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Lihir Mining Area Landowners Association v Basani [2018] PGNC 11; N7077 (31 January 2018)

N7077

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 153 OF 2013

LIHIR MINING AREA LANDOWNERS ASSOCIATION
First Plaintiff

PATRICK LABONGIS, JOHN LERAU, JOHN RAPIS,
SIMON KOMBING, CLEMENT ULKA & 109 OTHERS
Second Plaintiffs

V

MARK BASANI & VERONICA BASANI & NIELIK CLAN OF TON VILLAGE, MASAHET ISLAND, NEW IRELAND PROVINCE
First Defendants

STEVEN ULA, SENIOR INSPECTOR, MOBILE SQUAD COMMANDER, LIHIR POLICE STATION
Second Defendant

ANTON BILLIE, PROVINCIAL POLICE COMMANDER,
EAST NEW BRITAIN PROVINCE
Third Defendant

THE COMMISSIONER OF POLICE
Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Cannings J
2015: 17, 19 November
2016: 20 May
2018: 31 January

DAMAGES – breach of human rights – Police raid of village – property damage – assault.

The plaintiffs sued various customary landowners and members of the Police Force and the State in connection with an eviction exercise involving a Police raid of the land on which they were living and destruction of their homes, gardens and other properties and assault, arrest and detention in custody of some plaintiffs. Default judgment was entered against the State. At the trial on assessment of damages, the plaintiffs sought damages in four categories: (a) property losses, K529,596.60; (b) general damages for assault, pain and suffering etc, amounts of K10,000.00 to K40,000.00 for various plaintiffs; (c) breach of constitutional rights, K5,000.00 for each plaintiff who gave evidence; and (d) exemplary damages, K5,000.00 for each plaintiff who gave evidence. In response, the State argued that the question of liability should be revisited and the entire proceedings dismissed and the plaintiffs awarded nothing due to defects in the statement of claim; and in the alternative that the plaintiffs should be awarded no more than K36,000.00 in total due to a lack of evidence to support the claims.

Held:

(1) The State’s preliminary argument was rejected as it was made late, without notice and without evidence. Such arguments must be made by notice of motion, in a timely manner and supported by affidavit. In any event the statement of claim was clearly drafted and adequately pleaded causes of action in breach of human rights. The Court proceeded to assess damages on the basis of the evidence before it.

(2) It was appropriate to award damages to each plaintiff who had given evidence. Though there were some deficiencies in the plaintiffs’ evidence, there was no evidence brought by the State, and no submission, to contest the fundamental allegation that an eviction exercise, unsupported by the order of any Court, took place in the manner alleged, involving destruction of property, fear and distress and bodily assault on some plaintiffs.

(3) Damages were accordingly awarded to each plaintiff who gave evidence, the total amount of damages awarded being K814,500.00. In addition each plaintiff was awarded interest on the amount of damages awarded to them, at the rate of 2% per annum, for the period from the date of the filing of the writ (18 September 2013) to the date of judgment, a period of 4.4 years.

Cases cited

The following cases are cited in the judgment:

Albert Baine v The State (1995) N1335
Alphonse Willie v Simon Kaupa (2016) N6553
Anuta Jobou v Alfred Kumasi and The State (2012) N4607
Eton Pakui v The State (2006) N2977
Francis Fuliva v Inspector Tony Wagambie Junior (2013) N5221
Joe Tipaiza v James Yali (2008) N3472
Jonathan Mangope Paraia v The State (1995) N1343
Justin Bau v Paul Karl (2010) N4123
Kolaip Palapi v Sergeant Poko (2001) N2274
Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331
Peter Wanis v Fred Sikiot and The State (1995) N1350
William Mel v Coleman Pakalia (2005) SC790
Yange Lagan and Others v The State (1995) N1369
Yooken Paklin v The State (2001) N2212

TRIAL

This was a trial on assessment of damages following entry of default judgment.

Counsel

M Boas, for the Plaintiffs
G Akia & T Mileng, for the Defendants

31^st January, 2018

1. CANNINGS J: This was a trial on assessment of damages following entry of default judgment against the fifth defendant, the State.
   

2. The plaintiffs are from Zuen village, Lihir Island, New Ireland Province. They commenced proceedings against the State and other defendants in September 2013, claiming damages for alleged breaches of human rights committed by members of the Police Force in connection with an eviction exercise conducted in February-March 2013 in and around Zuen village. They alleged that about 30 members of the Police Force, most of them members of a mobile squad based at Kokopo, East New Britain Province, raided the land on which they were living and destroyed their homes, gardens and other properties and in some cases threatened, assaulted, arrested and detained the plaintiffs. It was claimed that the eviction exercise was requested and sponsored by the first defendants, Mark and Veronica Basani and the Nielik Clan of Ton Village, Masahet Island.

3. Default judgment was entered against the State on 9 April 2015. No judgment was entered against the other defendants. Nor have the proceedings against them been dismissed.

4. At this trial on assessment of damages, the plaintiffs sought damages in four categories: (a) property losses, K529,596.60; (b) general damages for assault, pain and suffering etc, amounts of K10,000.00 to K40,000.00 for various plaintiffs; (c) breach of constitutional rights, K5,000.00 for each plaintiff who gave evidence; and (d) exemplary damages, K5,000.00 for each plaintiff who gave evidence.

5. In response, the State argued that the question of liability ought to be revisited and the entire proceedings dismissed and the plaintiffs awarded nothing due to defects in the statement of claim; and in the alternative that the plaintiffs should be awarded no more than K36,000.00 in total due to a lack of evidence to support the claims.

EVIDENCE

6. The plaintiffs’ case consisted of affidavits sworn by 47 persons, most of them plaintiffs. Each affidavit set out what the police had done and the property damage, assaults and threats that the deponent had incurred and/or witnessed. The State adduced no evidence.

PRELIMINARY ARGUMENT

7. I dismiss the State’s preliminary argument about revisiting the question of liability and dismissing the proceedings. The argument has been made late (well after entry of default judgment), without notice and without evidence. Such arguments must be made by notice of motion, in a timely manner (in this case, soon after entry of default judgment) and supported by affidavit. Alternatively the State should have appealed to the Supreme Court against the entry of default judgment.

8. As explained by the Supreme Court in William Mel v Coleman Pakalia (2005) SC790, the role of the judge assessing damages after entry of default judgment is:

• to make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity;
  
• if the facts and cause of action are reasonably clear, liability should be regarded as proven, ie the default judgment resolves all questions of liability in respect of the matters pleaded in the statement of claim;
  
• only if the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability;
  
• the plaintiff has the burden of producing admissible and credible evidence of the alleged damages;
  
• 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.
  

9. I am satisfied that the facts and the cause of action are pleaded with sufficient clarity. Liability is therefore regarded as proven. The plaintiffs have established a cause of action against the State for breach of human rights, as pleaded in the statement of claim, in particular, breach of the following:

• the right to freedom based on law under Section 32 of the Constitution;
• the right to freedom from inhuman treatment under Section 36 of the Constitution;
• the right to full protection of the law under Section 37 of the Constitution;
• the right to freedom from harsh or oppressive acts under Section 41 of the Constitution;
• the right to personal liberty under Section 42 of the Constitution;
• the right to freedom from arbitrary search and entry under Section 44 of the Constitution;
• the right to privacy under Section 49 of the Constitution;
• the right to freedom of movement under Section 52 of the Constitution;
• the right of protection from unjust deprivation of property under Section 53 of the Constitution;
• the right to equality of citizens under Section 55 of the Constitution.
  

GENERAL PRINCIPLES FOR ASSESSMENT OF DAMAGES

10. In assessing damages I have had regard to the following principles:

• The plaintiffs have the onus of proving their losses on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it (Yooken Paklin v The State (2001) N2212).
  
• Corroboration of a claim is usually required and the corroboration must come from an independent source (Albert Baine v The State (1995) N1335; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331).
  
• The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim (Peter Wanis v Fred Sikiot and The State (1995) N1350).
  
• The same principles apply after default judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence (Yange Lagan v The State (1995) N1369).
  
• The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available, the court expects to have it. However, where it is not, the court must do the best it can (Jonathan Mangope Paraia v The State (1995) N1343).
  
• The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims (Kolaip Palapi v Sergeant Poko (2001) N2274).
  

APPROACH TO ASSESSMENT OF DAMAGES

11. I am persuaded by the submissions of counsel for the plaintiffs, Mr Boas that even though less than half of the plaintiffs have given evidence, the evidence that has been given is of sufficient quality to make an assessment of damages in respect of each plaintiff who has given evidence. I will award damages to 43 of them.

12. I am not persuaded by the submissions of counsel for the State, Messrs Akia and Mileng, that a lack of corroboration pervades the plaintiffs’ evidence, calling into question its veracity. Nor am I persuaded that that it is not appropriate to arrive at an assessment of damages for each of the four categories of damages contended for by the plaintiffs. Though there were some deficiencies in the plaintiffs’ evidence, there was no evidence brought by the State, and no submission, to contest the fundamental allegation that an eviction exercise, unsupported by the order of any Court, took place in the manner alleged, involving destruction of property, fear and distress and bodily assaults on some plaintiffs.

13. I will not award the plaintiffs everything they have asked for. I have had regard to the approach I have taken in a number of other cases of multiple plaintiffs, most of which are “police raid cases”. In some cases I have discounted each claim by a certain percentage to arrive at reasonable and realistic sums. For example:

• Eton Pakui v The State (2006) N2977: a case involving an unlawful police raid of Tulipato village, Enga Province. The 16 claims were each discounted by 90%.
  
• Joe Tipaiza v James Yali (2008) N3472: 220 plaintiffs claimed property losses of K3.9 million following an unlawful squatter eviction exercise by Police and the provincial government in Madang. Each claim was discounted by 50%.
  
• Anuta Jobou v Alfred Kumasi and The State (2012) N4607: there was an unlawful police raid of Bom village in the Rai Coast district of Madang Province in which houses were burned and other property including gardens and livestock destroyed. The claims by the 155 plaintiffs were each discounted by 50%.
  
• Francis Fuliva v Inspector Tony Wagambie Junior (2013) N5221: 1,281 plaintiffs, illegal settlers on Government land in Madang, succeeded at a trial in establishing a cause of action in breach of the agreement governing their eviction. A separate trial was conducted on assessment of damages. The plaintiffs claimed two categories of damages: (1) general damages for breach of agreement and pain and suffering, K5,000.00 each; and (2) specific damages for destruction of property, different amounts being sought by each plaintiff, a sum of K13,585,763.81. It was held that there was no evidence in support of the plaintiffs’ claim for general damages and nothing was awarded. As for the claims for property damage, each claim was discounted by 90% to arrive at an award of damages for property losses.
  

14. In other cases I have awarded the same global sum to each plaintiff who has given evidence. For example:

• Justin Bau v Paul Karl (2010) N4123: 61 plaintiffs were the victims of a police raid at Muledami settlement in the hilltops around Kimbe, West New Britain. In an assessment of damages following entry of default judgment against the State I concluded that the claims were exaggerated and because of the lack of precision in the amounts being claimed by the plaintiffs I awarded them a flat figure of K10,000.00 each, rather than discounting each claim.
  
• Alphonse Willie v Simon Kaupa (2016) N6553: 1,852 plaintiffs sued the Police and the State after a series of raids on villages in the Gena area of Kerowagi District, Chimbu Province. Default judgment was entered against the State, which was held to be vicariously liable for the torts of trespass to property and detinue and for breaches of human rights committed by members of the Police Force. Because of deficiencies in the evidence, the 1,687 plaintiffs who gave evidence were awarded a global sum of K5, 000.00 each to cover all causes of action and all categories of damages. The total amount of damages awarded was K8, 435,000.00.
  

15. I have decided to take the first approach outlined above. I will discount each claim by approximately 50% to take account of the deficiencies in the evidence. I will assess the evidence of each plaintiff who has given evidence in light of the four categories of damages which they, as a group, have claimed. Only some of them are claiming, and gave evidence of, property losses. Each plaintiff who has obtained an award of damages will receive the same amount of K3, 000.00 damages for breach of human rights and for exemplary damages (which is warranted under Section 12 of the Claims By and Against the State Act 1996). The result of my assessment of the plaintiffs’ claims is shown in the following table.

AWARD OF DAMAGES TO 43 PLAINTIFFS

16. Any plaintiff whose name is not in the table is awarded nothing, and their claims are dismissed.

INTEREST
17. The plaintiffs argue that interest on the amount of damages should be awarded under the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52 at the rate of 8% per annum in respect of the period since the time of the eviction exercise in early 2013.

18. That argument is unsustainable in light of the Judicial Proceedings (Interest on Debts and Damages) Act 2015, which repealed Chapter 52. Sections 2 and 4 of the 2015 Act are pertinent.

19. Section 2 (application) states:

This Act applies to all Court Orders made against the State on or after 1 January 2014.

20. Section 4 (pre-judgment interest on debts and damages) states:

(1) Subject to Section 5, in proceedings in a court for the recovery of a debt or damages, the court may order a rate as it thinks proper to be applied to the sum for which judgment is given interest, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.

(2) Where the proceedings referred to in Subsection (1), including proceedings arising out of a breach of express or implied contract or mercantile usage, are taken against the State, the rate of any interest under that subsection shall not exceed 2% yearly.

(3) The maximum rate of interest in Subsection (2) applies notwithstanding that the proceedings against the State arose out of a breach of express or implied contract or mercantile usage and the relevant interest rate in the contract or mercantile usage is higher than 2%.

(4) A judgment entered contrary to Subsections (2) and (3) is a nullity and is liable to be set aside and re-issued according to law by the same judge or judges on application —

(a) by the lawyer for the State; or

(b) by the registrar, clerk or other proper officer of the court by which the judgment is given; or

(c) by any party to the proceedings.

21. The effect of those provisions is that in any award of interest against the State the maximum rate is 2%. This restriction applies to all Court orders made on or after 1 January 2014, irrespective of the date on which the proceedings were commenced. It applies in this case. I exercise the restricted discretion conferred by the 2015 Act by awarding interest on the amount of each award of damages at the rate of 2% per annum.

22. As for the period in respect of which interest is calculated, this remains at the discretion of the Court under the 2015 Act. I will not fix the start date as the date of the cause of action as the date is not precisely pleaded in the statement of claim. I will instead fix the start date as the date of the filing of the writ, 18 September 2013. The end date will be the date of delivery of this judgment. The relevant period is 4.4 years.

23. Interest will be awarded by applying the formula D x I x N = A, where D is the amount of damages, I is the interest rate per annum, N is the period in years, A is the amount of interest. Interest has been calculated accordingly and is shown in the Schedule below.

COSTS

24. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. The question of costs is a discretionary matter. There are no special circumstances in this case that warrant departure from the general rule.

ORDER

1. Damages are payable by the fifth defendant to each plaintiff whose name appears in the Schedule, in the amount shown for each plaintiff.
   
2. In addition, interest is payable by the fifth defendant to each plaintiff whose name appears in the Schedule, in the amount shown for each plaintiff
   
3. The case of each plaintiff whose name does not appear in the Schedule is dismissed.
   
4. The proceedings against the first, second, third and fourth defendants are dismissed.
   
5. Subject to any particular costs order to the contrary, costs of the entire proceedings shall be paid by the fifth defendant to the plaintiffs who have been awarded damages and interest, on a party-party basis, to be taxed if not agreed.
   

SCHEDULE

Judgment accordingly.
______________________________________________________________
Kuman Lawyers: Lawyers for the Plaintiffs
Solicitor-General: Lawyer for the Fifth Defendant