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Wanis v Sikiot [1995] PGNC 28; N1350 (1 August 1995)

Unreported National Court Decisions

N1350

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 42 OF 1993(H)
PETER WANIS - Plaintiff
V
FRED SIKIOT - First Defendant
THE STATE - Second Defendant

Mount Hagen

Woods J
17 May 1995
26 June 1995
1 August 1995

ACTION FOR WRONGS - claims against the State - destruction of property by police - damages - independent evidence - need for - assessment of damages.

Counsel:

P Dowa for the Plaintiff

J Kumura for the Defendant

1 August 1995

WOODS J: This is a claim for damages suffered by the Plaintiff when on the 9th February 1993 a number of police under the control of the First defendant entered his premises at Porgera where the plaintiff lived and carried on business and looted and destroyed a substantial amount of property. It is claimed that the police were acting in the course of their duty at the time and that the action was not warranted in law and therefore the State is responsible for the damage done by the police.

The claim by the plaintiff of the police raid on his property has not been refuted by the State and in default of action by the State judgement by default was entered against the State for damages to be assessed. This matter has now come before me on the assessment of damages.

The plaintiff claims that he had established himself at Porgera by setting up a mechanical workshop, and a trade store and a permanent house and had acquired a number of vehicles. He claims one of his vehicles was a Isuzu Dump truck which was used for a sub-contracting job with the PJV Company at Porgera for use on road works in the Enga Province. The plaintiff is claiming for the loss and destruction of the property and also for loss of profits following the destruction of the property which was used to generate income.

Whilst the State has failed to present any evidence disputing the general claim it is still necessary for the Plaintiff to produce appropriate evidence in Court to support the quantum of the claim. I will consider each aspect of the loss in turn.

THE VEHICLES

The Plaintiff claims for the loss of a number of vehicles. He is unable to produce any documentation to confirm that ownership and registration of any of the vehicles. Whilst he states that he only has the registration papers for one of the vehicles namely the Dump Truck as all the rest were destroyed in the fire, the registration paper produced is the insurance certificate for the Dump Truck for the period from the 13 May 1991 which in spite of what looks like alterations on that certificate must only be for one year till 1992. The evidence perhaps just supports the existence of the Dump Truck even though there is no current registration papers for the time of the incident. So whether it actually was still registered and operating at the time of the incident is not clear. It would always be open to subpoena the Motor Vehicles Insurance (PNG) Trust for copies or a print-out of appropriate insurance details. Also if the truck was under subcontract to the Company then the company would presumably have records of the status of such a vehicle as they would be concerned at the serviceability and proper registration of any such vehicle they were sub-contracting. The plaintiff has failed to bring any obvious evidence to support this claim. The existence of the Plant and Equipment Hire agreement does lend some support to the fact that the plaintiff may have had some vehicle. If there was such a vehicle then the court would normally expect a Car dealers current valuation of such a vehicle by reference to its age and condition as the court cannot operate on mere estimations of the plaintiff. I am prepared to accept the fact that the plaintiff had some such vehicle which had been used for subcontracting work with the Company so I will allow a value for damages of K20,000 for a Dump Truck. As to the other vehicles claimed there is no evidence that they were roadworthy and registered, actually it appears they were not registered at all so they must have been unroadworthy and therefore of very limited value. So in so far as some vehicles are recorded in photographs they must have been unregistered and therefore unserviceable so they would only be of a nominal value. I will consider an amount of K5,000 for them.

BUILDINGS

First he claims for a permanent house. There is no evidence apart from his assertion and a photograph of a blackened site as to the nature and standard of this building. Normally when a substantial building is destroyed by fire one usually gets an insurance assessor in to assess the damage. Here the plaintiff has brought no independent evidence as to the standard of this house. There would be competent officials or government officers who could have supported or given some estimate of the value of the buildings. It is not enough to just assert an estimate, it must be supported. So going on the photos of the site I can only give a conservative estimate of such values for the buildings of K12,000.

STOCK IN HAND AND CASH AND TRADE STORE BUSINESS AND GOLD BUYING BUSINESS

I cannot accept just a bare assertion of stock in a tradestore, actually there is no evidence to support a legally operating store by way of a copy of a tradestore licence or some confirmation from the appropriate department of such a business. If people wish to operate modern businesses and avail themselves of the modern courts when things go wrong they must be prepared to pay the appropriate fees and taxes to pay for the modern system. There is no independent evidence to support a legal and successfully operating tradestore, and gold buying business. Such could be supported by the appropriate bank statements from the bank and copy invoices from suppliers and related businesses. Whilst I note that the plaintiff was doing some tax returns the only evidence to support that is the income from the plant hire business with Placer supported by an Income Tax Deduction Certificate for from January to September 1990 three years prior to the date of the claim. The Plaintiff gives the name of Accountants and surely they would have copies of relevant business records or some documentation to support the details of the tax returns, yet they only suggest that the sub-contract work with Placer was the only income. There is no evidence to support any income from other enterprises. Therefore this Court cannot find a loss where such business were not properly licensed nor where there is no appropriate evidence to support such businesses and cash flow.

LOSS OF TRUCK HIRE BUSINESS

Whilst there is a new agreement shown for from January 1993 there is nothing to show how much work that agreement would involve and how much net return the plaintiff would get. Is this court supposed to guess that it may be equivalent to the 1990 amount in the Income Tax Deduction certificate of a gross of K72,792 per year. Where is the confirmation of the income earning capacity for the 12 months up to the time of the loss. As I have already noted there is no independent confirmation of the owning of a properly maintained and registered Truck which would be suitable and available for sub-contract work.

PERSONAL PROPERTY

The plaintiff is also claiming for loss of clothes and household properties and tool in the destruction. Whilst I am prepared to accept that there was some loss of personal property the court cannot just find any amount based on what the plaintiff asserts, to consider more than just a basic amount there must be some other independent evidence from people or officials who knew the plaintiff’s house or knew his lifestyle to account for such values. I will consider a reasonable amount for personal property, clothing, tools and suchlike of K15,000.00.

To summarise:

As I have said it is not enough to just assert ones business worth in such cases but one must be able to prove it by independent evidence. If you want to participate in the modern economy and have the advantage of the modern laws which help you in a business you must comply with the modern laws and pay the appropriate fees and taxes. By complying you then have the appropriate proof to support any claim when your business goes wrong. In this case there has been no independent evidence to support the claim nor has there been compliance with the laws on motor vehicle registration and insurance and business licences and the completion of complete income tax returns for the additional businesses. Normally after a fire or destruction of property there should be a report from Police or Government officials. In a number of such cases the court has been presented with reports from Magistrates or Coroners, or District Officers. The court cannot support claims which do not comply with the law or which there is no appropriate evidence.

I find damages for the Plaintiff in the sum of K52,000.00. I will allow for interest at 8 percent on that from the date of the writ to to-day which assesses at K9,129.20.

I Order Judgement in the sum of K61,129.20.

Lawyer for the Plaintiff: P Dowa

Lawyer for the Defendants: Solicitor-General