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Kewa v Kami [2010] PGNC 15; N3899 (22 February 2010)

N3899

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 535 OF 2003

BETWEEN

ANIS KEWA
Plaintiff

AND

DESMOND KAMI
First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Mount Hagen: Makail, J
2008: 24th June & 28th July &
2010: 22nd February

TORT- Liability - Unlawful police raid - Destruction of property - House and personal items of various descriptions - Whether police conducted raid - Identification of - Whether police acted within scope of employment - Vicarious liability - Wrongs (Miscellaneous Provisions) Act, Ch 297 - Section 1.

DAMAGES - Assessment of - Proof of - Evidence of - General damages - Special damages - Exemplary damages - Damages for breaches of Constitutional rights.

Cases cited:

Jonathan Mangope Paraia -v- The State & Ors (1995) N1343
John Tuink Salamon & Ors -v- George Wauglo & The State [1994] PNGLR 265; (1994) N1272
Peter Wanis -v- Fred Sikiot & The State (1994) N1350
Yange Langa & Ors -v- The State (1995) N1369
Wama Kints & Ors -v- Senior Constable Pius Nukundi & The State (2001) N2113
Abel Tomba -v- The State (1997) SC518
James Liwa & Peter Kuriti -v- Markis Vanimo & The State (2008) N3486
Pius Pup -v- Joseph Kupo, Commissioner for Police & The State: WS No 28 of 2002 (Unnumbered & Unreported Judgment of 11th February 2010)

Counsel:

Mr P Kunai, for the Plaintiff
Mr G Odu, for the Defendants

JUDGMENT

22nd February, 2010

1. MAKAIL, J: This is an action commenced by the plaintiff against the defendants for tortuous actions by the first defendant and a group of policemen at Kelua No 2 village near Mt Hagen of the Western Highlands Province on 10th December 2001. The defendants deny the tortuous acts and trial was conducted to determine liability and also assessment of damages.

Liability

2. The plaintiff provided an affidavit sworn on 23rd August 2004 and filed on 25th August 2004 (exhibit "P1") and was cross examined by counsel for the defendants in relation to its contents. Two witnesses by the names of Piaude Tiki and Sent Timbi also provided affidavits and were cross examined by the defendants’ counsel in relation to their contents. Piaude Tiki’s affidavit is sworn on 22nd September 2004 and filed on 12th October 2004 (exhibit "P7") and Sent Timbi’s affidavit is sworn on 24th September 2004 and filed on 12th October 2004 (exhibit "P8"). In addition to these affidavits, five photographs of property of different descriptions allegedly destroyed by the first defendant and his policemen were admitted into evidence by consent and marked as exhibits "P2", "P3", "P4", "P5" and "P6". Finally, Mrs Wendy Kewa was called and gave oral evidence. She was also cross examined by counsel for the defendants. Although the defendants denied the allegations, they offered no evidence to back their defence.

3. The plaintiff gave evidence that on 10th December 2001 at about 4:00 pm, policemen led by the first defendant from Mt Hagen Police Station entered his premises and without cause or reason raided his house and personal items. They destroyed personal items and even seized and removed some of them. The particulars of the personal items destroyed were:

1 x Tools Kit @ K1,230.77 - K 1,230.77
2 x Injection Pump Assy @ K7,846.52 - K15,693.04
1 x Robin Power Generator @ K2,729.00- K 2,729.00
1 x Video Screen @ K1,506.00 - K 1,506.00
1 x Blanket @ K40.00 - K 40.00
10 x Plywoods @ K30.00 - K 300.00
1 x Main door @ K80.00 - K 80.00
5 x Chairs @ K50.00 - K 250.00
Cooking utensils @ K200.00 - K 200.00
Job References and other documents - K 100.00
All food and seedlings - K 100.00
Bible - K 20.00
2 x Bush knives @ K25.00 - K 50.00
1 x Manual Drilling Machine @ K100.00- K 100.00
=========
Total K22,398.81
=========

4. His evidence is corroborated by Piaude Tiki who said that his house is next to her house. At the material time, she was in her premises cleaning her flower garden when she heard gun shots been fired. When she tried to find out the cause of the gun shots, she saw a policeman aim a gun at her and told her to remain silent. She remained silent and as she stood, she saw about six to eight policemen go inside the plaintiff’s house and destroyed personal items and stuff. They also destroyed items located outside the house and around the premises of the plaintiff. She did not know the reason for the policemen destroying the plaintiff’s house and personal items until sometimes later. She learnt that the policemen came to the village and to the plaintiff’s house to look for a suspect by the name of Kunpop Kewa who is from her village.

5. The plaintiff’s evidence is also corroborated by Sent Timbi who said that at the material time, he was at the "singsing" place at Puntumbulg village when he saw policemen from Mt Hagen Police Station arrive. There were about six to eight policemen. He did not know their names but there was one whom he was able to identify as the first defendant because he was his former school mate in the early 90s at Hagen Park High School. These policemen were armed with guns and went to the plaintiff’s house. They destroyed all of the plaintiff’s personal property of various descriptions. They did so by smashing and breaking them. Some of them removed and carried away some of the plaintiff’s personal items such as blankets and gas bottle. After they completed the raid, they left. They were there because they were looking for Kunpop Kewa.

6. Finally, the plaintiff’s wife, Mrs Wendy Kewa also gave oral evidence that, at the material time, she was in the house. She was alone as her husband had gone to Mt Hagen town. She was shocked when the policemen entered their house. They pointed guns at her and told her to remain silent. They destroyed all the personal items in the house. They broke their video screen, chairs, generator and anything they could lay their hands on. She stood there helpless but was able to recognize one of the policemen. He is the first defendant because he was involved in a court case with her husband sometime earlier. He was also one of the policemen who aimed a gun at her.

7. Counsel for the defendants in cross examination of the plaintiff and his witnesses attempted to get them to concede that there was no raid conducted by the police on the date and time in question, but they maintained that there was one and was conducted by the first defendant and his policemen. They maintained that the policemen destroyed the plaintiff’s house and personal items. However, they admitted that the first defendant and his policemen had gone to their village to look for Kunpop Kewa, a suspect wanted by the police in relation to an alleged offence.

8. Despite the defendants’ counsel attempts to establish that there was no raid conducted by the first defendant and his policemen at the plaintiff’s house at the material time, I am satisfied that there is overwhelming and un-controverted evidence from the plaintiff and his witnesses identifying the first defendant and his policemen at the plaintiff’s premises at that time. First, they were policemen from Mt Hagen Police Station led by the first defendant and they entered the premises of the plaintiff and destroyed his house and personal items. Sent Timbi recognized the first defendant because the first defendant was known to him as a former school mate. Piaude Tiki also saw the policemen; about six to eight of them enter the premises of the plaintiff while Wendy Kewa saw them because when they entered the house, they confronted her. She also recognized the first defendant because he was involved in a court case with her husband sometimes earlier. He was one of the policemen who pointed a gun at her. These were the policemen who destroyed the plaintiff’s house and personal items by kicking smashing and breaking them. They also took some of the items away.

9. Secondly, what they did was unlawful. In my view, the particulars of the personal items destroyed by the policemen are those provided by the plaintiff as set out above and some of them are verified by the photographs marked exhibits "P2"-"P6". In my view, the evidence of Piaude Tiki, Sent Timbi and Mrs Kewa including the photographs established that the raid on the plaintiff’s house and personal items was unlawful and done without any regard to moral decency. It was also done without respect and concern for the owner. After all, if they had gone there to look for Kunpop Kewa, that did not give them a right or licence to destroy the plaintiff’s house and personal items. I find their actions unlawful.

10. Thirdly, I am satisfied that they acted within the scope of their employment when they unlawful raided the plaintiff’s house and personal items. In this regard, it is not disputed by the plaintiff’s witnesses that the first defendant and his policemen went to the village to look for Kunpop Kewa who is also from the plaintiff’s village. That was the reason for their presence at the plaintiff’s house and in the process they destroyed the plaintiff’s house and personal items. To my mind, they were acting within the scope of their employment when they conducted the unlawful raid on the plaintiff’s house and personal items. I am therefore, satisfied that they acted within the scope of their employment and the second defendant as the principal and employer must be held liable for these tortuous actions committed by the first defendant and his policemen under the principles of vicarious liability pursuant to section 1 of the Wrongs (Miscellaneous Provisions) Act,Ch 297. I find the defendants liable and enter judgment against them accordingly.

Assessment of damages

11. In relation to assessment of damages, the plaintiff claims general damages, special damages, exemplary damages, damages for breaches of Constitutional rights and of course the usual 8% interest and legal costs.

General damages

12. For general damages, the plaintiff sets out the particulars of the personal items destroyed by the first defendant and his policemen on 10th December 2001 at paragraph 3 of his affidavit (exhibit "P1"), while the defendants, once again, did not provide any evidence in reply. It is trite and fundamental in assessment of damages cases that the plaintiff bears the onus of proving his or her damages even though judgment is entered against the defendants: see Jonathan Mangope Paraia -v- The State & Ors (1995) N1343.

13. In the present case, I have considered the particulars of the personal items including the house destroyed by the defendants, and having carefully looked at the photographs (exhibits "P2"-"P6"), I can see a damaged video screen, chairs, generator, blanket, cooking utensils, and so forth in them. I am satisfied that the plaintiff lost these items including those he stated at paragraph 3 of his affidavit (exhibit "P1") in the raid. In terms of the value of destroyed items, whilst there are no receipts of payments to verify that the items cost K22,398.81 in total, I am nonetheless prepared to award this amount for two reasons. First, the amount is reasonable when each item is considered against the average purchase price of the same item at shops around town these days. For example, the video screen and the chair like the ones shown in the photographs (exhibits "P1", "P2", "P4" & "P5") would cost about K1,500.00 and K50.00 respectively.

14. Secondly, when I compare the value of each item in this case with past cases of John Tuink Salamon & Ors -v- George Wauglo & The State [1994] PNGLR 265; (1994) N1272; Peter Wanis -v- Fred Sikiot & The State (1994) N1350; Yange Langa & Ors -v- The State (1995) N1369 and Wama Kints & Ors -v- Senior Constable Pius Nukundi & The State (2001) N2113, the Court in those cases have made similar awards for similar items and so for purposes of consistency, I have decided to apply similar value for each item in this case. This comes up to K22,398.81. For these reasons, I award K22,398.81 as general damages.

Special damages

15. As for special damages, the law requires that they must be strictly proven and that means, there must be evidence proving them. Evidence of receipts of payments is relevant to establish special damages. In the present case, I find no receipts of payments to support the claim for special damages. In fact, I note counsel for the plaintiff did not make any submissions on special damages. For these reasons, I decline to make an award for special damages.

Exemplary damages

16. As for exemplary damages, the plaintiff’s counsel in his written submission at p 8 submits K2,000.00 should be awarded personally against the first defendant for leading the unlawful raid. An award of exemplary damages against the first defendant shall be a lesson and warning to other policemen not to engage in such unlawful conduct in future. I agree wholeheartedly with this submission and I should add that as the first defendant has been named in this action, he should personally pay exemplary damages to the plaintiff: see Abel Tomba -v- The State (1997) SC518 and James Liwa & Peter Kuriti -v- Markis Vanimo & The State (2008) N3486.

17. In relation to how much the first defendant should pay, I agree with the amount proposed by the plaintiff’s counsel. This amount is also consistent with past awards like in James Liwa & Peter Kuriti’s case (supra). Therefore, I order the first defendant to personally pay K2,000.00 to the plaintiff as exemplary damages.

Damages for breaches of Constitutional rights

18. The plaintiff also claims damages for breaches of Constitutional rights and his counsel submits that an amount of K1,000.00 should be awarded in the circumstances of this case. But with respect, I disagree because the plaintiff did not plead this head of damages in the statement of claim. For it is also trite law that a party is entitle to claim damages and led appropriate evidence to establish it only when it is pleaded. This is to put the opposing party, and of course, the Court on notice of the claim. A party who fails to plead the appropriate damages will be prevented from leading evidence and submissions on it: see Pius Pup -v- Joseph Kupo, Commissioner for Police & The State: WS No 28 of 2002 (Unnumbered & Unreported Judgment of 11th February 2010) at pp 8&9. With those few comments, I dismiss this head of damages.

8% interest

19. I shall award interest at 8% from the date of the issue of writ of summons (2nd May 2003) to the date of judgment (22nd February 2010) because this is to compensate the plaintiff from being deprived of using the money. Eight Percent (8%) interest on general damages of K22,398.81 for 2,483 days at a daily rate of K4.90 equates to K12,166.70. I award this amount.

Legal costs

20. As the plaintiff has successfully obtained judgment on liability and damages against the defendants, I shall also order the defendants to pay the plaintiff’s legal costs to be taxed if it is not agreed.

Orders

The final orders of the Court are as follows:

1. Liability is entered against the defendants.

2. The defendants shall pay the plaintiff a sum of K22,398.81 as general damages.

3. The first defendant shall personally pay the plaintiff a sum of K2,000.00 as exemplary damages.

4. The defendants shall pay interest at 8% from the date of the issue of the writ of summons to the date of judgment in the sum of K12,166.70.

5. The time for entry of these orders shall be abridged to the date of settlement by the Registrar which shall take place forthwith.

________________________________________
Lawyers for the Plaintiff: Paulus Kunai & Co Lawyers
Lawyers for the Defendants: Acting Solicitor General