Kopung Brothers Business Group Inc v Sakawar Kasieng and The Independent State of Papua New Guinea [1997] PNGLR 331

• Jurisdiction: Papua New Guinea
• Judge: Lenalia AJ
• Judgment Date: 19 September 1997
• Court: National Court
• Citation: [1997] PNGLR 331
• Year: 1997
• Judgement Number: N1631

Full Title: Kopung Brothers Business Group Inc v Sakawar Kasieng and The Independent State of Papua New Guinea [1997] PNGLR 331

National Court: Lenalia AJ

Judgment Delivered: 19 September 1997

N1631

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO. 903 OF 1995

BETWEEN

KOPUNG BROTHERS BUSINESS GROUP — Plaintiff

And

SAKAWAR KASIENG — First Defendant

And

THE INDEPENDENT STATE OF PAPUA NEW GUINEA — Second Defendant

Mount Hagen

Lenalia AJ

10 July 1997

19 September 1997

CIVIL JURISDICTION — Action for wrongs by State agents — Police raid — Indiscriminate burning of trade store — Looting — Assorted items removed — Allegation of cash being either stolen by police or destroyed by fire.

CIVIL LAW — Wrongs by State's agent — Assessment of damages — Valuation of property — No independent assessor — Corroboration required to support evidence of plaintiff — Court's discretion to place value on damaged property.

This was a trial on damages caused to the plaintiff's trade store during a raid in which the trade store was burnt down to ashes and assorted items removed prior to setting fire to the building.

Held:

(1) Where there is evidence that damages or destruction has been caused to property or that property has been damaged but there is no independent assessor or valuer, the Court is entitled to place a value on the damaged property: National Court Rules O. 10 rr. 17, 18 and 19.

(2) In a case where a large cash sum is claimed, unless there is cogent evidence to substantiate cash lying around in a trade store or unless there is evidence from independent witnesses, such claim should not be allowed.

Cases Cited:

Admiralty Comrs v SS Valeria [1922] 2 AC 242 at 248

Livingstone v Rawyards Cool Co [1880] 5 App Cas 25 at 39

Darbishire v Warran [1963] 1 WLR 1067

Kopowei v Siviri [1983] PNGLR 449

John Tiunk & Ors v The State & 4 Ors [1994] N1272

Bonham v Hyden Park Hotel Ltd [1948] 64 JLR 177 & 178

Albert Baine v The State [1995] N1335

Andrew Polipila v The State [1996] WS 113/96

Counsel:

P Korowi for the Plaintiff

J Kumura for the Second Defendant

19 September 1997

LENALIA AJ: The Plaintiff in this matter is a business group incorporated under the Business Group Incorporation Act Ch. No. 144. The creature was created on the 7th of July 1989 and was dissolved by the Registrar of companies on the 27th of December, 1995 for failing to comply with requirements pursuant to S. 28 (2) (f) of the Business Groups Incorporation Act. The alleged incident took place while the plaintiff was a going concern. The plaintiff's main dealing then was in the sale of consumable commodities and conducted its business from the building that was alleged burnt by policemen under the command of Chief Inspector Sakawar Kasieng. The plaintiff commenced proceedings by a Writ of Summons filed on the 2nd of October 1995 claiming damages for the loss of the building, the stock on hand and assorted items. Included in the claim was a large cash sum alleged to have been either stolen or destroyed by fire.

The defendants denied liability resulting in a trial both on the issues of liability and quantum. The plaintiff relied on five (5) affidavits of five (5) witnesses namely Paulus Tumbe, Ikai Gikema, Kupul Aure, Aipe Takpe and Brown Par. Prior to commencement of the trial Mr Kumura consented to the affidavit evidence of the last three witnesses to be tendered and which the Court accepted as part of the plaintiff's case. Mr Kumura however wanted to cross examine Paulus Tumbe and Ikai Gikema were both called and cross examined on certain aspects of their affidavit evidence. In fact nothing much was derived from cross-examination of the two witnesses except perhaps in the case of witness Paulus Tumbe from whom more confirmed valuation of the property alleged damaged could be elicited.

The plaintiff's evidence is that on Saturday 23rd April, 1994 a group of policemen under the command of the then Station commander Chief Inspector Sakawar Kasieng of Banz Police Station came to Kopung village in four police vehicles about between 10 am and 11 am trying to arrest a suspect from that village. Village elders were summoned and the first defendant talked to them urging both the village leaders and villagers to assist the police so that the suspect Waine Aure could be apprehended. The suspect was not around in the village and the elders informed police he had absconded to another location. The only defence witness gave evidence that in the course of this conversation and prior to the police leaving for Banz Police Station, an informant came and informed the police commander that there was beer in the trade store nearby. It also happened that during the material time, there was a liquor ban in the whole of Western Highlands probably the whole Highlands Region.

The first Defendant after having received this complaint gave verbal orders to those policemen with him to confiscate the beer in the trade store. It was this trade store which was owned by the plaintiff the subject of this proceedings. Policemen then acted by using sticks and stones to forcefully open the door. Prior to forcefully opening it, witness Paulus Tumbe offered the same policemen the key to the store but was assaulted and beaten with a gun butt. Once inside the shop, police confiscated the beer and all witnesses say that store goods were also removed. The police convoy then took off to Banz.

The plaintiff's evidence is that in the afternoon of the same date, policemen returned in four vehicles most probably the same vehicles that were used in the morning. In all there were about the same number of policemen between fifteen to twenty (15-20) that came in the morning. This time they came direct to the trade store owned by the plaintiff and set fire to it including three other structures owned by other complainants. In the midst of the policemen was an expatriate police officer who was simply referred to as Mr Paul Vanstaveren. Paulus Tumbe's evidence is that at the material time the trade store was fully stocked. Six photographs were taken Exhibits "B1" — "B6" to support and establish the fact that the whole building was completely burnt down. The only remains were burnt corrugated roofing iron.

The defence case consisted of only one witness Jacobus Gori. Constable Gori admitted and confirmed the plaintiff's evidence that fifteen to twenty policemen under the command of the first defendant went to Kopung village in pursuit of a suspect. Whilst in the village, they received information about a large quantity of liquor being kept at the trade store building owned by the plaintiff. He further admitted that his colleagues used sticks and stones to force open the building. Once inside, the beer was confiscated. Constable Gori denied removing any property from the shop. He also denied going back in the afternoon and burning the trade store. What is clear is that, whilst this only witness may be truthful, there were about twenty policemen and the witness could have been only talking for himself.

There are a number of undisputed facts that worth mentioning. It is agreed that on the 23rd of April 1994 a group of fifteen to twenty policeman under the command of Chief Inspector Kasieng went to Kopung Village in pursuit of a suspect. There were about four police vehicles used in the raid. While in the village police received information that a large quantity of beer was kept in the trade store owned by the plaintiff. That upon receipt of such information policemen forced open the door of the building got inside and confiscated cartons of beer. Disputed facts include denial of police returning in the afternoon of the date of the incident, denial of burning the building owned by the plaintiff and several other structures. The value of the stock on hand was said by the defence witness to be much less than what the plaintiff is claiming.

From the evidence in support of this claim and from the evidence for the defence, this Court is satisfied on the balance of probability that on the material time and date Chief Inspector...