Kolaip Palapi for himself and on behalf of the Kessan Clansmen, Laiagam, Enga Province v Sergeant Poko, Robert Nenta and The Independent State of Papua New Guinea (2001) N2274

• Jurisdiction: Papua New Guinea
• Judge: Jalina J
• Judgment Date: 05 June 2001
• Court: National Court
• Citation: (2001) N2274
• Year: 2001
• Judgement Number: N2274

Full Title: Kolaip Palapi for himself and on behalf of the Kessan Clansmen, Laiagam, Enga Province v Sergeant Poko, Robert Nenta and The Independent State of Papua New Guinea (2001) N2274

National Court: Jalina J

Judgment Delivered: 5 June 2001

N2274

PAPUA NEW GUINEA

[In the National Court of Justice]

WS NO: 756 OF 1996

Between:

KOLAIP PALAPI for himself and on behalf of the Kessan Clansmen, Laiagam, Enga Province

(Plaintiffs)

And:

SERGEANT POKO

(First Defendant)

And:

ROBERT NENTA

(Second Defendant)

And:

INDEPENDENT STATE OF PAPUA NEW GUINEA

(Third Defendant)

Mt. Hagen : Jalina, J.

2000 : 20 October 2001 : 5 June

Damages – Proof of – Claim arising out of Police raid – Assessment following default judgment – Representative action – Evidence by affidavit – No evidence from individual claimants to quantify claim – Claim too vague – Risk of false claim – Only a small part of claim proved – Only a small amount awarded in damages.

Cases Cited:

Livingstone –v- Rawyards Coal (1880) 5 APP Case 25.

Bonham Carter –v- Hyden Park Hotel Ltd (1948) 64 TLR 177.

Peter Wanis –v- Fred Sikiot & The State N1350.

Yange Lagan & Ors –v- The State N1369.

Obed Lalip & Ors –v- Fred Sikiot & The State N1457

P. Dowa for the Plaintiff

B. Ovia for the Defendants

5 June 2001

JALINA, J. This is a claim for damages as a result of a police raid at Liop Village, Laiagam in the Enga Province on 16 June 1995. Default judgment was entered against the Defendants on 21st March 1997 when they failed to file their defence. Liability having been determined, the matter has come before me for assessment of damages. In order to appreciate the various aspects of the claim and to determine whether or not the Plaintiffs have proved each claim, it is necessary to set out the statement of claim in full.

“Statement of Claim:

1. The Plaintiff, Kolaip Palap is instituting these proceedings for himself and on behalf of members of Kessan tribe, Laiagam, Enga Province and bring this action jointly and or severally claiming damages against the Defendants.

2. The First Defendants is and was at all material times the Police Station Commander at Laiagam, a Senior Police Officer and is an employee, servant and/or agent of the third Defendant.

3. The Second Defendant is the Police Commissioner and is responsible for all police actions throughout Papua New Guinea.

4. The Third Defendant is the Independent State of Papua New Guinea.

5. At about 11:00 am on the 16th of June 1995, the First Defendant as Commanding Officer, led an unspecified number of policemen attached to the Wabag Police Station entered upon Liop Village, Laiagam, Enga Province and without good cause wilfully destroyed, damaged, removed or otherwise burned down food crops, store goods, houses, domestic animals, personal effects to the total value of K204,672.00.

6. Further or in the alternative, the First, Second and Third Defendants by their servants, agents and employees in seizing and carrying away the said stock, cash, goods and livestock thereby converted all those items to their own use.

7. The full particulars of the claim are set out as follows:

Building:

Quantity Property Description Total Value

4 Enga traditional building (1x K1500.00) K 6,000.00

6 Semi modern kunai building

(1 x cost K1500.00) K 9,000.00

1 Modern permanent building

Materials & labour cost K 7,000.00

1 Modern permanent building

Trade store 30m2 K 4,000.00

Animals:

Quantity Property Description Total Value

7 Medium size pigs

(1 x cost K400.00) K 2,800.00

3 Mother dogs K 180.00

5 Medium size goats K 1,000.00

Plants & Other Properties:

Quantity Property Description Total Value

65 Mature casuarina trees

(1 x cost K60.00) K 3,900.00

115 Young casuarina trees

(1 x cost K10.00) K 1,150.00

81 Young pandanus trees

(1 x cost K40.00) K 3,240.00

36 Mature pandanus trees

(1 x K100.00 cost) K 3,600.00

31 Mature gum trees

(1 x cost K60.00) K 1,860.00

102 Young gum trees

(1 x cost K5.00) K 510.00

92 Sugar Cane bundle

(1 bundle cost K30.00) K 2,760.00

36 Double mattresses

(1 x cost K50.00) K 1,800.00

15 Single mattresses

(1 x cost K25.00) K 375.00

13 Large axes

(1 x cost K30.00) K 390.00

18 Small axes

(1 x cost K15.00) K 270.00

34 Bush knives

(1 x cost K6.00) K 204.00

42 Spades

(1 x cost K15.00) K 630.00

151 Light Blankets

(1 x cost K12.00) K 1,812.00

12 Thick Blankets K 300.00

29 Bed sheets

(1 x cost K35.00) K 348.00

48 Large pots K 1,680.00

26 Small pots K 390.00

30 Bowl dishes

(1x cost K27.00) K 810.00

370 Plates

(1 x cost K.50) K 555.00

400 Spoons

(1 x cost K0.80) K 320.00

401 Forks

(1 x cost K0.70) K 210.00

402 Cups

(1 x cost K1.20) K 228.00

403 Men Trousers

(1 x cost K15.00) K 7,925.00

404 Men Shirts

(1 x cost K12.00) K 3,540.00

405 Men jackets

(1 x cost K25.00) K 450.00

406 Meri blouse

(1 x cost K12.00) K 4,080.00

201 Meri laplaps

(1 x cost K7.00) K 1,407.00

407 Children clothes

(1 x cost K4.00) K 1,604.00

20 Pair of men shoe

(1 x cost of K50.00) K 1,000.00

31 Small knives K 93.00

408 Bilums

(1 x cost K30.00) K 9,030.00

2081 Young cauarina trees

(1 x cost K5.00) K 10,405.00

1054 Mature cauarina trees

(1 x cost K50.00) K 52,700.00

95 Young gum trees

(1 x cost K5.00) K 475.00

206 Mature gum trees

(1 x cost K80.00) K 1,648.00

481 Sugar-cane bundle

(1 x cost K30.00) K 1,443.00

301 Other trees

(1 x cost K25.00) K 7,525.00

603 Special tangets

(1 x cost K25.00) K 3,015.00

3000 Kaukau mounds K 30,000.00

Total: K204,672.00

==========

8. As the Defendants actions were wilfully unlawful, the Plaintiffs are entitled to exemplary damages.

And the Plaintiff Claims:

(a) Damages.

(b) Exemplary Damages.

(c) Special Damages.

(d) Interest.

(e) Cost of these proceedings.”

When the matter came before me for assessment of damages there was no “trial” in the normal sense of the word “trial” in that no oral evidence was called and witnesses examined and cross-examined by both parties. The Plaintiff has relied on affidavits that were filed earlier. The Defendants did not file any affidavits.

Having failed to give the relevant notice as required by s.36 of the Evidence Act, the Defendants have also forfeited their right to cross-examine the deponents who had filed affidavits on behalf of the Plaintiffs. So the Plaintiffs’ evidence, prima facie, remain intact. The trial was therefore conducted on the basis of counsel for both parties, by consent, filing written submissions on quantum of damages.

General Damages:

The general principle applicable when the court is considering whether or not damages should be awarded was stated by Lord Blackburn in Livingstone –v- Rawyards Coal (1880) 5 APP Case 25 at 39 which Counsel for the Defendants has referred to:

“When an 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 shall put the party who has been injured, 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 compensation……..”

However, the onus is still on the plaintiff to prove his claim. It is not sufficient to make assertions in the Statement of Claim and then expect the Court to award what he claims. In Bonham Carter –v- Hyden Park Hotel Ltd (1948) 64 TLR 177 which Counsel for the Defendants has also referred to, Lord Goddard, CJ. said at p.178:

“The Plaintiff must understand that, if they bring actions for damages, it is for them to prove their damages. It is not enough to write down particulars and so to speak, throw them at the head of the Court, saying …………..“This is what I have lost, I ask you to give me these damages, ”they have to prove it.”

In McGregor on Damages, (Sweet & Maxwell, 13th Edn, 1972, London), the learned author puts the same principles in another way at p.935:

“The Plaintiff has the burden of proving both the fact and the amount of damages before he can recover substantial damages. This follows from the general rule that the burden of proving a fact is upon him who alleges it and not upon him who denies it, so that where a given allegation forms...