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Lagapu v Independent State of Papua New Guinea [2020] PGNC 279; N8615 (23 October 2020)

N8615

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1259 OF 2004

BETWEEN:
JONAH LAGAPU & 20 OTHERS
Plaintiff

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Defendant

AND:
INSPECTOR TIMOTHY POMOSO
Second Defendant

Wabag: Makail J
2020: 13^th, 14^th, 20^th & 23^rd October

LIABILITY – Tort – Class action against Police –Trespass – Destruction of property during raid – Identification of members of Police as tortfeasors –Proof of – Liability not established

EVIDENCE – Use of affidavits – Affidavits too general and vague Ambiguous – Omission of crucial information about time of alleged raid in evidence in chief – Adverse inference open to draw – Adverse to credibility of –witnesses’ evidence

Cases cited:

Nil

Counsel:

Mr. P. Kopunye, for the Plaintiffs
Ms. N. Balen, for the First Defendants

JUDGMENT

23^rd October, 2020

1. MAKAIL J: By a Writ of Summons filed on 20^th September 2004, the Plaintiffs sued the Defendants in a class action for damages for and trespass. It is alleged that the Second Defendant and members of the Police destroyed the Plaintiffs’ properties during an illegal raid at Ainumanda village of Wapenamanda District of Enga Province on 11^th March 2004.

2. The Defendants denied the allegation. The Plaintiffs tendered twenty affidavits and five of the deponents were cross-examined by Defence counsel. The Defendants tendered three affidavits and the deponents were cross-examined by Plaintiffs’ counsel.

3. The issue is one of identification of members of the Police as tortfeasors and being responsible for conducting the raid. The contents of the Plaintiffs’ affidavits in relation to identification of the members of the Police led by the Second Defendant are identical. For example, exhibit “P1” which is the affidavit of Taloko Lyakin filed on 15^th March 2009 is identical to affidavits marked exhibits “P2” “P21”. As to exhibit “P1” after introducing himself as one of the Plaintiffs from Ainumanda village, not involved with his tribesmen in the tribal fights at Rakamanda village, and members of the Police had mistakenly and unlawfully raided his village at paragraphs 1 to 4 of his affidavit, Taloko Lyakin asserted at paragraph 5 that:

“My claim and the other Plaintiffs’ claim against the State is based on the illegal Police Raid or search conducted at our Ainumanda village, Wabag in the Enga Province by the members of the Papua New Guinea Royal Constabulary.”

4. He went on to assert at paragraphs 6 and 7 of his affidavit that:

“6. The Policemen in charge of the operation and authorised the illegal operation is Inspector Timothy Pomoso.”

“7. I enquired with the Police Station at Wabag and I am informed that Inspector Timothy Pomoso had been suspended from the Police as a result of authorising this particular illegal raid.”

5. At paragraph 8, he gave a long history of the case and why he thinks was the reason members of the Police led by the Second Defendant raided his village. It was to do with a member of the Police by the name of Constable Mokoso Aii Maliso dating a girl called Betty Pelen from Rakamanda village. While he was sleeping with this girl, someone from the village stole the firearm described as a M16 which was with Constable Mokoso at that time. As a result, members of the Police led by the Second Defendant raided Rakamanda village and Ainumanda village.

6. These sorts of statements are too general and vague. They do not identify the members of the Police, how many of them, what they were wearing and carrying when they entered the village. Then, what each of them did and what time of the day or night they raided the village. An ambiguous statement is unreliable and the Court will not use to make appropriate findings of fact.

7. The statement at paragraph 7 is vague because the identity of the member of Police at Wabag Police Station who gave him the information in relation to the suspension of the Second Defendant has not been disclosed. More weight can be given if the member who gave that information gave evidence at trial. In addition, the date and time are missing. Furthermore, paragraph 11(e) does not improve and clarify the ambiguity in the statements in relation to identification - of the members of Police and the Second Defendant. The Plaintiff asserted that:

“ The method of the search were by issuing threats of assault against us the Plaintiffs in firing shotgun into the air and against us the Plaintiffs, followed by indiscriminate burning down of houses, destroying of properties, killing of life (sic) stocks and taking of valuable possessions and items and general destruction of our properties.”

8. This statement can be best described as a general report with no personal connection to this Plaintiff. It is so foreign to the Plaintiff because the Plaintiff does not say if he was assaulted by one or a group of members of the Police, if he saw one or a group of members of Police set fire to his house and/or looted his personal items including killing of his live stock.

9. Without identifying the members of the Police, he went on to provide a list of items which he asserted were either destroyed or looted by the members of the Police and two photographs of a location where he claimed was the remains and location of his house. See annexures “A” and “B” for the list of items and photographs.

10. Just on the content of this affidavit alone, the Plaintiff has failed to establish that members of the Police led by the Second Defendant raided his village and destroyed and looted his house and personal items. The same is true for the rest of the Plaintiffs.

11. However, the Defence counsel decided to cross-examine five out of the twenty Plaintiffs. One of them is Wapui Tanda. His affidavit which was marked exhibit “P2” and is identical to exhibits “P1”, “P3” to “P21”.

12. As to what came out of cross-examination, I find Wapui Tanda unimpressive, demeanour wise. He did not answer simple questions like if he did not see the Second Defendant at that time. His response was that he saw Policemen. He did not say how far he was and saw them and how many of them. When it was put to him that there was a big fight between his village and a neighbouring enemy tribe, he blamed two other tribes on the other side of the Lai River for the fight. And one of them was responsible for stealing the firearm. Significantly, it was the questioning by Defence counsel that this witness and the other four witnesses Top Yaman, Timothy Teao, Kolkai Sia and Yandari Kakale who revealed that the raid occurred between 2 and 3 o’clock in the early hours of the morning. To me this explains why they were unable to identify the members of the Police. At the very least, on this kind of information, I cannot be certain if members of the Police were involved. They said they heard gun shots. The gun shots could have been fired by anyone. The time between 2 and 3 in the early hours of the morning was crucial piece of information which should have been included in each of the Plaintiff’s affidavit as evidence in chief. To my mind, its omission is fatal and adverse to the credibility of the evidence of each Plaintiff.

13. The Plaintiffs attempted to remedy the omission of this information in the supplementary affidavits of Jonah Lagapu (exhibit “P22”), Timothy Teo (exhibit “P23”) Kolkai Sa (exhibit “P24”), Wapui Tanda (exhibit “P25”) and Kandao Tokao (exhibit “P26”) by asserting at paragraph 12 of each affidavit that,

“ Also the Police came in the early hours at the morning at around 2:00 am and we villagers were forced out of our houses and they conducted the raid up until 12:00 the next day.”

14. It is really an attempt to improve their case but the adverse inference to be drawn against their evidence has been established well before seeing the defence witnesses’ affidavits. If the person suspected of stealing the firearm was Jeff Tanda, why didn’t the Plaintiffs identify him as the suspect in their affidavits by way of evidence in chief. It was during cross-examination that Napiu Yanda and others revealed this information. I am not sure why they did not disclose this information at the outset but whatever the reason, its omission is another reason to question the credibility of their version of events and claim of a Police raid. All up, the Plaintiffs’ evidence can be best described as flimsy and sketchy.

15. The onus of proof on the civil standard of on the balance of probabilities is on the Plaintiffs to discharge. Where their evidence is too general, vague and ambiguous, compounded by lack of full and frank disclosure of material facts in evidence in chief, and unimpressive demeanour of witness for being evasive, I am not satisfied that the Plaintiffs have discharged the onus of proof in establishing that members of the Police led by the Second Defendant conducted a raid at Ainumanda village on 11^th March 2004.

16. The Defence case comprised of three witnesses whose affidavits were tendered and marked exhibits “D1”, “D2” and “D3”. These witnesses were First Constable Wombun Ipong, Senior Constable Fusa Areke and Sergeant Peter Saar. They were cross-examined.

17. One common theme I note from their affidavits is that the members of the Police led by the Second Defendant including these three witnesses went to Ainumanda village at around 9 o’clock in the morning after departing from the base camp at Rakamanda village at about 7 o’clock that morning. They brought with them the suspect Jeff Tanda to recover the stolen firearm but could not find it. They returned. Their account is in direct opposite to the account given by the Plaintiffs.

18. While the Plaintiffs’ counsel submitted that their account should not be believed because they were evasive and gave unsatisfactory response to questions during cross-examination in relation to their involvement in the raid such as “I do not know, I have no idea or I cannot tell,” it is equally true that if they were not involved in the raid or conducted the raid, they would respond in that fashion.

19. Their account is consistent with logic and common sense. No one would be risking his life to enter a village like Ainumanda between 2 and 3 o’clock in the early hours of the morning by foot and raid it. The undisputed evidence from these three witnesses is that, they had to track by foot, cross a foot-bridge and then track up-hill to reach the village. I accept Sergeant Peter Saar’s explanation that, given the access route to Ainumanda , it would be illogical and absurd for a Police contingent to track up to Ainumanda in the early hours of the morning in total darkness and cold conditions.

20. Finally, if the Plaintiffs’ account is to be accepted that, the members of the Police led by the Second Defendant raided Ainumanda village between 2 and 3 o’clock in the morning, it is not clear from the Plaintiffs’ affidavits or their response in cross-examination when the Policemen stopped and retreated from the village. This is crucial because the time with some clarity and certainty as to identification would be around 9 o’clock in the morning where visibility would be perfect. This timing will be consistent with the three witnesses’ evidence for the Defence that they arrived at Ainumanda at around 9 o’clock in the morning.

21. For the foregoing reasons, I am not satisfied that the Plaintiffs have proven on the balance of probabilities that the Second Defendant and members of the Police conducted a raid at Ainumanda village on 11^th March 2004. Liability has not been established for damages to be assessed and the proceedings is dismissed with costs, to be taxed, if not agreed.

Judgment and orders, accordingly.
______________________________________________________________
Kopunye Lawyers: Lawyers for the Plaintiffs
T. Tanuvasa, Solicitor General: Lawyers for the Defendants