National Court of Papua New Guinea

But they did file affidavits in support of Mr Obed Lalip’s claim on 16th October 1995. In their affidavits, it is interesting to note that neither of them mentioned loosing a trade store owned by each one of them. Instead, in para. 2 of his affidavit, Mr Marae Kulap refers to lg his semi-modern dwelling house with its contents, plus a us a pig house near “Obed Lalip’s trade store.” He says “Obed’8217;s trade store were burnt down completely.” Francis Minalo sa paragrapagraph 7 of his afit “The Plaintiff Mr Obed Laip also had his properties including a trade store...burn.burnt down...”

Obed Lalip fin affidavit on 17/10/95 in which he gives details of thingshings he lost. Among them is a claima traa trade store building valued at K15,000.00 and stock valued at K15,000.00. He has attacheeipts of payf payments for the building materials, trade sttock and a house plan for his trade store.

In paragraragraph 4 of his affidavit, he says he lost his semi-modern buildinued at K40,000.00 but he dohe does not particularise this item in his list of particulars of lost items which is annexed to his affid

The statement of claim which is pleaded in very broad terms makes reference to inte inter alia, “buildings, residences...situated at Porgera, in the Enga Province.” The li particulars endorsedorsed under paragraph 5 of the statement of claim makes no reference to a semi-modern house at all.

In paragraph 6 of his affidavit, Obed Lalip says he saw his dwelhouse and trade store burn burn to ashes. But that is not exactat isat is pleaded in paragraph 5 (a) of the statement of claim where he merely claims that policemen “Intentionally damaged the said buildings, fittings, equipment and motor vehicles bying them.” The The word e implies ines injury to property which results in diminution of its value, not total loss or destruction such as due to arson.

In the statement of claim, Mr Lalip pleads that he originally comes from Aiyak in the Laiagam District of Enga Province but he does not plead where his properties which were damaged in the raid were situated.

In his affidavit, Mr Lalip says he comes from Aiyak Village, Laiagam in the Enga Province where he is a prominent village leader. But prior to the establishment of the Porgera Gold Project, he based his business activities in Mount Hagen and during the construction phase of the project, he relocated his business to Porgera from Mount Hagen.

The Plaintiff should have clearly pleaded and given evidence in his affidavit of where exactly at Porgera his trade store and dwelling house was situated when they were damaged in the raid. Thiimportant in view of thof the 3 different places in 2 different provinces he based himself and his business activities.

Mr Lalip has produced some pre-9th February 1993 receipts of purchases of various building materials from suppliers in Mount Hagen. The pre-February 9th 1993 receipts all bear his Mount Hagen postal address (Box 1213 Mount Hagen WHP). It is not clear fromevidenvidence at what point in time he re-located to Porgera. Tould give me an is to whio which receipts relate late to his businesses in Mount Hagen and which receipts relate to his business activities in Porgera. Thstincis important becausecause it is his business in Porgerorgera, not Mount Hagen, which he claims to have been burnt down and for whe is entitled to damages.

Further, to compound the uncertainty, Mr Lalip has includncluded two receipts, one from Kabuka Trading in Mount Hagen dated 30/9/93 for store goods obtained don credit worth K4,113,95 and another receipt dated 8th May 1993 for K850.00 from Mun Freighters in Mount Hagen for transportation of 8.5 tonnes of store goods from Mount Hagen to Porgera. Asg the date of the raid waid which he says in his affidavit was ebruary uary 1993 to be correct, these receipts show that h still in trade store business in the months following the raid. Ques arise as t as to whet whether he lost his trade store at #160; If he did, did he rebe rebuild it? If so, when and at what cost?

And speaking of the date of the raid, in para. 5 e statement of claim the dahe date of the raid reads “or about...February 1993.” There irecord of any appliapplicateing made to amend the Writ Writ to fill in the blank date. In the avit of Mr Lalip asip as well as the affidavit of Mr Marae Kand Francis Minalo, they gave the date as 9th February 1993 1993. In88/94 Mara Kulap & Amp; Anor v State and WS 490/94 Franinapin & Anor v State tate they gave evidence that the raid occurred in July 1993 following the fatal shooting of a policemen by ng clansmen. In theirtheir respe writs,rits, the date of the raid is pleaded as 28th July 1993.

It is important for the Plaintiff to plead to and give evidence of the correct date of the raid because of the Plaintiff’s location and relocation of his businesses in the material period.

It is also important for Mr Lalip to clearly plead and produce evidence which distinguishes his house and his trade store from those of Marae Kulap and Francis Minalo in view of the latter’s evidence in their affidavits that Mr Lalip’s business and house and properties are situated next to theirs and their earlier evidence in the earlier proceedings. y be that the store and hond houses may belong to Mr Lalip but Mr Kulap and Minalo are the custodians or it may be the other way around. It may be that Messrs o anlo and Kulap have received compensation which they are not entitled to receive.

In the past, at the various pre-trial sessions in police raid matters which involve multiple Plaintif have stressed the need ford for lawyers and their clients to ensure that claims are properly and clearly pleaded and evidence produced in respect of each item. I have also stressed the need for lawyers and parties to assist the Court in eliminating double-claims and perhaps false claims. I canvassed some of these aspects in Yange Lagan & Ors v State N1369 [1995]. o alluded me of the rehe rehe relevant principles on assessment of damages of this type of claim.

This is a claim in which I hrave s about whether ther the Plaintiff did in fact suffer any loss at all. The evidence ance and plgsdings are so confusing, contradicting and inherently suspicious. The above and other uncertainties surrounding the proof of damages of this claim leads the unavoidable conclusions that the Plaintiff, Obed LalipLalip has not proved his damages on the balance of probabilities standard.

Just because the Plaintiaintiff has obtained default judgement does not mean that he is entitled as of right to receive damages. He must prove the damages suffered by credible evidence.

For these reasons, I refuse to make any award for damages in favour of the Plaintiff Obed Lalip.

Lawyer for the Plaintiffs: Paulus M Dowa

Lawyer for the Defendants: Solicitor General