

Chaplin v Hicks [1911] 2 KB 786

Biggin v Permanite [1951] 1 KB 314

James Koimo v The State Unreported Judgment N1322 dated 31 May 1995

Counsel

G Yapao for the Plaintiff

M Pokia with J Yamboli for the Defendants

26 June 1995

INJIA J: This is a trial on assessment of damages following default judgment. The action arises out of a police raid on Paiam village, Pogera, Enga Province on 29 June 1993 following the fatal shooting of a policemen by warring clansmen. A combined police operation of policemen from various parts of Enga resulted in widespread destruction of property, looting and the fatal shooting of one man. The plaintiff in this case is the President of the Pogera Local Government Council and a businessman in the Pogera District. There is no dispute that his semi permanent house situated at Paiam village was burnt down in the raid. The plaintiff's claim is for damages for the loss of the house and its contents as well as exemplary damages and interest. The trial on assessment of damages is contested by the defendants. The main dispute is as to the value of the L40 type house. I will deal with the value of the house first.

L40 TYPE SEMI-PERMANENT HOUSE

The plaintiff's case is that the house was valued at K40,000.00 inclusive of labour and transportation cost. The house was built in 1992. The plaintiff gave evidence first. He said he had legal title over the land on which the building was situated. The plaintiff in his oral evidence and in his affidavit makes a "conservative" estimate of K40,000.00 of which K6,700.00 was for the cost of labour. As to the cost of the materials, he left it to the carpenter who built the house to give evidence of.

The second witness was the carpenter, Mr James Lero from Southern Highlands Province. His evidence consists of an affidavit on which he was cross-examined by the defendant's counsel. He is a carpenter with 2 years experience. He had obtained a Vocational School Certificate in 1988 specialising in carpentry. He had worked with various construction companies prior to building this house. At the time he built the house, he was employed by Enga Builders. He used his own tools except for an electric saw, electric plane and dumpy level which were supplied by the plaintiff. The building took 2 1/2 months to complete. He engaged 5 other employees whom he supervised. His labour charge was K2.00/hour and the labourers rate was K1.00 per hour. The house he built was a L40 type four bedroom house. However, there is no evidence he used a house plan. Total cost of the house was K40,000.00 which excludes security fees and cost of fencing the property. Of, the K40,000.00, K5,000.00 was for labour costs, K3,500.00for transportation cost, K3,500.00 for site preparation and equipment hire and drainage fees. The method of purchase of materials was that the plaintiff retained all monies and paid to various persons whose goods or services were acquired as the occasion arose. All the receipts were kept by the plaintiff but were all burnt in the fire. Most of the major purchase of materials were made from established suppliers in Mt. Hagen with only little materials purchased at Pogera. A dyna truck and a tipper truck was hired to transport the materials. After the house was completed, he was allocated one room of the house where he stayed and looked after the house. He was still living in the house when it was burnt down.

The third witness called by the plaintiff was Moses Linonge. He was then the District officer for Pogera with some 8 years experience in the Pogera District. He had seen the house from the road outside. His conservative estimate was K50,000.00 — K70,000.00. His estimate was based on his view of the type of house, his own knowledge of things and his knowledge of the plaintiff as a businessman and Council President, as a person who was capable of building and owning such a house.

The fourth witness was Mr Herman Yongapen. He is a District Officer based at Pogera at that time. He had prior experience in carrying out investigations in police raid of villages in several districts in the Enga Province. He had experience in assessing the value of properties destroyed including 2 L40 type semi-permanent house on previous occasions. His estimate of a L40 type house in Enga is K50,000.00 — K60,000.00. His estimate of the plaintiff's house from seeing the house from the outside, from the main road, was K40,000.00. This decreased value was based on the fact that the plaintiff did not involve a qualified carpenter and that the house was built on land owned by him.

The defence called Mr Mika Rek. He is the Senior Works Supervisor with the Department of Works in Mount Hagen. He is a qualified tradesman specialising in building construction. According to Mr Rek, depending on the location of the building, a L40 type house would cost K35,000.00 for labour and materials and transportation costs but this value excludes the value of land. Generally speaking, carpenter of 3 years experience can produce 70% workmanship, especially if the house is built in the village and the work is not supervised and inspected by a supervisor.

It is submitted for the plaintiff that on the evidence, the Court should find that the house was valued at K40,000.00. The State submits that, on the evidence, the proper value of the house is something less than K35,000.00. The defendant seems to infer that 70% workmanship of K35,000.00 would reduce a L40 type house to the value of K24,500.00.

There are several unsatisfactory aspects of the evidence as to the value of the house, especially in relation to the evidence produced by the plaintiff. First, the house is a modern semi-permanent L40 type house. It was built in the space of 2 1/2 months involving substantial expenditure of money. The plaintiff is an...