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Wena v Independent State of Papua New Guinea [2003] PGNC 8; N2529 (1 December 2003)

N2529

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS No. 663 of 1994

BETWEEN:

JOHN WENA
representing himself and 46 others.

Plaintiffs

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Defendant

MT HAGEN : SAKORA J

2002 : 16 April
2003 : 1 December

LAW OF TORTS – Damages – Compensation – Police raid on village – Destruction of houses, food gardens, personal and household effects, tradestore goods, crops and livestock.

CONSTITUTIONAL RIGHTS AND FREEDOMS – Police raid – Unlawful – Breach of rights and freedoms – General and Exemplary damages.

Counsel:
J Wal for the Plaintiff.
B Ovia for the Defendants.

1 December 2003

SAKORA J: This is a representative action commenced by way of a Writ of Summons. The principal plaintiff, John Wena, instituted this proceedings on behalf of himself and forty-six (46) other members of the Wimba Clan of the Gena Tribe of Baglkagl village, Kerowagi, in the Simbu Province.

The Statement of Claim endorsed on the Writ claims damages arising from and sustained as a result of certain alleged unlawful and illegal activities of members of a detachment of the Royal Papua New Guinea Constabulary (RPNGC) based in that province. Thus, the proceedings are the consequences of a destructive raid conducted by these policemen at the village of the claimants on 6 December, 1991, in which substantial property damage was caused to these forty-seven (47) villagers, their names appearing in the Statement of Claim. John Wena, the clan leader, was authorised by the various villagers to bring an action on their behalf. Consent and authority in this respect have been duly filed with the Court. To note for the record also at this juncture is the fact that this action was instituted within the statutory time limit, the Writ of Summons having being issued out of the Registry of the National Court on 24 August 1994. Mr Ovia of counsel for the defendants duly acknowledged these matters and indicated to the Court that he had no problems with them.

The Writ was served on the Solicitor-General on 26 September 1994, and through him the defendants filed their Notice of Intention to Defend on 6 October 1994. On 18 November 1994 the defendants filed their Defence.

As part of the preliminary matters before embarking on the trial of the action, Mr Wal of counsel for the plaintiff advised the Court that six (6) of the claimants have died since the proceedings were commenced. A Statutory Declaration to this effect was made by the plaintiff on 18 April 2001 and duly filed in the Court. The deceased are named, accompanied by the respective year of each death. These are formally noted hereunder for the record:

Muiglo Andrew (1992)

En Bene Noglai (1993)

Nombri Tangigl (1994)

Amban Dinbi (1996)

Demane Tangigl (1997)

Joseph Tangigl (1998)

Also filed in this Court was another Statutory Declaration by Mr Wena of the same date. This stated that he and five (5) other claimants do use three (3) different names in the proceedings. These other five (5) are identified as:

Camilus Dilu Noglai

Joe Kun Aur

Yani Bob Robert

Joe Imbo Ulka

En Bene Noglai

Upon these matters being brought to the Court’s attention, and pursuant to application by counsel for the plaintiff, ad there being no objection by counsel for the defendants, the Court ordered that in the event any judgment or orders were made in respect of the remaining claimants these would apply to and affect the six (6) deceased claimants through their respective survivors, next-of-kin or dependants by custom.

The Evidence

The plaintiff and each of the forty-six (46) other claimants had sworn affidavits and duly filed these, deposing to their respective losses and damages sustained as a direct consequence of the police actions on the day in question. These losses and damages are itemised and each is claimed as an estimated value.

It was intended by the counsel for the plaintiff to call all claimants to give oral evidence if required by counsel for the defendants for cross-examination. In the end both counsel agreed to have the affidavits of the forty-six (46) other claimants to be tendered into evidence without objection. Mr Wal, therefore, called only three (3) witnesses to give sworn oral evidence for Mr Ovia to cross-examine. Mr Ovia had no witnesses for the defendants to call. After the evidence both counsel helpfully filed their written submissions.

The three (3) witnesses for the plaintiffs were: John Wena the principal plaintiff; Fred Kaiun an ex Sergeant Major of Police attached to Kundiawa Police: and Mr Noah Kana a registered Valuer in private practice. Mr Wena had his affidavit sworn on 9 April 2001 tendered without objection, and his deposition and his oral evidence gave details of the circumstances leading up to and during the police raid. He also gave detailed account of his own losses and damages at the hands of the police. These were supported by colour photographs.

Mr Fred Kaiun’s oral evidence related to the circumstances of a tribal fight following a fatal motor vehicle accident, thus requiring police intervention. He was the OIC, CID of Kundiawa Police at the time, and gives details of the police action to stop the fighting, and, the subsequent arrival of members of the Mobile Squad from Kerowagi in four (4) or five (5) truck-loads. As the Kundiawa police withdrew from the scene the Mobile Squad members seemed to go on a rampage at the village, shooting and burning houses, destroying food gardens and cash crops. His evidence confirms Mr Wena’s evidence on the raid and its aftermath.

Mr Noah Kana’s evidence is in relation to his engagement by Mr Wena for professional assistance in assessing the loss and damage (to property) that each of the forth-seven (47) claimants suffered and sustained. In the end he furnished Mr Wena a "Valuation Report" which was tendered into evidence without objection (Exhibit "D"). In his assessment he sought the assistance of village councillors. A graduate Valuer he has had some twenty-nine years experience, with post-graduate qualifications and attachments for professional experience in Australia.

Mr Wal of counsel for the plaintiff helpfully compiled and attached as a Schedule to his written submissions a complete list of the forty-seven (47) claimants, against which are listed their respective kina claims, and the Valuer's assessed amount. The final "column" contains amounts learned counsel submits the Court should award. These amounts invariably reflect the Valuer’s assessment.

From this Schedule it would appear that in ten (10) of the claims, the Valuer’s assessment was less than the amount claimed. And these are listed hereunder:

Yani Muglua (8)

Paul Muglua (9)

John Inaugl (11)

Duyagl Lodwic (12)

John Miugle (13)

Joe Wagluo (19)

Winge Gabriel (24)

Yani Bob (27)

Singadan Christan (28)

Werbar Paul (45)

In the case of the remaining thirty-seven (37) claims, the Valuer assessed higher amounts. The numbers in brackets against their names denote their official place in the list of forty-seven claimants. In the end, the total of the amounts assessed by the Valuer of all forty-seven (47) claims came to K270,060.00, which is K23,301.68 more than the original grand total of K246,758.32.

Learned counsel for the claimants urged in his submissions that in relation to quantum, this Court should adopt a different method of assessment to that adopted or usually applied by the National Court in most previous cases of this nature. In previous cases, counsel is quite correct to point out that assessments have been based on guesswork, estimates that have been characterised colloquially as guesstimates. I have adverted to this in my judgment in another but similar case this afternoon.

Simply because no proper records and inventories are available, and cannot reasonably be expected to be, of personal and other items of property, the amounts that are claimed by ordinary villagers are invariably products of guesswork, estimates. And these have to be resorted to after the police have come and gone like tropical cyclones or tornadoes (of the mid-west USA). People are often traumatised, and they are often in a daze trying to pick up the pieces and make sense of the ashes and other aftermaths of these raids. Estimates, therefore, and understandably are done without the benefit of assistance and assessment from independent professional people such as valuers.

Mr Wal, in order to emphasise his point, referred the Court to three such cases. These were: Aimon Aure & Ors v. Capt. Peter Boko & The State (unreported N1346, per Woods J); Labi Yabanoya & 93 Ors v. The State (unnumbered & unreported decision of 19 April 1999 in WS 31 of 1995, per Sakora J); and Peter Wanis v. Fred Sikiot & The State (unreported N1350, per Woods J). The first case resulted in blanket assessments for the following:

Bush material houses K 700.00
Permanent houses K 3,500.00

Personal properties K15,000.00

In my assessment in the second case, I was assisted by what his Honour did in those two cases. Whilst following the methodology of guesswork, I arrived at the blanket assessments differently:

K500 for bush material houses.

K1,500.00 for permanent of semi-permanent domestic structures.

¾ of the amounts claimed for personal property.

Each case must be decided on its own merits. In this respect it is acknowledged that the amounts arrived had to necessarily be the products of guesswork, in the absence of independent professional assessment. Thus, only "conservative estimates" are possible. That is the only option available. I would, therefore, suggest that where there is in fact an assessment done, such as here, by an independent professional valuer, the Court should adopt that.

As noted by counsel for the claimants, in the present case, some of the plaintiffs have claimed less than K500.00 while others have claimed more than K500.00 for every bush material house. Not all bush material houses are the same in size; not all bush material houses are constructed of the same type of materials, the same quantity of materials and, therefore, at the same overall costs. The same argument goes for buildings constructed of permanent or semi-permanent building materials. Furthermore, personal properties, gardening tools, machineries, furniture, kitchen and eating utensils and other properties in a household are not the same. Even livestocks and food gardens are different in ages, sizes and the types of crops grown. They differ from household to household depending on how rich or poor the individual household is.

I agree with counsel that the best and fairest way of assessing losses and damages in Police raid cases is through a professional assessment by someone qualified and experienced for the job of valuation, putting monetary value on certain assets or items of property, such as the Valuer-General or a private valuer duly registered to practise as such. In this case, we do have an assessment from such a qualified and experienced professional. There are no reasons to doubt his professional assessment of losses and damages in this case. His assessments stand uncontradicted by any other evidence and, indeed, have withstood cross-examination by State counsel.

Counsel for the defendants points to the differences in the amounts (claimed and assessed) to suggest that questions must be raised about the reasonableness of the entire assessment. It needs to be emphasised that the whole purpose of an assessment is to determine what would be a reasonable amount to compensate a claimant for the loss or damage suffered under the particular circumstances of the case. Thus, here the valuer did not have to go along with or accept whatever amount was claimed; his function was to, using his professional expertise and experience, consider the amounts claimed, and arrive at what his professional opinion was on each claim. That is exactly what happened here.

For all the reasons highlighted here about guesswork, I would be, with respect, more comfortable with an assessment that was offered by an independent professional valuer, so long as that assessment was not rendered unreliable or tainted by other independent professional valuation. That is not the case here. The defendants have called no evidence, so that the Sate counsel’s suggestion is just that, a suggestion lacking factual basis. The point is made that in at least 10 of the claims, assessed amounts were actually less than what were claimed.

State counsel also raised in his submissions questions about two of the claimants putting "their marks" on their affidavits instead of signing when they (Paul Muglua No. 9 and Goglau Fabian N. 18) were supposed to be school teachers. Furthermore, counsel queried (in his submissions) the claim of Demane Markus (No. 44), the ability of this man to construct a permanent residence worth K9,000.00 (his claim) when he had been, by his own account, in gainful employment for only 15 months. Finally, State counsel questioned (in his submissions) the ability of two old people, claimant Nombri Tangigl and his wife, to build a house, as they were dependent on their grand children.

In relation to these questions, the only point to make is that these questions were raised in counsel’s submissions without having first raised them in cross-examination of the claimants whose affidavits, it must be noted, were tendered without objections and admitted into evidence. Nor did counsel put these questions to Mr Noah Kana who gave sworn oral evidence of his assessment of the various claims and his report. Thus, under the well known rule in Browne v. Dunn (1894) 6R 67 (HL), the defence is precluded from raising these issues without first according to the claimants an opportunity to each respond or explain. The defendants did not put their case to the plaintiffs in cross-examination.

In any case, in respect of the query about the two school teachers’ claims, it has to be said that, even if their respective claims had not been translated into a legal document such as a formal affidavit, their claims would have been assessed, as Mr Kana did in all of these claims, by speaking with the claimants themselves as well as consulting councillors of the village. Thus, these and other queries by the defendants have no factual basis for their being raised, as well as offending against the rule in Browne v. Dunn (supra).

I, therefore, accept and adopt the assessments by Mr Kana on the 47 claims as being reasonable under the circumstances of this case. And I make orders as follows:

1. The amounts assessed by Mr Kana for each claimant as appear in the Schedule are awarded, the total award for damages for the 47 claims being K270,060.00.
2. Interest is awarded at the usual rate of 8% pa pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act on each amount assessed.
3. No awards made for inflation as sought. It is suggested that depreciation would offset any inflationary effect on some items, especially household effects and goods.
4. Exemplary damages of K47,000.00 is awarded, calculated at K1,000.00 per claimant.
5. For breach of their Constitutional rights and freedoms, total damages of K107,500.00 is awarded, calculated at the rate of K2,500.00 per claimant.
6. The principal plaintiff John Wena and the 46 other claimants to have their costs paid for by the defendants.

_______________________________________________________________________
Lawyer for the Plaintiffs : Joe Wal Lawyers
Lawyer for the Defendants : Solicitor-General