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Huaimbukie v Baugen [2004] PGNC 191; N2589 (16 July 2004)

N2589

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 58 OF 2002

DESMOND HUAIMBUKIE
MARCUS HUAIMBUKIE
STANIS WAFI MAIRANGIAN
PATRICK SAIHIRA
HUBERT MAKES
MALAKI YENU
ELPHIN YENU &
SAIHENGUI HARINDUO

Plaintiffs

AND:

JAMES BAUGEN
as Station Commander of Yangoru Rural Police Station
First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

WAIGANI: KANDAKASI, J.
2003: 12th November
2004: 16th of July

PRACTICE & PROCEDURE – Pleadings – Plaintiff failing to properly plead his loss and damages – Defence failing to take appropriate objection – Effect of – Court can award damages up to amounts conceded by the defence.

LAW OF TORTS – Unlawful police raid – Destruction to houses and other properties - Whether action within the course of duty and furthering interest of the State – Whether State vicariously liable for unlawful acts of police – No arguments raised against liability – Consequence of – Award of damages not contested.

DAMAGES – Assessment of – Only matters properly pleaded and proven can be allowed – Defence not taking issue on pleadings, evidence led at trial and accept damages up to a certain level – Consequence of – Court can award damages not contested.

Cases Cited:
Coecon Limited (Receiver/Manager Appointed) v. The National Fisheries Authority of Papua New Guinea and The Independent State of Papua New Guinea (28/02/02) N2182.
Papua New Guinea Banking Corporation (PNGBC) v. Jeff Tole (27/09/02) SC694.
Andrew Daiva and Ome Ome Forests Ltd v. Lawrance Pukali & Anor; Ome Ome Forests Ltd v. Ray Cheong & Ors (08/10/02) N2289.
Peter Aigilo v. The Independent State of Papua New Guinea & Ors (unreported judgment) N2102.
Tony Wemin & Ors v. The Independent State of Papua New Guinea (21/06/01) N2134.
John Yama v. The Independent State of Papua New Guinea (17/05/02) N2198.
Kolaip Palapi v Independent State of Papua New Guinea (05/06/01) N2274.
The Independent State of Papua New Guinea v. David Wari Kofowei& Ors [1987] PNGLR 5. Abel Tomba v. The Independent State of Papua New Guinea (07/04/97) SC518.
In the Application by Kunzi Waso [1996] PNGLR 218.
Motor Vehicles Insurance (PNG) Trust v. John Etape [1995] PNGLR 214.
Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370.
Repas Waima v. Motor Vehicles Insurance Trust [1992] PNGLR 254.
Carmelita Mary collins v. Motor Vehicles (PNG) Insurance Trust [1990] PNGLR 580.
Dawa Yomi v. The State (19/03/90) N823.
Woma Paul an infant by next friend Dan Paul v. Anton Kare & The Independent State of Papua New Guinea [1988] PNGLR 276.
Bia Sam –v- Paul Hauram, Henry Tokam & The State [1998] PNGLR 246.
Tony Wemin & 227 Ors v. Robert Kalasim, Provincial Police Commander of Simbu & The State (21/06/01) N2134.
John Tuin Solomon v. The State and Others [1994] PNGLR 265.
Toglai Apa & Others v. The State N1267.
David Haluya –v- Samson Gurel & The State N2109.

Counsel:
L. Manua for the Plaintiffs.
M. Kua for the Defendants.

16th July 2004

KANDAKASI, J: The Plaintiffs are claiming damages, interest and costs arising out of a police raid resulting in destruction to property, assault and battery, unlawful detention and breaches of their Constitutional rights. The acts were allegedly committed by members of the police force based at Yangoru Rural Police Station in East Sepik Province on 12th December 2001.

Liability

An entry of default judgment against the Defendants on 7th August 2002, resolved the liability in favour of the Plaintiffs. The default judgment was in default of the Defendants Notice of Intention to Defend and Defence. Hence, the matter came before me for an assessment of damages on 12th November 2003. At that time, I was taking care of three different lists, two civil trial lists and the Motions Court due to the unavailability of the other judges. This meant I could not hear and quickly determine the cases then listed before. I therefore only heard and reserved judgments to a date when I am ready. I have delivered some of the judgments in that category already. Today I am ready with the decision in this matter.

The legal principles governing the assessment of damages following the entry of default judgment is clear. I summarized them in my judgment in Coecon Limited (Receiver/Manager Appointed) v. The National Fisheries Authority of Papua New Guinea and The Independent State of Papua New Guinea (28/02/02) N2182, in these terms:

"A survey of the authorities on assessment of damages after entry of judgment on liability mainly in default of a defendant’s defence, clearly show the following:

1. The judgment resolves all questions of liability in respect of the matters pleaded in the statement of claim.
2. Any matter that has not been pleaded but is introduced at the trial is a matter on which the defendant can take an issue on liability.
3. In the case of a claim for damages for breach of contract as in this case, such a judgment confirms there being a breach as alleged and leaves only the question of what damages necessarily flow from the breach.
4. The plaintiff in such a case has the burden to produce admissible and credible evidence of his alleged damages and if the Court is satisfied on the balance of probabilities that the damages have been incurred, awards can be made for the proven damages.
5. A plaintiff in such a case is only entitled to led evidence and recover such damages as may be pleaded and asked for in his statement of claim."
   

In Papua New Guinea Banking Corporation (PNGBC) v. Jeff Tole (27/09/02) SC694, the Supreme Court of which I was a member referred to this summary (per Sheehan and Kandakasi, JJ.) with approval.

It is clear therefore that, pleadings play a very significant role in first saying what evidence the parties can lead and secondly, the kind of damages a party can claim and be granted. It is also clear that, where the parties chose by their conduct to go outside their pleadings, the Court can award damages not claimed in the pleadings but established by the evidence.

The question then is, what damages have the plaintiffs pleaded for and or established in their evidence? This requires an examination of what is in the pleadings and then the evidence before the Court. Hence, I examine the pleadings first.

Pleadings

In the first 6 paragraphs of their statement of claim, the plaintiffs describe themselves and the other parties. They plead that the first Defendant was the commander of the Yangoru Rural Police Station. He was an employee of the State, because of which the State is vicariously liable for the wrongful acts of the First Defendant. Without specifying who they were, the plaintiffs plead that certain police officers under the command and control of the First Defendant at the Yangoru Rural Police Station, entered their village, Boimsara and carried out a raid. During the raid, the unnamed police officers rounded them up with other villagers and took them into police custody, and subjected them to assaults, kicks, punches and beatings using fists, boots, coffee sticks and gun butts and destroyed, looted and damaged their properties. All these were done without any lawful authority, justification or excuse. Consequently, they plead that they suffered losses and damages.

In the next part of the pleadings, the plaintiffs list the personal properties namely, clothes and things of value with estimated values of only some of them that they lost to the police officers. They also list the kind of personal injuries they received and the manner in which those injuries were inflicted against them. They do not plead any long-term disability of any kind.

In the final part, being the prayer for relief, they claim damages, interest at 8% and costs.

The Evidence and the Relevant Facts

By agreement of the parties, the trial was by affidavit evidence followed by written submissions. The evidence consists of affidavit by each of the plaintiffs without any other supporting witnesses’ evidence. These affidavits have been deposed to on the 7th and filed on 16th May 2003. The Defendants have not filed any affidavit in response. They have also not cross-examined any of the plaintiff’s witnesses.

Each of the plaintiff’s evidence is in identical terms. They start with identifying themselves as the Plaintiffs in the proceedings and that liability has been resolved in their favour because of the default judgment. They then say that, on 12 December 2000, unnamed Policemen from the Yangoru Local Police Station in East Sepik Province, which was under the command of the First Defendant, entered their village without a search warrant. Thereafter, they say the unnamed police officers rounded up a number of the villagers, which included them. They were then, subjected to assaults, kicks and punches. In the process, they were beaten very badly with fists, boots, coffee batons and gun butts after which, they were taken into police custody without any lawful authority, justification or excuse. As a result, they go on to say, they suffered losses and damages to their respective persons and family properties. They speak of broken lips, nose, face and bones and being in sever pain and agony. Some of them claim to carry scars. They say at the same time that, they could not get medical certificates as their injuries healed when they were kept in the police detention for varying periods. They also go on to say that, they were not taken to a court without delay as required under the Constitution. They also refer to a denial of visits by relatives and or their lawyers. Further, they speak of denial of proper food, shower and change clothes for the duration of their detention.

Findings of Facts – Vicarious Liability & Exemplary Damages

From these evidences, it is clear that, certain unnamed police officers who are attached to the Yangoru Rural Police Station raided the plaintiffs’ village, rounded up the villagers, detained them for a number of days, denied them visitation by relatives or their lawyer, denied them proper change of their clothing and food. The unspecified police officers subjected the plaintiffs to physical attack resulting in injuries. The plaintiffs also lost to the unnamed police officers some personal properties of various descriptions. No medical report or evidence is before the Court verifying the claims of personal injuries. Likewise, they do not provide any evidence of ownership of a number of the various and respective personal items they claim they lost to the police. Further, there is no evidence, say from a village or community leader verifying the plaintiff’s claims. Similarly, each of the plaintiffs is not corroborating each other’s claims.

In my view, neither the evidence, nor the pleadings of the plaintiff lay any sound foundation to make a claim against the State. It is settled law that, at common law, before there could be a successful claim against an employer, there must be evidence or prove of the offending employee being in the course of his duty advancing or pursing the interest of his employer and not going on a frolic and detour of his own.

I alluded to this principle in Andrew Daiva and Ome Ome Forests Ltd v. Lawrance Pukali & Anor; Ome Ome Forests Ltd v. Ray Cheong & Ors (08/10/02) N2289. There in the context of the liability of a company, I said at pp.27-28:

"The company can only be liable for the acts of its employees if they act in the course of their employment pursuing their employers (the company’s) interest. If they are out on a frolic and detour of their own they could become personally liable. There is clear law on this but for a recent example of an authority on this see Peter Aigilo v. The Independent State of Papua New Guinea & Ors (unreported judgment) N2102."

In the Peter Aigilo v. The Independent State of Papua New Guinea & Ors (unreported judgment) N2102 case, I discussed in some detail the doctrine of vicarious liability. I then said at pp.27-28 of the judgment:

There are numerous cases on this doctrine in Papua New Guinea, which need not be considered in any detail save only to refer to them. Examples of this line of cases include Pike Dambe v. Augustine Peri and The State [1993] PNGLR 4, Bogil Guma v. The State & Ors N262 and Dalin More v. The State & Ors N1736. These cases discuss the doctrine at some length including its reception in Papua New Guinea. Under this doctrine an employer or a principle can be found vicariously liable in some instances while in others an employer or a principal cannot be held liable.

It is an accepted principle that, an employer cannot be made liable for the acts of his servant, if the servant acted outside the scope of his employment. In other words, if an employee goes on a frolic and detour of his own and causes damages to a third party, the employer will not be liable for the acts of the employee. This principle has also been already applied in a number of cases in our jurisdiction: see for example Kolta Development Pty Ltd & Great Happiness Seafood Pty Ltd v. PNG defence Force and The State N1470 and Dalin More v. The State & Ors (supra).

In the context of the concept of "in the best interest of Papua New Guinea" it follows therefore that, where a servant, an agent or an arm or instrumentality of the State conducts in a way that is not for the benefit or in the interest of the State, it would amount to an act outside his scope of employment and would be out on a frolic and detour of his own. The State would not be liable in such a situation and a plaintiff may only have a cause of action against the person responsible for the damage, loss or injury."

Many other judgments in the country such as the more recent ones as in Tony Wemin & Ors v. The Independent State of Papua New Guinea (21/06/01) N2134; John Yama v. The Independent State of Papua New Guinea (17/05/02) N2198 and Kolaip Palapi v Independent State of Papua New Guinea (05/06/01) N2274, make this clear but only in the context of exemplary damages. These cases carry on from the judgments of the Supreme Court in The Independent State of Papua New Guinea v. David Wari Kofowei& Ors [1987] PNGLR 5 and the subsequent judgment of the Supreme Court in Abel Tomba v. The Independent State of Papua New Guinea (07/04/97) SC518.

The Supreme Court decisions made it clear that, the liability of the State in an unlawful police raid, arrest and or any breach of a person’s Constitutional right is dependent on two considerations. The first is whether the wrong doer was an employee or servant of the State at the time of the conduct of action in question. Secondly, if the first question is answered in the affirmative, then the next consideration is whether the circumstances render the State vicariously liable. They did not displace the common law requirements for a plaintiff to show against an employer that his offending employee was in the course of his or her employment pursing the employer’s interest.

With respect, other judgments against the State, particularly for police raid and other instances appear to merely gloss over the second basis on which the State can be vicariously liable to arrive at judgments for general damages against the State. These judgments have however, correctly, in my view, carefully considered the question of why should the State be liable for the unlawful actions of an employee who conducts in a manner that is not within the course of his employment and hence not furthering the interest of the employer. This has been done in the context of exemplary damages.

A good example of this is the judgment of Justice Los with the agreement of Salika, J. in Abel Tomba v. The Independent State of Papua New Guinea (supra). There, His Honour said at pp 19-20 and 22-23:

"It is my view that section 18 envisages that certain acts that go beyond mere breach of any of the provisions of the Search Act the State as the employer cannot be liable beyond liability for general damages. For example a policeman stops a person and searches him knowing very well there exists no reasonable ground that the person may have in possession of stolen goods. He does it with other motives. Application of section 4(4) of the Act may give a good example. Under sub-s-(4) where a male police officer has to conduct a search upon a female, it is mandatory that an adult female be present. But if a policeman because of time constraint or because no female adult is nearby conducts the search upon the female, he has committed a technical breach. The State has to be vicariously liable for general damages as well as for any punitive damages that may be awarded. On the other hand a policeman sees a female during a search that she needs to be searched but he wants to search her alone deliberately and orders her to take all the clothes of, and he fondles her a bit. This in my view is beyond mere non-compliance with sub-s. 4. The State cannot be vicariously liable for any punitive damages for such an act. Further example may be shown for breach of section 12. This section makes it mandatory to register all properties seized by a policeman. After a raid a group of policemen may come back with a number of goods and just as they are just about to register them, a senior officer orders them to conduct another raid immediately. They do so and return with more goods and reach the police station at midnight. They are so tired that they go to sleep. In the morning they return to register the goods but all the goods get mixed up with the goods seized in the subsequent raid. Some get lost. The State must be vicariously liable for the loss of the goods as well as for exemplary damages. However, if the same group of policemen returned to the station and did not register the goods deliberately so that the owners could not get them back, it is my view that the State could only be liable for failing to register thereby causing the properties to be lost. For the purpose of exemplary damages the State cannot be liable. The rationale is that exemplary damage is penal in nature. The State through legislative process has given strict standards and procedures and rules for the policemen to operate under. If they deliberately falter, they have to answer for their fault individually.
...

There are also policy considerations that the courts must bear in mind when they are exercising their discretionary powers pertaining to award of exemplary damages. As exemplary damage is intended to punish and hence serves as moral retribution and deterrence for oppressive and arbitrary acts, should the four million people suffer for the acts of a handful of policemen? In an abstract way it may be a lesson for the leadership of the Police Force so that they can take a hard look at training and instilling discipline in the membership of the Force. But the State cannot go on spending money on paying damages and exemplary damages which are unplanned expenditures. The State has more important obligation which concerns the welfare and interest of the majority of the people — that is a planned expenditure to achieve "equalisation of services in all parts of the country" (National Goal Number 2 paragraph 4 of the constitution). A multiplicity of demands upon the State to pay exemplary damages arising from unruly behaviour of a few policemen may force the State to make unconstitutional reduction of the budget appropriated by the National Parliament for different areas and functions of the government in the country as were discovered in Special Reference 1 of 1990 (1990) PNGLR 532 and in Re: Criminal Circuits In Eastern Highlands (1990) PNGLR 82.

Subsequently Jalina, J. in In the Application by Kunzi Waso [1996] PNGLR 218, had a re-look at the basis for holding the State vicariously liable for the unlawful acts and omissions of police officers generally. In so doing, His Honour said at p. 224:

"In the past the Courts have been ordering the State to bear the financial burden on the principle of vicarious liability. This has resulted in the ordinary tax-payer footing the bills. It has resulted in moneys that could have been used on development projects such as health and education being used to pay damages. I am therefore going to differ from my brethren. I am of the opinion that when a member of the disciplined forces, be he a soldier, policeman or warder goes beyond the bounds of the law and ends up breaching someone’s Constitutional rights, then he should be made to personally bear the consequences of his actions. The reason for this is simple. The State does not say to the officers on duty "you go and beat up that person badly, you go and burn houses and kill pigs and chickens and rape women". Not at all. Officers are not only told but expected to go and carry out their duties within the bounds of the law. What happens in the field of operation and how far one should go in carrying it out is in the hands of the individual. I believe that by awarding damages against officers individually will result in not only the amount paid by the State in damages being reduced but may also reduce the frequency of unruly behaviour by policemen and warders and others..."

I find persuasion in these observations and add on my part that the Supreme Court judgments in The Independent State of Papua New Guinea v. David Wari Kofowei& Ors (supra) and Abel Tomba v. The Independent State of Papua New Guinea (supra) did not say that, vicariously liability automatically follows against the State as soon as the wrong doer is found as an employee of the State. That is only one-half of the consideration. The Court must also consider whether the circumstances giving rise to the action against the State are such that they give rise to vicarious liability.

In the present case, the pleadings name only the First Defendant as the person in charge of the Yangoru Rural Police Station. The pleadings do not elaborate whether he was in charge and did command, order or direct the unnamed police officers to conduct the raid at the relevant time. Likewise, the pleadings do not plead, when the unspecified police men carried out the raid and carried out the actions complained of, they were in the course of their duties and furthering the interest of the State. The evidence does not supply these deficiencies either.

Hence, if liability were in issue, I would have had great difficulty finding vicarious liability against the State. Liability was however, resolved by default in favour of the Plaintiff. The above considerations do however, form the foundation for me to decide not to award any exemplary damages against the State. This is because, I am not satisfied on the evidence before me that the unnamed police officers were acting in the course of their duty and furthering the interest of the State. There is also no pleading and evidence of a direct or specific policy of the State through the Police Commissioner for the raid. Further, there is no foundation laid in the pleadings and the prayer for relief for exemplary damages. Accordingly, I will only proceed to assess the Plaintiffs general damages based on the default judgment and in view of a lack of any contest on that from the State. Indeed the State does make submissions for award of damages up to a total of K74, 100.00 for the Plaintiffs.

General Damages

The plaintiffs’ general damages fall into two broad categories. These are damages for breach of Constitutional rights and damages for personal injuries. The past-decided cases show that, the assessment of such damages could be lumped together and assesses as one or assessed separately. In either cases, regard must always be had to the pleadings. The Supreme Court in Papua New Guinea Banking Corporation (PNGBC) v. Jeff Tole (supra) (per Sheehan and Kandakasi, JJ. at pp. 7-14) highlighted the need for pleadings with particulars.

In the case of personal injuries, the requirements of O.8 r.33 of the National Court Rules are clear. The Supreme Court emphasized that in its judgments in Motor Vehicles Insurance (PNG) Trust v. John Etape [1995] PNGLR 214 at p.221 and Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370 at pp. 373 –374. These judgments re-affirmed what was always the position at common law and consistently applied in a large number of cases in our country. The cases require a plaintiff to plead his injuries, any residual liability and any out of pocket expenses with sufficient particulars. The list of relevant cases is long but examples of these are the judgments in, Repas Waima v. Motor Vehicles Insurance Trust [1992] PNGLR 254 and Carmelita Mary Collins v. Motor Vehicles (PNG) Insurance Trust [1990] PNGLR 580 at p. 582.

Where there are allegations of injuries without any pleadings of any residual disability coupled with a lack of any evidence of any residual disability, the suggestion is that, the plaintiff has recovered well with no residual disability. After all, the burden is on a plaintiff to properly plead with sufficient particulars and prove his claim. Accordingly, damages in such cases are in the range of K500.00 to K800.00. Examples of cases on point are the judgments in, Dawa Yomi v. The State (19/03/90) N823 and Woma Paul an infant by next friend Dan Paul v. Anton Kare & The Independent State of Papua New Guinea [1988] PNGLR 276.

Personal injuries in the context of a police raid or brutality appear to attract damages slightly higher compared to those awarded in purely personal injuries settings. In Bia Sam –v- Paul Hauram, Henry Tokam & The State [1998] PNGLR 246, Kapi DCJ, (as he then was) awarded K1, 000.00 in compensation for assaults and a further K1, 000.00 for false imprisonment. Before that in the An Application For Enforcement of Human Rights Pursuant To Section 57 of the Constitution – Application by Kunzi Waso (supra) the National Court awarded K1,500.00 as damages for assault on the prisoner [plaintiff] by a Warder.

In cases where Constitutional breach and personal injuries were lumped together, the damages range from K2,000.00 to K4, 000.00. One of the most recent cases doing that is the judgment in, Tony Wemin & 227 Ors v. Robert Kalasim, Provincial Police Commander of Simbu & The State (21/06/01) N2134. The judgment had regard to the earlier judgments in John Tuin Solomon v. The State and Others [1994] PNGLR 265; Toglai Apa & Others v. The State N1267 and several others.

A case representing a higher award is the one in David Haluya –v- Samson Gurel & The State N2109, the Court awarded K10,000.00 for wrongful arrest, K10,000.00 for false imprisonment, K18,200.00 for malicious prosecution and K6,000.00 for breach of constitutional rights. These awards were made on the basis amongst others, that the defendants made submissions for settlement in those terms.

The plaintiffs in the present case argue for a global award to cover both their Constitutional breaches and the physical injuries. In so doing, they argue for an award of K4,000.00 per day for each item of injury and breaches for each of their Constitutional rights. Going by that submission, counsel for the plaintiffs argue that, damages for Desmond Huaimbukie, Malaki Yenu, Stanis Wafi Mairangian and Saihengu Harinduo, should therefore be substantial as these Plaintiffs were severely beaten and they received severe injuries, namely, broken lips, mouth, swollen faces and body and they were detained in Maprik police cell without a charge for five weeks. Hence in their cases, they should receive K4,000.00 for assault and breach of constitutional rights per day for 5 weeks.

Counsel for the plaintiff has not drawn to the Court’s attention any authority that allows for a calculation of damages on a daily basis as submitted by him. A consideration of the cases, counsel for the Plaintiffs and that of the Defendants’ referred to, show that, there can only be one award for the kind of damages or breach under consideration. Such awards vary from case to case depending on the severity of the breach or injury involved. The authorities speak with one voice that, it is difficult to assess a plaintiff’s damages because it is difficult to put a monetary value to the loss or damages for damages such as personal injuries and breach of ones Constitutional right. The best a Court can do in the circumstances, is to arrive at a round about monetary estimate. The actual damages would depend on the severity of the injury or loss. A single instance of an assault or injury may attract lesser damages while repeated acts of assault or injury could attract higher damages. This does not mean that, a mathematical formula as submitted for by the Plaintiff’s lawyer is applicable. If however, it is applicable, the Plaintiffs’ counsel has not drawn my attention to any authority for that.

The State’s submission reflects the above discussion. As such, I find persuasion in the submission. This submission allows for global awards of K2, 000.00 each for the Plaintiffs’ Constitutional breach, damages of K4,000.00 each for those Plaintiffs imprisonment at Yangoru Police Station, K8,000.00 for those Plaintiffs imprisonment at Maprik and varying damages for the personal items each of the plaintiffs claim they have lost, despite the lack of proper prove of such loss.

In determining which of these conflicting submissions the Court should accept, I remind myself of the foregoing discussion on the law in relation to pleading and the kind of evidence before me. Bearing these in mind, I find that the State’s submission, in my view, is the most reasonable one, particularly when the pleadings and evidence do not provide a good foundation for an award of damages higher than the ones submitted for by the State. The range of damages suggested by the State is, in my view, within the range of damages the National Court has been awarding in similar cases. The Plaintiffs have failed to make a case for an award of damages beyond that.

Accordingly, whilst I accept that the damages for those plaintiffs who were detained at the Maprik Police station would have to be higher, I do not accept that the mathematical formula used by the Plaintiffs’ counsel is the way to go. Likewise, I do not accept that, the amounts of damages the Plaintiffs’ argue for have any factual or legal foundation, both in terms of evidence, pleadings and precedent. If it were not for the concession the Defendants have made, the personal injuries the plaintiffs have suffered are minor in the absence of any pleadings and evidence to the contrary. As such, the awards of damages would be much lower than the awards I am just about to get into. Similarly, no evidence, such as receipts or other witnesses’ evidence, support the claim for loss of the respective plaintiffs’ personal properties. I consider such evidence is necessary especially when there is the risk of false claims against the State.

Proceeding on that basis, I assess and award the following damages for each of the Plaintiffs:

(1) Desmond Huaimbukie

(a) Breach of Constitutional rights K 2,000.00

(b) Damages for pain and suffering K 8,000.00

(c) Loss of property K 4,700.00

Total K14,700.00

(2) Markus Huaimbukie

(a) Breach of Constitutional rights K 2,000.00

(b) Damages for pain and suffering K 8,000.00

(c) Loss of property K 1,000.00

Total K 7,000.00

(3) Patrick Saihira

(a) Breach of Constitutional rights K 2,000.00

(b) Damages for pain and suffering K 4,000.00

(c) Loss of property K 1,500.00

Total K 7,500.00

(4) Hubert Makes

• (a) Breach of Constitutional rights K 2,000.00
• (b) Damages for pain and suffering K 4,000.00
• (c) Lost of property K 300.00

Total K 6,300.00

(5) Malaki Yenu

(a) Breach of Constitutional rights K 2,000.00
(b) Damages for pain and suffering K 8,000.00
(c) Lost Property K 1,000.00

Total K11,000.00

(6) Saihengu Harinduo

(a) Breach of Constitutional rights K 2,000.00

(b) Damages for pain and Suffering K 8,000.00

(c) Lost of property K 300.00

Total K10,300.00

(7) Elpin Yenu

(a) Breach of Constitutional rights K 2,000.00

(b) Damages for pain and suffering K 4,000.00

(c) Lost of property K1,000.00

Total K 7,000.00

(8) Stanis Wafi Mairangian

• (a) Breach of Constitutional rights K 2,000.00
• (b) Damages for pain and suffering K 8,000.00
• (c) Lost of property K 300.00

Total K10,300.00

There is a claim for interest at the usual rate of 8% . An order was in fact made for interest at that rate on 7th August 2002. The order was for the Second Defendant to pay interest at the rate of 8% per annum on the judgment debt from the date of the issuance of the Writ of Summons, which is 22nd January 2002 to the date of payment in full of the judgment debt. The Defendants did not appeal or apply to set aside or quash that order. The Defendants do not take issue on this and indeed, conceded to the claim for interest. Accordingly, I order that interest shall be calculated in accordance with the earlier order.

The Plaintiffs also claim costs and the Defendants concede to that claim. Accordingly, I order costs in favour of the Plaintiffs to be taxed if not agreed.

In summary, I order judgment for the plaintiffs in the total amount of K74, 100.00 plus interest at 8% from the date of the issue of the writ until settlement and costs to be agreed, if not taxed.
___________________________________________________________________
Lawyers for the Plaintiffs: Harricknen Lawyers.
Lawyers for the First Defendant/Respondent: Solicitor General.