N2207

PAPUA NEW GUINEA

[In the National Court of Justice]

WS No. 751 of 1996

BETWEEN:

KIM PAI
(First Plaintiff)

SAKARIAS MINO
(Second Plaintiff)

KURAO SAA
(Third Plaintiff)

ELAIJAH MINJI
(Fourth Plaintiff)

-V-

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
(First Defendant)

PETER PYASO ANDANE (DECEASED)
(Second Defendant)

CONSTABLE DAVID WAGLA
(Third Defendant)

RAMUEL JACOB
(Fourth Defendant)

JOHN YAMU
(Fifth Defendant)

JOHN NAPURI
(Sixth Defendant)

WABAG : JALINA J
2001	: 4th April
2002	: 14th January

Damages – Assessment of property lost in police raid – No independent evaluation - mere assertions not sufficient – substantial reduction in amounts awarded. 

Damages –Exemplary damages against servants of the State – No explanation of reason for raid – Damages awarded against individual policemen as a punitive measure to ensure respect for people’s constitutional rights in future. 

Counsel:
Mr. T. Dawadi for the Plaintiffs
Mr. J. Kais for the Defendants

14th January 2002

JALINA J: This is a claim for damages as a result of a police raid conducted at Nagulam, Mugaip and Paruli Villages in the Kandep area of the Enga Province on 5th October 1992. During the raid, not only were houses burnt but trade stores and other properties including residential houses were looted and damaged. Also livestock including pigs and poultry were killed.

They also claim damages for trespass and conversion, distress and frustration, loss of profits, exemplary damages, reimbursement of customary compensation, damages under s.58 of the Constitution, interests and costs.

Default judgment was entered against the Defendants on 17th September 1996 after they failed to file their defence. Liability having been determined, the matter comes before me for assessment of damages.

Trial on assessment of damages was completed on 4th April 2001. During trial all the Plaintiffs except the Third Plaintiff relied on their respective affidavits and were cross-examined by Mr. Kais for the Defendants. The Third Plaintiff (Kurao Saa) did not appear for some unknown reason so his affidavit cannot be relied upon. However his wife (Miriam Kurao Saa) who had filed an affidavit, gave oral evidence about properties which were destroyed and was also cross-examined by Mr. Kais for the Defendants. She gave evidence that everything in the house including mattresses and cooking utensils were destroyed when their house was burnt down. Also their pig house with 8 pigs were destroyed together with a trade store built with semi-permanent materials.

Evidence which were called to corroborate the evidence of the Plaintiffs were from Peter Pyasara, Joseph Yangao and Rose Sakarias but they relate more to liability than quantum of damages and are therefore not relevant. The affidavit of John Kepa relates to the death of the child of the Plaintiff Sakarias Mino and his wife Rose Sakarias Mino which I will refer to later in this judgment.

The Defendants did not call any oral evidence nor did they file any affidavits both as to liability and quantum.

At the conclusion of the trial I directed both parties to file written submissions. The Plaintiffs were directed to file their submissions and serve on the Defendants by 18th April 2001. The Defendants were directed to file and serve their submissions on the Plaintiffs lawyers by 2nd May 2001. But the Defendants have not filed any submissions to date.

As the Defendants have been given more than ample time to file their submissions, I propose to hand down my decision now. It would be unfair to the Plaintiffs for me to delay my decision any longer.

The Plaintiffs submissions relate to both liability and quantum of damages. As liability is no longer in issue submissions on that aspect were not necessary. However, taking into account those submissions in light of the evidence, which has not been rebutted by the Defendants either by affidavit evidence or orally or during cross-examination by their lawyer and the relevant authorities cited by the Plaintiffs lawyer, I make the following assessment and award to each Plaintiff. 

GENERAL DAMAGES:

1.	KIM PAI

In his affidavit he deposes to have lost properties including houses and household items to a total value of K24,518.22.

His evidence remains uncontroverted. However as appears in his lawyers submissions at page 9 that he is prepared to accept K15,788.00 in damages I consider that to be reasonable which I so award.

2.	SAKARIAS MINO

In his affidavit he deposes to have lost properties to a total value of K1,973.00. However, he also says in the same affidavit that he made three (3) lots of payments in cash and pigs to a total value of K9,218.00 as compensation to his wife’s relatives for the death of their child and funeral expenses. 

Whilst I accept that it is a custom in the Enga Province that compensation is usually made to the wife’s relatives for the death of a child, there is no independent evidence including evidence from recipients of such compensation namely Paisara, John Kaipas and Nasnate Laima to verify or confirm such payment. I would therefore consider a fair award for this to be K4,500.00 which I so make.

For the destruction to his residence and household items, taking into account that there is no independent evidence of valuation as well as the fact that those items can depreciate in value over time, I consider a fair award to be K1,500.00. So the total award I make to him under this head of claim is K6,000.00.

3.	KURAO SAA

As I have indicated above, this Plaintiff did not give evidence for some unknown reason so his affidavit was not admitted into evidence. His lawyer has submitted that since notice of intention to rely on this affidavit was given to the lawyers for the Defendants I should accept the contents of the affidavit both as to properties destroyed and their approximate value.

With respect, I reject such an argument. In my view, notice of intention to rely on the affidavit of a particular person is not evidence of contents of that person’s affidavit. The affidavit itself needs to be admitted into evidence either through the deponent himself or by consent of the other party or by leave of court. Neither of those steps were taken by counsel for the Plaintiff in this case.

However, his wife (Miriam Kurao Saa) gave oral evidence and tendered her affidavit, which related more to liability. With regard to quantum she stated in her oral evidence that their house and its contents were completely destroyed. She also stated that eight (8) pigs were killed. She did not give any approximate value of the house and its contents or the 8 pigs.

Doing the best I can, bearing inn mind the absence of evidence of independent valuation as well as the house and its contents being depreciable items and the contingency that the pigs could have been used for other purposes than being sold for cash, I would consider a fair award to be K7,000.00 which I so make.

4.	ELAIJAH MINJI

The total value of properties he lost including cash are set out in his affidavit at K15,287.00.

In paragraph A (i) the total value of items destroyed in his residence are set at K200.00.
In paragraph B (i) the total value of items destroyed are set at K188.00.

In paragraph A (ii) he claims K380.00 as the cost of building the residence and in paragraph B (ii) he claims the cost of building the kitchen house at K182.00. The cost of building the trade store is set out in paragraph C (i) at K7,800.00. The total cost of goods looted is set out in paragraph C (ii) at K5,007.20 while the total cost (sic) I circulation at that time was K979.80. And the total cost of pigs destroyed is set out at K550.00 in paragraph D.

I treat this claim with caution as the location of some of those items destroyed as well as the quantity of items destroyed do not reflect the claimant to be a businessman and therefore a person of means. For instance, the household items that were destroyed in his residence seem to be so few. From his kitchen, items such as 2 single mattresses, 4 blankets, 4 bed covers, 1small pot, 5 plates, 5 spoons and 1 fork were destroyed. The kitchen would seem to me to be a rather unusual place to keep mattresses, blankets and bed covers and the scarcity of cooking and eating utensils causes me to wonder if he ever was a businessman let alone a married man.

With regard to the cost of building the residence and the kitchen, it is not clear if they are costs of replacing them after the destruction of the initial costs of building them. If they are costs of replacement after destruction then no receipts and invoices have been produced for those items that were purchased from various hardware companies. If they are initial costs then depreciation needs to be taken into account.

With regard to the trade store goods which appear on page 5 of his affidavit, the quantity column seems to suggest it was a large trade store to have been capable of containing such large quantities of items such as 18x50kg flour bags, 45 bales of 20x1kg bags of trukai rice, 10 bales of 30x500g trukai rice, 20 cartons of 24x355ml coke cans, 5 cartons of 48x85g maggie noodles, etc. but he says nothing about his earnings per week let alone claim anything in his statement of claim for loss of profit. He also does not produce any statements of account to show monies he was making from his business and depositing into his account .

When I weigh up the above factors and also take into account the fact that there is no independent evidence of valuation nor copies of receipts or invoices from suppliers of various items including building materials as well as the fact that those items can depreciate in value over time, I consider a reasonable award to be K8,000.00 which I so make.

DAMAGES FOR INTENTIONAL TRESPASS: 

A sum of K1,200.00 being K300.00 for each of the 4 Plaintiffs is claimed for intentional trespass by police into their premises and destroying their properties. They rely on Manz Wango –v- Pot Anakundi & Anor [1992] PNGLR 45 and Kofewei –v- Sirivi [1983] PNGLR 449.

Whilst I note from reading those two cases that damages were awarded against the State for breach constitutional rights on the basis of vicarious liability as a result of actions of certain policemen, I cannot see any damages being awarded for intentional trespass. The claim under this head is therefore refused.

DAMAGES FOR DISTRESS OR MENTAL SUFFERING:

This is a claim for distress or mental suffering as a consequence of the destruction to the Plaintiffs’ properties. The Second Plaintiff also claims damages for distress or mental suffering after his child died allegedly as a result of inhalation of tear gas fired by police.

Whilst I accept the claim of K1,000.00 by each Plaintiff as reasonable, I do not accept the claim under this head for the death of the child as there is no clear evidence that the child died form inhalation of tear gas fired by police during the raid. In the absence of a proper post-mortem report, the assertion by John Kepa in his affidavit that he saw signs of suffocation and that the eyeballs were swollen and watery is not proof that the child died as a result of suffocation from inhalation of tear gas fired by police. I therefore decline to make an award for distress and mental suffering due to the death of the child.

So the damages I ward under this head of claim is K4,000.00 being K1,000.00 for each Plaintiff.

DAMAGES FOR BREACH OF CONSTITUTIONAL RIGHTS UNDER S.58 OF THE CONSTITUTION

A claim for damages is made under this head for infringement of the Plaintiffs rights under various provisions of the Constitution. The allegedly infringed rights include:

(a)	Freedom for Arbitrary Search and Entry (s.44)

(b)	Freedom from Inhuman Treatment (s.36)

(c) Right to Privacy (s.49)

(d) Unjust Deprivation of Property (s.53)

(e)	 Right to Life (s.35)

(f)	 Protection of the Law (s.37)

Section 58 of the Constitution provides:

"58. – COMPENSATION.

(1)	This section is in addition to, and not in derogation of, Section 57  (enforcement of guaranteed rights and freedoms).

(2)	A person whose rights or freedoms declared or protected by this Division are infringed (including any infringement caused by a derogation of the restrictions specified in Part X.5 (internment) on the use of emergency powers in relation to internment) is entitled to reasonable damages and, if the court thinks it proper, exemplary damages in respect of the infringement..

(3)	Subject to Subsections (4) and (5), damages may be awarded against any person who committed, or was responsible for, the infringement

(4)	Where the infringement was committed by a government body, damages may be awarded either –

(a)	subject to subsection (5), against a person referred to in Subsection (3); or

(b)	against the governmental body to which any such person was responsible,

or against both, in which last case the court may apportion the damages between them.

(5)	Damages shall be awarded against a person who was responsible to a governmental body in respect of the action giving rise to the infringement if-

(a)	the action was an action made unlawful only by Section 41 (1) (proscribed acts); and

(b)	the action taken was genuinely believed by that person to be required by law,

but the burden of proof of the belief referred to in paragraph (b) is on the party alleging it".

In determining the award I should make for infringement of constitutional rights, I must say at the outset that the Plaintiffs have not demonstrated to me how their right to privacy as well as right to life were infringed so claims for breach of rights under s.35 and s.49 of the Constitution are refused. A claim for the death of the child of Sakarias Mino has been made but since there is no proof as I have said earlier that such a death was caused by tear gas fired by police it is also refused. 

However in regard to other infringements claimed here under, no evidence has been adduced by the Defendants explaining the reason for entering the Plaintiffs’ premises and destroying their properties. I am therefore satisfied that the Plaintiffs other rights have been infringed by the police.

In their submissions at page 17 paragraph C they seek to be awarded K10,000.00 being K2,500.00 for each Plaintiff. I consider such an amount to be reasonable which I award.

EXEMPLARY DAMAGES:

Exemplary damages are punitive in nature. They are meant to serve as punishment for whatever was done which was wrong. No explanation has been given by the Defendants as to why they carried out the raid. So in this case exemplary damages are awarded against the above Defendants who are policemen as a lesson to them not to carry out similar actions in future without due regard for people’s constitutional rights. 

Under this head of claim they seek through their lawyer’s submissions at page 18, exemplary damages of K20,000.00 being K5,000.00 for each Plaintiff. I consider such an amount to be reasonable which I so award against the Second, Third, Fourth, Fifth and Sixth Defendants. Whether the First Defendant pays exemplary damages on behalf of the other Defendants and claim contribution from them is a matter for them to sort out.

INTEREST:

Interest is awarded at 8% per annum to each Plaintiff pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act Chapter 52 from date of issue of Writ to Judgment, which is a period of approximately 5.5 years.

SUMMARY OF AWARD:

I summarise the award I make to each Plaintiff as follows:

1.	KIM PAI

General Damages K15,788.00
Damages for Distress and Mental suffering K 1,000.00
Breach of Constitutional Rights K 2,500.00
8% interest on K19,288.00 over 5.5 years K 8,486.72
Exemplary Damages K 5,000.00
TOTAL: K 32,774.72

2.	SAKARIAS MINO

General Damages K 6,000.00
Damages for Distress and Mental suffering K 1,000.00
Breach of Constitutional Rights K 2,500.00
8% interest on K9,500.00 over 5.5 years K 4,180.00
Exemplary Damages K 5,000.00
TOTAL: K 18,680.00

3.	KURAO SAA

General Damages K 7,000.00
Damages for Distress and Mental suffering K 1,000.00
Breach of Constitutional Rights K 2,500.00
8% interest on K10,500.00 over 5.5 years K 4,620.00
Exemplary Damages K 5,000.00
 TOTAL: K 20,120.00

4. ELAIJAH MINJI

General Damages K 8,000.00
Damages for Distress and Mental suffering K 1,000.00
Breach of Constitutional Rights K 2,500.00
8% interest on K11,500.00 over 5.5 years K 5,060.00
Exemplary Damages K 5,000.00
TOTAL: K 21,560.00

The four Plaintiffs herein are awarded a total of K93,134.72.

If the total amount awarded to each Plaintiff is not paid within 12 months from the date hereof interest will run on the judgment amount at 8% per annum till paid.

The Plaintiff’s costs shall be paid by the Defendants to be taxed if not agreed. 
________________________________________________________________________
Lawyer for the Plaintiffs: Pato Lawyers
Lawyer for the Defendants: Solicitor General