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Kelly v Yakasa [2020] PGNC 213; N8425 (12 May 2020)

N8425

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1576 of 2009

BETWEEN
PAUL KELLY & 54 OTHERS
First Plaintiffs

AND
JOEL WAL & 314 OTHERS
Second Plaintiffs

AND
FRED YAKASA, METROPOLITAN SUPERINTENDENT
First Defendant

AND
GARRY BAKI, POLICE COMMISSIONER
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Polume-Kiele J
2017: 6^th October, 15^th November
2020: 12^th May

PRACTICE AND PROCEDURE - Trial on liability and assessment of damages

CAUSE OF ACTION – Property damage – unidentified police officers (State servant and agents) acting within their lawful duty and responsibility – State to discharge the onus of proving that what they did was totally removed from the domain of their authorised actions – State vicariously liable for actions and or omissions of police officers acting within lawful duties and functions

CONSTITUTION – Breach of constitutional rights – – Constitution, Protection from inhuman treatment, s 37 (1) & (17); Right to full protection of the law; Breaches of s 59 - Claim for Compensation. Police actions or conduct carried out under conferred authority – servants and agents of the State acting within lawful duties and functions

Brief Facts

(1) This is a representative claim for tort of negligence by a total of 369 plaintiffs. The first plaintiffs are led by a Mr. Paul Kelly who acts for himself and on behalf of 54 Others. The second plaintiffs appear to be led by a Mr. Joe Wal representing himself and 314 Others. All the plaintiffs are residents of Destiny, 5 Mile Ridge near the Erima Bridge, National Capital District.

(2) On or about Wednesday, 16^th June 2009 a fight broke out between young men from the Western Highlands and Enga Provinces following a State of Origin (Game 2) at 5 Mile Ridge, Maramuni, National Capital District. Two young men were stabbed and killed during this fight. One of the deceased was a son of a former Western Highland Province, Member of Parliament.

(3) On 26 June 2009, the first and second defendants in performance of their primary functions as members of the Police Force and in accordance with their constitutional duties to preserve peace and good order in the country; conducted a routine search and arrest operation for purpose of apprehending the suspects. The routine search and arrest operation commenced at the Maramuni and ended at the Erima Bridge, 5 Mile area, National Capital District.

(4) The plaintiffs alleged that during the course of conducting the search and arrest operation, carried out by the first and second defendants, their servants and or agents; the search and arrest operation turned into a raid whereby the servants, and or agents of the first and second defendants caused destruction to their homes, properties, food gardens and stole their cash, killed their domesticated animals and breached their human rights.

(5) The plaintiffs claimed that the unidentified policemen unlawfully raided their settlement, and went on a rampage, destroying and stealing properties for which they now claim general, special and exemplary damages for breaches of human rights plus interests and costs.

(6) The writ of summons was filed on 14 December 2009.

(7) On the 28^th April 2010, the third defendant filed a defence to the claim.

(8) Liability against the first and second defendants was entered by default on 18 February 2011.

(9) Trial on liability of the third defendant and quantum was conducted on 6 October 2017. Submissions were heard on 15 November 2017.

(10) This is my ruling on liability of the third defendant and quantum.

Held:

(1) The plaintiffs proved on the balance of probabilities that the police operation carried out on 26 June 2009 by a number of unidentified police officers at Destiny, Maramuni, 5 Mile Settlement, NCD, was not a routine village search and arrest operation but a raid involving destruction and looting of properties, food gardens and economic tree plants including domesticated animals.

(2) The first and second defendants and the unidentified police officers were performing their primary functions as members of the Police Force and acting in accordance with their constitutional duties under s 197 of the Constitution: to preserve peace and good order in the country; when they failed to maintain and, as necessary, enforce the law in an impartial and objective manner resulting in the first plaintiffs sustaining damages in the destruction to their homes, properties, food gardens and stealing of their cash, killing of their domesticated animals and breaches of their human rights for which they now claim general, special and exemplary damages and compensation for breaches of human rights plus interests and costs. The first and second defendants including the unidentified police officers as servants and agents of the State attached to the National Capital District Task Force committed the tort of negligence.

(3) The State failed to discharge the onus of proving that what they did was totally removed from the domain of their authorised actions (Nogo Suzuke v The State WS 951 of 1994, unreported, 21.06.96; Eriare Lanyat and Another v The State [1997] PNGLR 253; Wama Kints v The State (2001) N2113 applied. The third defendant is liable for purposes of the principles of vicarious liability pursuant to s 1(1) and (4) of the Wrongs Act (Miscellaneous Provisions) Act Ch 297.

Cases Cited

Porgera Freighters Ltd v Bank of South Pacific Ltd (2004) N2662
Simon Mali v The State (2002) SC690 and Tigam Malewo v Keith Faulkner (2009) SC960
Kiee Toap v The State and Others (2004) N2766
Eliakim Laki and 167 Others v Maurice Alaluku and Others (2002) N2001
Dambe v. Peri [1993] PNGLR 4
Philip Kunnga v The Independent State of Papua New Guinea (2005) N2864
Madang Provincial Government v John Simbai (2015) SC1473
Nogo Suzuke & Anor v The State (WS No 951/94) (unreported) 21.06.96
Eriare Lanyat and Another v The State [1997] PNGLR 253
Wama Kints v The State (2001) N2113)
Robin Martin v The State, WS No. 855 OF 2010 (Unreported Judgment, 17.04.2017)
William Mel v Coleman Pakalia & Ors. (2005) SC790
Coecon Ltd Receivers’/Manager Appointed) v. National Fisheries Authority (2002) N2182
PNGBC v. Jeff Tole (2002) SC 694
Roger Bai Nimbituo v The State (2018) N7235)
MVIL v Kauna Kiangua (2015) SC1476
Banduwara Waranumbo v Hyper Construction Limited (2012) N4882
Teddy Suan v Peter Dumba (2013) N5428
Kelly Koi v Constable Mathew Anseni (2014) N5580
MVIT v Tabanto [1995] PNGLR 214
MVIT v Pupune [1993] PNGLR 370
Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247
Kembo Tirima v ANGAU Memorial Hospital Board and The State (2005) N2779
Otto Benal Magiten v William Moses (2006) N5008
Vincent Kerry v The State (2007) N3127
Anuta Jobou v Alfred Kumasi and The Independent State of PNG (2012) N4607
Nare v Independent State of Papua New Guinea (2017) SC1584
The State v David Wari Kofowei and Others [1987] PNGLR 5)
Celcius Raiam & 177 Others v Sergeant Elkis Piritai & 2 Others
Paraia v Yansuan, as Police Station Commander (Porgera) [1995] N1343
David Kofowei v Augustine Siviri and Others [1983] PNGLR 449
Aina Mond v Chief Inspector Robert Kalasim and The Independent State of Papua New Guinea
J.S.T Ltd v Arkhefield Pty Ltd (2014) SC1352
Thomas Wapi v Sergeant Koga Ialy (2013) N5108
Peter Wanis -v- Fred Sikiot&The State (1994) N1350
Lapun Aine v the State (2011) N4389 and Anis Kewa -v- Desmond Kami & The State (2010) N3899
Anis v Sikiot & State (1995) N1350
Robert Taropen & Ors v John Anawe & The State (2010) N3911
Nelson Pawa v The State (2009) N3784
Thomas Paraka v Thomas Upaiga & The State (2010) N4090
Nagi Yuak Kwi v Francis Tande (2011) N4910)
The State [The Government of Papua New Guinea] v Trevor McCleary [1976] PNGLR 321
Likui Trading Ltd v Joseph Selna (2011) N4530
The Administration of Papua New Guinea v Carroll [1974] PNGLR 265
Tommy v MVIT (1991) N1023
Martha Limitopa & Poti Hiringe v The State [1988-89] PNGLR 364
Losia Mesa v Gari Baki as Commissioner of Police & The (2009) N3681
James Gunambo v Sergeant Thomas John Upaiga (2010) N3859S
Yange Lagan v State (1995) N1369
Yooken Pakilin v State (2001) N2212
Petrus and Gawi v Telikom PNG Ltd (2008) N3373
Joe Kape Meta v Kumono, Kulunio & The State (2012) N4958
Namuesh v State [1996] PNGLR 211
Salamon & Ors v. State [1994] PNGLR 265
Peter Kamane & 66 Ors v. Police & State – WS No. 233 of 1994 (unreported)
Kim Pai v State (2002) N2207
Alex Latham & Kathleen Latham v Henry Peni (1990) N4163
James Koimo v The State [1995] PNGLR 535
Kenneth Bromley v Finance Pacific Ltd (2001) N2097
George Kala v Joseph Kupo (2009) N3677)
Luke Deukari v Danny Kuglam (2006) N3087
Kua v Patiken [2010] N4103)
Toglai Apa v. The State [1995] PNGLR 43
Nathan Kandakasi v The State (2017) N6601
Jacky Anton v The State (2018) N7158, Kopu Saroa v The State (2018) N7185
The State v Lydia Sinuga (2012) N5611
Powes Parkop v Wari Vele (No 3) (2007) N3322
Apa & Ors v Police & State [1995] PNGLR 43
Special Reference 1 of 1990 (1990) PNGLR 532
Criminal Circuits In Eastern Highlands (1990) PNGLR 82

Counsel:

Mr. Y Awi, for the plaintiffs
No appearance for the First and Second Defendants
Mr. G Akia, for the Third Defendants

JUDGMENT

12^th May 2020

1. POLUME-KIELE J: This is a representative claim filed by Paul Kelly as the lead plaintiff for himself and 54 others as the first plaintiffs and Joe Wal as the lead plaintiff for himself and 314 Others as the second plaintiffs. The claim is for property damage and breaches of constitutional rights.
   
2. Liability against the first and second defendants was entered on 18 February 2011.
   
3. The outstanding matter for determination relates to the issue of liability on the part of the third defendant (The Independent State of Papua New Guinea) for which trial on liability of the State and quantum was conducted on 6 October 2017. Submission on liability and quantum was heard on 15 November 2017.
   
4. Ruling was reserved which I now deliver.
   

Preliminary matters

5. This is a representative claim. The first plaintiffs are led by a Paul Kelly for himself and that of 54 others as first plaintiffs. The second plaintiffs are led by a Joe Wal for himself and 314 others.
   
6. In the course of writing this judgment, I discovered upon perusal of the pleadings Joe Wal for himself and 314 others as second plaintiff have not pleaded a cause of action against the defendants. The only reference to Joe Wal for himself and 314 others as second plaintiffs is disclosed on the title page to the Writ of Summons. In spite of this defect, default judgment has already been entered for Joe Wal and 314 others as second plaintiffs on 11 February 2011.
   
7. I also note that there is also no pleading in the Statement of Claim of either Joe Wal or each of the 314 others as second plaintiffs giving consent and authority to Joe Wal to institute this proceeding for and on their behalf.
   
8. These defects were not addressed by Counsel for the third defendant and or even Counsel for the plaintiffs either during trial or in the course of hearing submission on liability and quantum.
   
9. I discuss these matters in this judgment.
   

The Claim

10. The pleadings in the statement of claim endorsed to the writ of summons filed on 14 December 2009 lack clarity and do not immediately make it obvious or disclose the nature of the Claim alleged against the defendants. However, it is obvious that at least 54 individuals have given their consent and authority to the lead plaintiff, Paul Kelly to file proceedings for and on their behalf. They have also sworn and filed affidavits in support of their claim. The details of these 54 others is discussed in this judgment. The plaintiffs’ claim is brought within the statutory framework of the Wrongs (Miscellaneous Provisions) Act (Chapter 297) under s 1 (1) (a) and (4) of the said Act. In summary, these provisions state as follows:
    

“ (1) The State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject - (a) in respect of torts committed by its servants and agents; and (b)in respect of any breach of the duties that a person owes to his servants or agents under the underlying law by reason of being their employer; and (c) in respect of any breach of the duties attaching under the underlying law to the ownership, occupation, possession or control of property.

(2) ...

(3) ...

(4) The State can only be liable for torts committed by its agents or servants, such as policemen in this case” (see David Wari Kofowei v Augustine Siviri & Ors [1987] PNGLR 5.

11. For some reasons or other, it has taken some 10 years to come this far since the proceedings were filed and the entry of default judgment on 18 February 2011.
    
12. The plaintiffs claimed three heads of damages: (1) general damages, breaches of constitutional rights and exemplary damages plus interest at 8% and costs of the proceeding.
    
13. The State, filed its defence on 28 April 2010 and denied liability for the claim. However, the third defendant has not raised any issues with regard to the sufficiency of pleadings not the lack of capacity of Joe Wal as representing himself and the 315 second plaintiffs.
    
14. The State did not deny the existence of a raid by members of the police but stated that if the action and or omissions of the policemen involved went beyond the scope of their duties, then the Police Hierarchy will not be responsible for their unlawful actions.
    

Issues for determination

(4) The issues for determination are whether the third defendant (State) has discharged the onus of proving that what the first and second defendants and the unidentified members of the police force did was totally removed from the domain of their authorised actions; and whether the third defendant is liable for purposes of the principles of vicarious liability pursuant to s 1(1) and (4) of the Wrongs Act (Miscellaneous Provisions) Act Ch 297 and whether they are entitled to any measure of damages?

The law

15. The relevant laws applicable here are set out below:
    
    • (i) Constitution
      

Section 197 – Functions of the police force.

(1) The primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament-

• (a) to preserve peace and good order in the country; and
• (b) to maintain and, as necessary, enforce the law in an impartial and objective manner.
  

Section 36 - Freedom form inhuman treatment

No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.

Section 44 - Freedom from arbitrary search and entry.

No person shall be subjected to the search of his person or property or to entry of his premises, except to the extent that the exercise of that right is regulated or restricted by a law-

That makes reasonable provision for a search or entry-

Under an order made by a court; or

Under a warrant for a search issued by a court or judicial officer on reasonable grounds, supported by oath or affirmation, particularly describing the purpose of the search; or

That authorizes a public officer or government agent of Papua New Guinea or an officer of a body corporate established by law for a public purpose to enter, where necessary, on the premises of a person in order to inspect those premises or anything in or on them in relation to any rate or tax or in order to carry out work connected with any property that is lawfully in or on those premises and belongs to the Government or any such body corporate;

Section 49. Right to privacy.

Every person has the right to reasonable privacy in respect of his private and family life, his communication with other persons and his personal papers and effects, except to the extent that the exercise of that right is regulated or restricted by a law that complies with Section 38 (general qualifications on qualified rights).

Section 53 - Protection from unjust deprivation of property.

Subject to Section 54 (special provision I relation to certain lands) and except as permitted by this section, possession may not be compulsorily taken of any property, and no interest in or right over property may be compulsory acquired, except in accordance with an Organic Law or an Act of the Parliament, and unless-

The property is required for-

A public purpose; or

A reason that is reasonably justified in a democratic society that has a proper regard for the rights and dignity of mankind....

Section 57. Enforcement of guaranteed rights and freedoms.

A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is in the opinion of the court, unable fully and freely to exercise his rights, under this section by a person acting on his behalf, whether or not by his authority.

For the purposes of this section-

The Law Officers of Papua New Guinea; and

Any other persons prescribed for the purpose by an Act of the Parliament;

Any other persons with an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of Law such that, in the opinion of the court concerned, they ought to be allowed to appear and be heard on the matter in question, have an interest in the protection

A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).

Any court, tribunal or authority may, on its initiative or at the request of a person referred to in Subsection (1), adjourn, or otherwise delay a decision in, any proceedings before it in order to allow a question concerning the effect or application of this Division to be determined in accordance with Subsection (1)

Relief under this section if not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the court thinks it proper to do so, be given in cases in which there is a reasonable probability or infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.

The jurisdiction and powers of the courts under this section are in addition to, and not in derogation of, their jurisdiction and powers under any other provision of this Constitution.

Section 58 - Compensation

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

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 Par 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.

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

Where the infringement was committed by a governmental body, damages may be awarded

either-

Damages shall not be awarded against a person who was responsible to a government body in respect of the action giving rise to the infringement if-

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

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.

(2) Statute

Wrongs (Miscellaneous Provisions) Act 1975 (hereunder referred to as Wrongs Act), The State’s liability basing on tortuous acts committed by its servants is provided by Section 1 of the Wrongs (Miscellaneous Provisions) Act Ch. 297. Subsections (1) and (4) provide:

Section 1 - General Liability of the State in tort.

Subject to this Division, the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject-

in respect of torts committed by its servants and agents; and

in respect of any breach of the duties that a person owes to his servants or agents under the underlying law by reason of being their employer; and

in respect of the any breach of the duties attaching under the underlying law to the ownership, occupation, possession or control of property.

...
...

(4) where functions are conferred or imposed on an officer of the State as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government.

(3) Claims By and Against the State Act 1996 (the Claims Act)

Section 12(1) - Judgments against the state

“12. No exemplary damages may be awarded against the State unless it appears to the court that, regardless of the nature of the claim, there has been a breach of Constitutional rights so severer or continuous as to warrant an award of exemplary damages.”

16. Both parties tendered their witnesses’ affidavits by consent.
    

Third Defendant’s evidence

17. The third defendant elected not to call any witnesses but relied on an affidavit sworn by Paul Henry on 4 April 2014 and filed on 8 April 2014 which was tendered into evidence by consent.
    
18. In his affidavit, Paul Henry attested to and attached as an Annexure to his affidavit, a Circular No. 34/92 dated 29 October 1992, signed by Commissioner H Tokam, CBE QPM. This Circular had been issued by the Royal Papua New Guinea Constabulary about being overly concerned about behaviour of police personnel after receipt of complaints from members of the public relating to the willful destruction of property by police during raids of villages and squatter settlements whilst in pursuit of criminals, in search of properties suspected of being stolen or even in retaliation for some injury or ill done to police, reports of houses burned, food gardens destroyed, animals killed and in some cases women raped and police as suspects. The Circular also conveys the police hierarchy attitude towards such behaviour and impresses upon its members that this type of behaviour is illegal, creates a bad image and does nothing to improve public relations. It puts police in the same category as the criminals. The circular in effect bears the warning that all police members who involve themselves in this type of activity are to be arrested, charged and brought before the Court and that anyone charged for such behaviour will not be given legal assistance from the Police Department.
    

First Plaintiffs’ evidence

19. The first plaintiffs called Paul Kelly as a witness. Paul Kelly was cross- examined. In his affidavit, sworn on 19 March 20012 and filed on 28 March 2012, Paul Kelly deposed to the fact that he is from Simbu Province and living at Destiny, 5 Mile, National Capital District and that he is a plaintiff in this matter. He testified that on 26 June 2009, a group of unidentified uniformed police officers, armed with guns, back hoe and chain saws which were used to trim down trees and bulldoze houses and other properties. He believes that the raid was led by the Deputy Chief Inspector Andy Bawa as he saw Deputy Chief Inspector Andy Bawa using a small red loud hailer giving command to his police men to order occupants out of their premises prior to the police officers raiding the place. He also gave evidence that after the raid, Deputy Chief Inspector Andy Bawa had made a public announcement requesting all residents to gather at the Bird of Paradise Sculpture and the first defendant, Metropolitan Superintendent, Mr. Fred Yakasa to brief the residents (plaintiffs) about the incident of 24 June 2009. Upon arrival, the first defendant informed the plaintiffs that these police officers were there to carry out a raid for the search of the suspects involved in the murder. He then ordered the plaintiffs to vacate their premises. The first defendant then ordered the police officers to carry out a search for the suspects involved in the two murders.
    
20. The other 54 first plaintiffs, also filed affidavits which were tendered into evidence by consent of the parties. The affidavits are marked and referred to as Exhibits 1 to 54 by consent of the parties during trial of the matter on 6^th October 2017 and discussed in this judgment.
    
21. It must be pointed out that all the plaintiffs’ affidavits were all sworn on 19^th March 2012 and filed on 28^th March 2012, a summary of which is discussed in this judgment.
    

Claim by the second plaintiffs

22. The purported claims raised by Joe Wal and the 314 other second plaintiffs appears defective. I say this because of two reasons. Whilst I note that the plaintiffs have already secured judgment in their favour on 18 February 2011, I have conducted an inquiry of the statement of claim and I must say that I find no pleading of a cause of action alleged against the defendants. Secondly, I also find that there is a lack of a pleading of an authority and consent authorising Joe Wal to act as representative of the 314 other second plaintiffs let alone a pleading of a claim raised by Joe Wal himself against the police or the State.
    
23. I also note that these defects were not raised by Counsels before the Court during trial. However, during the course of trial, Mr. Akia, Counsel for the Defendant submitted that the issue of liability be re-visited for the reason that the pleadings do not disclose a reasonable cause of action against the defendants.
    
24. In regard to the contention raised by Mr. Akia of Counsel, it is a general principle which is subject to the proviso that the issue of liability must be properly determined. For instance, in a situation where the issue of sufficiency of pleadings was not considered because it was not raised by both counsels and therefore not an issue before the Court at the relevant time; the issue of liability can be re-visited. A case on point is that of Porgera Freighters Ltd v Bank of South Pacific Ltd (2004) N2662. Further, the Court’s power to strike out pleadings or stay or dismiss proceedings under any of the grounds are specified under Order 8 rule 27(1) and Order 12 rule 40(1) is discretionary and by its inherent jurisdiction. The Court has power to protect and safeguard any abuse of its processes.
    

Entry of Default Judgment – 11 February 2011

25. Liability against the first defendant, Police Metropolitan Superintendent Fred Yakasa and the second defendant, Gari Baki, Police Commissioner, was determined by entry of a default judgment by the Court on the 18 February 2011.
    
26. Hence, the second plaintiffs have in their favour, default judgment and for damages to be assessed. The burden of presenting with precise evidence, the type or kind of damages which they have each suffered and what type or kind of compensation they are entitled to receive in damages lies upon the plaintiffs. However, assessment of such is left to be determined by this Court.
    
27. The relevant question then is, have all the 369 plaintiffs established their claim on the required standard? It is apparent on the face of records that there are only 55 affidavit testimonies presently before the Court. The 55 affidavit testimonies are matters which are deposed to by Paul Kelly and 54 others who are identified as the first plaintiffs. There appears to be no reference to a Joe Wal and 314 others as second plaintiffs. There also appears to be no pleading of a claim by Joe Wal and 314 others as second plaintiffs identified on the title page of this proceeding.
    
28. Given this disclosure, the only material affidavit testimonies are those deposed to by Paul Kelly and 55 others as first plaintiffs. In their individual affidavit testimonies, they make reference to items which they state that they have lost or damages they suffered in breach of their human rights as a result of the said raid for the search of suspects involved in the alleged murder. They have listed and itemized their losses in respect of items of clothing, food garden, house, ducks, tree crops, tools, furniture, television sets, text books and etc. There is however, no clear statement of what the value of these items are, photographs of the destruction or receipts produced to confirm their losses.
    
29. The question to ask here, is, whether these other 315 plaintiffs have a cause of action against the defendants? Upon a further enquiry of the pleadings, it is apparent that there is no pleading of a cause of action raised by Joe Wal for himself and the 314 others as second plaintiffs.
    
30. However, the arguments raised by Mr. Akia of Counsel do not address the issue as to whether or not the second plaintiffs plead a cause of action against the defendants, it was a general argument raised in relation to the sufficiency of pleadings in that the pleadings were so bad and confusing which makes it very difficult for the defendants to understand or to know the allegations raised against them? In that he submits that the exact provisions of s1(1) and (4) of the Wrongs Act (Miscellaneous Provisions) Act Ch 297 are not pleaded and therefore no claim is raised against the defendants, more particularly, the third defendants.
    
31. However, before I deal with this issue, I will first deal with the issue relating to the purported claim raised by Joe Wal and 314 others as second plaintiffs. In this claim, I note the headings, title page of the writ of summons reads:
    

“Joe Wal for himself and 314 other plaintiffs”)

32. However, in writing this judgment and upon further conduct of an inquiry as to the nature of the claim pleaded in the statement of claim by Joe Wal and 314 others; I discovered no pleadings of a claim made or raised by Joe Wal for himself and 314 others in the statement of claim filed on 28 October 2009. I have conducted an inquiry of the statement of claim and I find that there are no pleadings as to the consent and or authority of the 314 others as second plaintiffs authorising Joe Wal as the lead plaintiff in filing this proceeding for and on their behalf. Furthermore, there is no pleadings of a cause of action alleged to have been committed by the defendants giving rise to the claim for damages raised by Joe Wal and 314 others as second plaintiff.
    
33. Consequently, I find that the pleadings failed to comply with procedural requirements for commencement of representative proceedings as held in the leading case authorities of Simon Mali v The State (2002) SC690 and Tigam Malewo v Keith Faulkner (2009) SC960. In Mali’s case, the Supreme Court stated:
    

... in all actions or proceedings of a representative nature, all the intended plaintiffs must be named and duly identified in the originating process, be it Writ of Summons, Originating Summons or Statement of Claim endorsed on a writ. In this respect, pursuant to the Rules ..., each and every intending plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them. There are good reasons for this, one being where costs of the litigation are concerned, if awarded against the plaintiffs. Some of the problems or consequences in a representative action are anticipated in the various sub-rules under Order 5, Rule 13 National Court Rules (representation: current interests).

34. The above case authorities (decisions) demonstrate that in a representative action, the following be satisfied:
    
    • (1) all intended plaintiffs must be named in the originating process;
      
    • (2) each and every intended plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them;
      
    • (3) any person in whose name proceedings are commenced and who claims to represent other intended plaintiffs must produce an authority to the court to show that he was authorised by them to file proceedings as a class representative.
      
35. Further and in addition, the provisions of Order 5 Rule 13, is also relevant because it states:
    

“Where numerous persons have the same interest in any proceedings the proceedings may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them”

36. I also find the statement of his Honour Canning J in Kiee Toap v The State and Others (2004) N2766, relevant where he states:
    

“whenever a person brings a case to court, the originating document must demonstrate that the plaintiff has a cause of action. The document must clearly set out:

“the legal ingredients or the elements of the claim; and

the facts that support each element of the claim”

37. These propositions have been adopted and applied in numerous National Court judgments which are discussed here. More particular in the case of Eliakim Laki and 167 Others v Maurice Alaluku and Others (2002) N2001 a representative claim in which the plaintiff, Eliakim Laki said he was filing a claim on behalf of 167 others who are named in the amended schedule of the writ. He did not produce an authority to the court to show that he was authorised by the claimants to file proceedings as a class representative of the 167 others. In that case, the court held that he should not represent the others without a proper authority. In applying the above principle to this present case, I find that Joe Wal has not produced an authority to the Court to show that he was authorised by the 314 claimants to file proceedings as a class representative. Furthermore, the pleadings do not disclose a cause of action raised by either Joe Wal for himself or the 314 other claimants.
    
38. Given the lack of a pleading of a cause of action raised by Joe Wal for himself and the 314 others as second plaintiffs, I am satisfied that the representative action filed by Joe Wal and 314 Others as second plaintiffs does not meet the procedural requirements under Order 5, Rule 13 (1) and the principles set on in the case of Mali v The State (supra), Tigam Malewo v Keith Faulkner (supra), Laki v Alaluku (supra) and Kiee Toap v The State and Others (supra). None of those requirements in these case authorities have been met.
    
39. Consequently, I find that Joe Wal lacks capacity to represent the 314 others as second plaintiffs. Joe Wal lacks the proper authority to file proceedings for and on behalf of the 314 others as second plaintiffs.
    
40. Whilst Order 10 Rule 9A(15)(1)(b) and (2)(e), Order 8 Rule 27(1) and Order 12 Rule 40(1) of the National Court Rules gives this Court powers to have the proceedings dismissed or pleadings struck out if they; do not disclose a reasonable cause of action; are frivolous and vexatious; or are an abuse of the process of the court.
    
41. In spite of what appears obvious that there is a lack of a proper pleading of a claim raised against the defendants by either Joe Wal or the 314 others as second plaintiffs and also a lack of a proper consent and authority given to Joe Wal to file proceedings as a representative capacity of a claim raised by the 314 other claimants. I note that default judgment has been secured by Joe Wal and 314 others on 11 February 2011. This is not a review court upon which it can exercise its review powers to set aside the entry of default judgment. Given the circumstances, the Court will not be in a position to make any award for damages for the second plaintiff. Consequently, I make no award for damages for Joe Wal for himself and 314 others as second plaintiffs.
    

Claim by the first plaintiffs

42. I now deal with the claim by the first plaintiffs. The first plaintiffs here plead that they have given consent and authorised Mr. Paul Kelly to represent them and to file this proceeding for and on their behalf. There are 54 plaintiffs altogether. Mr. Kelly then filed proceedings representing himself and the 54 other first plaintiffs.
    
43. The first plaintiffs say that the third defendant is liable for the tort committed by its servants and or agents, (the first and second defendants) in the performance of their functions and duties as police officers. They say this is because on the day that the destruction and looting of their homes and properties occurred, these police officers were pursuing a raid for the search of certain suspects involved in the murders of two people within the Gordon Ridge (5 Mile) Settlement. The murders took place on the 24 of June 2009. The plaintiffs also relied on all their affidavits which was sworn on 28 March 2012 and filed on 28 March 2012.
    
44. The lead plaintiff for the first plaintiffs, Mr. Paul Kelly both sworn and direct evidence of a police search and raid carried out by members of the Mobile Squad, Southern Command. He testified that the raid was led by the first defendant. He also testified that the police search and raid were in relation to the performance of the police functions and duties as police officer because, they were pursuing suspects wanted for the double murder of two young men, on the night of 16 June 2009 at the Gordon Ridge (5 Mile) Settlement.
    
45. He states further that because members of the police force were searching for murder suspects, he believes that the raid was authorised by the State. He also gave both sworn evidence as to what occurred and identified his valuables that were destroyed, looted and lost during the alleged raid. Mr. Kelly also identified the first defendant as the Metropolitan Superintendent, Southern Command. The first defendant was the police officer that he saw being physically on the ground issuing directions to the police officers and directing them to carry out the raid. He also testified that all these directions were also published in the daily papers, more particularly, the National Paper.
    
46. Mr. Awi for the plaintiffs submitted that the police officers were at the scene of the incident and that in the course of performing their functions and duties, they acted deliberately and negligently. Therefore, the State is vicariously liable for what happened even though the plaintiff could not identify all the police officers involved in the raid. It can be inferred from the evidence that it was an authorised police operation. The State is therefore liable for the negligence of the officers involved. As to damages, each claimant should be awarded the damages pleaded in their respective affidavits.
    
47. The first plaintiffs claimed three heads of damages:
    

(i) With regard to the claim for special damages, Mr. Awi for the plaintiffs submits that this should equal to triple the amount of the value of the property that a plaintiff is alleged to have been lost or damaged. He referred to the case of Dambe v. Peri [1993] PNGLR 4, where the value of property lost or damaged was K1,200.00. This amount should be tripled to bring it to a sum of K3,600.00 which should also take into account, the effect of inflation. The total amount of damages claimed by the first plaintiffs in the sum of K485,041.00. It must however be pointed out that according to my calculation of the total amount of damages claimed by the first plaintiffs stand at a sum of K401,693.20 not the amount of K485,041.00. On that basis, assessment will be made according to the corrected calculations of the sum of K401.693.20 as indicated in this judgment.

(ii) In their claim for exemplary damages for breaches of human rights, the first plaintiffs claim a sum of K5000.00 for each of the first plaintiff which adds up to a total of K1,845,000.00 and a further award of K5,000.00 for each plaintiff, a further total sum of K1,845,000.00 as exemplary damages

(iii) The plaintiffs also claimed interest at 2%; and

(iv) Costs.

Consideration of the Claim

48. The plaintiffs are in court pursuing a claim against the police and the State for their losses which they say they sustained or suffered during this raid. They want to attach these losses and pain to the police and then to the State so that they can be sufficiently compensated for their losses and pain and suffering.
    
49. Here they are relying on the law of tort of negligence on the part of members of the police force. This is because the State is incapable of being directly and personally negligent. So, to hold the State liable, firstly, the plaintiff must show that some person or persons were directly and personally negligent (Philip Kunnga v The Independent State of Papua New Guinea (2005) N2864). For their case, they have already secured an order on 11 February 2011 against the first and second defendants who are police officers as being liable for committing the tort of negligence. Hence, there is no issue as to liability.
    
50. This is the second leg of that process where the plaintiffs must now establish that the third defendant is liable for purposes of the principles of vicarious liability pursuant to s 1(1) and (4) of the Wrongs Act (Miscellaneous Provisions) Act Ch 297 for the negligence of the first and second defendants who have been held to have committed the tort of negligence.
    
51. Pursuant to s 1 (a) and s1 (4) of the Wrongs Act; the State is subject to all liabilities in respect of torts committed by its servants and agents. The provisions are as follows:
    

“1. General Liability of the State in tort

(1) Subject to this Division, the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject-

(a) In respect of torts committed by its servants and agents”

52. Under s 1 (4) of the Wrongs Act the State is liable for torts committed by Police Officers in the course of performing their duties to the extent that those duties are conferred or imposed on them by the agencies of the State. Section 1 (4) provides:
    

“Where functions are conferred or imposed on an officer of the State as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government”

53. By virtue of these provisions the State can only be liable if tort was pleaded and proved that the police officers committed the tort while carrying out their functions as if the functions had been solely conferred or imposed by instructions lawfully directed by the State. The Respondents did not specifically plead that the State instructed the Police to destroy property.
    
54. Despite the lack of pleading it is arguable whether “breaches of constitutional rights (human rights) under Sections 37, 42, 44, 49 53 and 55 of the Constitution is a cause of action and would lead to destruction of properties and a claim for compensation and or damages.
    
55. Generally, the State would be vicariously liable where Police Officers destroyed property in the course of carrying out their functions. In the present case I am of the view that the State is vicariously liable for destruction to property in circumstances where the first plaintiffs were forcibly removed from their residents and had their homes, food gardens and other personal items destroyed or damaged.
    
56. Furthermore, the defendants do not deny that a raid took place to apprehend murder suspects. This action was contrary to the primary function of the Police Force which is to preserve peace and good order and to maintain and as necessary enforce the law in an impartial and objective manner (See s197 (1) of the Constitution). They also have the same powers, duties, rights and liabilities as constables under the underlying Law, except in so far as they are modified by an Act (See s239 of the Police Act 1998): Madang Provincial Government v John Simbai (2015) SC1473. Further and in addition, at Common Law, members of the police force have same wide powers to take necessary step to keep peace, prevent crime, protect property from criminal injury, detect crime and bring an offender to justice: Rice v Connolly [1966] 2 QB 414: Madang Provincial Government v John Simbai (supra).
    
57. The question to ask here is whether, the actions or omissions of the first and second defendants as police officers occurred in the course of performance of functions conferred or imposed on them as an officer of the State as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions? Generally, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government under s 1 (4) of the Wrongs Act. In this present case, the facts stated in all the affidavits filed by the first plaintiffs in support of their claim that the unidentified police officers were led by Metropolitan Superintendent Fred Yakasa who had publicly announced that the police officers were at the scene conducting a search and arrest operation to apprehend suspects involved in the double murder of two young men at the 5 Mile Settlement area. It was common knowledge. It was eventually published in one of the daily papers.
    
58. In a recent judgment in the case of Robin Martin v The State, WS NO. 855 OF 2010 (Unreported Judgment, 17 April 2017) which I delivered, I had adopted and applied the principles established in (see Nogo Suzuke v The State WS 951 of 1994, unreported, 21.06.96; In Eriare Lanyat and Another v The State [1997] PNGLR 253, Wama Kints v The State (2001) N2113 where the Court found that the tortious actions or omissions of police officers committed were within the scope of police employment and functions unless the State discharges the onus of proving that what they did was totally removed from the domain of their authorised actions. On that basis, I am satisfied that the State failed to discharge the onus of proving that what the first and second defendants did was totally removed from the domain of their authorised actions.
    

Assessing damages

59. In assessing damages, I will now go through the various affidavits which each of the 55 first plaintiffs have sworn and filed in support of their respective claims to determine whether they each and individually has proved on the balance of probabilities their claim for damages. I will also consider the evidence of the lead plaintiffs, Mr. Paul Kelly, the lead plaintiff who gave both sworn and direct evidence during trial of the matter and that of the 54 other first plaintiffs sworn affidavits.
    
60. Essentially, in the affidavit of Paul Kelly, he states that he saw Metropolitan Superintendent Fred Yakasa issuing instructions to the policemen and other agents and servants to conduct a search of their premises. In addition, the 54 other first plaintiffs in their affidavits, (Exhibits 1 to 54)- (Document No. 8 to 61). All 54 other plaintiffs attested to the identification of the first defendant as being on the ground, issuing orders and directing the cause of the operations carried out by a number of unidentified policemen as it unfolded. Mr. Kelly also testified that the said raid resulted in the destruction of first plaintiffs’ properties and personal effects carried out by the unidentified policemen on the 26^th of June 2009.
    
61. Each of the 55 plaintiffs have sworn on 12 March 2014 and filed an affidavit on 28 March 2014 detailing their respective stories of the said destruction of their properties, their feelings of the incident and allegations of breaches of their constitutional rights. All deposed to the fact that during the said incident; they also heard Metropolitan Superintendent, Mr. Fred Yakasa issue orders for the plaintiffs to vacate the premises prior to them conducting a raid from Maramuni to Erima Bridge to arrest and charge suspects involved in the murder of the two young men.
    
62. The first plaintiffs who have given affidavit evidence of their claims are listed below:
    

(1) Pastor Danny Stevens in his affidavits sworn on 19 March 2012 and filed on 28 March 2012 (Document No. 8, Exhibit 1) provides details of the items of value which he claimed were lost during the destruction caused by the first and second defendants and breaches of constitutional rights of the Plaintiffs in his presence with his family members. He also provides a list of properties and losses sustained by himself and members of his family. Paragraphs 6 to 16 of his affidavit, provides specific evidence of destruction caused to his family’s properties, losses and breach of their constitutional rights as pleaded in the Writ. He also identifies 6 members of his family as dependents. He itemised his losses as follows:

• 20 monkey banana trees at K65.00 each
• 10 pawpaw trees at K25.00 each
• Plot of vegetables and aupa plants at K50.00 each
  

Total value of his claim: K1,600.00

(2) Damienson Bomai gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012 (Document No. 10, Exhibit 4), he attested to the destruction caused by the police officers led by the first defendant and breaches of his constitutional rights in the presence of his family members in paragraphs 6 to 15 of his affidavit. In addition, paragraphs 8 to 13 of his affidavit provide specific evidence on destruction caused to his family’s properties, losses and breach of their constitutional rights as pleased in the Writ. He also identified his 5 family members or dependents as others who were affected by the raid carried out by the police officers. This is the lowest claim made by a plaintiff in this proceeding. He makes a claim for the loss of a table that was destroyed during the raid. He values his loss in the sum of K120.00.

(3) David Giano in his affidavit sworn on 19^th March 2012 and filed on 28^thMarch 2012 (Document No. 11, Exhibit 3). He testified that in paragraphs 6 to 11 to the destruction caused by the defendants and breach of constitutional rights of his constitutional rights in his presence with his family members. He identifies his losses as follows:

• 10 monkey banana trees valued at K65.00 each (K650.00)
• a young eagle tree valued at K2,500.00
  

Total damages claimed: K3,150.00

(4) Kerenga Rabisman - This plaintiff supported his claim by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. His affidavit is marked as Exhibit 2 in the trial. In Paragraphs 6 to 11 he gives evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his family members. Paragraph 9, to 11 of his affidavit gives specific evidence on destruction caused to his family’s properties, losses and breach of their constitutional rights as pleaded in the Writ. He also names his 3 family members or dependents. He referred to losses found in schedule 2 in the Writ of Summons. He identifies his losses as follows:

• 30 monkey banana trees at K65.00 each- 1950
• 26 pawpaw trees at K100.00 each; - 2600
• 5 avocado trees at K80.00 each - 400
• 35 cassava plants at K15.00 each - 525
• 45 Aibika plants at K5.00 each - 225
• 151 mustard plants at K250.00 each- 37,750
• 85 shade trees at K35.00 each - 2975
  

Total claimed: K46,425.00.

(5) Emmanuel Wai -This is the first of Emmanuel Wai’s claim. In support of this claim, he relied on his affidavit sworn on 19^th March 2012 and filed on 28^th March 2012 (Exhibit 14) in which he provides details of his claim which he says, he lost as a result of the raid. Paragraph 9, to 11 of his affidavits gives specific evidence on destruction caused to his family’s properties, losses (garden crops) and breach of their constitutional rights as pleaded in the Writ. The names of his 5 family members or dependents are stated in the opposite column. He identifies his losses as follows:

• 20 monkey banana trees at K65.00
• 10 pawpaw trees at K100.00 each
• 1 aupa/vegetables plot at K25.00
  

Total claimed: K2, 265.00.

(6) Giano Soa gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012 (Exhibit No. 15). Paragraphs 6 to 10 give evidence in support of the claim for destruction caused by the Defendants and breach of constitutional rights of the Plaintiffs in his presence with his family members. Paragraph 9, to 10 of his affidavits gives specific evidence on destruction caused to his family’s properties, losses (garden crops) and breach of their constitutional rights as pleaded in the Writ. The names of his 5 family members or dependents are stated in the opposite column. He itemized his losses found as follows:

• 80 monkey banana trees at K65.00
• 8 pawpaw trees at K100.00 each
• 150 mekeo banana at K45.00
• 13 shade trees at K50.00 each
• 6 cassava plants at K15.00 each
• 3 coconut palms at K100.00 each
• 4 taro plants at K4.00 each
  

Total claimed: K13, 830.00.

(7) Michael Aroma gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. His affidavit is marked No. 23 in the pleading book and referred to as Exhibit 16. Paragraphs 6 to 11 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his family members. Paragraphs 9, to 11 of his affidavits gives specific evidence on destruction caused to his family’s properties, losses (garden crops) and breach of their constitutional rights as pleaded in the Writ. The names of his 5 family members or dependents are stated in the opposite column. He itemized his losses found in schedule 2 in the Writ of Summons claiming for the destruction of:

• 18 monkey banana trees at K65.00
• 16 Chinese taro plants at K16.00 each
• 11 mustard plants at K250.00
  

Total claimed: K4, 080.00.

(8) Kobor Auri gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit number 24 in the pleading book tendered as exhibit 17. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his family members. Paragraph 9, to 13 of his affidavits gives specific evidence on destruction caused to his family’s properties, losses and breach of their constitutional rights as pleased in the Writ. The names of his 3 family members or dependents are stated in the opposite column. He referred to losses found in schedule 2 in the Writ of Summons claiming for the destruction of:

• 1 market house 1mx 1m with timber foundation and iron roof valued at K350.00,
• 3 monkey banana trees at K65.00
• 3 cassava plants at K10.00 each.
  

The total loss suffered from the destruction is K575.00.

(9) Kola Kuma gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit number 25 in the pleading book tendered as exhibit 18. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his family members. Paragraph 9, to 13 of his affidavits gives specific evidence on destruction caused to his family’s properties, losses (garden crops) and breach of their constitutional rights as pleaded in the Writ. The names of his 5 family members or dependents are stated in the opposite column. He referred to losses found in schedule 2 in the Writ of Summons claiming for the destruction of chattels/household goods, trade store goods and garden crops; household goods:

Household goods:

• 1esky cooler at K210.00
• 1 BMX bicycle at K180.00
• 2 spades at K50.00 each
• 4 bush knives at K20.00 each
  

Building materials

• 35 Deck fence 3m at K51.40 each,
• 4 security lights at K50.00 each
• 1 door at K245.00
• 1 customer counter at K150.00
• 1 sign board at K370.00
  

Cash crops

• 10 banana trees at K65 each
  

Store goods

• 120 SP cartons K84 each
• 8 white SP cartons at K108 each
• 4 ice beer cartons at K120 each
• 1 500mls coke carton at K72.00
  

Domestic animals:

• 4 ducks at K35 each
  

Total value claimed: K15, 210.00

(10) Babra Sinowai - In her evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit number 25 in the pleading book tendered as exhibit 18. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his family members. Paragraph 9, to 13 of his affidavits gives specific evidence on destruction caused to his family’s properties, losses (garden crops) and breach of their constitutional rights as pleaded in the Writ. The names of his 5 family members or dependents are stated in the opposite column. He referred to losses found in schedule 2 in the Writ of Summons claiming for the destruction of chattels/household goods, trade store goods and garden crops; household goods:

Household goods:

• Cooking pots 24 Inch K85.00
• Plates (6) K9.00
• Cups (7) K17.50
• Spoons (6) K10.20
• Fork (7) K35.00
• Coconut scraper (1) K25.00
  

Furniture

• PVC Chair (1) K35.00
• Table (1) K120.00
  

Tools

• Spade (1) K25.00
• Bush knives (2) K25.00
• Garden fork (4) K75.00
  

Economic tree plants

• Aupa plot @ K25.00 K50.00
• Eggplant (10) @K50.00 K500.00
• Chili plant (5) @K15.00 K75.00
• Yauro herbal tree (3) @ K60.00 K180.00
• Pawpaw tree (55) @ K65.00 K5,500.00
  

Total claim: K6,335.00

(11) Joe Kawagle gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit number 26 in the pleading book tendered as exhibit 19. Paragraphs 6 to 15 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his family members. Paragraph 9, to 15 of his affidavits gives specific evidence on destruction caused to his family’s properties, losses (garden crops) and breach of their constitutional rights as pleaded in the Writ. The names of his 21 family members or dependents are stated in the opposite column. He referred to losses found in schedule 2 in the Writ of Summons claiming for the destruction of:

• house 4.5m x 5m at K15,000.00
• single room trade store – K20,000.00
• 20-foot container iron roof, common ablution block and toilets 1.5m x 1m and 1.5m x 1.5m respectively at K3,700.00
• 75m meters fence at K2,350.00
  

Household items

• electric drill at K1,000.00
• air compressor at K4,000.00
• deep freezer 700ltrs at K2,100.00
• TV screen at K995.00
• Food warmer at K4,500.00
• 4 ice makers at K3,200.00
  

Total claimed: K57, 345.00

(12) Samson Inugu - He gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit number 18 in the pleading book tendered as exhibit 11. Paragraphs 6 to 14 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his family members. Paragraph 9 to 14 of his affidavit gives specific evidence on destruction caused to his family’s properties, losses (garden crops & buildings) and breach of their constitutional rights as pleaded in the Writ. The names of his 11 family members or dependents are stated in the opposite column. He referred to losses found in schedule 2 in the Writ of Summons claiming for the destruction of:

Electrical items-

• 1 electric jug at K120.00
• 1 deep freezer at K1, 600.00
• 1 multi mobile phone charger at K80.00
  

Store goods

• Stock in trade value of K2, 500.00
• 20 cartons of SP beer at K84.00
  

Old motor vehicle

• an old Nissan Vanette van of a value of K1, 500.00
  

Total claimed: K5, 884.00

(13) Tony Maina. He gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit number 21 in the pleading book tendered as exhibit 12. Paragraphs 4 to 11 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his family members. Paragraph 7 to 11 of his affidavit gives specific evidence on destruction caused to his family’s properties, losses (garden crops & buildings) and breach of their constitutional rights as pleaded in the Writ. The names of his 7 family members or dependents are stated in the opposite column.

Economic trees and crops

• 1 young monkey banana tree at K35.00
• 3 palm trees at K10.00 each
• 1 shade tree at K15.00
• 1.5m x 2m steel pipe posts and iron roof at K650.00
  

Total claimed: K880.00.

(14) Peter Mek. He also gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit number 20 in the pleading book tendered as exhibit 13. Paragraphs 6 to 12 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his family members. Paragraph 9, to 12 of his affidavits give specific evidence on destruction caused to his family’s properties, losses (garden crops & buildings) and breach of their constitutional rights as pleaded in the Writ. The names of his 7 family members or dependents are stated in the opposite column. He referred to losses found in schedule 2 in the Writ of Summons claiming for the destruction of:

Store goods

• 15 SP cartons of beer at K84.00 each
• 2 cartons of 500mls coke at K50.00 each
  

Total - K1, 360.00.

(15) Pastor Ben Aisen in his affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Which is identified as “Affidavit number 21” in the pleading book tendered as Exhibit P46. In Paragraphs 6 to 13 he gave evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his family members. Paragraph 9, to 13 of his affidavits gives specific evidence on destruction caused to his family’s properties, losses (garden crops & buildings) and breach of their constitutional rights as pleaded in the Writ. The names of his 5 family members or dependents are stated in the opposite column. He referred to losses found in schedule 2 in the Writ of Summons claiming for the destruction of:

Household items

• 1 cooking pot at K45.00
• 1 teapot at K25.00
• 6 plates at K2.00 each
• 6 cups at K2.50 each
• 2 kitchen knives at K1.20 each
• 6 spoons at K1.00 each,
• 4 forks at K1.00 each
• 2 plastic disks at K10.00 each.
  

Tree crops/cash crops

• 3 guava trees at K100.00 each
• 10 monkey banana trees at K65.00 each
• five pawpaw trees at K100.00
  

Makeshift House

• 2mx 2m, ground house, tarpaulin roof and timber frames of a value of K800.00
  

Total claim is K2, 397.40.

(16) Pastor Ben Aisen-He gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit number 54 in the pleading book tendered as exhibit 47. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in her presence with her family members. Paragraph 9 to 13 of his affidavit gives specific evidence on destruction caused to her family’s properties, losses (garden crops & buildings) and breach of their constitutional rights as pleaded in the Writ. The names of her 7 family members or dependents are stated in the opposite column. He referred to losses found in schedule 2 in the Writ of Summons claiming for the destruction of:

Household items

• 1 huge cooking pot at K85.00
• 6 plates at K1.50 each
• 7 cups at K2.50 each
• 6 spoons at K1.00 each
• 4 forks at K1.70 each
• 7 forks at K5.00
• furniture includes 1 PVC chair at K35.00
• 1 coconut scrapper at K25.00
• 1 table at K120.00
  

Tools

• 1 spade at K25.00
• 2 bush knives at K15.00 each
• 1 garden fork at K75.00
• Economic cash crops
• 2 aupa or vegetables plot valued at K25.00 each
• 10 egg plants value at K50.00 each
• chilly plants valued at K15.00 each,
• 3 Yauro herbal trees valued at K60.00 each
• 55 pawpaw trees at K65.00
  

Total claim - K6, 801.70

This is the second claim made by Pastor Ben Aisen. I will make a global award of K 2,000.00 for this claim due to lack of substantive evidence.

(17) Yellow Goro - In his evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit number 55 in the pleading book tendered as exhibit 48. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with her family members. Paragraphs 9 to 13 of her affidavit give specific evidence on destruction caused to her family’s properties, losses (garden crops & buildings) and breach of their constitutional rights as pleaded in the Writ. The names of her 4 family members or dependents are stated in the opposite column. He referred to losses found in schedule 2 in the Writ of Summons claiming for the destruction of:

Household items

• 1 cooking pot at K25.00,
• 7 plates at K5.00 each
• 6 cups at K2.50 each
• 6 spoons at K1.00 each
• 4 forks at K1.00each
• gas stove set valued at K150.00
• kerosene burner at K65.00
• 1 mattress at K80.00
  
• Clothes worth K400.00.
  

Economic tree crops

• 15 taro plants, at K10.00 each
• 5 flower plots at K20.00
  

Total claim - K1,375.00

(18) Paul Kelly is the lead plaintiff and he gave both sworn and direct evidence, In his evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit number 56 in the pleading book tendered as exhibit 49. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his family members. Paragraph 9 to 13 of his affidavit gives specific evidence on destruction caused to his family’s properties, losses (garden crops & buildings) and breach of their constitutional rights as pleaded in the Writ. The names of his 4 family members or dependents are stated in the opposite column. He referred to losses found in schedule 2 in the Writ of Summons claiming for the destruction of:

Household items

• 2 Gig flash drive at K120.00
• screen print board at K29.00
• 4 screen print inks (blue, red, white, green) at K350.00
• screen squeeze at K38.50;
• stencil 8x 4m at K49.50
• sign brush at K39.60
• high gloss blue at K42.00
• high gloss blue at K42.00
• high gloss black at K42.00
• 2 PVC sign burners at K270.00 each
  

Economic cash crops

• 30 pawpaw trees at K100.00 each
• 6 chilly plants at K10.00 each
• 3 yauro herbal trees at K50.00 each
  

Total claimed - K4, 624.60

(19) Sai Auri. He gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^thMarcj 2012. Affidavit number 58 in the pleading book tendered as exhibit 51. Paragraphs 6 to 14 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his family members. Paragraphs 9 to 14 of his affidavit gives specific evidence on destruction caused to his family’s properties, losses (garden crops & buildings) and breach of their constitutional rights as pleaded in the Writ. The names of his 5 family members or dependents are stated in the opposite column. He referred to losses found in schedule 2 in the Writ of Summons claiming for the destruction of:

Household items

• 1 cooking pot at K45.00
• 1 tea pot at K25.00
• 6 cups at K2.00 each
• 6 kitchen knives at K2.50 each
• 2 spoons at K1.20 each, 6 forks at K1.00 each
• 4 plastic dishes at K1.00 each
• two plates at K10.00
  

Stock in trade

• 50 K3 flex cards at 3.50 each
• 50 K5 flex cards at K5.50 each
• 10kg bag of betel nuts at K120.00 (1x),
• 4 cigarette packs at K15.00 each
  
• K150.00 cash
  

House and building materials

• 5m x 4.5m ground house, consisting of iron roof, iron wall timber inside and plywood floor destroyed valued at K4, 500.00.
  

Total claimed - K5, 494.40

(20) Gorope Kon- In his evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit number 58 in the pleading book tendered as exhibit 50. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his family members. Paragraph 9 to 13 of his affidavit gives specific evidence on destruction caused to his family’s properties, losses (house & household items) and breach of their constitutional rights as pleaded in the Writ. The names of his 6 family members or dependents are stated in the opposite column. He referred to losses found in schedule 2 in the Writ of Summons claiming for the destruction of:

House

• One-bedroom house and ground house 2m x 2.5m consisting of timber foundation and iron roof valued at K3, 500.00
  

Household items

• market table at K50.00
• 1 wooden bed at K120.00
• 2 cooking pots at K35.00 each
• 6 plates at K3.00 each
• 6 spoons at K1.20 each
• 6 cups at K2.50 each
• 2 knives at K5.00 each
  

Clothes

• 6 trousers at K10.00 each
• 4 shirts, at K5.00 each
  

Total claimed - K3, 882.20

(21) Tara Goro - In his evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit number 59 in the pleading book tendered as exhibit 52. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his family members. Paragraph 9 to 13 of his affidavit gives specific evidence on destruction caused to his family’s properties, losses (garden crops & buildings) and breach of their constitutional rights as pleaded in the Writ. The names of his 2 family members or dependents are stated in the opposite column. He referred to losses found in schedule 2 in the Writ of Summons claiming for the destruction of:

Household Items (not specified)

• 1 canvas 11 months old at K120.00
  

Tree/food crops

• 250 good and matured monkey banana trees at K65.00 each
• 450 young monkey banana trees at K65.00 each
• 450 young monkey banana trees at K15.00
• 1 matured guava tree at K50.00,
• 1 matured orange tree at K120.00
• 30 matured pawpaw trees at K100.00 each
• 30 matured pineapple plants K10.00 each,
• 5 daka/mustard plants at K250.00 each
• 1 matured noni tree at K50.00
  

Total claimed - K30, 140.00

Moringe Sinowai - In his evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit number 59 in the pleading book tendered as exhibit 53. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his family members. Paragraph 9 to 13 of his affidavit gives specific evidence on destruction caused to his family’s properties, losses (garden crops & buildings) and breach of their constitutional rights as pleaded in the Writ. The names of his 5 family members or dependents are stated in the opposite column. He referred to losses found in schedule 2 in the Writ of Summons claiming for the destruction of:

Household items

• 1-year old BBQ plate at K150.00
• 1-year old BBQ plate drum at K25.00
  

Cash crops

• matured 2 monkey banana trees at K65.00 each (K130.00)
  
• Market house/ground house (2m x 2m) comprised of iron roof, iron wall timbers and plywood at K1500.00.
  

Total claimed - K1, 805.00

(22) Cathy Kerenga - In her evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit number 45 in the pleading book tendered as exhibit 54. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in her presence with her family members. Paragraph 9 to 13 of her affidavit give specific evidence on destruction caused to her family’s properties, losses (garden crops& buildings) and breach of their constitutional rights as pleaded in the Writ. The names of her 6 family members or dependents are stated in the opposite column. She referred to losses found in schedule 2 in the Writ of Summons claiming for the destruction of the following:

Cash crops

• 50 good and matured monkey banana trees at K65.00 each
• 10 chilly plants good and matured and aupa plot at K25.00 each
  

Total claimed - K3, 375.00.

(23) Rose Tara gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit number 59 in the pleading book tendered as exhibit 41. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in her presence with her family members. Paragraph 9 to 13 of her affidavit gives specific evidence on destruction caused to her family’s properties, losses (garden crops& buildings) and breach of their constitutional rights as pleaded in the Writ. The names of her 2 family members or dependents are stated in the opposite column. She referred to losses found in schedule 2 in the Writ of Summons claiming for the destruction of the following:

House

• 2-bedroom 7.5 x 4m house made up of timber foundation, iron roof, ground house and galvanized wall valued at K5500.00
  

Cash crops

• 2 kumu plots at K25.00 each
• 7 matured mosong trees/vegetables at K150.00 each
• 1 eggplant at K50.00
• 30 taro plants good and matured at K10.00 each
• 50 lower plants in good condition at K2.50 each
  

Total claimed - K7, 355.00

(24) Janet Timothy gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit number 33 in the pleading book tendered as exhibit 42. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his family members. Paragraph 9 to 13 of his affidavit gives specific evidence on destruction caused to her family’s properties, losses (garden crops) and breach of their constitutional rights as pleaded in the Writ. The names of her 5 family members or dependents are stated in the opposite column. She referred to losses found in schedule 2 in the Writ of Summons claiming for the destruction of:

Cash crops

• 14 matured and good pawpaw plants at K100
• 24 matured and good taro plants at K25 each
• 1 aupa plot at K25
• 30 ginger plants matured at K5 each
• 25 flower plants at K5 each
  

Total claimed - K2, 060.00

(25) Alois Wemin- He gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit number 34 in the pleading book tendered as exhibit 43. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his family members. Paragraph 9 to 13 of his affidavit gives specific evidence on destruction caused to his family’s properties, losses (garden crops& buildings) and breach of their constitutional rights as pleaded in the Writ. The names of his 6 family members or dependents are stated in the opposite column. He referred to losses found in schedule 2 in the Writ of Summons claiming for the destruction of:

House:

• market house 3m x 1.5m ground house, iron roof, iron wall timber wire at K350.00
  

Household items:

• including 1 cooking pot (2 years old)
• BBD knife 10 months old at K7.50
• 3 cups at K2.50 each
• PVC chair at K68.00 each
• coconut scrapper at k25.00
• bush knife at K15.00
  

Tools:

• garden fork at K75.00
  

Economic plants and tree crops:

• 55 matured monkey banana trees at K65.00each
• 28 flower plants at K20.00 at each
  

Total claimed - K8, 410.50

(26) Samson Goro - He gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit number 35 in the pleading book tendered as exhibit 44. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his family members. Paragraph 9 to 13 of his affidavit gives specific evidence on destruction caused to his family’s properties, losses (garden crops& buildings) and breach of their constitutional rights as pleaded in the Writ. The names of his 6 family members or dependents are stated in the opposite column. He referred to losses found in schedule 2 in the Writ of Summons claiming for the destruction of:

Household items

• 15m made of barbed wire nd timber at K100.00
  

Food crops

• kumu plot at K25.00
• 71 matured monkey banana trees at K65.00 each
• 52 young monkey banana trees at K35.00
• 5 matured daka plants at K250.00 each
• 2 palm trees at K10.00 each
• 25 matured flower plants at K5.00
  

Total claimed - K7, 955.00

(27) John Dama. He gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit number 24 in the pleading book tendered as exhibit 33. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his family members. Paragraph 9 to 13 of his affidavit gives specific evidence on destruction caused to his family’s properties, losses (garden crops & store goods) and breach of their constitutional rights as pleaded in the Writ. The names of his 3 family members or dependents are stated in the opposite column. He referred to losses found in schedule 2 in the Writ of Summons claiming for the destruction of:

Store goods

• 250 SP beer cartons at K84.00 each
• 2 white carton beers at K108.00 each
• 2 500mls coke cartons at K50.00 each
  

Cash crops

• 270 good and matured Monkey banana trees at K65.00 each
• 2 palm trees matured at K50.00 each
• 30 young Christmas trees at K20 each
  

Total claimed – K13, 764.00

(28) Thomas Kino in his evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012 (Affidavit number 36 in the pleading book tendered as Exhibit P45) in paragraphs 6 to 13, he gave evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his 5 family members. Paragraph 9to 13 of his affidavit gives specific evidence on destruction caused to his family’s properties:

Household items

• 60 m made up of barbed wire and galvanized pipe, steel 3.5 high. The costs of the fence destroyed are K2, 950.00
  

Total claimed – K2,950.00

(29) Keraigo Goro. In his affidavit sworn on 19^th March 2012 and filed on 28^th March 2012, (Affidavit No. 25 in the pleading book tendered as Exhibit 34) in paragraphs 6 to 13, he gave evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his 7 family members. Paragraph 9 to 13 of his affidavit gives specific evidence on destruction caused to his family’s properties:

Economic trees and crops

• 20 good and matured monkey banana trees at K35.00 each
• 15 good and matured taro plants at K10.00 each
• 1 kumu plot at K10.00 each
• 14 good and matured pawpaw trees at K100.00 each
  

Total claimed - K3, 145.00

(30) Henry Mogia gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit number 23 in the pleading book tendered as exhibit 32. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his 5 family members. Paragraph 9 to 13 of his affidavit gives specific evidence on destruction caused to his family’s properties, losses (garden crops) and breach of their constitutional rights as pleaded in the Writ. The names of his 5 family members or dependents are stated in the opposite column. He referred to losses found in schedule 2 in the Writ of Summons claiming for the destruction caused to his family’s properties:

Economic trees and crops

• 19 good and matured monkey banana trees at K65.00 each,
• 49 good and matured cassava plants at K15.00,
• 2 good & matured Aupa plots at K25.00
• 50 good and matured silver beet plots at K2.00 each
• 6 good and matured pumpkin at K40.00 each
• 50 tomato plants at K20.00 each
• 15 good and matured taro plants at K10.00
  

Total claimed - K3, 610.00

(31) Jerry Arre. He gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit number 22 in the pleading book tendered as exhibit 31. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his 5 family members. Paragraph 9 to 13 of his affidavit gives specific evidence on destruction caused to his family’s properties:

Economic trees and crops

• good and matured monkey banana trees at K65.00 each
• 4 good and matured pawpaw plants at K100.00
• 20 landscape plants good and matured at K5.00 each
• 8 good and matured mustard plants at K250.00
• 18 good and matured flower pots at K30.00 each.
• polybag valued at K10.00
  

Total claimed - K3, 440.00

(32) Timothy Mauwe. He gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit number 21 in the pleading book tendered as exhibit 30. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his 7 family members. Paragraph 9 to 13 of his affidavit gives specific evidence on destruction caused to his family’s properties:

• 13 good and matured monkey banana trees at K65.00.
  

Total claimed - K845.00

(33) Jack Kino gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit number 20 in the pleading book tendered as exhibit 29. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his 5 family members. Paragraph 9 to 14 of his affidavit gives specific evidence on destruction. These are

Economic trees and crops

• 26 good and matured monkey banana trees at K65.00
• 6 good and matured pawpaw trees at K100.00
• 15 good and matured taro plants at K10.00 each
• 5 good and matured pumpkin plants at K40.00
  

Total costs of the economic crops destroyed is K3, 525.00

(34) Koma Peter Gihano gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit number 26 in the pleading book tendered as exhibit 35. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his 3 family members. Paragraph 9 to 13 of his affidavit gives specific evidence on destruction caused. These are:

Household items

• one-year old computer cables in good condition valued at K65.00
• one-year old desktop pc in good condition valued at K1, 500.00
• one-year old monitor in good condition valued at K300.00
  

Store goods

• 1 carton 500ml coke at 72.00
  

Total value of the household items destroyed is K1, 865.00

(35) Sinowai Temai gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit number 27 in the pleading book tendered as exhibit 36. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his 6 family members. Paragraph 9 to 13 of his affidavit gives specific evidence on destruction caused. These are set out as:

Household items

• 2 good 10months old CD player at K250.00 each,
• two 10 months old mobile phones in good condition valued at K350.00 each
• one 10 months old hand bag in good condition valued at K30.00
• ten 10 months old CDs in good condition valued at K5.00
  

Economic tree crops and food plantings

• 1 matured vegetables plot in good condition K25.00
• 12 matured banana trees in good condition at K65.00 each
• 25 kaukau plots in good condition valued at K30.00 each
• 21 matured guava trees in good condition valued at K100.00
  

Total value of the household items destroyed and the economic cash crops is K3,450.00

(36) Paul Manga in his evidence by way of an affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. (Exhibit) In paragraphs 6 to 13 he gave evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his 13 family members. Paragraph 9 to 13 of his affidavit gives specific evidence on destruction caused to his family’s store goods all in good condition which includes:

Store goods

• 60 cartons of SP beer at K84.00 each
• 12 cartons of white can carton beer at K108.00 each
• 4 Blue Moscow cartons at K120.00 each
• 5 Moscow red cartons at K132.00 each
• 5 scotch whisky at K72.00 each
• 2 cartons of 500ml coke at K70.00 each
• 4 cartons of 330ml coke at K50.00 each
• 16 packets of cigarette at K15.00 each
• 40 spear rolls at 0.80t each
  

Total value of the store items destroyed is K8, 448.00

(37) John Koboe gave evidence by way of an affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. (Exhibit P 38). In paragraphs 6 to 13, he gives evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his 3 family members. Paragraph 9 to 13 of his affidavit gives specific evidence on destruction caused to his family’s store goods, new stock in trade:

• Store goods and new stock in trade valued at K3, 009.00
  

(38) Smarty Dama gave evidence by affidavit sworn on 19^th March 2012 and filed on 28^th March 2012 (Exhibit P38). In paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his 3 family members. Paragraph 9 to 13 of his affidavit gives specific evidence on destruction caused to his family’s market house and economic cash crops as:

Market house

• 2m x 1.5m market house consisted of 1 iron roof, iron wall and timbers
• Economic tree crops
• 10 matured monkey banana trees in good condition
• 5 matured mustard plants in good condition
• 3 matured pawpaw trees in good condition
  

Total value of K4, 000.00

(39) Steven Iba gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012 (Exhibit 40). In paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his 4 family members. Paragraph 9 to 13 of his affidavit gives specific evidence on destruction caused to his family’s economic cash crops. The economic cash crops destroyed include:

Economic tree crops

• 1 matured kumu plot in good condition valued K25.00
• 20 young shade trees in good condition valued at K15.00
• 16 daka/mustard plants in good condition valued at K125.00 each
  

Total value of the cash crops destroyed is K2, 325.00.

(40) Caroline Giri gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. (Exhibit No. P2). In paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in her presence with her 4 family members. Paragraph 9 to 13 of her affidavit gives specific evidence on destruction caused as:

Household items

• market house (1.5m x 0.6m made up of timber (foundation) and iron roof) - K520.00.
• market table destroyed was valued at K50.00
  

Market items

• 10kg of betel nuts fresh/ripe valued at K45.00
• 60g of mustard matured and fresh at K10.00
• 4 Pall Mall cigarettes at K15.00 each
  

Total value is K685.00

(41) Kelly Kaki gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th May 2012 (Exhibit P22). In paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his 5 family members in the opposite column. Paragraph 9 to 13 of his affidavit gives specific evidence on destruction caused to his family’s cash crops and trees matured and in good condition which are:

Economic tree plants

• 10 monkey banana trees valued at K65.00 each
• 10 young monkey banana trees at K35.00 each
• 5 guava trees at K50.00
• 15 cassava plants at K120.00 each
• 5 pawpaw trees valued at K100.00
• 8 Chilly plants valued at K10.00 each
• 12 yam plants valued at K10.00 each
• 10 mango trees valued at K50.00 each,
• 40 nursery plants valued K2.00 each
• 12 flower plants at K10.00 each
• 5 daka plants valued at K250.00 each
  

Total value of the economic cash crops and trees destroyed is K5, 270.00

(42) Wanza Agi gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit number 57 in the pleading book tendered into evidence as exhibit 23. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his 6 family members in the opposite column. Paragraph 9 to 13 of his affidavit gives specific evidence on destruction caused to his family’s household items all in good condition which are:

Household goods:

• one 4 months old BBQ plate at K130.00
• one 4 months BBQ drum at K15.00
• two 10 months old pots at K35.00 each
• six 10 months old plates at K5.00
• six 10 months old spoons at K1.00 each
• four 10 months folks at K1.00 each
• one 10 months old table at K150.00
• one 2 years old main door at K350.00
• one wooden bed at K250.00
  

Total value of household properties destroyed is K1, 005.00

(43) Peter Gare gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012 (Exhibit P20). In paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his 7 family members in the opposite column. Paragraph 9 to 13 of his affidavit gives specific evidence on destruction caused to his family’s cash crops and household items all in good condition. The crops destroyed were all in good and matured state. These are:

Economic tree plants:

• 5 monkey banana trees valued at K65.00 each
• 3 pawpaw trees at K100.00 each
• 4 guava trees at K50.00 each
• 1 kumu plot at K25.00.

Household items

• one 4 months old BBQ plate at K130.00
• gravels at K150.00
  

Total value of goods and items destroyed is K1, 130.00

(44) Ken Kolopu - In his affidavit evidence sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit number 59 in the pleading book tendered into evidence as exhibit 24. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his 9 family members. Paragraph 9, to 13 of his affidavits give specific evidence on destruction caused to his family’s household items all in good condition which include:

Household items

• 2 years old color TV Gold Star 21 at K1, 500.00
• 2 years old TV antenna at K30.00
• 2 years old desktop PC monitor at K1, 500
• 2 years old keyboard at K700.00
• 2 years old hard drive at K2, 500.00
• three 2 years old computer cables at K120.00 each
• 2 years old power pack at K250.00
• 2 years old power pack at K250.00
• 2 years old ups(x2) at K300.00 each
• 10 months old bread toaster at K50.00
• 6 months old flash drive at K180.00
• 2 years old CD dual card reader at K800.00
• 2 years old copier fax machine at K4, 500.00
• 5 months w/Digicel phone at K500.00
• personal important documents at K5000.00
  

Total claimed - K17, 930.00

(45) Mary Ku gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit number 60 in the pleading book tendered in court as evidence exhibit 25. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with her 4 family members in the opposite column. Paragraph 9 to 13 of her affidavit give specific evidence on destruction caused to her family’s cash crops and trees matured and in good condition which are:

Economic tree plants

• 85 monkey bananas at K65.00 each
• 10 mustard plants at K250.00
• 45 pawpaw plants at K100.00 each
• betel nut trees and nuts at K200.00
  

Total value of the economics cash crops and trees destroyed is K13, 775.00

(46) Marcus Mark gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit (no document number) in the pleading book tendered in court as evidence exhibit 26. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his 8 family members in the opposite column. Paragraph 9 to 13 of his affidavit gives specific evidence on destruction caused to his family’s cash crops and trees matured and in good condition. He claimed damages for the loss of:

• 2 monkey banana trees valued at K65.00 each.
  

The Total value of loss is K780.00

(47) Meijah Num in his evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit (no document number) in the pleading book tendered into evidence as exhibit 267 Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his 8 family members in the opposite column. Paragraph 9 to 13 of his affidavit gives specific evidence on destruction caused to his family’s store goods as:

Store goods

• 10 cartons of SP beer at K84.00 each
  

Total value of loss of beer cartons K840.00

(48) Joy Joseph in her evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. Affidavit (no document number) in the pleading book tendered in court as exhibit 28. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with her 5 family members in the opposite column. Paragraph 9 to 13 of her affidavit gives specific evidence on destruction caused to her family’s economic cash crops and household items:

• 5 months old market table at K80.00
• matured include 10KG of betel nuts at K200.00
• 500g of mustard at K10.00
• 10 flower plants at K10.00each
• 25 monkey banana trees at 65.00 each
• 30 mustard plants K250.00.
  

The total value of the crops and table destroyed is K9, 530.00

(49) Morris Boma gave evidence by way of affidavit sworn on 28^th March 2012 and filed on 28^th March 2012. Affidavit number 67 in the pleading book tendered in Court as exhibit 6. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his 4 family members in the opposite column. Paragraph 9 to 13 of his affidavit give specific evidence on destruction caused to his family’s properties:

Economic cash crops

• 8 mekeo banana trees at K45.00 each
• 3 pawpaw trees at the K100.00
• 3 chilly plants at K10.00 each
• 40 monkey bananas at K65.00 each
• 3 panadas trees at K50.00
• 7 tomato plants at K10.00 each
• 35 taro plants at K10.00 each
  

Total claimed - K3, 860.00

(50) Marta John gave evidence by way of affidavit sworn on 28^th March 2012 and filed on 28^th March 2012. Affidavit number 66 in the pleading book tendered as exhibit 7. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with her 8 family members. Paragraph 9 to 13 of her affidavit give specific evidence on destruction caused to her market house & family’s economic cash crops.

Market House

• Ground house comprising of iron roof, iron wall and timber (2m x 1.5m) valued at K1, 500.00.
  

Economic cash crops

• 50 matured monkey banana trees at K65.00 each (K3, 250.00,)
• 5 palm trees at K50 each (K250.00)
• 4 pawpaw trees at K100.00 each
  

The total sum of her claim is in the amount of K5, 400.00.

(51) Jenny Arre gave affidavit evidence sworn on 28^th March 2012 and filed on 28^th March 2012. Affidavit number 65 in the pleading book tendered in Court as exhibit 8. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in her presence with her 5 family members in the opposite column. Paragraph 9 to 13 of her affidavit give specific evidence on destruction caused to his family’s properties:

Economic cash crops

• Matured 6 monkey bananas at K65.00 each (K390.00)
• 60 landscape plants at K5.00 each (300.00)
• 20 flower pots at K30 each (K600.00)
• 75 polybag plants at K2.00 each (150.00)
  

The sum total being K1, 440.00.

(52) Jack Gumam gave evidence by way of affidavit sworn on 28^th March 2012 and filed on 28^th March 2012. Affidavit number 64 in the pleading book tendered as exhibit 9. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his 6 family members in the opposite column. Paragraph 9 to 13 of his affidavit give specific evidence on destruction caused to his family’s properties:

Economic cash crops

• 10 matured monkey banana trees at K65.00 each (K650.00)
• 15 young banana trees at K35.00 each (K525.00)
  

The total value of his claim is in the sum of K1, 175.00

(53) Robert Kindagl. There appears to be no affidavit sworn and filed by this first plaintiff supporting his claim for a sum of K2500.00 for the loss of items of value set out in Schedule 2 attached to the Writ of Sums. There is no evidence by way of affidavit sworn and filed in support of any claim made by this plaintiff.

(54) Paul Yuainde gave evidence by way of affidavit sworn on 28^th March 2012 and filed on 28^th March 2012. Affidavit number 63 in the pleading book tendered as evidence exhibit 10. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his 4 family members in the opposite column. Paragraph 9 to 13 of his affidavits gives specific evidence on destruction caused to his family’s properties destroyed:

• 25 carvings in good condition for sale at K120.00 each
  

Total claimed - K3000.00

(55) Jacob Yakapo gave evidence for himself and for his family of 9 members. He gave affidavit evidence sworn on 28^th March 2012 and filed on 28^th March 2012. Affidavit number 69 in the pleading book tendered in Court as exhibit 5. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the defendants and breach of constitutional rights of the plaintiffs in his presence with his 9 family members in the opposite column. Furthermore, and in addition, Jacob Yakapo also stated in his affidavit that the first and second defendants gave directions to their officers to conduct the raid and ordered the plaintiffs to vacate their premises. The Police officers were in police uniform. A number of their police cars were seen on the location and these vehicles are described as a Blue Mazda T3500 with Registration Number ZGB 458 and Toyota Land Cruiser 10-Seater- Southern Command SSD2 with Registration Number ZGC 270 were seen. The police officers were armed with backhoes, chainsaws and police firearms bulldozed houses, stores, destroyed market stalls, plants or food crops, looting goods from stores, threatened and assaulted Plaintiffs. He said he would continue to bulldoze and destroy the properties and further said: “the Government has lot of money and so what is a legal suit of K4 million compared to loss of innocent lives” and warned that more operations would conduct. (Refer to annexure A, B, C & D of the Plaintiffs’ Affidavits). He said his police men had been instructed to brukim leg nah an (break legs and hands) during patrol on the roads and six suspects were arrested by the police during the raid. Annexure A, B, C & D of all the affidavits or exhibits 1 to 54 given by the plaintiffs confirm the destructions of their respective properties, breach of constitutional rights (specific list of properties destroyed and items of losses) are individually listed in the judgement. The plaintiffs also say that the purported search and raid was authorised by the Police Superiors in the likes of Metropolitan Superintendent Fred Yakasa. This is confirmed as reported in the National on page 2 dated 29^th June 2009 in which the Metropolitan Superintendent Fred Yakasa was quoted as reported in the National that the police would continue to destroy or bulldoze illegal settlements. Paragraphs 9 to 13 of his affidavits give specific evidence on destruction caused to his family’s household items, store goods, house as described below:

Household items (all in good condition)

• 1 two years old pot at K35
• 2 ten months old BBQ fork at K20.50 each (K41.00)
• 12 six months old cups at K2.05 each (K30.00)
• 12 six months old plates at K4.50 each (K54.00)
• 12 six months old spoons at K1.80 each (K21.60)
• 12 six old forks at K1.50 each (K18.00)
• 1 three months old frying pan at K45.00
• 2 six months old chopping boards at K10.50 each (21.00)
• 2 three years old chopping knives at K45.00 (K91.00)
• 3 six months old peelers at K2.60 each (K7.80)
• 3 two years old copper dishes at K55.00 each (K165.00)
• 1 three years old butcher knife at K400.00.
  

Furniture (all in good condition)

• 1 three years old PVC Chair at K68.00
• 1 two years old coconut scraper at K25.00
• 2 two years old table at K250.00 each (K500.00)
• 4 two years old bed at K120.00 each (K480.00)
• 4 two years old drawers at K100.00 each (K400.00)
  

Other household items

• 2 two years old TV sets at K650.00 each (K1, 300.00)
• 3 four months old table fans at K65.00 each (K195.00)
• 1 one-year old acoustic guitar at K86.00
• 5 one-year old extension codes at K60.00 each (K300.00)
• 1 one & half year old multi-system radio at K2, 800.00
• 1 three-year-old Digicel scanner at K2, 800.00,
• 2 two years old manual welding machine at K370.00 each (K740.00)
• 1 three & half years old digital camera at K375.00,
• 2 big two years old torches at K150.00 (K300.00)
• 1 one & half years old laptop computer at K1, 500.00
• 4 two years old deep freezer 500ltr at K2, 300.00 each (K9, 200.00)
• 5 one-year old eskies at K350.00 (K1, 750)
• 1 one-year old mobile phone w/camera at K380.00
• 3 five year sold double mattresses at K200.00 (K600.00)
• 4 five years old single mattresses at K120.00 (K480.00)
  

Tools & Parts

• Vehicles tools estimated at K2000.00
• 4 one-year old car tyres at K200.00 each (K800.00)
• 2 two years old bush knives at K15.00 each (K30.00) and 1 two years old axe at K30.
  

Clothes

• 1-year old pair of shoes for all trade at K450.00
• 1-week old second hand bale clothes for sale at K3000.00
• 1 complete set of clothes hangers at K750.00
  

Building/Main House

• 4-bedroom ground house was 5m x 10.5m comprising of iron roof, weather board wall, timer, concrete floor and canteen attached to it valued at K15, 000.00.
  

Store Goods

• fresh 350 kg frozen fish at K13 per kg (K4450.00)
• 200kg frozen fish at K13 per kg (K2, 600.00)
• fresh 500kg tuna fillets at K10.00 per kg (K5000.00).
  

Transport cost for relocation

• Hiring a truck for two days at a rate of K200.00 per day to relocate (K400.00).
  

Loss of Educational documents, references.

• Original copies of CV, Grade Six Certificate, Grade 10 Certificate, PETT Certificate and Employment references all valued and estimated at K20, 000.00
  

Total claimed - K80, 048.40

Third Defendant’s submission

63. The third defendant does not deny that the raid occurred, at all. Instead, Counsel for the third defendant, Mr. Akia submit that a trial Judge’s role when assessing damages following the entry of default judgment is to make a cursory inquiry of the pleadings so as to be satisfied that the facts and cause of action are pleaded with sufficient clarity and to determine if the facts and cause of action are reasonably clear, liability should be regarded as proven, and where the facts or the cause of action pleaded do not make sense or would make an assessment of damages, a futile exercise, than the trial judge should re-visit the issue of liability; which the third defendant says should occur here: (see William Mel v. Coleman Pakalia & Ors. (2005) SC790, Supreme Court Bench of Los J, Jalina and Cannings .JJ which endorsed the principles expressed by Kandakasi .J in Coecon Ltd Receivers’/Manager Appointed) v. National Fisheries Authority (2002) N2182 and by the Supreme Court in PNGBC v. Jeff Tole (2002) SC 694, bench comprising Amet CJ, Sheehan and Kandakasi .JJ) in which the Court noted and re-endorsed the principles that the trial judge role 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, that is, 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; and

any matter that has not been pleaded but is introduced at the trial, is a matter on which the defendant can take issue, on liability.

64. Mr. Akia for the third defendant submitted that the third defendant is not liable for any form of compensation claimed by the first plaintiffs. They deny further that the third defendant is liable for the actions or omissions of the first and second defendants. Mr. Akia further submits that the evidence of the first plaintiffs is unreliable and uncorroborated. Therefore, this Court should be inclined to reject the plaintiff’s affidavit evidence. The plaintiffs are illegal settlers and therefore they are illegally in occupation of the State land. Their removal from the State land on or about the 26 of June 2009 is therefore justified.
    
65. Further and in addition, Mr. Akia submitted that the statement of claim does not disclose a reasonable cause of action against the defendants. The Statement of claim does not plead that the policemen were acting in the course and within the scope of their employment or while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law under the principles of vicarious liability pursuant to s 1 (1) and (4) of the Wrongs (Miscellaneous Provisions) Act, Ch. 297. Because of the fundamental omission, the statement of claim or pleadings failed to disclose a reasonable cause of action against the defendants. Even though default judgment has been entered, this does not prevent the Court from making a cursory inquiry into the plaintiff’s pleading and revisiting the issue of liability as held in the case of Mel v Pakalia (supra) where the Supreme Court held that:
    

“Turning back to the issue raised above as to the role of the trial judge after entry of default judgment, we consider the following to be the correct approach:

The trial judge should make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity;

It is reasonably clear what the facts and cause of action are, liability should be regarded as proven;

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 further inquire further and revisit the issue of liability”

66. Furthermore, Mr. Akia, for the State, submitted that the first plaintiffs should be awarded nothing. Mr. Akia asked this Court to revisit the judgment on liability on the ground that the affidavits of the plaintiffs do not support a claim for damages.
    
67. I decline to revisit liability as I do not agree that damages are a remedy that the first plaintiffs are not seeking. It is clear that the plaintiffs seek damages in their writ of summons. This is clearly pleaded in paragraphs 25 of the statement of claim in which they plead violation of their human rights pursuant to Sections 37, 42, 44, 49, 53 and 55 of the Constitution for which they have come before this Court to enforce.
    
68. In addition, if the State was aggrieved by the judgment on liability, the State should have lodged an appeal, or sought a review of that decision. The State did not seek such remedy. Instead, the State has chosen in this case to ask the court to revisit its judgment on liability during the hearing of their oral submission on damages. I find these submissions unhelpful: (see Roger Bai Nimbituo v The State (2018) N7235).
    
69. Mr. Akia of Counsel also submitted that there is no pleading in the statement of claim alleging that the policemen were acting in the course or within the scope of the employment or while performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law for purposes of the principles of vicarious liability pursuant to s 1(1) and (4) of the Wrongs (Miscellaneous Provisions) Act Ch 297. It is arguable the Default Judgment in favour of the plaintiffs against the first and second defendants on 11 February 2011 may have been entered without lawful foundation as the first plaintiffs’ statement of claim did not plead the statutory framework of the Wrongs (Miscellaneous Provisions) Act (Chapter 297) under s1 (1) (a) and (4) of the said Act to make that connection to hold the State vicariously liable. Whilst this could well be a major point; it is noted that the third defendant failed to raise this as a defence to by failing to file a defence. Further, it is also apparent that the third defendant failed to appear and oppose the entry of default judgment by raising the issue of lack of cause of action issue. Given these matters, I decline to re-visit liability: (see MVIL v Kauna Kiangua (2015) SC1476).
    
70. In any event, I have conducted such an enquiry to the statement of claim and whilst I note that whilst the pleadings do not specifically plead the provisions of s 1 (1) & (4) of the Wrongs Act and the facts and the cause of action are not pleaded with sufficient clarity; I am satisfied that paragraph 25 of the statement of claim raises a cause of action; which is breaches of Constitutional rights. I am also satisfied that the facts and cause of action are reasonably clear. The facts or the cause of or the cause of action pleaded do make sense and would not make an assessment of damages, a futile exercise. (William Mel v Coleman Pakalia (2005) SC990, Banduwara Waranumbo v Hyper Construction Limited (2012) N4882; Teddy Suan v Peter Dumba (2013) N5428. I also note that the pleading with regard to breaches of human rights are sufficiently pleaded and does make sense: (see Kelly Koi v Constable Mathew Anseni (2014) N5580).
    
71. On that basis, liability should be regarded as proven, that is, the default judgment resolves all questions of liability in respect of the matters pleaded in the Statement of Claim. The first plaintiffs still do have the burden of producing admissible and credible evidence of the alleged damages on the matters pleaded in the statement of claim. It is a case where the facts are not in dispute. In Coecon Limited (Receiver/Manager Appointed) v. National Fisheries Authority, (supra) in which his Honour Kandakasi J (as he was then) summarized the relevant principles governing assessment of damages as follows:
    

“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:

The judgment resolves all questions of liability in respect of the matters pleaded in the statement of claim.

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.

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.

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.

A Plaintiff in such a case is only entitled to lead evidence and recover such damages as may be pleaded and asked for in his statement of claim.”

72. The above principles have been cited with approval, adopted and applied in the case of PNGBC v. Jeff Tole (supra). In William Mel v. Coleman Pakalia & The State (supra), the Supreme Court elaborated further on these principles and said:
    

“Where default judgment is granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1992] PNGLR 254, National Court, Woods J; MVIT v Pupune [1993] PNGLR 370, Supreme Court, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, National Court, Injia J.)”

73. In regard to this present case, I adopt the principle established in the case of Alex Awesa v. Southern Highlands Provincial Government (2013) N5107 in which the Court stated:
    

“where a default judgment is entered with damages to be assessed, a plaintiff in whose favour the judgment has been entered, has the burden to adduce credible and admissible evidence at the trial establishing the damages claimed in his statement of claim.” 4. (Francis Kulunga v Michael Wandil (2010) N3910)

74. Further, in Wapi v Ialy (2014) SC 32, the Supreme Court stated:
    

“Given the above, we are of the view that where judgment, be it default or otherwise, has been entered, and a primary judge determines, after concluding a hearing to assess damages, that the plaintiff has not sufficiently proved his loss or that no cause of action is disclosed in the statement of claim or that the pleadings are defective or that the claim is frivolous or vexatious or is an abuse of process, he is entitled to refuse to make an award of damages. This is in accord with him being able to consider the question of liability for damages claimed. To dismiss the entire proceedings however, in the absence of any application to set aside, as in this case, the effect of which is to review the decision to enter judgment and to set such judgment aside, is in our respectful view, to fall into error”.

75. Given the above principles, I am of the view that in the absence of an application to set aside the entry of default judgment made on 11 February 2011, the question of liability entered against the first and second defendant cannot be re-visited.
    
76. In this case, default judgment has been granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim. The onus is on the plaintiff to produce evidence to support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214; Waima v MVIT [1992] PNGLR 254; MVIT v Pupune [1993] PNGLR 370; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247).
    

Vicarious Liability of the State

77. The third defendant denied liability and said that there was no raid carried out by the defendants, but a legitimate police operation involving a search of the 5 Mile Settlement in hot pursuit of a suspect did take place. If this court finds that there was a raid, the third defendant says that the State is still not liable as the plaintiffs’ case has been poorly pleaded. If, however, the court finds that liability has been established, the first plaintiffs should nonetheless be awarded no or a minimal amount of damages as they have not proven their losses. The third defendant raised several issues for determination:
    

(1) Whether it is a raid or a legitimate search for the suspects of the alleged murder within the 5 Mile Settlement, Gordons, National Capital District?

(2) If it was indeed a raid, whether the plaintiffs have established liability in negligence or breach of constitutional rights?

(3) If liability is established, what measure of damages would the first plaintiffs be entitled to?

78. The issue as to whether it was a raid is a question of fact. Here, all 55 first plaintiffs swore an affidavit deposing to what happened. Only Paul Kelly gave oral evidence and was cross-examined. All their evidence was consistent. The police, led by the Metropolitan Superintendent Fred Yakasa entered the Settlement at about 8.30 am in pursuit of the suspects in the alleged murder of two young men from the Western Highlands Province. It appeared that the settlers did not co-operate and provide assistance in the search. The police officers were not happy with them and consequently harassed them, assaulted some and then caused destructions to their properties. The first plaintiffs say that the police burned down their houses, killed livestock such as pigs, ducks and chickens and destroyed their property whilst others say that they discovered their losses when they returned to the settlement from outings elsewhere.
    
79. The defendants did not call any witnesses. The first and second defendants were not called to give evidence. The facts of the case are that the first defendant was present on the scene and also quoted by the daily papers of confirming a raid taking place at the 5 Mile Settlement. The third defendant is therefore unable to confirm or deny the allegation that it was a raid of the 5 Mile Settlement rather than an orderly and legitimate search. The third defendant was in no position to deny the allegations of the plaintiffs, which I find have been proven. It was not an orderly search of the settlement; it was a raid. The police were angry, frustrated and distressed over the frustration in pursuing suspects alleged to have been involved in a murder. Thinking that the settlers were hiding the persons responsible for the murder, they went on a rampage by pulling and cutting down trees and food gardens, burning down houses, killing livestock and destroying property.
    
80. Having proven the facts, the first plaintiffs must now establish the liability of the defendants. Upon an enquiry of the statement of claim, I note that the plaintiffs have pleaded two causes of action: the tort of negligence and breach of constitutional rights. The defendants argue that neither has been established.
    

(a) Negligence

81. With regard to the issue of negligence, the third defendant argue that it should not be found liable for the common law tort of negligence for three reasons:
    
    • (i) First, the third defendant says that there can be no liability at common law, under the Wrongs Act, breach of which has not been pleaded.
      
    • (ii) Second, the statement of claim is defective as it does not plead the elements of the tort of negligence or the alleged vicarious liability of the State.
      
    • (iii) Third, even if this court finds that the statement of claim is not entirely defective, liability should still not be entered against any of the third defendant because of deficiencies in the evidence.
      

The Wrongs Act

82. Mr. Akia for the third defendant, submitted that because Section 1 and (4) (civil liability of the State) of the Wrongs Act expressly allows a person aggrieved by a breach of the Wrongs to seek a civil remedy in damages under a common law claim for such wrongful conduct. The Wrongs (Miscellaneous Provisions) Act (Chapter 297) under s 1 (1) (a) and (4) of the Act state as follows:
    

“ (1) The State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject - (a) in respect of torts committed by its servants and agents; and (b)in respect of any breach of the duties that a person owes to his servants or agents under the underlying law by reason of being their employer; and (c) in respect of any breach of the duties attaching under the underlying law to the ownership, occupation, possession or control of property.

(2) ...

(3) ...

(4) The State can only be liable for torts committed by its agents or servants, such as policemen in this case” (see David Wari Kofowei v Augustine Siviri & Ors [1987] PNGLR 5.

83. The provisions of this section are in addition to and not in derogation of the provisions of the Constitution or any other law dealing with the enforcement of any constitutional right, power, duty, restriction or prohibition, which breaches have been pleaded in the statement of claim.
    
84. I find that sufficiency of or lack of pleadings s 1 (1) & (4) of the Wrongs Act cannot be reasonably interpreted so as to exclude a common law claim for negligence in the case of conduct that is regarded as a breach of the Wrongs Act and or the Constitution and I reject that argument.
    
85. I now turn to the issue of pleadings. In his submissions, Mr. Akia, relied on the case authority of Kembo Tirima v ANGAU Memorial Hospital Board and The State (2005) N2779 to argue that to establish liability in negligence a plaintiff needs to plead and prove the elements of the tort of negligence:
    
    • (i) the defendant, or a person or persons for whom it is vicariously responsible, ie the tortfeasor, owed a duty of care to the plaintiff and the other claimants;
      
    • (ii) the tortfeasor breached that duty, ie by act or omission the tortfeasor’s conduct was negligent;
      
    • (iii) the tortfeasor’s negligent conduct caused injury to the claimants;
      
    • (iv) the claimants’ injuries were not too remotely connected to the tortfeasor’s conduct; and
      
    • (v) the claimants did not contribute to their own injuries, e.g. by being contributorily negligent or voluntarily assuming the risk of injury.
      
86. Mr. Akia of counsel submitted that the statement of claim does not plead those elements, it is defective and therefore the proceedings should be dismissed as disclosing no reasonable cause of action. Whilst I note that this is a reasonable argument to raise and I do hope that more attention should have been taken in drafting the statement of claim with more clarity and precision. On the other hand, I find the argument unfounded and dismiss the argument for several reasons. Firstly, this argument should have been raised by the third defendants in interlocutory proceedings, not at the trial. Furthermore, if a matter such as this goes to trial the defendants are presumed to know the nature of the case against them.
    
87. Whilst this Court can be very critical of poor drafting of pleadings, I will be guided by past judgments in cases such as Otto Benal Magiten v William Moses(2006) N5008, Vincent Kerry v The State (2007) N3127, Anuta Jobou v Alfred Kumasi and The Independent State Of PNG (2012) N4607 and say that whilst the court can be justifiably critical of poor pleadings and wasting of judicial time, I am of the view that if the Court were to dismiss this proceeding, justice would not be served as the third defendant has had its opportunity for the last 10 years and had chosen to sit on it for some reasons or other. Further, liability has already been entered against the first and second defendants on 11 February 2011. They have not sought a review of the decision or filed an appeal arising from the judgment. I am satisfied that the gist of the claim for vicarious liability was pleaded. I am reluctant to dismiss otherwise legitimate claims against the State simply because a statement of claim has been poorly drafted.
    
88. It is arguable that the first defendant was the officer in charge of the operation carried out on the 26 of June 2009. The same cannot be said of the second defendant. With regard to the first defendant, Metropolitan Superintendent Yakasa, there is evidence that suggests that he participated and was in charge of the raid, spoke to the media and his statement on the raid was published in one of the daily papers. He was actually in charge of the operation but as to the issue of whether he actually participated in the raid, I am of the view that the evidence is not convincing enough to conclude with certainty that he participated actively in the raid. Given these matters, I find that liability in negligence has not been established against either the first or second defendants.
    
89. With regard to the issue of liability against the State, I find that the evidence is sufficiently strong to make a finding of vicarious liability for the following reasons:
    

(i) First, as to the elements of the tort of negligence, I find that the unidentified police officers who entered, searched and raided the 5 Mile Settlement owed the settlers a duty of care;

(ii) The unidentified police officers who damaged the first plaintiffs’ property were negligent. They breached the standard of care required in the circumstances.

(iii) The negligent conduct of the unidentified police officers caused the damage to the first plaintiffs’ property. Causation is established.

(iv) The type of damage sustained by the first plaintiffs was reasonably foreseeable.

(v) The first plaintiffs were not guilty of contributing to their own damages.

90. The first plaintiffs have therefore established the tort of negligence against the unidentified police officers involved in the raid.
    
91. Essentially, vicarious liability is a common law principle by which one legal person is held liable for the acts or omissions of another person or group of persons over whom the first person has control or responsibility. The principle of vicarious liability of the State has been codified by Section 1 (general liability of the State in tort) of the Wrongs (Miscellaneous Provisions) Act. The plaintiff must prove that the tort complained of was committed by police officers within the scope of their police employment or functions (The State v David Wari Kofowei and Others [1987] PNGLR 5).
    
92. In Kerry v The State (supra), his Honour Cannings J held that the powers, functions, duties and responsibilities of the Police Force and its members are prescribed by Constitutional Law, statute and the underlying law. Section 197 of the Constitution states that the primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament, to preserve peace and good order in the country and to maintain and, as necessary, enforce the law in an impartial and objective manner. Section 140 of the Police Act 1998 states (and Section 139 of its predecessor, the Police Force Act Chapter 65, stated) that a member of the Force has the same powers, duties, rights and liabilities as a constable under the underlying law, except in so far as they are modified by or under an Act of Parliament. If it is established that police officers were acting within the scope of their functions, the State is liable for their tortious conduct unless the State discharges the onus of showing that what they did was totally removed from the domain of their authorised actions (Eriare Lanyat v The State(supra); Wama Kints v The State (supra).
    
93. I now adopt and apply the above principles to the present case and find as follows:
    
    • (i) A police squad comprising members of the Royal Papua New Guinea Constabulary based at the Boroko Police Station committed the tort of negligence on 26 June 2009 at 5 Mile Settlement, Gordons, National Capital District
      
    • (ii) Their acts gave rise to a cause of action in tort against them by 55 villagers, led by Paul Kelly
      
    • (iii) The tort was committed in the course of performing functions imposed on them as police officers, ie it was within the scope of their police functions. They were police officers engaged in a legitimate police operation, attempting to arrest two murder suspects who committed a serious crime of murder of two young men at 5 Mile Settlement area.
      
    • (iv) The State has not discharged the onus of showing that what the police officers did was totally removed from the domain of their authorised actions. It could be argued that it is obvious that police officers should not go on a rampage and conduct a raid under the guise of carrying out a search of the Settlement in hot pursuit of a suspect. However, the principle of cases such as Lanyat and Kints must be strictly applied, to avoid the spectre of the State escaping liability for the actions of police officers simply on the ground the police have acted well beyond their legitimate authority. The State is responsible for the training of police officers and development of a responsible police culture, one that respects the human rights of individuals, especially of persons in custody, charged with offences or suspected of being an offender. The State must be held accountable for the conduct of police officers committed generally within the scope of their authorised functions even if, in the exercise of those functions, an individual police officer does something that is clearly unauthorised and unlawful.
      
94. To sum up this part of the first plaintiffs’ case, the third defendant, the State, is found vicariously liable in negligence; but the case against the first and second defendants fails: neither is liable in negligence.
    

(b) Breach of constitutional rights

95. The first plaintiffs claim K5,000.00 each for breach of their constitutional rights. They are saying that the police violated their human rights. The pleadings here are specific and submissions were made at the trial as to which rights the first plaintiffs were trying to enforce. They plead breaches of the following provisions of the Constitution:
    
    • (i) right to the full protection of the law, s 37(1))
    • (ii) liberty of the person; s 42)
    • (iii) freedom from arbitrary search and entry; s 44)
    • (iv) right to privacy, s 49
    • (v) protection against unjust deprivation of property; s 53(1);
    • (vi) equality of citizen, s 55 of the Constitution
      
96. With regard to the claim for breaches of constitutional rights, I note that the statement of claim does not plead s 57 and 58 of the Constitution. However, Mr. Awi for the first plaintiffs in his written and oral submission adequately referred to Section 57 and 58 of the Constitution (enforcement of guaranteed rights and freedoms) and claim for compensation as a way of invoking the jurisdiction of the National Court. I will in this present case take a liberal approach to the deficiencies in the statement of claim in respect of breaches of constitutional rights noting that there are deficiencies in the cause of action in negligence against the State. and that resulted in that part of the plaintiffs’ case succeeding, at least against the State. I am satisfied that this part of the first plaintiffs’ case is supported by evidence of the first plaintiffs.
    
97. In the statement of claim the first plaintiffs sought three categories of damages:
    
    • (1) K1,845,000.00 (being K5,000.00 each for 369 plaintiffs) for breach of constitutional rights;
      
    • (2) K1,845,000.00 (being K5,000.00 each for 369 plaintiffs) for punitive and exemplary damages; and
      
    • (3) K485,041.00 (being special damages for 369 plaintiffs).
      
98. It is common ground that a raid was carried out on the morning of 26 June 2009. The outstanding issue for determination is whether the raid which occurred was carried out by the servants and or agents of the State acting in the course and within the scope of their employment whilst performing or purporting to perform functions conferred or imposed upon them by statute or the underlying law for purposes of vicarious liability under s 1 (1) & (4) of the Wrongs Act, Chapter 297.
    
99. The first plaintiffs submit that the raid carried out was a normal part of the lawful duties or function of members of the police force and that such an act was clearly authorised under Section 197 (1) of Constitution which states that “The primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament to preserve peace and good order in the country; and to maintain and, as necessary, enforce the law in an impartial and objective manner”
    
100. The first plaintiffs do not deny that the members of the Police Force had a duty to preserve peace and good order and to maintain, and as necessary, enforce the law, but say further that such a duty must be done in an impartial and objective manner. In their case, the first plaintiffs say that the manner and modus operandi as to how these functions and responsibilities were carried out was clearly wanting. They say that the conduct, actions and or omissions of the police officers whilst performing these functions and responsibilities were tortious amounting to negligence whereby their basic human rights were breached resulting in them suffering damages in both monetary claims and their individual self-esteem. They felt their rights being violated and that they were denied the protection of the law.
     
101. The first plaintiffs say that the tortuous acts of the defendants and their agents were committed in the course of performing their lawful duties and therefore the State is vicariously liable under Section 1 (4) of the Wrongs Act. The first plaintiffs submit further that the inference must be drawn that the police officers concerned acted so far outside their lawful duties as to prevent the State being vicariously liable for their wrongful actions. A case on point is that of Nare v Independent State of Papua New Guinea (2017) SC1584, the Supreme Court in discussing the issue of “vicarious liability of the State stated:
     

“22. It is therefore, no defence for the State to claim that its officers were exercising an “independent discretion” in the course of which the wrongful acts occurred in exercising police power of by an officer (a) 10)

‘acts also as an agent of the People or the State”

The Court stated further at paragraph

“56. The fact is that unlawful conduct by police in the course of a “police raid” renders the State vicariously liable for damages. The “independent discretion” rule has been abolished.

57. It follows that the cause of action against the State is established if:

· Tortuous conduct is perpetrated by

· Officers of the State, including police

· Acting or purporting to act in the course of their duties.

The words “purporting to act” are of considerable significance.

The Supreme Court held further that:

“58. It is not part of the cause of action that the offending officers be identified or be parties to the cause pleaded against the State. Indeed, there may be good industrial relations reasons why the State would not seek indemnity against an employee or agent who committed such a tort”.

The Supreme Court stated further:

“63. The primary duty of the Court is to give justice. It cannot be just to deny a remedy otherwise established against the State on the basis that another person may also be a tortfeasor. That result would reduce the citizen’s protection against unlawful acts by agents of the State, and be in breach of s.37 of the Constitution (equal protection of the law)”

102. In addition, they also say that the State is vicariously liable for human rights breaches committed by police officers within the scope of their police employment or functions unless the State discharges the onus of showing that what they did was totally removed from the domain of their authorised actions (The State v David Wari Kofowei and Others[1987] PNGLR 5; Eriare Lanyat v The State(supra); Wama Kints v The State (supra). In this case, they say that the State has failed to discharge that onus because the police were on duty when they caused destruction to their properties and breached their constitutional rights. Consequently, the State is not relieved of liability. The police officers acted well outside the scope of legitimate police functions.
     
103. However, to succeed in their claim, the first plaintiffs must prove, on the balance of probabilities, that an unlawful and unauthorized raid was conducted that day and they bear onus to prove their claims by the various processes available to them. By that, they have to prove that the other unidentified policemen were involved and that they were authorized to carry out the raid, for the issue of vicarious liability to be attached to the third defendant, the State. I say this because like a scenario where police are called to quell a tribal fight involving hundreds of tribesmen, and which in itself is an action authorized by law, which is similar to this present case, where the police were called to search the area for murder suspects.
     
104. In assessing damages, I will be guided by the principles established in numerous judgments in both the National and Supreme Court in my deliberations in relation to this present case. I start with the case of Nogo Suzuke & Anor v The State (WS No 951/94) (unreported judgment of 21 June 1996) in which his Honour Injia J (as he was then) made the following observations which I adopt as relevant to this case. His Honour Injia J stated:
     

"The duty of the police force and its members is defined by both statute and the common law. Constitution S. 197 (1) provides that the primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament — (a) to preserve the peace and good order in the country; and (b) to maintain and as necessary, enforce the law in an impartial and objective manner. Under S. 239 of the Police Force Act Ch. 65, policemen "have the same powers, duties, rights and liabilities as constables under the underlying law, except so far as they are modified by or under an Act". At common law, policemen have wide powers to take all steps necessary for keeping the peace, for preventing crime, or for protecting property from criminal injury or to detect crime and bring an offender to justice: Rice v Connolly [1966] 2 Q.B. 414, R v Waterfield and Lynn [1963] 48 CR R42 at 57, and Coltin and Anor v Smith [1980] 72 CR APP R 221”.

105. Section 197 of the Constitution prescribes the powers, functions, duties and responsibilities of the Police Force and its members and similarly the Police Force Act 1998 and the underlying law. Essentially, the primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament, to preserve peace and good order in the country and to maintain and, as necessary, enforce the law in an impartial and objective manner except in so far as they are modified by or under an Act, (s 140, Police Force Act). So, if I accept that the police were acting within the boundaries of their functions and duties under s 197 of the Constitution, and other enabling legislations, the next question to ask is whether the law was enforced in an impartial and objective manner so as to avert destruction of properties and breaches of human rights?
     
106. The first plaintiffs here allege that the destruction of their properties and domesticated animals occurred as a result of members of the police force carrying out their normal duties as policemen who were indeed acting in the normal course of their employment. They say further that policemen for no reason, destroyed their properties.
     
107. This pleading is vital because the State in any case can only be vicariously liable if it was pleaded and the plaintiffs lead evidence to show that the first defendant in this case was performing or carrying out his official duties as ordered by the second defendant or by the State. If there is no pleading of such an allegation, then this would be a fatal omission by the plaintiff and it would be on that basis that the third defendant cannot be vicariously liable for the actions of the first and second defendants.
     
108. In Philip Kunnga v The Independent State of Papua New Guinea (supra), a judgment by His Honour Cannings J, a case involving a police raid which was conducted at Nondugl Village. The raid resulted in the destruction and stealing of property and livestock. His Honour Cannings J in his decision held that the plaintiff proved on the balance of probabilities that the police operation was not a routine village search but a raid involving destruction and stealing of property and livestock. He held that there was sufficient evidence to make findings as to which claimants had their property stolen or destroyed and the nature and value of the items of property. The police officers committed the tort of negligence. His Honour Cannings J held that the State is liable for the tortious actions or omissions of police officers committed within the scope of police employment and functions unless the State discharges the onus of proving that what they did was totally removed from the domain of their authorised actions: (see Nogo Suzuke v The State WS 951 of 1994, unreported, 21.06.96; In Eriare Lanyat and Another v The State(supra),Wama Kints v The State (supra) applied. These principles were adopted and applied in a recent judgment (Robin Martin v The State, WS NO. 855 OF 2010 (Unreported Judgment, 17 April 2017), Celcius Raiam & 177 Others v Sergeant Elkis Piritai & 2 Others; The Independent State of Papua New Guinea & 2 Others (WS 1415 of 2011 (Unreported judgment, 12 May 2020) where I held the State liable for the tortious actions or omissions of police officers committed within the scope of police employment and functions unless the State discharges the onus of proving that what they did was totally removed from the domain of their authorised actions. I apply these principles to the circumstances of this present case.
     
109. In essence, the defendants have not denied the destruction caused to the first plaintiffs’ properties and items of value. The affidavit of Paul Henry is instructive of police behaviour only and the consequence of acting outside those directions or instructions. The State failed to discharge the onus of proving that what they did was totally removed from the domain of their authorised actions.
     
110. Given these factors, I find that the first plaintiff has established a cause of action for breach of human rights, in particular the enforcement of their human rights under s 57, s 36 (1), 37(1), 37(17) and 41(1) of the Constitution, against the third defendant, the State, in respect of not only personal injury, but also property damage, caused to each of them by police officers at Destiny, 5 Mile Gordons on 26 June 2009. They claim compensation for such constitutional breaches under s 58 of the Constitution for which damages can now be assessed.
     
111. In Paraia v Yansuan, as Police Station Commander (Porgera) [1995] N1343, his Honour Injia (as he was then) stated:
     

“On the evidence, however, I am satisfied that a modern semi-permanent three-bedroom house was burnt down, the exact value of which is uncertain. The plaintiff is entitled to damages, he cannot be allowed to go without a remedy. As Vaughan Williams LJ put it in Chaplin v Hicks [1911] UKLawRpKQB 104; [1911] 2 KB 786 at p. 792:

“The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages.”

In the circumstances of the instant case, it the duty of the Court to arrive at a probable value of the house. As Devlin J said in Biggin v Permanite [1951] 1 KB 422 at 438:

“Where precise evidence is obtainable, the Court naturally expects to have it (but) where it is not, the Court must do the best it can.”

112. There is also no doubt that unidentified police officers were involved in the incident. These unidentified police officers who committed the tort of negligence are servants, agents and officers of the State performing functions conferred upon them by statute and their superiors. The State is liable for their tortious conduct unless the State discharges the onus of showing that what they did was totally removed from the domain of their authorised actions. (Nogo Suzuke v The State, WS 951 of 1994, Unreported, 21 June 1996); Eriare Lanyat and Another v The State(supra); Wama Kints v The State (supra); Robin Martin v The State, WS NO. 855 OF 2010 (Unreported Judgment, 17 April 2017). Here, the first and second defendants were police officers acting within the scope of their functions and in doing so committed the tort of negligence on 26 June 2009, at Destiny, 5 Mile Settlement. Their actions had given rise to a cause of action in tort against them by the plaintiff, Paul Kelly for himself and 54 other plaintiffs (claimants). The tort was committed in the course of performing functions imposed on them as police officers, that is, it was within the scope of their police functions under s 197 of the Constitution. The State in this regard has failed to discharge the onus of showing that what the police officers did was totally removed from the domain of their authorised actions.
     
113. Consequently, I find the State liable for the tortious acts or omissions of the first and second defendants (see David Kofowei v Augustine Siviri and Others [1983] PNGLR 449, The State v David Wari Kofowei and Others(supra).
     

Assessing damages

114. I now assess damages and in doing so, I am minded to adopt the sentiments expressed by his Honour Manuhu A.J (as he was then) in Aina Mond v Chief Inspector Robert Kalasim and The Independent State of Papua New Guinea (2004) N2638, Manuhu A.J stated:
     

“... in spite of the consent order on liability, it is appropriate, even if it is a mere formality, that the basis of liability be explained. While such a course may take a little longer than necessary, it recognizes that, in most cases, liability and assessment of damages are proved on the basis of the same or overlapping evidence. Consequently, while the court is analyzing the evidence for the purpose of assessing damages, it is appropriate if the justification for having reached that stage is also laid out. In so doing, the evidence and the reasoning process are presented in totality for the benefit of the parties as well as other persons interested in the decision.

Finally, as a reminder, the civil standard of proof should never be taken lightly by reason of a default judgment, an Exparte proceeding, or a consent order. The responsibility upon a plaintiff, in support of his claim, to produce admissible and credible evidence that will ultimately satisfy the civil standard of proof is a universal requirement. Any complacency may prove fatal”

Effect of Default Judgment

115. In the present case, the plaintiffs have in their favour, default judgment and for damages to be assessed, the burden of presenting with precise evidence, the type or kind of damages which they have each suffered and what type or kind of compensation they are entitled to receive in damages. Such assessment of which is left to be determined by this Court.
     
116. The relevant question then is, have all the 55 first plaintiffs established their claim on the required standard? Clearly, the affidavit testimonies of all 55 first plaintiffs make reference to items which they state that they have lost or damages they suffered in breach of their human rights as a result of the said raid for the search of suspects involved in the alleged murder. They have listed and itemized their losses in respect of items of clothing, food garden, house, ducks, tree crops, tools, furniture, television sets, text books and etc. There is however, no clear statement of what the value of these items are, photographs of the destruction or receipts produced to confirm their losses.
     
117. It is noted that most of their claims relate to destruction of their food gardens, tree crops and other personal items. A perusal of the statement of claim reveal that at least four first plaintiffs make a claim for the destruction of either a dwelling house, trade store and or a market house. These claims are discussed in this judgment. For instance, Joe Kawagle makes a claim for a dwelling house 4.5 m x 5 meter including a single room trade store, 20-foot container iron roof, common ablution block and toilets 1.5 m x 1 .5 x 1.5 meter and 75 cm fence. Although Joe Kawagle has particularized his claims and given a valuation for the loss of his dwelling house and trade store and stocks and valued all his losses in the sum of K57,345.00. He has not adduced and or produced credible evidence to substantiate his losses. Given the lack of credible evidence, the Court will do the best it can to assess his damages and the best this Court can do is make a global award for his damages.
     
118. Similarly, Jacob Yakapo has attested to elaborate and itemized his losses, he states that he suffered as a result of the said raid. He has itemised his claims for the loss of a four-bedroom ground dwelling house valued in the amount of K15,000.00, store goods valued in the total sum of K12,000.00; a variety of electrical items valued at K22,096.00; furniture and beddings valued at K2,553.00; tools and vehicle parts valued at K2,860.00; household items (utensils, cutleries etc., valued at K908.90, clothes are valued at K4,200.00 (which includes a bale of second hand clothes for sale) and an interesting value given to the loss of his Certificates and letters of reference which he values at K20,000.00 including a claim for transport costs of K400.00 for purposes of relocation. Overall, Jacob puts his total claim in the sum of K80,048.40. He produced no credible evidence to substantiate his damages. He failed to produce evidence of a photograph of a burnt out remains of his dwelling house or a trade store or a copy of the trading license or a testimonial of his qualifications. Furthermore, he also failed to produce any independent assessment of his losses.
     
119. For a plaintiff to succeed in his claim for damages, it is not sufficient to prove that the writ of summons was filed within time, that the plaintiff’s claim is not bona fide, that the entry of default judgment entitles the plaintiffs to damages; there must be evidence of the amount of the claim for damages. Here, proof of the amount is a question of fact. This is because, the National Court must first make a finding of fact as to the measure of damages that should be ordered and if so, (see J.S.T Ltd v Arkhefield Pty Ltd (2014) SC1352)) the criteria upon which this measure of damages should be based; on the evidence presented before it. Where evidence is lacking, there would be no evidentiary basis for the Court to make these findings. As to the type of evidence to prove the amount, I will be guided by past judgments to arrive at a determination based on the likely purchase price of the items lost or destroyed during the raid.
     
120. In this present case, I note that with regard to a claim for the loss of a market house, six claims are made. For instance, a claim is made by a Marta John where she claims that she lost a market house made up of an iron roof, iron wall and lime (2 m x 1.5). She has placed a value to this market house which she states is in the sum of K1,500.00. In addition to this claim, she also raised a claim for the loss of her garden food which included mature monkey banana tree, pawpaw trees and palm trees. She claims a total sum of K5,400.00.
     
121. In another claim for the loss of a market house, Caroline Giri states that her market house (1.5m x 0.6 m) was made up of lime foundation and iron roof is valued at K520.00) including items of sale such as betelnuts, cigarettes, mustard and a market table were destroyed. She places a total value of her claim at K685.00. These are some of the itemized details of the claims of properties destroyed or looted during the raid. In most of the claims, they are claims for the destruction of food gardens. For instance, monkey and mekeo bananas, taro plants, mustard plants, chilly plants, aupa plants, guava trees, pawpaw trees, avocado trees, cassava plants, aibika plants and shade trees. All in all, the plaintiffs failed to adduce evidence of a burnt out remains of a market house and damaged garden food, betelnut, banana and or pawpaw trees.
     
122. Faced with such difficulty, I refer to the case of Aina Mond v State (supra) and adopt the sentiments expressed by his Honour Manuhu A J (as he was then) and remind myself that the stand of proof required in civil cases such as this one before me is that, a plaintiff must establish through the calling and adducing of relevant and credible evidence his claim on a balance of probabilities. The Court must be satisfied by the evidence that on a balance of probabilities, the version of events contended for by the plaintiff is true. At the same time, I note that, the precise degree of satisfaction that must be insisted upon varies with the kinds of issues involved. If the issue is trivial, the more easily and swiftly will satisfaction be reached. If the issue is serious, then the amount of evidence required to tilt the balance of probability may vary greatly. The law is clear that in order to succeed in a claim for damages for constitutional or other breaches of the type the first plaintiffs complain of here, there must be credible evidence establishing the claim.
     
123. The mere assertions by a plaintiff of harm or damage being done to him or her is not sufficient. These assertions must be properly supported by relevant, admissible and credible evidence in order for the claim to be sustained. Furthermore, in respect of claims that involve allegations against the State on account of its servants or agents’ negligence or other unlawful conduct, there must be evidence from independent sources such as hospitals (in cases of injuries sustained through police brutality); ministers and or pastors of churches and or witnesses (independent witnesses) supporting the claim and the production of actual copies of receipts of purchases being made: see Thomas Wapi v Sergeant Koga Ialy (supra). This evidence is vital; where the State is unable to defend the case due to lack of instructions and no witnesses being called.
     
124. I say this because, in most occasions, claims against the State are often undefended mostly due to the Office of the Solicitor General not getting the appropriate level of co-operation and assistance from the State employees for purposes of defending the interest of the State for whatever reasons. I suppose there has to be more attention given to by State lawyers, particularly those having carriage of the file to ensure that those who allegedly caused harm, damage or breach at the first place be held personally liable if they fail to provide the requisite instructions for purposes of defending a claim raised against the State. Whilst noting that this is the issue, it is therefore incumbent on the Office of the Solicitor General to seek and secure the relevant and appropriate instructions from the relevant officers and appear in Court to defend the State and its named servants or agents to safeguard against the Court facilitating success on a fraudulent or an otherwise illegal claim.
     
125. It is role of the Solicitor General as the advocate for the State to ensure that a properly pleaded claim is properly and appropriately supported by relevant, cogent and credible evidence. It is also the role of the Solicitor General to insist that such evidence should come from independent third parties who are witnesses to the incident, or that a valuation of such losses be prepared by an independent valuer. Furthermore, with regard to destruction of economic tree crops and food crops (garden food), such other reports be in line with a valuation which are recognised by government agencies such as the Valuer General Economic Plantings Price List.
     
126. In the present case, for special damages, the plaintiffs claim loss of houses, household items, domesticated animals, cash or economic trees and food crops. I have perused the affidavits of the plaintiffs (Exhibits “P1” to “P54”; documents numbered 8 to 61 which gave details of the description and value of the properties lost or destroyed in the raid by each plaintiff. These details are the same as the ones pleaded in the statement of claim (Schedule 2) which set the foundation of the first plaintiffs’ claim and their affidavit evidence is the basis upon which they establish their loss against the defendants. I must point out here that all the 55 first plaintiffs relied on one and the same photograph of destruction done (marked and referred to as Annexure “A”) in all their affidavits but as to who actually is the owner of the damaged banana and pawpaw trees, the house and etc.; that information is lacking as all the 55 first plaintiffs claimed those properties. This testimony however does not correspond with the pleadings and the itemised list of properties that each 55 first plaintiff say they have lost. Overall, I am satisfied that the 55 first plaintiffs may have suffered some damages but as to whether they are entitled to all that they claimed, the onus lies to each of them to prove on the balance of probabilities.
     
127. It is settled law that the plaintiff bears the onus of proof even though there is no evidence from the defendants disputing the value of the items as in the present case (see Peter Wanis -v- Fred Sikiot & The State (1994) N1350). Here there are no corroborative evidence from independent witnesses or the production of actual receipts of purchases to verify the amounts paid for the household items destroyed or damaged or even copies of the price list of economic trees or food crops from the Valuer General’s Office of a Valuer General Economic Plantings Price List or where possible, a report prepared by an independent valuer verifying the value of houses, domesticated animals, cash or economic trees and food crops lost or destroyed in the police raid.
     
128. In any event, in spite of the absence of receipts of payment for the household items and independent valuer for the houses, domesticated animals, cash or economic trees and food crops; it does not mean that the plaintiffs are entitled to nothing. They will be entitled to some damages but it may be much less. In that the absence or lack of credible evidence means, that in such circumstances, the Court will do the best it can based on the evidence that has been presented and is before it and in such situation, the Court will do its best and make an estimate of the losses of the plaintiffs.
     
129. For instance, in a claim for household items, such as plates, cups and knives, an assessment can be done by comparing the amounts claimed with the average purchase or retail prices of the same items in shops within the National Capital District (NCD) (as the raid occurred within NCD and also comparing these valuation with past comparable awards by the Courts. Cases of relevance to such an assessment are that of Lapun Aine v the State (2011) N4389 and Anis Kewa -v- Desmond Kami & The State (2010) N3899, both police raid cases. [In the Anis Kewa case, his Honour Makail J used two methods to assess damages. He said at pp 7 & 8:
     

“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.

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.”

130. I adopt these methods applied in the above cases and thus will assess damages for loss of household items to this present case. On the evidence, I am satisfied the value of the household items appear reasonable as they are within the retail price range in the shops and also those awarded in past cases.
     
131. As for the loss of economic trees and domesticated animals again, whilst I also note that there may have been some losses, on the evidence I am not satisfied with the valuation that a pawpaw tree would be valued at K100.00 or that the banana tree for that matter is valued at K65.00. I say this because there is in existence a Valuer General Economic Planting Price List which can be produced to substantiate the plaintiff’s claim for their losses, the absence of which has left this Court to give an estimate for all itemised valuation of their economic tree plants and garden food items as best as it can. I also base these estimates on what is currently being sold at the markets within the National Capital District and the local roadside garden and flower plants market stalls.
     
132. I propose to assess damages based on the reasoning provided above and adopting those reasons, will instead give an estimate of the economic tree plants and garden crops and arrive at a global figure which I consider reasonable estimates of a value given for a monkey banana tree to be within the range of K30.00 to K40; a pawpaw tree to be valued at K10.00 and etc. Similarly, I would give an estimate for the value of a mekeo banana tree to be in the sum of K35.00, a shade tree to be valued at K15.00, Pandanas tree at K8.00, Coconut tree at K40, Palm tree at K6.00; Mustard vine at K10.00; Yauro tree at K10.00; Christmas tree at K7.00; Orange tree at K6.00, Mosong tree at K5.00; Noni tree at K15.00; Guava tree at K10.00; Avocado tree at K15.00; Betelnut tree at K25.00; Taro plant at K5.00; Cassava plant at K4.00; Yam plant at K8.00; Chinese taro plant at K8.00; Pumpkin vine at K8.00; Kaukau vine at K10.00; Pineapple plant at K8.00; With regard to the claim for vegetables such as eggplant, aibika, tomato, chilli, silver beet, ginger, and aupa, I will give a general valuation of K5.00 per plant.
     
133. Having set out the valuation process of how assessment of these damages will proceed, I now turn to the issue of assessing store goods, electronic and electrical equipment and building materials.
     
134. In regard to claims for loss of store goods, dwelling house, market house, electrical goods and computer equipment, I am of the view that if purchases of these items were made, it would have been prudent to identify where the items were purchased from and when such purchases were made. It would have been more appropriate if the shops and warehouses were identified and perhaps some indication of attempts made to recover evidence of such sales being made to the individual plaintiff who is now claiming for such loss. I say this because, the plaintiffs live within NCD and have easy access to the hardware shops and retail shops such as BNBM, Mainland Holdings, Steamships Hardware shop here in the National Capital District. Furthermore, there are easy access to mobile phones and cameras, and therefore producing photographs of a burnt-out structure of a home and photographs of damaged economic tree plants and food gardens including slaughtered animals such as ducks, chickens would be more credible than mere assertions.
     
135. Going by past judgments, I note that the Courts have in numerous cases, allowed for contingencies to cover for over valuation of the losses or possible double claims (see Lapun Aine v the State (supra)). I will adopt and apply such contingencies in relation to these claims as well. Here, whilst I note that the plaintiffs have not adduced credible evidence to support their claims for their losses, I do accept that there may have been some losses suffered by the first plaintiffs which do not require the production of actual receipts of purchases. This will be in relation to the loss of economic tree plants such as banana trees and garden food crops such as coconut and betelnut trees, shade trees, guava plant, pawpaw plant, taro and daka plants, cassava, aibika and aupa plants and etc.
     
136. However, in relation to the quantity of economic tree plants, food gardens destroyed, damaged or burnt, it is preferable for the plaintiffs to produce into evidence, actual photographs of the damaged economic tree plants, food gardens and so forth and where there is lack of evidence, I would place a limit as to the quantity of the economic tree plants or food gardens damaged claims. For this, I would allow for a household who would in their spare time make a garden within their backyard and the most a backyard garden within the National Capital District would produce would be about 10 to 80 banana trees and perhaps, two or more mango trees; an item which is in abundance within the National Capital District. However, I find that only one of the plaintiffs here have claimed the loss of a mango tree.
     
137. With regard to a claim over 250 and or 450 economic tree plants such as a banana tree, I propose to place a limit to the number of economic tree plants to 100 to150.The reasons for this is because in this case, the plaintiff, Tara Goro has made a claim for 250 mature monkey banana trees at K65.00 each; 450 young monkey banana trees at K65.00 each; and 450 young banana trees at K15.00 each. To me, if such quantity of economic tree plants are being claimed, it should be supported by credible evidence and where evidence is lacking or is absent, this Court can do the best it can and the best it can is to either make no award or limit the quantity of the items particularized to have been lost and give an estimate as to the assessed damages. I also propose to adopt the same approach in respect of the claim made by Kerenga Rabisman for the loss of 151 mustard plants, which claim is not supported with credible evidence, I propose to reduce his claim of 151 mustard plants due to the lack of evidence that he in fact did have planted in his backyard, that many mustard plants. He failed to provide evidence that 151 mustard plants had been destroyed during the said raid. In the absence of such evidence; I propose to reduce the quantity of his loss of the 151 mustard plants to at least 15 which I view as an appropriate estimate of mustard vines being grown in one’s backyard here in the National Capital District.
     
138. Similarly, I also propose to limit the number of 250 monkey banana trees and 450 young banana trees valued at K65.00 and 450 young banana trees valued at K15 respectively being claimed by Tara Goro. The reasons for saying so is because if this appears to be a mini-banana, pawpaw and pineapple garden. If such a plantation of banana tree, pawpaw and pineapple plants had existed in Mr. Goro’s backyard garden, he failed to adduce or produce tangible evidence to support his claim for over 1000 banana trees. The same can be said for the 30 pawpaw trees and 30 pineapple plants. If this is what Mr. Goro is claiming that he has lost, the onus lies on him to present credible evidence of his losses. He has failed to do so. The Court can therefore only do the best it can to assess his damages. In this case, the best the Court can do is to give an assessment on a limited number of the banana, pawpaw and pineapple plants and this limit is placed at 100 and 150 respectively for the banana plants.
     
139. In addition to the valuation of these economic plantings, I do note that there exist Valuer General Economic Planting Pricing List which is available at the Office of the Valuer General which can be easily acquired for a fee in assessing damages for such tree crops. However, I also note that neither the Office of the Solicitor General or the first plaintiffs have taken it upon themselves to consult these services for purposes of assessment of damages. Given the lack of credible evidence, this Court is minded to assess damages as best as it can and give a global award for any items lost or damaged based on the valuation alluded to in the earlier part of this judgment.
     
140. As opposed to the assessment made in the case authorities of Yange Lagan v. State (1995) N1369; where five per cent depreciation was permitted for loss of house and household items and also John Tuink Salamon & Ors -v- The State & 2 Ors (1994) N1272; in this case, I will allow for contingency of 20% where relevant for the reasons that the first plaintiffs really have provided no credible evidence and or independent corroboration to substantiate their claims for damages. Furthermore, such claims for damages must be supported by clear and admissible evidence (see Aimon Aure & Ors -v- The State [1996] PNGLR 85; (1995) N1346, Tabie Mathias Koim’s case (supra), Robert Taropen & Ors -v- John Anawe & The State (2010) N3911, Nelson Pawa -v- The State (2009) N3784 and Thomas Paraka -v- Thomas Upaiga & The State (2010) N4090, Peter Wanis v. Fred Sikiot & The State (1995) N1350; Eriare Lanyat & Ors v George Wagulo & The State [1997] PNGLR 253; Obed Lalip & Ors v. Fred Sikiot & The State (1996) N1457; Jonathan Mangope Paraia v. The State (1995) N1343).
     

Assessment of Claims

141. Having outlined the evidence and the relevant standard of proof, it is now appropriate to determine the issue of damages as against the evidence before the Court and determine if Paul Kelly and the 54 other plaintiffs have established their claims for the damages suffered during the search and raid conducted on the 26 of June 2009.
     
142. The main evidence in this matter comes from Paul Kelly’s affidavit sworn on 19^th March 2012 and filed on 28^th May 2012.; sworn on 3^rd November 2009 and filed on 10^th November 2009 and his direct evidence under oath during trial.
     
143. The defendants opted not to produce any rebuttal evidence. In any event, where the defendants have opted not to produce any rebuttal evidence, the plaintiffs are still required to prove their claims. (Yange Lagan v. State (1995) N1369; Kolaip Palapi v. Sergeant Poko (2001) N2274 Yooken Pakilin v. State (2001) N2212).
     

General Damages

144. The plaintiffs have not made any claims for general damages. Therefore, I make no award for general damages.
     

Claim for Special damages

145. A summary of the affidavits tendered by consent provides claims for destruction to properties (homes, furniture, food crops, tree crop, vegetables gardens, stolen cash, clothes, tools and etc.) are set out in this judgment. However, in order to assess damages, it is also necessary that such claim must be supported by independent evidence. In Anis v Sikiot & State (1995) N1350, his Honour Wood J. said:
     

“First he [Plaintiff] claims for a permanent house. There is no evidence apart from his assertions and a photograph of a blackened site as to the nature and standard of his building. Here the Plaintiff has brought no independent evidence as to the standard of the house. It is not enough to just assert an estimate, it must be supported.”

“The Plaintiff is also claiming for loss of clothes and household properties and tools in the destruction. Whilst I am prepared to accept that there was some loss of personal property the Court cannot just find any amount based on what the Plaintiff asserts, to consider more than just a basic amount here there must be other independent evidence from people or officials who knew the Plaintiff’s house or know his lifestyle to account for such values.”

146. Overall, I will be guided by and would be inclined to adopt the approaches established and recognised by numerous National Court Judgments which require that the plaintiff still needs to prove his losses (Yange Langan v The State (1995) N1369) and that such claims for damages must be supported by clear and admissible evidence (see Aimon Aure & Ors -v- The State [1996] PNGLR 85; (1995) N1346, Tabie Mathias Koim’s case (supra), Robert Taropen & Ors -v- John Anawe & The State (2010) N3911, Nelson Pawa -v- The State (2009) N3784; Thomas Paraka -v- Thomas Upaiga & The State (2010) N4090, Peter Wanis v. Fred Sikiot & The State (1995) N1350; Eriare Lanyat & Ors v George Wagulo & The State [1997] PNGLR 253; Obed Lalip & Ors v. Fred Sikiot & The State (1996) N1457; Jonathan Mangope Paraia v. The State (1995) N1343).
     
147. The same principle applied even if a default judgment has been entered in favour of a plaintiff. A plaintiff must prove his losses with credible evidence. A default judgment does not relieve the plaintiff from proving his loss; (see Tabie Mathias Koim v. The State & Ors (1998) N1737, in which his Honour Injia J (as he then was) stated that:
     

“The fact that default judgment was entered against the defendants does not mean that the plaintiff is automatically entitled to what he is claiming. When the Court is assessing damages, it must be satisfied that the plaintiff has proved his damages.

148. His Honour also referred to the case of Bonham-Carter v Hyden Park Hotel Ltd (1948) 64 TLR 177 at p. 178, where Lord Goddard C.J. held as follows:
     

“Plaintiff must understand that if they bring action for damages, , it is not enough to write down particulars and so to speak, throw them at the head of the Court saying – This is what I have lost, I ask you to give me these damages, they have to prove it”.

149. It is not sufficient for the plaintiff to simply provide documentation that do not support the basis from which this claim arises. It must be good, credible, evidence. Furthermore, the evidence must not be vague, unclear and tainted with uncertainty. If the claim is for stolen cash, the evidence must establish the source of the cash and the reason for keeping it. If it was derived from a business enterprise such as a trade store or a PMV business, at least some independent evidence such as business records to prove its source may be relevant and necessary (See Aimon Aure & Ors -v- The State [1996] PNGLR 85; (1995) N1346, Tabie Mathias Koim’s case (supra), Robert Taropen & Ors -v- John Anawe & The State(2010) N3911, Nelson Pawa -v- The State (2009) N3784 and Thomas Paraka -v- Thomas Upaiga & The State (2010) N4090).
     
150. For this case, I find that the first plaintiffs have not supported their claim by clear and admissible evidence. Whilst there are 55 affidavit evidence which detailed their specific losses and which are totally unchallenged by the defendants; there is no evidence of an independent evidence or any “remains of a burnt out structure of a house”, damages or uprooted banana plants, tree crops, damaged livestock pens, ducks, chickens, damaged doors to a tucker shop or evidence of receipts confirming purchases of household items, tools, furniture, or even purchases of clothing.
     
151. Given the lack of such physical evidence of any destruction and loss caused to the plaintiffs by the defendants during the police raid, it is difficult to place a value to the items said to have been destroyed, looted, stolen or damaged. Furthermore, none of the plaintiffs have considered it appropriate to at least provide photographs of a burnt stump of house structure or damaged food garden or even uprooted monkey bananas. Furthermore, there is no evidence of the losses being assessed by an independent and credible valuation expert.
     
152. Given these discrepancies, I am minded to assess damages and give an estimate based on what evidence is presented as best I can on the first plaintiffs’ own estimates of their losses and make a global award: (see Nagi Yuak Kwi v Francis Tande (2011) N4910); The State [The Government of Papua New Guinea] v Trevor McCleary [1976] PNGLR 321; Likui Trading Ltd v Joseph Selna (2011) N4530; The Administration of Papua New Guinea v Carroll [1974] PNGLR 265 and where such latter figures are pure conjecture and it is sometimes easier to make a global award where there are no exact figures to work from: (see Tommy v MVIT (1991) N1023).
     
153. Inflation is usually a relevant factor in assessing special damages (see Yange Lagan v. State(supra); where five per cent depreciation was permitted for loss of house and household items. In John Tuink Salamon & Ors -v- The State & 2 Ors (supra), again five percent depreciation was permitted for loss of houses and other personal properties. Taking into consideration the issue of depreciation in assessment of damages and applying it to this case, I consider that an allowance of 20 % depreciation would be appropriate as all plaintiffs live within NCD and all had easy access to hardware and builders warehouse and therefore would have receipts and or records of their purchases to support their claims, even actual photographs of the destruction caused by the defendants to substantiate their respective claims. In this case, none of them have produced individual credible evidence or independent corroboration of their losses.
     

Preliminary Matter

154. Before I proceed to assess damages, I outline below the criteria to be used for purposes of assessment of damages. Here, all the 55 plaintiffs have made a claim for the loss of a variety of garden food crops, homes, electrical equipment, motor vehicles, economic plants, garden tools, household items and clothes and other educational testimonials. Whilst most of them have itemised and given a value to their items, one plaintiff, Robert Kindagl however did not file any affidavit in support of his claim for damages.
     
155. Furthermore, all plaintiffs failed to adduce credible evidence to substantiate their damages. For instance for any claim made of loss of economic plants or garden food, there is a Valuer General Economic Plantings Price List which is readily available from the Valuer General’s Office for a fee, yet, neither the Office of the Solicitor General or the plaintiffs produced such a document to assist the Court in its assessment processes. For instance, with regard to the claim for the loss of 151 mustard plants, it would be necessary to have presented before the Court, photographs of the damage. But this evidence is missing. So, the question to ask is: Was this a mini plantation of mustard plants? If these plants had been damaged, where is the photograph of the uprooted plants or charred remains of the tree? There really is nothing to confirm such losses.
     
156. Similarly, I also ask where is the evidence with regard to the loss of a dwelling house, freezer, shade trees, 20 foot-container and or a fence, charred remains of burnt out clothes or damaged clothes, TV, store goods or even a copy of a trading license if operating a trading store within NCD. With regard to the garden food plants such as monkey and mekeo bananas trees, pawpaw trees, betelnut trees, coconut palms, cassava, taro, Chinese taro, and shade trees or even an eagle tree. I am sure that if such destruction did occur, there would be obvious remnants of these destructions and therefore, the 55 plaintiffs should have provided more credible evidence of their losses. In the absence of such credible evidence, I am minded to make the best of what I can based on the evidence presented.
     
157. Given the lack of substantive credible evidence for all of the itemised value of properties lost, I will now assess damages and give a global value to the items claimed in terms of economic plants, garden food crop and household items less 20% contingency. This is to cover for any false claim or exaggeration of number of items lost or damaged. For instance, in terms of the value of monkey bananas, I will value a monkey banana at K30.00 instead of the claim for K65.00. These items are home grown and therefore, it is not possible for the first plaintiffs to present receipts of purchases to confirm such loss. However, where it is obvious that a claim may be exaggerated, then the number of items will be reduced. For instance, in a claim for 151 mustard plants, or a dwelling house, 20-foot container, freezer, motor vehicle, computer, trade store goods and other electrical equipment or items, these claims appears exaggerated as there is really no evidence of such a plantation of mustard plants or charred or damaged tree trunks, uprooted plants presented by the first plaintiffs before the Court to substantiate the claim. In such circumstances, for those other items of value claimed such as for the loss of a dwelling house, freezers, computers, bicycle, 20 foot-container and or a fence, charred remains of burnt out clothes or damaged clothes, TV, store goods or even a copy of a trading license if operating a trading store within NCD. With regard to these claims, as assessment will be done as best as I can as no credible evidence is provided. Otherwise, the best the Court can do is make no award for such a claim.
     
158. Having outlined the reasons for assessment, I now proceed to assessing damages:
     

Special damages

159. The object of special damages is to “as nearly as possible get at that sum of money which will put the party who has been injured or who has suffered in the same position as he would have been if he had not sustained the wrong for which he is now getting compensation. General damages are intended to be neither a reward nor a penalty: (see Martha Limitopa & Poti Hiringe -v- The State [1988-89] PNGLR 364; Losia Mesa -v- Gari Baki as Commissioner of Police & The State (2009) N3681, James Gunambo v Sergeant Thomas John Upaiga (2010) N3859.
     
160. Special damages are easily assessable because these are losses directly flowing from the unlawful actions of the defendant (see Aina Mond v The State (supra). Consequently, for claims relating to property losses such as burning and destruction of dwelling houses, personal effects, food gardens, tools, furniture, electrical goods, domesticated animals and livestock, store goods and so forth case law requires that the plaintiffs must produce sufficient evidence substantiating the claim and it is also necessary that such claim must be supported by independent evidence (Anis v Sikiot & State(supra), Aina Mond v State (supra). (Yange Lagan v. State (supra),Kolaip Palapi v. Sergeant Poko (supra),Yooken Pakilin v. State (supra).
     
161. I gather from the affidavits of the 55 plaintiffs that their properties and their value attested to were destroyed, looted, stolen or damaged as a result of the police raid. Further that account should be taken of the effects of inflation since the filing of the Writ.
     
162. But I reject the submission that each 54 claims should be awarded damages in full including the effects of inflation for the reasons that the evidence of their respective losses are not supported by independent evidence or evidence of a burnt out structure of a home, nor a vehicle or food gardens or economic plants such as banana, pawpaw, betelnut trees or mustard vines. Whilst there appears to be some photographs of some destruction to homes and economic plants, the photographs are not specific to an individual loss and uncorroborated.
     
163. Whilst I consider that perhaps each plaintiff may have suffered some losses, each amount must be proved on the balance of probabilities. Having to make an award on the sums attested to without independent corroboration would lead to unjust enrichment and it would not be compatible to established principles of law on assessment of damages.
     
164. Consequently, I will now assess damages for each of the first plaintiffs, as best as I can based on the evidence presented before the Court, the details of which are set out below:
     

List of first plaintiffs and their claims as per Schedule 2 of Writ of Summons

(1) Pastor Danny Stevens - With regard to this plaintiff makes a claim for the loss of a variety of garden food crops and other items to the value of K1,600.00. Whilst the plaintiff has not adduced evidence of damaged garden food crops; I am satisfied that the evidence adduced in the affidavit support a claim for damages. I therefore assess his damages in the sum of K1,300.00 for the loss of garden food crops.

(2) Damienson Bomai - This is the lowest claim made by a plaintiff in this proceeding. He makes a claim for the loss of a table that was destroyed during the raid. He values his loss in the sum of K120. I make an award of K90.00 for the loss of his table

(3) David Giano - This plaintiff makes a claim for the loss of monkey banana trees and a young eagle tree. Whilst the plaintiff has not adduced evidence of damaged eagle tree, and garden food crops; I am satisfied that the evidence adduced in the affidavit support a claim for some loss. I make a global award of damages in the sum of K500.00 for the loss of 10 monkey banana trees only. I make award for the loss of a young eagle tree at K40.00. The total amount of damages being the sum of K540.00

(4) Kerenga Rabisman - This plaintiff makes a claim for the loss of a number of garden food crops and economic trees in the sum of K46,425.00. However, the plaintiff has not adduced evidence of damaged garden food crops; especially the 151 mustard plants if these plants had been damaged, at least a photograph of the uprooted plants or charred remains would suffice to substantiate the total claim for K46,425.00. Overall, I am satisfied that the plaintiff may have suffered some loss. I make a global award of damages in the sum of K5,500.00 for the loss of garden food crops and economic plants.

(5) Emmanuel Wai - He identifies his losses to be in the sum of K2, 265.00. The plaintiff has not adduced evidence of damaged garden food crops; especially the monkey banana and pawpaw trees if these plants had been damaged, at least a photograph of the uprooted plants or charred remains would suffice to substantiate the claim for K2,265.00. In any event, I am satisfied that the plaintiff may have suffered some loss and for this I will make the following assessment and make a global award in the sum of K1,800.00 for the loss of garden food crops.

(6) Giano Soa itemised his losses and values them in the sum of K13, 830.00. The plaintiff has not adduced evidence of damaged garden food crops; especially the monkey banana and pawpaw trees if these plants had been damaged, at least a photograph of the uprooted plants or charred remains would suffice to substantiate the claim for K13,830.00. In any event, I am satisfied that the plaintiff may have suffered some loss and for this I will make the following assessment and make a global award in the sum of K8,000.00 for the loss of garden food crops.

(7) Michael Aroma itemized his losses found in schedule 2 in the Writ of Summons claiming for the destruction of garden food crops to the value of K4, 080.00. The plaintiff has not adduced evidence of damaged garden food crops; especially the monkey banana and pawpaw trees if these plants had been damaged, at least a photograph of the uprooted plants or charred remains would suffice to substantiate the claim for K4,080.00. I am satisfied that the plaintiff may have suffered some loss and for this I make a global award of damages in the sum of K3,500.00 for the loss of garden food crops.

(8) Kobor Auri gave sworn evidence of his losses found in schedule 2 in the Writ of Summons and claiming for the destruction of 1 market house 1m x 1m with timber foundation and iron roof valued at K350.00, 3 monkey banana trees at K65.00, 3 cassava plants at K10.00 each. The total loss suffered from the destruction is K575.00. The plaintiff has not adduced evidence of a damaged market house and or damaged garden food crops. However, I am satisfied that the plaintiff may have suffered some loss and for this; I make a global award of K460.00 for this claim.

(9) Kola Kuma gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th May 2012. Affidavit number 25 in the pleading book tendered as exhibit 18. Paragraphs 6 to 13 give evidence in support of the claim for destruction caused by the Defendants and breach of constitutional rights of the Plaintiffs in his presence with his family members. Paragraph 9 to 13 of his affidavits gives specific evidence on destruction caused to his family’s properties, losses (garden crops) and breach of their constitutional rights as pleaded in the Writ. The names of his 5 family members or dependents are stated in the opposite column. He referred to losses found in schedule 2 in the Writ of Summons claiming for the destruction of chattels/household goods, trade store goods and garden crops; household goods and claimed a sum of K15,210 for his damages. Whilst it is accepted that the plaintiff may have suffered some loss to his properties and person, the requirement to substantiate his claim with credible evidence still remains. Given the lack of substantive credible evidence and no evidence of a trading license, or a liquor license, I am not satisfied that the evidence adduced in the affidavit support a claim valued at K15,210.00. Further, there is no independent evidence of remains of a burnt out or damaged food garden, household items and etc. Given the lack of evidence, I will instead make a global award of the loss of household items in the sum of K9,000.00 for this claim.

(10) Babra Sinowai gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. She referred to losses found in schedule 2 in the Writ of Summons claiming for the destruction of chattels/household goods, trade store goods and garden crops; household goods valued at a sum of K6,335.00. Whilst it is accepted that the plaintiff may have suffered some loss to his properties and person, the requirement to substantiate her claim with credible evidence still remains. Given the lack of substantive credible evidence and no itemised valuation for each of the items which the plaintiff claims to have lost or destroyed during the raid. I am not satisfied that the evidence adduced in the affidavit support a claim valued at K6,335.00. Further, there is no independent evidence of remains of a burnt out or damaged food garden, household items and etc. Given the lack of evidence, I will instead make a global award of the loss of household items in the sum of K5,500.00 for this claim.

(11) Joe Kawagle gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. He referred to losses found in schedule 2 in the Writ of Summons claiming for the total sum of K57, 345.00. For this head of damages, whilst it is accepted that the plaintiff may have suffered some loss to his properties and person, the requirement to substantiate his claim with credible evidence still remains. Given the lack of substantive credible evidence; I am not satisfied that the evidence adduced in the affidavit support a claim valued at K57,345.00. There is also no independent evidence of remains of a burnt out or damaged house, 20-foot container, deep freezer, TV screen, food warmer and ice makers or even a structure used as a toilet. I will instead make a global award of the loss of household items in the sum of K9,000.00

(12) Samson Inugu gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. He referred to losses found in schedule 2 in the Writ of Summons claiming for the destruction of electrical and store goods and motor vehicle to the value K5, 884.00. For this head of damages, whilst it is accepted that the plaintiff may have suffered some loss to his properties and person, the requirement to substantiate his claim with credible evidence still remains. Although the plaintiff has itemised his losses, there is no evidence of a charred and burnt out remains of electrical equipment, deep freezer, a motor vehicle, charred remains of burnt out clothes or damaged clothes, mobile phone, store goods or even a copy of a trading license if operating a trading store within NCD. Given the lack of substantive evidence. I am minded to make a global award of K4,800.00 for this claim.

(13) Tony Maina gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. He makes a claim for the destruction of his garden food crops and steel pipe posts and iron roofs in the sum of K880.00. Whilst it is accepted that perhaps Maina may have suffered loss of his garden food crops, the claims for the steel pipe posts and irons roofs are not substantiated by credible evidence. Given the lack of substantive evidence. I am minded to make a global award of K700.00 for this claim.

(14) Peter Mek gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. He referred to losses found in schedule 2 in the Writ of Summons claiming for the loss of store goods (i.e. 15 cartons of SP beer and 2 cartons of 500 mils coke) in a sum of K1, 360.00. In considering this claim, I find that the plaintiff has not produced evidence to confirm having a trading license and receipts of purchase of the goods which are claimed to have been lost during the raid. Given the lack of substantive evidence to prove losses. I make a global award of K800.00 for this claim.

(15) Pastor Ben Aisen gave evidence by way of affidavit sworn on 19 March 2012 and filed on 28 March 2012. He referred to losses contained in Schedule 2 in the Writ of Summons claiming for the loss of household items and a makeshift ground house valued to be in the sum of K2,397.00. In considering this claim, although I find that the plaintiff has not produced evidence to substantiate his losses. I am satisfied that the plaintiff may have lost something of value during the raid. Given the lack of substantive evidence to prove his losses. I make a global award in the sum of K1950.00 for this claim.

(16) Yellow Goro claims for the loss of household items, furniture, and table including tools and economic cash crops to the value of K1,375.00. In considering this claim, I find that although the plaintiff has not produced evidence to confirm having lost personal items and destruction to food gardens and food crops, I am satisfied that the plaintiff may have lost something of value during the raid. Given the lack of substantive evidence to prove his losses. I make an award in the sum of K1100.00 for this claim.

(17) Paul Kelly is the principal plaintiff and he gave both sworn and direct evidence. He claims for the loss of print inks and burners, digital gadgets, and economic plant crops to the value of K4, 624.60. In considering this claim, I note that although the plaintiff has itemised his losses, there is no evidence of a charred and burnt out or remains of a print ink container, charred remains of burnt out brushers and economic plant crops such as pawpaw trees, chilly plants and yauro herbal plants or even produced receipts as evidence of purchases of digital gadgets or screening boards and inks and sign burners for purposes of substantiating his claim for damages. Given the lack of substantive credible evidence for most of the items, I am minded to make a global award of only K3,500.00 for the loss of economic plant crops and other things that may have been damaged or destroyed during the raid.

(18) Sai Auri.This plaintiff claims for the loss of household items, stock in trade, a ground house (made of timber and iron rood & etc.) and economic cash crops and cash in the sum of K150.00, the total value of his loss is in the sum of K5, 494.40. Although the plaintiff has itemised his losses however there is no evidence of a charred and burnt out or remains of a cooking pots, and remains of destroyed betelnut fruits or charred remains of burnt out house, clothes or damaged clothes, food gardens and etc. As for the claim for the loss of K150.00 cash, I am of the view that it is possible that Mr. Auri may have been operating a mini-street market by selling flex and betelnuts and cigarettes which can be taken into account in determining his damages. Overall, the requirement for proving damages with credible evidence still exist and where there is lack of evidence to substantiate most of the claim, I am minded to make a global award of K4,000.00 for the loss of household items, garden food crops and the cash which he may have lost during the raid.

(19) Gorope Kon in his evidence, referred to loss of a one-bedroom house and ground house (timber and iron roof); household items and clothes the total sum K3, 882.20. Although the plaintiff has itemised his losses, there is no evidence of a charred and burnt out or remains of burnt-out house, clothes or damaged clothes, food gardens and etc. Overall, the requirement for proving damages with credible evidence still exist and where there is lack of evidence to substantiate most of the claim, I am minded to make a global award of K3,000.00 as damages for his loss.

(20) Tara Goro in his evidence, he claimed for the loss of household items, tree and food crops, the total of his losses being in the sum of K30, 140.00. Although the plaintiff has itemised his losses, there is no evidence of a charred and burnt out or remains of household items, charred remains of burnt out clothes or damaged clothes, banana trees and pawpaw, pineapples plants and food gardens and etc. I note that the plaintiff has made a claim for the loss of 1,150 monkey banana trees, 30 pawpaw trees, 30 pineapple plants and 5 mustard plants, and a matured noni tree. However, the plaintiff has not produced evidence to substantiate his claim. Owning a banana and pineapple patches with this number of plants would occupy a large area of land and any damage done here would be very obvious to all members of the community. Here the plaintiff has not produced evidence of the destruction of his 1150 banana trees or 30 pineapple plants and 30 pawpaw trees which he claimed to have been destroyed during the raid. If this plaintiff had in fact these many banana trees including pawpaw and pineapple plants, someone within the community would be aware of such a huge grove of banana and pawpaw trees, let alone a pineapple patch and should be in a position to collaborate Mr. Goro’s claim. However, this was not done. Therefore, given the lack of substantive evidence to prove his losses. I am minded to make an award as best as I can. Perhaps the plaintiff may have lost some banana and pawpaw trees including pineapple plants but the quantity could be way less than 250 or 450 and even 30. In the circumstances, I would otherwise allow for the loss of at least 100 mature banana trees valued at K30.00 each, 150 young banana trees valued at K25.00 each; 150 banana suckers at K20.00 each; 30 pawpaw trees valued at K10.00 each, 30 pineapple plants also valued at K8.00 each and 5 daka vines valued at K10.00 each and so forth. Given these valuations, I make a global award in the sum of K11,000.00 as damages for this claim.

(21) Moringe Sinowai - He claimed for the loss of household items, tree and food crops, the total of his losses being in the sum of K1,805.00. Although the plaintiff has itemised his losses, there is no evidence of a charred and burnt out or remains of a market house, charred remains of burnt out clothes or damaged clothes, banana trees and barbeque plates and etc. In considering this claim, I find that the plaintiff has not produced evidence to confirm having lost the items listed during the raid. Given the lack of substantive evidence to prove his losses. I make a global award in the sum of K1,500.00 as his damages.

(22) Cathy Kerenga - In her evidence, she claimed for the loss of 50 banana trees and chili and aupa plants, the total of her losses being in the sum of K3, 375.00. Although the plaintiff has itemised her losses, there is no evidence of a charred and burnt out or remains of a banana trees, and food garden and etc. In considering this claim, I find that the plaintiff has not produced evidence to confirm her losses of garden food crops and banana trees that may have been damaged or destroyed during the raid. Given the lack of substantive credible evidence to prove her losses for most of the items, I am minded to make a global award of only K2,700.00 as her damages.

(23) Rose Tara gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. She identified her losses being the destruction of a 2-bedroom 7.5 x 4m house made up of timber foundation, iron roof, ground house and galvanized wall, taro plants, mosong trees and kumu plots, and economic pot plants, the total sum being K7, 355.00. Although the plaintiff has itemised her losses, there is no evidence of a charred remains of burnt-out house or clothes or damaged clothes, banana trees and pawpaw, pineapples plants and food gardens and etc. to prove her losses or receipts of purchases of the 50 plant pots. In considering this claim, I find that the plaintiff has failed and not produced evidence to confirm or collaborate her damages. Given the lack of substantive evidence to prove her losses. I make a global award in the sum of K6,000.00 as damages for this claim.

(24) Janet Timothy gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. She referred her losses being the destruction of economic tree plants, flower pot plants, the total being the sum of K2, 060.00. Although the plaintiff has itemised his losses, there is no evidence of a charred and burnt out or remains of or burnt out remains of flower pots, pawpaw trees, taro plants, ginger plants or aupa plots and etc. to substantiate her damages. Given the lack of substantive credible evidence for most of the items, I am minded to make a global award of only for the loss of garden food crops and economic tree plants which may have been damaged or destroyed during the raid. Given the lack of substantive evidence to prove his losses. I make a global award in the sum of K1,600.00 for this claim.

(25) Alois Wemin. He gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. He referred to losses of household items, a market ground house with iron roof and iron wall timber, tools, economic plants and tree crops, to the value of K8, 410.50. Although the plaintiff has itemised his losses, there is no evidence of a charred and burnt out or remains of a market house, charred remains of burnt out or damaged household items or damaged banana trees and flower pot plants and etc. Given the lack of substantive credible evidence for most of the items, I am minded to make a global award of only K1,500.00 for the loss of house, household items, domesticated animals, garden food crops and other that may have been damaged or destroyed during the raid. I find that the plaintiff has not produced evidence to confirm having a trading license and receipts of purchase of the goods which is claimed to have been lost during the raid. Given the lack of substantive evidence to prove his losses. I make a global award in the sum of K6,800.00 for this claim.

(26) Samson Goro. He gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. He referred to losses of household items, a dwelling ground house with iron roof and iron wall timber, tools, pot plants, economic plants and tree crops, to the value of K7, 955.00. Although the plaintiff has itemised his losses, there is no evidence of a charred and burnt out or remains of timber or barbed wire, charred remains of burnt out clothes or damaged clothes, banana trees and pawpaw, pineapple plants and food gardens and etc. In considering this claim, I find that the plaintiff has not produced evidence to confirm having a dwelling ground house with iron roof and etc. and receipts of purchase of the timber, tools which are claimed to have been lost during the raid. Given the lack of substantive credible evidence to prove his losses for most of the items, I am minded to make a global award for the loss of household items, garden food crops and economic tree plants, which may have been damaged or destroyed during the raid. I make an award in the sum of K6,400.00

(27) John Dama. He gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. He referred to his losses of store good and cash crops such as monkey bananas, and young Christmas trees to the value of K13, 764.00. Although the plaintiff has itemised his losses, there is no evidence of damaged banana trees and Christmas trees and etc. Given the lack of substantive credible evidence for most of the items, I am minded to make a global award only. In regard to the claim for economic tree plants and garden cash crops, I am minded to make a global award as best as I can; given the lack of credible evidence to substantiate the claim. I make a global award in the sum of K7,500.00 for this claim.

(28) Thomson Kino. In his evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. He identified his losses as being that household items of a 60m fence made up of barbed wire and galvanized pipe, steel 3.5 high to the value of K2, 950.00. In considering this claim, I find that the plaintiff has not produced evidence of a fence which was damaged or destroyed during the raid. Given the lack of substantive evidence to prove his losses, I make a global award of K500.00 for this claim.

(29) Keraigo Goro in his affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. He identified his losses as being economic trees and crops, the total being the sum of K3, 145.00. Although the plaintiff has itemised his losses, there is no evidence of damaged banana trees and economic tree plants and etc. Given the lack of substantive credible evidence for most of the items, I am minded to make a global award only. In regard to the claim for economic tree plants and garden cash crops, I am minded to make a global award as best as I can; given the lack of credible evidence to substantiate the claim. I make a global ward in the sum of K2,600. 00.

(30) Henry Mogia gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. He identified his losses as being economic trees and crops, the total being the sum of K3, 610.00. Although the plaintiff has itemised his losses, there is no evidence of damaged banana trees and economic tree plants and etc. Given the lack of substantive credible evidence for most of the items, I am minded to make a global award only. In regard to the claim for economic tree plants and garden cash crops, I am minded to make a global award as best as I can; given the lack of credible evidence to substantiate the claim. I make a global award in the sum of K2,800.00 for this claim.

(31) Jerry Arre. He gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. He identified his losses as being economic trees and crops, the total being the sum of K3, 440.00. Although the plaintiff has itemised his losses, there is no evidence of damaged banana trees and economic tree plants and etc. Given the lack of substantive credible evidence for most of the items, I am minded to make a global award only. In regard to the claim for economic tree plants and garden cash crops, I am minded to make a global award as best as I can; given the lack of credible evidence to substantiate the claim. I make a global award in the sum of K3,000.00 for this claim.

(32) Timothy Mauwe. He gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. He identified his losses as being economic trees and crops, the total being the sum of K845.00 although the plaintiff has itemised his losses, there is no evidence of damaged banana trees and economic tree plants and etc. Given the lack of substantive credible evidence for most of the items, I am minded to make a global award only. In regard to the claim for economic tree plants and garden cash crops, I am minded to make a global award as best as I can; given the lack of credible evidence to substantiate the claim. I make a global award in the sum of K700.00 for this claim.

(33) Jack Kino. He gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. He identified his losses as being economic trees and crops, the total being the sum K3, 525.00 Although the plaintiff has itemised his losses, there is no evidence of damaged banana trees and economic tree plants and etc. Given the lack of substantive credible evidence for most of the items, I am minded to make a global award only. In regard to the claim for economic tree plants and garden cash crops, I am minded to make a global award as best as I can; given the lack of credible evidence to substantiate the claim. I make a global award in the sum of K2,900.00 for this claim.

(34) Koma Peter Gihano. He gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. He identified his losses as being that of a computer and accessories, store goods valued in the sum K1, 865.00. Although the plaintiff has itemised his losses, there is no evidence of damaged computer cables, personal computer or a monitor or even damaged coke cans and etc. Given the lack of substantive credible evidence for most of the items. I make a global award of K1,000.00 for this claim.

(35) Sinowai Temai gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. He identified his losses as being that of household items and economic the total being the sum of K3,450.00. Although the plaintiff has itemised his losses, there is no evidence of damaged CD player and CDs or damaged handbag. Given that there are no receipts to confirm purchase of the electrical and computing equipment, I make no award for the loss of those items. In regard to the claim for economic tree plants and garden cash crops, I am minded to make a global award as best as I can; given the lack of credible evidence to substantiate the claim to prove his losses. I make a global award in the sum of K2,700.00 for his claim.

(36) Paul Manga in his evidence affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. (Exhibit). He identified his losses as being store goods, the total value being the sum of K8, 448.00. In considering this claim, I find that the plaintiff has not produced evidence to confirm having a trading license or a liquor license which permits him to trade in the sale of liquor including receipts of purchase of such goods as SP beer, whiskey, and cigarettes which is claimed to have been lost during the raid. Given the lack of substantive evidence to prove his losses. As for the liquor that is claimed to have been lost, I make no award for such loss, in the absence of a liquor license or a permit to trade liquor at the area. Faced with lack of credible evidence, I can only do the best I can and thus, make a global award of K600.00 being for the loss of soft drinks and cigarettes and spear, items which this plaintiff claimed to have lost for this claim.

(37) John Koboe gave evidence affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. (Exhibit P 38). He identified his losses as being that of store goods and new stock in trade valued at K3, 009.00. In considering this claim, I find that the plaintiff has not produced evidence to confirm having a trading license and receipts of purchase of the goods which is claimed to have been lost during the raid. Furthermore, this plaintiff has not particularized and itemised his losses which makes it difficult to assess. Given the lack of substantive evidence to prove his losses. I make no award for this claim.

(38) Smarty Dama gave evidence by affidavit sworn on 19^th March 2012 and filed on 28^th March 2012 (Exhibit P38). He identified his losses as being of a market house, economic food crops, the total being the sum of K4, 000.00. Although the plaintiff has itemised his losses, there is no evidence of damaged market house or receipts of purchase of building materials and etc. Given the lack of substantive credible evidence for most of the items, I am minded to make a global award only. In regard to the claim for economic tree plants and garden cash crops, I am minded to make a global award as best as I can; given the lack of credible evidence to substantiate the claim. I make a global award in the sum of K3,200.00.

(39) Steven Iba gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012 (Exhibit 40). He identified his losses as being economic trees and crops, the total being the sum of K2, 325.00. Although the plaintiff has itemised his losses, there is no evidence of damaged banana trees and economic tree plants and etc. Given the lack of substantive credible evidence for most of the items, I am minded to make a global award only. In regard to the claim for economic tree plants and garden cash crops, I am minded to make a global award as best as I can; given the lack of credible evidence to substantiate the claim. I make a global award in the sum of K1,500.00

(40) Caroline Giri gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. (Exhibit No. P2). She identified her losses as being a market house and market items, K685.00. Although the plaintiff has itemised his losses, there is no evidence of damaged mustard seeds or betelnut fruits and cigarettes and etc. Given the lack of substantive credible evidence for most of the items, I am minded to make a global award as best as I can; given the lack of credible evidence to substantiate the claim. I make an award in the sum of K520.00

(41) Kelly Kaki gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th May 2012 (Exhibit P22). He identified his losses as being economic trees and crops, flower pots and nursery plants, the total being the sum of K5, 270.00. Although the plaintiff has itemised his losses, there is no evidence of damaged banana trees and economic tree plants and etc. Given the lack of substantive credible evidence for most of the items, I am minded to make a global award as best as I can. I make a global award in the sum of K4,300.00

(42) Wanza Agi gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th May 2012. He identified his losses as being that of household items and accessories the total being the sum of K1, 005.00. Although the plaintiff has itemised his losses, there is no evidence of damaged household items and accessories and etc. Given the lack of substantive credible evidence for most of the items. I am minded to make a global award as best as I can; given the lack of credible evidence to substantiate the claim. I make an award in the sum of K900.00

(43) Peter Gare gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012 (Exhibit P20). He identified his losses as being that of cash crops and household items all in good condition, the total being K1, 130.00. Although the plaintiff has itemised his losses, there is no evidence of damaged household items and accessories and etc. Given the lack of substantive credible evidence for most of the items. I am minded to make a global award as best as I can; given the lack of credible evidence to substantiate the claim. I make a global award in the sum of K700.00

(44) Ken Kolopu in his affidavit evidence sworn on 19^th March 2012 and filed on 28^th March 2012. He identified his losses as being that of household items, economic trees and crops, flower pots and nursery plants, the total being the sum of electrical equipment, TV and Antenna, PC Monitor and hard drive and keyboard computer cables, power pack, CD Dual Reader, toaster and flash drives, fax machine, phones and copies of Certificates. He claimed a sum of K17, 930.00. In considering this claim, I find that the plaintiff has not produced evidence to confirm having receipts of purchase of the goods which are claimed to have been lost or destroyed during the raid. With regard to the damages for important personal documents, again there is no evidence of the plaintiff having attainment a qualification and acquired an expertise and or testimonials from the relevant educational institution to confirm such an attainment and issuance of certificate of qualification. Given the lack of substantive evidence to prove his losses; I am minded to give a global award for and thus I make a global award in the sum of K9,500.00 for this claim.

(45) Mary Ku. Although the plaintiff has specified the value of her claim, in the sum of K13,775.00. Although the plaintiff has itemised her losses of banana trees, mustard vines, pawpaw trees and betelnut palm, there is no evidence of damaged banana trees, mustard vines, pawpaw trees and betelnut palm tree. Household items and accessories and etc. Given the lack of substantive credible evidence for most of the items. I am minded to make a global award as best as I can; given the lack of credible evidence to substantiate the claim she failed to provide details of her losses by presenting credible evidence to substantiate her losses by way of photographs of her uprooted banana trees or pawpaw tree and etc. Furthermore, there is no evidence of a burnt out remains of a garden, betelnut tree, pawpaw trees, mustard trees even a banana tree. I therefore make a global award for this claim in the sum of K7,500.00 as damages for the loss of economic tree plants.

(46) Marcus Mark gave evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012. He identified his losses as being of 12 monkey banana trees valued at K65.00 each and made a claim for the sum of K780.00. With regard to this claim, as alluded to earlier, as I have determined to assess and value a claim for the loss of a monkey banana in the sum of K35.00 instead of K65.00. Although the plaintiff has itemised his losses of monkey banana trees; I am minded to make a global award as best as I can; given the lack of credible evidence to substantiate the claim and the fact that he failed to provide details of her losses by presenting credible evidence to substantiate his losses by way of photographs of his uprooted banana trees and etc. Furthermore, there is no evidence of a burnt out remains of a garden, or even a banana tree. In considering of this claim, I find that the plaintiff has not produced evidence to confirm having a trading license and receipts of purchase of the goods which is claimed to have been lost during the raid. I make an award in the sum of K650.00 for the loss of his two banana plants.

(47) Meijah Num in his evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012, identified his losses as being that of store goods (cartons of SP beer in the sum of K840.00. In considering of this claim, I find that the plaintiff has not produced evidence to confirm having a trading license and receipts of purchase of the goods which are claimed to have been lost or destroyed during the raid. Given the lack of substantive evidence to prove his losses. I make no award for this claim.

(48) Joy Joseph in her evidence by way of affidavit sworn on 19^th March 2012 and filed on 28^th March 2012 identified her losses as being that of economic plant crops and household item was a 5 months old market table at K80.00 and the cash crops all matured include 10kg of betel nuts at K200.00, 500g of mustard at K10.00, 10 flower plants at K10.00each, 25 monkey banana trees at 65.00 each and 30 mustard plants K250.00. The total cost of the crops and table destroyed is K9, 530.00. Although the plaintiff has itemised her losses of monkey banana trees; flower plants and mustard trees; I am minded to make a global award as best as I can; given the fact that she failed to provide details of her losses by presenting credible evidence to substantiate her losses by way of photographs of the uprooted banana trees and etc. Furthermore, there is no evidence of a burnt out remains of a garden, or even a banana tree. Given the lack of credible evidence to substantiate the claim and to prove his losses. I am minded to make an award as best as I can and, in the circumstances, make an award in the sum of K7,500.00 as reasonable damages.

(49) Morris Boma gave evidence by way of affidavit sworn on 28^th March 2012 and filed on 28^th May 2012. He identified his losses as being that of economic plant crops such as mekeo banana, pawpaw and monkey banana trees, tomato and taro plants, pandanas palm and chili plants in the sum of K3, 860.00. Although the plaintiff has itemised his losses of mekeo and monkey banana trees; pawpaw plants and chili and taro plants and etc.; I am minded to make a global award as best as I can; given the fact that he failed to provide details of his losses by presenting credible evidence to substantiate her losses by way of photographs of the uprooted banana trees and etc. Furthermore, there is no evidence of a burnt out remains of a garden, or even a banana tree. Given the lack of credible evidence to substantiate the claim and to prove his losses. I am minded to make an award as best as I can and, in the circumstances, make a global award in the sum of K2,600.00 as reasonable damages.

(50) Marta John gave evidence by way of affidavit sworn on 28^th March 2012 and filed on 28^th May 2012. She identified her losses as being that of destruction caused to her market house & family’s economic plant crops to the value of K5, 400.00. Although the plaintiff has itemised her losses of banana trees, mustard vines, pawpaw trees and betelnut palm, there is no evidence of damaged banana trees, mustard vines, pawpaw trees and betelnut palm tree, market house and accessories and etc. I am minded to make a global award as best as I can; given the lack of credible evidence to substantiate the claim she failed to provide details of her losses by presenting credible evidence to substantiate her losses by way of photographs of her uprooted banana trees or pawpaw tree and market house. Furthermore, there is no evidence of a burnt out remains of a garden, betelnut tree, pawpaw trees, even a banana tree. I make an award in the sum of K4,500.00 as reasonable damages.

(51) Jenny Arre gave affidavit evidence sworn on 28^th March 2012 and filed on 28^th March 2012. She identified her losses as being that of economic cash crops in the sum of K1, 440.00. Although the plaintiff has itemised her losses of banana trees, mustard vines, pawpaw trees and betelnut palm, there is no evidence of damaged banana trees, mustard vines, pawpaw trees and betelnut palm tree, market house and accessories and etc. I am minded to make a global award as best as I can; given the lack of credible evidence to substantiate the claim she failed to provide details of her losses by presenting credible evidence to substantiate her losses by way of photographs of her uprooted banana trees or flower pots or plants. Furthermore, there is no evidence of a burnt out remains of a garden, or even a banana tree. I make a global award in the sum of K1,000.00as reasonable damages.

(52) Jack Gumam. He gave evidence by way of affidavit sworn on 28^th March 2012 and filed on 28^th May 2012. He identified his losses as being that of economic plants such as money banana trees in the sum of K1, 175.00. Although the plaintiff has itemised his losses of banana trees, there is no evidence of damaged banana trees to substantiate his claim. given the lack of credible evidence to substantiate the claim and or failure to provide details of his losses by presenting credible evidence to substantiate his losses by way of photographs of the uprooted banana trees; I am minded to make a global award as best as I can; Furthermore, there is no evidence of a burnt out remains of a garden, or even a banana tree. I make an award in the sum of K1,000.00 as reasonable damages.

(53) Robert Kindagl. There is no evidence by way of affidavit sworn and filed in support of any claim made by this plaintiff. I find that the plaintiff has not produced evidence to support his claim. I make no award in regard to this plaintiff.

(54) Paul Yuainde. He gave evidence by way of affidavit sworn on 19 March 2012 and filed on 28^th March 2012. He identified his losses as being that of wooden carving (artifacts) valued in K3,000.00. In considering of this claim, I find that the plaintiff has not produced evidence to confirm remnants of damaged artifact or charred remains of burnt carvings, goods which is claimed to have been lost during the raid. Given the lack of substantive evidence to prove his losses. I make a global award in the sum of K1400.00

(55) Jacob Yakapo gave evidence by way of affidavit sworn on 19 March 2012 and filed on 28 March 2012. He attested to an elaborate itemized claim of the losses, he says, he suffered as a result of the said raid. He claims for the loss of a four-bedroom ground dwelling house valued in the amount of K15,000.00, store goods valued in the total sum of K12,000.00; a variety of electrical items valued at K22,096.00; furniture and beddings valued at K2,553.00; tools and vehicle parts valued at K2,860.00; household items (utensils, cutleries etc., valued at K908.90, clothes are valued at K4,200.00 (which includes a bale of second hand clothes for sale) and an interesting value given to the loss of his Certificates and letters of reference which he values at K20,000.00 including a claim for transport costs of K400.00 for purposes of relocation. Overall, Jacob puts his total claim in the sum of K80,048.40. In considering this claim, I find that the plaintiff has not adduced or produced evidence to support his claims to any of the items which he says were destroyed during the raid. No receipts of purchase of the goods have been provided. No photographs of the damaged house, electrical goods, electronic equipment, digital equipment, furniture, car tyres, deep freezers and laptop computer and etc. The receipts and photographs are materials which are evidence of the plaintiff’s ownership and claims to owners of these items which are substantive credible evidence to prove his losses. claimed to have been lost or destroyed during the raid. Given the lack of these credible evidence, I make no award for this claim for the electrical equipment; TV and antenna, scanner, acoustic guitar, multi-system radio, welding machine, digital camera, laptop computer, deep freezer, car tyres and, eskies, mattresses and etc. Furthermore, with regard to the damages for important personal documents, again the plaintiff has not deposed to having attained a qualification for which he has been issued a Certificate of Attainment. Even if he has lost copies of his qualification, it is also prudent to produce atestimonial from the relevant educational institution to confirm such an attainment and issuance of certificate of qualification. In the absence or lack of such testimonial, I am minded to decline to make an award for such a claim. The claims are unsubstantiated and uncorroborated by independent evidence. On the other, I do note that the plaintiff has made a claim for some household items of value which includes eating utensils, cutleries and furniture etc. Again, there is a lack of substantive credible evidence produced to support the claim. However, given the approach taken in Aine Lapun v The State (supra), I accept that the claims for household items can be assessed given that the prices are not too far off, from what is offered for sale in most of the shops around the National Capital District. On that basis, I am minded to make a global award for the loss of household items lost during the said raid. I make a global award in the sum of K13,800.00 overall for this claim.

Claim for breach of human rights

165. I now deal with the first plaintiffs claim for damages for violation of constitutional rights under s 58, which provides:
     

"58. Compensation:

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

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.

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

Where the infringement was committed by a governmental body, damages may be awarded either –

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

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 not be awarded against a person who was responsible to a governmental body in respect of the action giving rise to the infringement if -

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

the action taken was genuinely believed by that person to be required by law, but the burden or proof or the belief referred to in paragraph (b) is on the party alleging it."

166. The award of exemplary damages in respect of the infringement of a constitutional right in appropriate cases is discretionary as held in James Koimo v The State [1995] PNGLR 535, Injia J (as he was then) states:
     

"Exemplary damages" is not defined by the Constitution. Generally speaking, exemplary damages are awarded to punish the offender. In this case, a policeman is a servant of the government or the State, and the State is vicariously liable for the wrongful actions of a policeman, whether deliberate or otherwise: PNG v Kofowei [1987] PNGLR 5. Subsections (2) and (4) b) are founded on the principle of vicarious liability of the State for the actions of its servants. There is no doubt that whilst a punitive award against the State may not have the desired punitive effect immediately, it will certainly, in principle, show the Court's disapproval and the public's indignation of the oppressive actions of its servants and agents and require the State to take appropriate action to rectify the situation. It will also adversely affect the reputation of the State.

...

There is one other important related matter. There is no provision in Constitution ss 58 or 57 relating to the practice and procedure related to the onus and standard of proof of the infringement, the defences which are available to the defendant, and the standard of proof of that defence. Except for the defence of genuine faith in s 58 (5), which is only available to an individual person who committed the infringement under s 58 (4) (a)”

167. Given that no provision is provided for under s 58 and 57 of the Constitution relating to the practice and procedure relating to the onus and standard of proof of the infringement. The defence of “genuine faith in s 58 (5) is only available to an individual person who committed the infringement, Further, given the defence of which is available to the State, defendant, The decision to award damages for breaches of Constitutional rights is a discretionary one and should be exercised at the discretion of the Court. Where the circumstances of a case warrant an award of damages for breaches of the plaintiffs’ Constitutional rights, damages may be awarded independently from general damages, regardless of whether it is sought in addition to the other reliefs or by way of enforcement under sections 57 and 58 of the Constitution (see James Gunambo v Sergeant Thomas John Upaiga (supra).
     
168. In this case, the first plaintiffs have pleaded breaches of their constitutional rights however the pleadings however failed to plead s 57 and 58 of the Constitution relating to enforcement and compensation. However, I note that in James Koimo v The State(supra); James Gunambo v Sergeant Thomas John Upaiga (supra), an award of exemplary damages for breaches of constitutional rights is discretionary. In this present case, I find that there is overwhelming evidence of clear breaches of the plaintiffs’ fundamental human rights, more particularly where there is ample evidence of the raid in the daily, which publications of the raid in the daily papers. Further, the defendants do not deny that a raid took place. Consequently, the evidence clearly show that Plaintiffs constitutional rights were breached during the raid. plaintiffs’ freedom from arbitrary search and entry, right to privacy, protection from unjust deprivation of property and freedom from inhuman treatment were breached without justification or lawful excuse and that warrant award of compensation to the Plaintiffs as they were also subjected to threats, harassment and intimidation. I consider it fair that they be compensated for breaches of s 37, 42, 44, 49 and 55 of their Constitutional rights. The plaintiffs submitted that Sections 57 and 58 of the Constitution provide forenforcement of human rights and an award of compensation for breach of constitutional rights be awarded for each of the 55 first plaintiffs.
     
169. The first plaintiffs say that their human rights, entrenched by various provisions of Division III.3 (basic rights) of the Constitution, were infringed in three ways:
     
     • (a) Firstly, they say that they each and severally have a right to be treated humanely and not be subjected to torture or to cruel or otherwise inhuman treatment. This right is conferred by Section 36(1) (freedom from inhuman treatment), which states:
       

“36 (1) - No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person”

(b) Secondly, they also say that they are entitled to the full protection of the law under Section 37(1) and to be treated with humanity under Section 37 (17) of the Constitution which states:

“37 (1) - Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences”

(c) Section 37(17) (protection of the law) states:

“37 (17) - All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”.

(d) Protection against proscribed acts

“Section 41 of the Constitution states:

(1) Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case—

(a) is harsh or oppressive; or

(b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or

(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act.

(2) The burden of showing that Subsection (1)(a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.

(3) Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.

170. Essentially, the plaintiffs say that Section 41 proscribes (i.e. prohibits) and gives protection against seven sorts of acts (Petrus and Gawi v Telikom PNG Ltd (2008) N3373; Joe Kape Meta v Kumono, Kulunio & The State (2012) N4958). Even if done under a valid law and notwithstanding anything to the contrary in any law, an act is unlawful if it is, in the particular case:
     
     • (a) harsh; or
     • (b) oppressive; or
     • (c) not warranted by the requirements of the particular circumstances; or
     • (d) disproportionate to the requirements of the particular circumstances; or
     • (e) not warranted by the requirements of the particular case; or
     • (f) disproportionate to the requirements of the particular case; or
     • (g) otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.
       
171. Under Section 41(2) the burden of showing that another person has committed an act falling within one of the seven categories of acts proscribed by Section 41(1) is on the party alleging it. The plaintiff here say that they have discharged that burden in relation to all seven categories of proscribed acts. In that they have established that they have a cause of action under Section 57(1) of the Constitution for breach of the human rights conferred on him by Sections 36(1), 37(1) and 41(1) of the Constitution and are therefore entitled to compensation under s 58 of the Constitution.
     
172. The entitlement to the full protection of the law is a guaranteed protection and therefore it is expected that every citizen and non-citizen alike are entitled to the full protection of the law. No one should be subjected to any form of torture (physically or mentally). Likewise, not even any form of cruel treatment. Everyone should be treated humanely as far as possible consistent with respect due to the inherent dignity of a human person (s 36(1) and 37 (17) of the Constitution. This Court has inherent jurisdiction to enforce those guaranteed rights and freedoms and to make awards pursuant to sections 57 and 58 of the Constitution.
     
173. The plaintiffs say that there is overwhelming evidence that the defendants’ actions and or omission had led to the destruction of their homes, food gardens, stolen their cash, killed their domesticated livestock and breaches of their personal liberty and rights. Details of their losses are clearly set out in Schedule 2 of the pleadings in the Statement of Claim and reference is made to this schedule in their affidavits marked as Exhibits 1 to 54 tendered into evidence by consent. The first plaintiffs say that they are entitled to reasonable privacy in respect of their private life and entitled to the quiet use and enjoyment of their land, house and properties. The destruction of houses and personal items, damages caused to their food crops and other personal items including electrical tools and goods amounts to an unjust deprivation of personal and real property (s 41, Constitution), They say also that the entry into the plaintiffs’ premises, land and property was also contrary to the Search Act and in breach of the Constitution, (s 41) in that the general protection of the law was not accorded to the plaintiffs. The plaintiffs were treated inhumanely. (s 37 (17) of the Constitution. Given these breaches, they say that an award of a sum of K5,000.00 each for the 55 first plaintiffs is reasonable amount to be awarded for breaches of constitutional rights.
     
174. I reject the argument that an award of K5,000.00 each is reasonable damages to be in favour of the 55 first plaintiffs. I say this because I am of the view that although the police raid itself amounts to breach of constitutional rights of the first plaintiffs, the consequence of which are as detailed in the plaintiff’s affidavits of suffering some damages, an award for damages will be determined according to the facts and evidence presented before the Court. Firstly, to determine what is a reasonable amount of compensation to be awarded, I will be guided by past awards and will make a determination accordingly. Secondly, I will also take into consideration, the nature of the police operation and the circumstances leading to the raid to arrive at a determination.
     
175. In Namuesh v. State [1996] PNGLR 211, an award of K1,000.00 was made for breach of s. 44 of the Constitution when policemen entered the plaintiff’s premises at night without a search warrant and were not in “hot pursuit”.
     
176. In Salamon & Ors v. State [1994] PNGLR 265, Woods J. considered constitutional breach together with the issue of exemplary damages and awarded a global sum of K2,000.00 each “for those persons who had houses destroyed or looted”. For two of the plaintiffs, Woods, J. went further and awarded K4,000.00 each because they were allegedly assaulted and falsely imprisoned.
     
177. In Peter Kamane & 66 Ors v. Police & State – WS No. 233 of 1994 (unreported). Kapi DCJ (as he then was) awarded K2,000.00 per plaintiff for breach of Constitutional rights by consent of the parties.
     
178. In Kim Pai v State (2002) N2207 in circumstances of police raid where one house was burnt, trade stores and other properties including residential houses were looted and damaged, and livestock including pigs and poultry were killed, Jalina, J. awarded K2,500.00 for each plaintiff for breach of constitutional rights.
     
179. Recent judgments on award for breaches of constitutional rights have increased significantly, for a variety of reasons. However, as the decision to award damages for breaches of Constitutional rights is a discretionary one, it should be exercised at the discretion of the Court. Where the circumstances of a case warrant an award of damages for breaches of the plaintiffs’ Constitutional rights, damages may be awarded independently from general damages, regardless of whether it is sought in addition to the other reliefs or by way of enforcement under sections 57 and 58 of the Constitution.
     
180. In this case, the first plaintiffs have pleaded breaches of constitutional rights under s 42 (Liberty of person); s 37 (Protection of the law); s 44, Freedom from arbitrary search and entry); s 49 (Right to privacy); s 53 (Protection from unjust deprivation of property), s 55 (Equality of citizen). Section 57 (Enforcement of guaranteed rights and freedoms); and Section 58 to claim (Compensation) for such breaches under s 58 were not pleaded. However, I note that the plaintiffs have covered this oversight in their submission.
     
181. Even then, every citizen and non-citizen alike are entitled to the full protection of the law. In normal circumstances, nobody must be subjected to torture physically or mentally and should not be even subjected to any form of cruelty or ill-treatment or inhuman treatment, actions which are inconsistent with regard to the inherent dignity of a human person (s 36(1) and 37 (1) & (17) of the Constitution. This Court has jurisdiction to enforce those guaranteed rights and freedoms and to make awards pursuant to sections 57 and 58 of the Constitution. In this case, there is evidence of breaches of the plaintiffs’ fundamental human rights which I have alluded to above. They have pleaded them specifically in the statement of claim (see paragraph 23.5 of the statement of claim. It is therefore, only fair that they be compensated for breaches of their Constitutional rights.
     
182. In assessing damages, I will adopt the principle applied in the case of Namuesh v. State (supra) and make an award in the sum of K1,000.00 each for the 55 first plaintiffs for breach of Constitutional rights.
     

Punitive/Exemplary Damages

183. The first plaintiffs have also made a claim for exemplary damages in the sum of K5,000 each; for the 55 first plaintiff.
     
184. It is settled law that an award for exemplary damages provides a deterrent against similar conduct by others (see Alex Latham & Kathleen Latham v Henry Peni (1990) N4163; James Koimo v The State [1995] PNGLR 535; Abel Tomba v The State [1997] SC 518; Kenneth Bromley v Finance Pacific Ltd (2001) N2097; George Kala v Joseph Kupo (2009) N3677).
     
185. The general rule is that where there has been a breach of rights so severe, exemplary damages are awarded to punish or deter or demonstrate the court’s or community’s stern disapproval of wrongs committed by Defendants in the course of their duties.
     
186. In the Deukari case, Cannings J discussed the courts’ reluctance in awarding exemplary damages after the Supreme Court case of Abel Tomba (supra) and went on to discuss the aforementioned two categories. Those categories are: (1) whether the breach of the law by such members is a technical breach? (2) Whether it involves a significant and unwarranted departure from the proper exercise of lawful powers e.g. where a Police Force or Defence Force operation is unauthorized and individual members of the Force are not named as defendants.
     
187. I am of the view that the present case falls under the first category as it appears that the raid was sanctioned or authorized by the police hierarchy for purposes of apprehending suspects involved in the killing of two men during an altercation on the night of 16 June 2009. These directions were also published in the daily papers as confirmed in Annexure “A”, “B”and “C” of all the first plaintiffs’ affidavits marked as Exhibit 1 to 54 in the Court file.
     
188. In the assessment of damages, I adopt the principle enunciated in the case of Kua v Patiken [2010] N4103) which states that “punitive damages is a special category of damages which are awarded for the purpose, not of compensating a plaintiff, but of punishing a defendant- the wrong doer – for a particular egregious or wilfully wrongful act, as distinct from a less severe form of wrongful conduct attaching the negligence to the injuries, otherwise, the claim for exemplary damages really has no basis.
     
189. In essence, I adopt the principles established in the case of Toglai Apa v. The State [1995] PNGLR 43, a judgment by Sheehan J. in which his Honour said exemplary damages or awarding of the exemplary damages are punitive in nature and they should be awarded to punish the actual wrongdoer, which in this case were the policemen and deceased’s relatives who conducted the unauthorized raids on the villages. This principle was followed by Amet, J (as he then was) in Dambe v. Peri [1993] PNGLR 4. His Honour Amet J was more direct on the point and said the State should not be held liable for the unlawful actions of a police officer.
     
190. I am of the view that the alleged raid was not a deliberate and or egregious or wilfully wrongful act. It was a search conducted for purposes of apprehending murder suspects. Members of the communities were not reluctant in giving their assistance to members of the police in performing their constitutional functions and things got out a little bit out of hand, such an incident is a distinct less severe form of wrongful conduct. It could even be termed a “technical breach” if I am allowed to say (see Nathan Kandakasi v The State (2017) N6601). Because there can arise situations and circumstances where State agents and or servants such as the members of the police are allowed to use reasonable force for purposes of performing their constitutional duties in maintaining law and order.
     
191. In addition, to make an award for exemplary damages would be counter to the prohibition provided for under s 12 (1) of the Claims Act which provision prohibits exemplary damages being awarded against the State unless it appears to the Court that, regardless of the nature of the claim, there has been a breach of constitutional rights so severe or continuous as to warrant an award of exemplary damages. To my view, this accident is not a breach of constitutional rights so severe or continuous.
     
192. It has often been said that justice is a two edged sworn that cuts both ways. In this regard, I will borrow the words of some of my colleague Judges in expressing their respective sentiments on the term “ Justice is a two-edge sword” in the case of Jacky Anton v The State (2018) N7158, Kopu Saroa v The State (2018) N7185 his Honour Kaumi A.J (as he then was) in his deliberation of an application by the accused for Bail, his Honour stated:
     

“Justice as they say is a double-edged sword meaning it cuts both ways, so whilst the system may have failed him for reasons beyond its control it may be equally asked of him, what you have done to secure an early trial date. The days of casting the responsibility of ensuring an early trial date for a remandee solely on the court should be a thing of the past as all stakeholders in the administration of justice should diligently work together in ensuring justice is not only done but is seen to be done”

193. In the case of The State v Lydia Sinuga (2012) N5611), his Honour Toliken A.J (as he then was) in his discussion on the question of compensation and the term “Justice is a double-edged sword” stated:
     

“It has often been said that justice is a two edged sworn that cuts both ways.

That is only true when the victim is a mere complainant whose interest in a criminal prosecution disappears as soon as the wheel of criminal justice starts rolling.

So, as I see it, criminal justice in the Melanesian context is not a two-edged sword but a three-edged one that must cut three ways – justice for the State, for the accused and for the victim. And, that I think is the whole rational behind such legislation like the Criminal Law (Compensation) Act 1991 which empowers the courts to order compensation for victims of crimes so that they can at least feel that justice is being done for them personally too. So, you must be prepared to pay compensation to the extent that honest effort and means by you can allow”. (Underling mine)

194. In Powes Parkop v Wari Vele (No 3) (2007) N3322), his Honour Kirriwom J in his deliberation of the Election Petition involving a case of bribery filed by Powes Parkop against Wari Vele, his Honour stated:
     

“Justice is a two-edged sword and one who seeks justice must also do justice to others”

195. Overall, Justice cannot be achieved without collaboration of members of the public. Sometimes, constitutional rights may be impinged to the extent that honest effort and means have been undertaken by police officers to maintain law and order to enforce the rule of law as far as the Constitution allows.
     
196. There is some consensus that the first plaintiffs’ rights as guaranteed by the Constitution may have been breached. However, it is not wilful and or criminal to the extent as established in the case of Apa & Ors v Police & State [1995] PNGLR 43, his Honour, Sheehan J, said:
     

“The wilful destruction of citizens homes and even whole villages, without justification or lawful excuse is clearly a breach of fundamental constitutional rights. It is worse than that, it is criminal, but in any case, certainly warranting the compensation that Section 58 of the Constitution envisages.”

197. I gather from the submissions of Counsel for the defendants that the operation was authorised. In that the policemen were in pursuit of wanted suspect (s) in the double murder of two young men. The alleged offence occurred within the Gordon Ridge (5 Mile) Settlement area of the National Capital District. It occurred on or about the 16 June 2009.
     
198. The defendants do not deny that such a search and a raid took place. They say that they were within their powers to carry out the search and raid. The first plaintiffs contributed to their detriment by refusing to assist the police by providing information as to the alleged double murder and identification of persons or the names of suspects involved in the double murder.
     
199. The first and second defendant admit that in fact, all residents of the Gordon Ridge 5 Mile Settlement were requested to provide information to the police for purposes of bringing to justice the persons alleged to be involved in the double murder. No residents offered assistance with information to assist the police carry out their constitutional functions. Because of the lack of co-operation from the residents of the Gordon Ridge (5 Mile) Settlement, on the morning of the 26 of June 2009, the policemen in pursuit of carrying out a search of the area for the suspect(s) of the alleged offence. Given this failure, the plaintiffs contributed to their own detriment and this led to the first and second defendants taking actions which they took it upon themselves to apprehend the suspect(s) and perhaps the best way was to clear out the settlement area by cleaning up the settlement area by cutting down trees, plants Further, in this regard, the police officers may have pulled down structures which were in the way of their clean up exercise. In regard to determining whether the actions or omissions of the policemen involved were logical or rational; I am not at liberty to pass judgment. I am however inclined to say that whatever actions taken by members of the police on that day was a judgment that the first and second defendants formed in the course of performing their respective operational duties. The judgment as to how this operation was carried out is best left to the persons in charge of the operation. Any assumptions as to how this operation is carried would be beyond the scope of this ruling. Any decision as to operational matters are best left to the judgment of those in charge.
     
200. From the evidence, the police raid and the consequential burning and destruction of property was carried out with due regard to the plaintiffs’ constitutional rights and freedoms. The first plaintiffs were informed of the reasons for the search. The police search was for the suspects involved in the stabbing death of two men within the area. The first plaintiffs refused or failed to assist the members of the police with their investigations.
     
201. The physical presence and entry into the premises and land of the respective plaintiffs were for a lawful purpose within s 3 and 4 of the Search Act. The policemen were in “hot pursuit” of suspects involved in the killing of two young men and search was authorised by the police hierarchy.
     
202. I must also take into account policy considerations (see Abel Tomba v The State (supra) when exercising discretionary powers pertaining to award of exemplary damages. Exemplary damage is intended to punish and serves as moral retribution and deterrence for oppressive and arbitrary acts of State agencies. But at the same time, the State cannot go on spending money on paying damages and exemplary damages which are unplanned expenditures. These unplanned expenditures compete with other important obligations which concerns the welfare and interest of the majority of Papua New Guineans. Consequently, this means that the demands placed 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 (see Special Reference 1 of 1990 (1990) PNGLR 532 and in Re: Criminal Circuits In Eastern Highlands(1990) PNGLR 82). The State should not be held liable for exemplary damages which are designed to punish the actual wrongdoers (see Toglai Apa v The State[1995] PNGLR 43 and Dambe v Peri [1993] PNGLR 4)
     
203. The Court has wide powers to refuse granting any exemplary damages or grant exemplary damages against other persons whose acts may have gone beyond the powers granted under statutes, rules and directions. I therefore decline to make any award on any exemplary damages against the State.
     
204. Overall, the amount of damages awarded to each of the plaintiffs identified in the Writ of Summons who gave consent and authority to the lead plaintiff, Paul Kelly to pursue their claims are as set out in the Table 1 below as follows:
     

Table 1 – Assessed damages

Interests

205. The first plaintiffs also claim interest under section 1 of the Judicial Proceedings (Interest on Debts and Damages) Act, Ch 52 in their statement of claim. Essentially, Section 1 (4) states:
     

“Subject to section 2, in proceedings in a Court for the recovery of a debt or damages the Court may order that there be included in the sum for which judgment is given interest, at such rate as it thinks proper, 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.

206. Where the proceedings referred to in subsection (1) are taken against the State, the rate of any interest under that subsection shall not exceed 2% yearly.”
     
207. Awarding of interest is discretionary and its main purpose is to compensate the plaintiff for being kept out of the money. In this case, I feel compelled to award it because the plaintiffs have been kept out of the money since 14 July 2009, a period of more than 10 years which is a very long time. However, I also note that the delay is not entirely to be placed on the defendants’ shoulders. It is the plaintiffs’ case and they should have prosecuted their interest with due dispatch.
     
208. The discretion in this case can be exercised in four ways (see Cheong Supermarket Pty Ltd v Perry Muro [1987] PNGLR 24) and these are: (i) whether to grant interest at all; (ii) to fix the rate; (iii) to grant interest on the whole or part of the debt or damages for which judgment has been given; and (iv) to fix the period for which interest will run. In this present case, in the exercise of discretion; an award of interest at 2% from the date of this decision to the date of settlement is awarded in favour of the plaintiffs.
     

Costs of the Proceedings

209. In Kunnga v The State [2005] N2864, Wandi Dope v Constable Michael Malai (2012) N4574 Cannings J stated the general rule on awarding of costs:
     

“The general rule is that cost follow the event, i.e. the successful part had its costs paid for by the losing party on a part-party basis. The question of costs is a discretionary matter. There are no special circumstances in this case that warrant departure from the emerald rule.”

210. Consequently, the plaintiffs shall have their costs of these proceedings to be paid by the third defendant on a part-party basis to be taxed if not agreed.
     

Order of the Court

211. Judgment is entered for the plaintiffs payable by the third defendant in the following terms:
     

(1) A sum of K185,410.00 being assessed damages for the first plaintiffs (whose details are set out in Table 1 of this judgment.

(2) A sum of K1,000.00 each is awarded for breaches of constitutional rights in favour of each of the 55 first plaintiffs (whose details are set out in Table 1 of this judgment; the total sum being an amount of K55,000.00.

(3) Interest at 2% to be calculated on the total sum of K241,010.00 which runs from the date of this decision to the date of settlement.

(4) Costs granted in favour of the plaintiffs on a party-party basis to be taxed if not otherwise agreed.

Judgment accordingly.
________________________________________________________________
Gagma Lawyers: Lawyers for the Plaintiffs
Solicitor General: Lawyers for the Third Defendant