Honkey Pawa Mulunga v Constable Charlie Kami

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Makail, J
• Judgment Date: 05 April 2011
• Citation: (2011) N4254
• Judgment Number: N4245
• Year: 2011

Full : WS No 1383 of 2005; Honkey Pawa Mulunga v Constable Charlie Kami and the Independent State of Papua New Guinea (2011) N4254

National Court: Makail, J

Judgment Delivered: 5 April 2011

N4245

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1383 OF 2005

BETWEEN

HONKEY PAWA MULUNGA

Plaintiff

AND

CONSTABLE CHARLIE KAMI

First Defendant

AND

THE INDEPNDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Mount Hagen: Makail, J

2011: 22nd February & 05th April

ASSESSMENT OF DAMAGES - Police raid - Trespass to trade store goods - Destruction of - Looting of - Loss of - Proof of - Records of business earnings - Lack of - Grossly inflated value - Reduction of claim by 50%.

Cases cited:

Jonathan Mangope Paraia -v- The State & Ors (1995) N1343

William Mel -v- Coleman Pakalia & Ors (2005) SC790

Motor Vehicles Insurance Trust -v- Salio Tabanto [1995] PNGLR 214

Tabie Mathias Koim -v- The State [1998] PNGLR 247; (1998) N1737

Jackson Tuwi -v- Kenny Taiya & The State (2010) N3901

Yange Lagan & 58 Ors -v- The State & Ors (1995) N1369

Aimon Aure & Ors -v- The State [1996] PNGLR 85; (1995) N1346

Robert Taropen & Ors -v- John Anawe & The State (2010) N3911

Nelson Pawa -v- The State (2009) N3784

Thomas Paraka -v- Thomas Upaiga & The State (2010) N4090

Abel Tomba -v- The State (1997) SC 518

James Liwa & Peter Kuriti -v- Markus Vanimo & The State (2008) N3486

James Gunambo & Anor -v- Sergeant Thomas John Upaiga & The State: WS No 1321 of 2002 (Unnumbered & Unreported Judgment of 25th January 2010)

Pius Pup -v- Joseph Kupo & The State (2010) N3897

Kawi Yawi -v- Torepa Nenga, Anton Sinawai & The State (2002) N2209

Bob Kol -v- The State (2010) N3912

Counsel:

Mr E Wamp, for Plaintiff

Ms J Bamin, for Defendants

JUDGMENT

05th April, 2011

1. MAKAIL, J: This is a judgment on assessment of damages. The plaintiff sued the defendants for damages arising from an alleged police raid in his village on 06th May 2005. His village is called Minimp and is located in Mul District of Western Highlands Province. In the writ of summons, he alleged the first defendant led a group of policemen to his village and broke into his trade store. They seized, looted and destroyed trade store goods valued at K23,566.00. He sought general damages, special damages, exemplary damages and damages for breaches of constitutional rights, interest and legal costs against the defendants.

Plaintiff’s evidence

2. In his affidavit sworn on 21st September 2009 and filed on 22nd September 2009 (exhibit “P3”), he deposed on 06th May 2005, the first defendant led a group of policemen to his village. They went to his trade store, broke down the door and went inside. They removed goods and took them away and destroyed some of them. He gave a list of goods that were either destroyed or looted by the policemen. They were:

50 x Roots rice 20 x 1 kg @ K77.50 - K 3,875.00

50 x Roots rice 500 gram @ K40.50 - K 2,025.00

50 x Trukai rice 20 x 1 kg @ K92.50 - K 4,625.00

40 x Trukai rice 500 gram @ K47.70 - K 1,908.00

30 x Dianna Tuna 185 g @ K57.30 - K 1,719.00

30 x Dianna Tuna 380 g @ K62.90 - K 1,887.00

10 x Besta Big 425 g @ K196.50 - K 1,965.00

10 x Besta Small 185 g @ K198.50 - K 1,985.00

8 x Hiway Beef biscuit @ K64.50 - K 516.00

8 x Hiway Beef biscuit @ K49.50 - K 396.00

5 x Large Wopa biscuit @ K54.00 - K 270.00

2 x Oxen Palm 340 g @ K179.50 - K 359.00

4 x Oxen Palm 200 g @ K127.50 - K 510.00

4 x Sita meat 200 g @ K29.50 - K 118.00

5 x Sita meat 300 g @ K33.90 - K 169.50

4 x Small Wopa biscuit @ K54.90 - K 329.40

30 x S/Oil 250 ml @ K53.50 - K 1,605.00

20 x S/Oil 500 ml @ K50.50 - K 1,010.00

30 x S/Oil 1 ml @ K43.50 - K 1,305.00

15 x Kilna original yellow @ K49.90 - K 748.50

15 x Kilna laundry @ K49.90 - K 748.50

10 x Han Was soap @ K34.20 - K 342.00

5 x B29 150 x 35 g @ K46.00 - K 230.00

25 x Maggie noodles 100 x 80 g @ K76.50 - K 1,912.00

10 x Maggie cube carton @ K107.00 - K 1,070.00

4 x Twisties @ K20.90 - K 83.60

5 x Gold Nuggets @ K22.90 - K 114.50

15 x Ramu Sugar 20 x 500 g @ K41.50 - K 622.50

=========

Total K32,449.00

=========

3. In his oral evidence, he said, after the first defendant and the policemen left, he conducted a stock take of the goods that were destroyed and seized by the policemen. He came up with the list of goods as set out in his affidavit and said, the value of the goods was based on a quotation he obtained from Dae Won Trading Limited in Mt Hagen where he usually purchased his store goods. He knew the goods that were destroyed or seized by the policemen because he regularly does stock takes at the end of each month to see whether he needed to resupply the stock in trade. As the raid occurred on 05th May 2005 which was soon after the stock take for the previous month, that was the reason he knew the exact quantity and type of goods in the trade store at the material time.

4. As he remembered the quantity and type of goods, he went back to Dae Won Trading Limited in Mt Hagen and obtained a quotation. The quotation gave an accurate value of the lost goods because it was based on the current purchase prices of each good. In his further oral evidence, he said he increased the claim from K23,566.00 to K32,449.00 because of inflation. He produced a copy of the quotation and a couple of photographs of two buildings but was unable to produce invoices and receipts of payment of the goods as they were destroyed in the raid. According to one of the photographs, one of the buildings was a semi-permanent one. The frames appeared to have been made of sawn timbers and the walls from “pitpit” blinds. It has a corrugated iron roof.

5. He denied suggestions by counsel for the defendants in cross-examination that according to one of the photographs that showed the building that housed the trade store, the building was too small and to house the large number of goods he was claiming. He maintained the trade store building was big enough to house the goods that were lost during the police raid. He also said, during the raid he lost cash of K486.00 and alleged the policemen stole it. The money was from the sale of goods from the trade store.

6. His evidence was corroborated by two witnesses. In the affidavit of Simon Pai sworn on 21st September 2009 and filed on 22nd September 2009 (exhibit ‘P1”) and affidavit of David Onum sworn on 21st September 2009 and filed 22nd September 2009 (exhibit “P2”), they deposed that the plaintiff owned and operated a trade store in Minimp village.

7. They further deposed on 06th May 2005, they were in the village when the first defendant led a group of policemen to the village. There were about 11 to 12 of them and they came in two motor vehicles. One was a blue Toyota land-cruiser open back and the other was a white Toyota 10 seater land-cruiser. They were armed with firearms and fired shots into the air. They broke down the door of the plaintiff’s trade store and went inside. They removed large quantities of trade store goods and took them away in the two motor vehicles. Some policemen destroyed some of the goods by cutting open bags of rice, bags of flour and sugar and threw them all over the ground.

8. They said, the plaintiff was not the only victim of the police raid. There were other people and properties destroyed by the policemen. George Pawa was one of them. The policemen also broke into his house and looted his personal items. The other was their local community school called Yaraka. The policemen went to the school and destroyed the school’s properties. They also assaulted villagers by booting them, hitting them with fan belts and chased them away.

Defence’s evidence

9. The defendants had not offered any evidence to deny or refute the plaintiff’s claim. However, this does not mean the Court should simply accept the evidence of the plaintiff and his witnesses and find in his favour: see Jonathan Mangope Paraia -v- The State & Ors (1995) N1343.

Issue

10. The issue is, has the plaintiff proven his losses under each of the head of damages?

The Law

11. The burden of proof rests on the plaintiff and it is upon him to discharge that burden on the balance of probabilities which is the required standard of proof in civil cases. The Supreme Court in William Mel -v- Coleman Pakalia & Ors (2005) SC790 referred to the following principles of assessment of damages which I find helpful to this case and adopt:

“The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person’s case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)

Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331,...