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Tandoa v Toropo [2022] PGNC 3; N9383 (7 January 2022)

N9383

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 190 OF 2019

GEORGE TANDOA ON BEHALF OF HIMSELF AND 14 OTHERS
Plaintiffs

V

COMMANDER GILBERT TOROPO,
COMMANDER, PAPUA NEW GUINEA DEFENCE FORCE
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Cannings J
2021: 2^nd, 22^nd, 29^th December
2022: 7^th January

DAMAGES – negligence – breach of human rights – raid by Defence Force members of a village – property damage – assault – Defence Force members on call-out to provide assistance to civilian authorities in restoration of public order – assessment of damages after entry of default judgment against Commander of Defence Force and the State – vicarious liability of the State for wrongful actions of Defence Force members

The plaintiffs sued the Commander of the Defence Force (first defendant) and the State (second defendant) in connection with a raid of their village and destruction of their homes, gardens and other properties by members of the Defence Force who were on a tour of duty in the local area as part of a Defence Force operation as a call-out to provide assistance to civilian authorities in restoration of public order. The causes of action pleaded in their statement of claim were negligence and breaches of human rights. Judgment was entered against the defendants under O 9, r 25(1)(b) of the National Court Rules after their defences were struck out due to failure to comply with a court order requiring them to answer interrogatories. At the trial on assessment of damages, 15 plaintiffs gave evidence and sought damages in four categories: (a) loss and damage to properties, various amounts totalling K336,238.00; (b) breach of constitutional rights, K2,000.00 or K5,000.00 each; (c) general damages for anguish, mental distress and general hardship, K5,000.00 or K10,000.00 each; and (d) exemplary damages, K2,000.00 or K5,000.00 each. In response, the defendants adduced no evidence, but argued that the question of liability ought to be revisited and that the Court should order that the State is not vicariously liable for the wrongful actions of the members of the Defence Force who took part in the raid, as the vicarious liability of the State was not pleaded in accordance with the provisions of the Wrongs (Miscellaneous Provisions) Act in the statement of claim.

Held:

(1) A judgment entered against a defendant pursuant to O 9, r 25(1)(b) of the National Court Rules is akin to a default judgment and, if an argument is raised that it should be revisited, ought to be governed by the same principles viz: though a judge assessing damages following entry of default judgment may revisit the question of liability, the discretion to do so must be exercised sparingly. The presumption arises on entry of judgment that it resolves all questions of liability on matters pleaded in the statement of claim. The judge assessing damages should make only a cursory inquiry to be satisfied that the facts and the cause of action are pleaded with sufficient clarity. If so, liability should be regarded as proven. Only if the facts or 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 (William Mel v Coleman Pakalia (2005) SC990 applied).

(2) A cursory inquiry of the facts and causes of action pleaded revealed them to be pleaded with sufficient clarity. The vicarious liability of the State for wrongful acts of members of the Defence Force was adequately pleaded. Assessment of damages would not be a futile exercise.

(3) Though there were some deficiencies in the plaintiffs’ evidence, there was no evidence brought by the State, and no submission, to contest the fundamental allegation that a raid of the plaintiffs’ village took place, unsupported by the order of any Court, in the manner alleged, involving destruction of property, fear and distress, conducted by persons who were members of the Defence Force on an officially sanctioned tour of duty, as a call-out in aid of the civil power.

(4) Damages were awarded to each plaintiff who gave evidence in the following amounts: (a) loss and damage to properties, various amounts, assessed at 50% of each claim, totalling K168,117.00; (b) breach of constitutional rights, K5,000.00 each; (c) general damages for anguish, mental distress and general hardship, K10,000.00 each; and (d) exemplary damages, K5,000.00 each, a grand total of damages of K468,119.00. In addition each plaintiff was awarded interest on the amount of damages awarded to them, at the rate of 2% per annum, for the period from the date of the incident, 8 December 2018, to the date of judgment, a period of 3.08 years, a total of K28,836.13. The total judgment sum was K496,955.13.

Cases Cited

The following cases are cited in the judgment:

Albert Baine v The State (1995) N1335
Alphonse Willie v Simon Kaupa (2016) N6553
Andale More and Manis Andale v Henry Tokam and The State (1997) N1645
Anuta Jobou v Alfred Kumasi and The State (2012) N4607
Eton Pakui v The State (2006) N2977
Francis Fuliva v Inspector Tony Wagambie Junior (2013) N5221
Joe Tipaiza v James Yali (2008) N3472
Jonathan Mangope Paraia v The State (1995) N1343
Justin Bau v Paul Karl (2010) N4123
Kamuri v Pomoso (2021) SC2071
Kolaip Palapi v Sergeant Poko (2001) N2274
Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331
Latham v Henry [1997] PNGLR 435
Peter Kuriti v The State [1994] PNGLR 262
Peter Wanis v Fred Sikiot and The State (1995) N1350
Philip Nare v The State (2017) SC1584
Pinda v Inguba (2012) SC1181
Thompson Munvi v Arnold Ulka Takai & The State (2018) N7100
William Mel v Coleman Pakalia (2005) SC790
Yange Lagan v The State (1995) N1369
Yooken Paklin v The State (2001) N2212

Counsel

J Nandape, for the Plaintiffs
N Aiwara, for the Defendants

7^th January, 2022
1. CANNINGS J: This is an assessment of damages following entry of judgment against the Commander of the Defence Force (first defendant) and the State (second defendant).

2. The 15 plaintiffs are residents of Mers and Waa villages, Southern Highlands Province. They commenced proceedings against the defendants by writ of summons, claiming damages for negligence and breaches of human rights committed by members of the Defence Force in a raid of their villages on the morning of Saturday 8 December 2018. They alleged that members of the Defence Force, who were on a tour of duty in the province as a call-out to provide assistance to civilian authorities in restoration of public order, destroyed their homes, gardens and other properties. They alleged that the Defence Force members raided the villages in response to a fight the previous day on the highway to Mendi between some members of the Defence Force and some village youths.

3. Judgment was entered against the defendants under O 9, r 25(1)(b) of the National Court Rules after their defences were struck out due to their failure to comply with a court order requiring them to give answers to interrogatories.

PLAINTIFFS’ CLAIMS AND DEFENDANTS’ RESPONSE

4. The plaintiffs seek damages in four categories:

(a) loss and damage to properties, various amounts totalling K336,238.00;

(b) breach of constitutional rights, K2,000.00 or K5,000.00 each;

(c) general damages for anguish, mental distress and general hardship, K5,000.00 or K10,000.00 each; and

(d) exemplary damages, K2,000.00 or K5,000.00 each.

The total amount of the plaintiffs’ claims is approximately K600,000.00.

5. In response, the defendants adduced no evidence, but argued that the question of liability ought to be revisited and the Court should order that the State is not vicariously liable for the wrongful actions of the members of the Defence Force who took part in the raid, as the vicarious liability of the State was not pleaded in accordance with the provisions of the Wrongs (Miscellaneous Provisions) Act in the statement of claim.

EVIDENCE

6. The plaintiffs’ case consisted of affidavits sworn by each of the 15 plaintiffs, each affidavit deposing to what the Defence Force members had done and the property damage the deponent had incurred and/or witnessed. The defendants adduced no evidence.

STATUS OF JUDGMENT

7. There was no trial in this case. Judgment was entered by the summary procedure available under O 9, r 25(1)(b) of the National Court Rules, which provides:

Where a party makes default in compliance with an order under Rule 21 or 24 to file or serve a statement or affidavit, the Court may make such order as it thinks fit, including ... if the proceedings were commenced by writ of summons and the party in default is a defendant—an order that his defence be struck out and that judgment be entered accordingly.

8. On 21 September 2021 the Court ordered the defendants, following a notice of motion filed by the plaintiffs on 9 September 2021, to file within 14 days and serve a statement under O 9, r 21, in accordance with O 9, r 22, in answer to interrogatories filed by the plaintiffs on 12 August 2021. The defendants failed to comply with that order. On 3 November 2021 it was ordered, following a notice of motion filed by the plaintiffs on 14 October 2021, at a contested hearing:

Pursuant to O 9, r 25(1)(b) of the National Court Rules, the first and second defendants’ defence filed 11 September 2019 is struck out and judgment on liability is entered in favour of the plaintiffs as pleaded in the statement of claim.

9. Though it is not a default judgment, entered under Division 12.3 of the National Court Rules, it is a judgment on liability entered in accordance with a summary procedure provided by the Rules. It is akin to a default judgment. As an argument has been raised that it should be revisited, the judgment ought to be governed by the same principles applying to attempts to revisit liability determined by default judgment. The principles are set out in the leading case, William Mel v Coleman Pakalia (2005) SC790. The role of the judge assessing damages after entry of default judgment is:

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

10. I have made a cursory inquiry of the facts and the causes of action pleaded in the statement of claim. The allegations of fact are quite clear. The causes of action pleaded – (a) the tort of negligence and (b) breaches of human rights under s 36(1) (freedom from inhuman treatment), s 44 (freedom from arbitrary search and entry), s 49 (right to privacy) and s 53(1) (protection from unjust deprivation of property) of the Constitution – are quite clear. Assessment of damages would not be a futile exercise.

11. The defendants appear to agree with all that. The factual allegations are not denied. A village raid involving burning down of houses and destruction of property actually occurred in the manner alleged by the plaintiffs. It is not denied that the plaintiffs were victims of negligence and human rights violations committed by members of the Defence Force.

12. What the defendants are really concerned about is the entry of liability against the State. They want the judgment revisited so that it can be corrected. They want the part of the judgment making the State vicariously liable for what happened to the plaintiffs to be removed or set aside. If that sounds a bit waffly, don’t blame me. There is no notice of motion or written application before me to enable me to precisely ascertain what orders the defendants, in particular the second defendant, want me to make. But it is clear enough that the argument is that the State should be absolved of vicarious liability.

13. Why? A defect in the pleading. The statement of claim is said not to meet the requirements for pleading vicarious liability against the State in accordance with s 1 of the Wrongs (Miscellaneous Provisions) Act. Reliance is placed on the decisions of the Supreme Court in Pinda v Inguba (2012) SC1181, Kisa v Talok (2017) SC1650 and Kamuri v Pomoso (2021) SC2071 to argue that the statement of claim ought to have pleaded that:

• the members of the Defence Force committed the tort of negligence during the course and within the scope of their employment; and
  
• the members of the Defence Force as officers of the State committed the tort of negligence while performing or purporting to perform functions conferred or imposed on them by statute or the underlying law.
  

14. I have examined the following paragraphs of the statement of claim:

1. The Principal Plaintiff is:
   
   • (a) an adult male capable of suing and being sued in his own name and style.
     
   • (b) suing on his own behalf and on behalf of 14 other adults whose names and particulars are provided in the consent and authority to act attached to this Writ.
     
   • (c) suing on behalf of the Plaintiffs who come from Waa and Mers village, Mendi in the Southern Highlands Province.
     
2. The First Defendant is the Commander of the PNG Defence Force and has the overall control and command of all soldiers employed by the PNG Defence Force and is sued in that official capacity.
   
3. The Second Defendant:
   
   • (a) is the employer of the First Defendant as well as all soldiers employed by the PNG Defence Force.
     
   • (b) was served with a notice of intention to make a claim as required by section 5 of the Claims by & Against the State Act 1996 by serving a written notice on the office of the Solicitor General on 27^th February 2019.
     
   • (c) is vicariously liable for actions and/or omissions of the First Defendant and all soldiers employed by the Defence Force pursuant to Section 1 of the Wrongs (Miscellaneous Provinces) Act, Chapter 297. [Emphasis added.]
     
4. On Friday, 7^th December 2018 between 3:00 pm and 4:00 pm, soldiers from the PNG Defence Force who were on special call out operations in the Southern Highlands Province had a fight with some youths along the main Highlands Highway leading into Mendi Town.
   
5. On Saturday 8^th December 2018 between 4:00 and 6:00 am, soldiers from the PNG Defence Force in full battle gear arrived at Waa and Mers village in seven unmarked Toyota Land Cruiser vehicles.
   
6. The soldiers were from the Bravo Company based at Taurama Barracks (IRPIR) and they appeared to be under the control and command of Major Raymond Paki and Sergeant Hohoa.
   
7. The soldiers in the course of searching for the youths they had fought with earlier on 7^th December 2018, conducted a raid at Waa village and the neighbouring Mers village and in the course of the raid, the soldiers assaulted and intimidated the villagers, burnt down several houses, broke into others and destroyed properties including crops and food gardens belonging to innocent villagers who are the Plaintiffs in this proceedings.
   
8. The Plaintiffs including other villagers were caught by surprise and ran into the bushes in fear of their safety and welfare with only the clothes on their backs.
   
9. As a result of the raid, the Plaintiffs suffered loss to their properties, crops and food gardens particulars of which are provided hereunder. ...
   

15. I agree that the pleading of vicarious liability could have been more precise. It could have, but does not, put the issue of vicarious liability of the State beyond a shadow of doubt. It rather leaves it open to challenge. But it sufficiently, albeit barely adequately, pleads vicarious liability. I am undertaking a cursory inquiry. The depth and rigour of inquiry would be greater if I were dealing with a motion, supported by affidavit. But that is not the level of inquiry warranted here.

16. If I am wrong on that point, it must be borne in mind that these requirements, emanating from the Wrongs Act, apply to pleading vicarious liability of the State for torts such as negligence. Common law torts. Not breaches of human rights enshrined in the Constitution. There cannot properly be said to be any defect in pleading vicarious liability of the State in this case, for human rights breaches committed by members of the Defence Force.

17. I decline to delve further into revisiting the question of liability because there is no notice of motion to set aside the judgment and there is no order of the Supreme Court that stays these proceedings or orders that the judgment entered on 3 November 2021 be set aside. No notice has been given to the plaintiffs that an attempt would be made to set aside the judgment they rely on. It seems rather arrogant for the State to approach the Court in this way.

18. On the other hand, I don’t blame them for trying. Too many Judges are allowing these sorts of applications – too often in my view.

19. I think all Judges must reassess how we deal with these nit-picky, technical points of law that are being allowed to be raised late and without notice and without regard to the principles of justice we are expected to uphold. We preach long and hard to people all over the country about not taking the law into their own hands. If you suffer an injustice, don’t fight, come to Court, let the Court sort it out. When the people come, we say welcome and invite them into the Court. We give them the judgment, the justice, they crave for. And then at the final part of the case when the time comes to assess damages, we get out our microscopes and try our hardest to find a way to defeat the legitimate expectations of the people we are obliged to serve. We give them injustice. We say ‘Oh there is a defect in your pleadings. Oh, you did not give notice to the State under s 5, 20 years ago.’ Sometimes we offer empty gestures like ‘It’s OK, you can sue your lawyer who messed up your pleadings’. Sometimes we say you can go after the individuals who did you wrong. Of course, those individuals have no money but good luck trying.

Let us be serious about justice. As the Supreme Court stated in Philip Nare v The State (2017) SC1584:

The primary duty of the Court is to give justice.

20. This is the National Court of Justice. There is the Supreme Court of Justice. The current plaintiffs had their villages raided by armed Defence Force personnel. Their houses were destroyed, food crops destroyed. Personal property stolen or destroyed. They were done an injustice. They want redress. They come to Court to get justice. The defendants want me to tell them ‘you can have an award of damages against the soldiers, but not against the State’. Why? ‘Because your lawyer did not put the right words in the document filed in court.’ If I tell them that, I am not dispensing justice, I am dispensing with justice.

21. For all of those reasons, the judgment on liability will not be amended.

GENERAL PRINCIPLES FOR ASSESSMENT OF DAMAGES

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

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

APPROACH TO ASSESSMENT OF DAMAGES
23. I will assess damages in the four categories claimed by the plaintiffs.

(a) LOSS AND DAMAGE TO PROPERTIES

24. The plaintiffs have presented a number of photographs containing graphic images of burned down houses and other structures. Clearly the plaintiffs have suffered greatly. Each plaintiff has given their own account of the losses they each suffered. However, there is no independent valuation report and I am sceptical of some of the amounts claimed.

25. The plaintiffs’ claims are in my view exaggerated. It is nonetheless appropriate to arrive at an assessment of damages. Though there are deficiencies in the plaintiffs’ evidence, there was no evidence brought by the State, and no submission, to contest the fundamental allegation that a raid, unsupported by the order of any Court, took place in the manner alleged, involving mass destruction of property.

26. I have had regard to the approach I have taken in a number of other cases of multiple plaintiffs, in “police raid cases”. In some cases I have discounted each claim by a certain percentage to arrive at reasonable and realistic sums. For example:

• Eton Pakui v The State (2006) N2977: a case involving an unlawful police raid of Tulipato village, Enga Province. The 16 claims were each discounted by 90%.
  
• Joe Tipaiza v James Yali (2008) N3472: 220 plaintiffs claimed property losses of K3.9 million following an unlawful squatter eviction exercise by Police and the provincial government in Madang. Each claim was discounted by 50%.
  
• Anuta Jobou v Alfred Kumasi and The State (2012) N4607: there was an unlawful police raid of Bom village in the Rai Coast district of Madang Province in which houses were burned and other property including gardens and livestock destroyed. The claims by the 155 plaintiffs were each discounted by 50%.
  
• Francis Fuliva v Inspector Tony Wagambie Junior (2013) N5221: 1,281 plaintiffs, illegal settlers on Government land in Madang, succeeded at a trial in establishing a cause of action in breach of the agreement governing their eviction. A separate trial was conducted on assessment of damages. The plaintiffs claimed two categories of damages: (1) general damages for breach of agreement and pain and suffering, K5,000.00 each; and (2) specific damages for destruction of property, different amounts being sought by each plaintiff, a sum of K13,585,763.81. It was held that there was no evidence in support of the plaintiffs’ claim for general damages and nothing was awarded. As for the claims for property damage, each claim was discounted by 90% to arrive at an award of damages for property losses.
  
• Thompson Munvi v Arnold Ulka Takai & The State (2018) N7100: there was an unlawful police raid of a rural settlement in Madang district of Madang Province in which houses were burned and other property including gardens and livestock destroyed. The 1,335 plaintiffs obtained default judgment, but at the trial on assessment of damages, only 106 gave evidence. The 106 claims for property losses were each discounted by 90%.
  

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

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

28. I have decided to take the first approach outlined above. I will discount each claim by 50% to take account of the deficiencies in the evidence. The result of this process of assessment is shown in table 1. Column 1 is the number ascribed to the plaintiff according to the numbering of his or her affidavit. Column 2 is the plaintiff’s name. Column 3 is the amount claimed by the plaintiff for property losses. Column 4 is the figure in column 3 multiplied by 50%. It is the figure in column 4 that is the amount awarded to the plaintiff for property losses.

TABLE 1: AWARD OF DAMAGES FOR PROPERTY LOSSES

(b) COMPENSATION FOR BREACH OF HUMAN RIGHTS

29. It is appropriate to award a separate sum as compensation for breaches of human rights. Ms Nandape, for the plaintiffs, has indicated that three plaintiffs did not have their rights violated as severely as the others. She submits that 12 plaintiffs be awarded K5,000.00 each, and the three she has highlighted should be awarded K2,000.00 each. I don’t think it is necessary to distinguish between the plaintiffs in this way. Given the extent and number of human rights breaches that occurred, K5,000.00 is a reasonable and moderate claim and well in line with damages awarded for this category of damages in the cases referred to earlier. I will award K5,000.00 to each plaintiff.

(c) GENERAL DAMAGES FOR ANGUISH, MENTAL DISTRESS AND GENERAL HARDSHIP

30. I deal with this category of damages the same way as in (b). Each plaintiff has suffered greatly. It was a traumatic event for these villagers and for the community as a whole. I award each plaintiff K10,000.00.

(d) EXEMPLARY DAMAGES

31. Section 12(1) of the Claims By and Against the State Act 1996 is relevant. It states:

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 severe or continuous as to warrant an award of exemplary damages.

32. The question to be asked is: was the breach of constitutional rights so severe or continuous as to warrant an award of exemplary damages? The purpose of an award of exemplary damages is to punish the defendant and vindicate the distinction between a wilful and an innocent act (Latham v Henry [1997] PNGLR 435). The purpose is not to unjustly enrich a plaintiff, but symbolise public indignation of the defendant’s conduct (Peter Kuriti v The State [1994] PNGLR 262). I have also considered the view expressed by Judges in a number of cases that if exemplary damages are to be awarded for breaches of human rights by police officers, it is the individual officers who should pay – not the State (eg Andale More and Manis Andale v Henry Tokam and The State (1997) N1645).

33. I consider that once a case has reached this stage the plaintiffs’ interests are more important than those of the State. It would not be fair or just to deny them an award of exemplary damages because the Defence Force members have not been named as defendants or because they acted well outside their proper scope of duty. The Defence Force and the State have obviously failed in their duty to train and educate the members who raided the plaintiffs’ villages and breached their human rights on proper and acceptable methods of upholding law and order. The State must be penalised for the wilfully unconstitutional actions of its officers. I find that the breach of constitutional rights was sufficiently severe to warrant an award of exemplary damages. I award the moderate and reasonable sum of K5,000.00 to each plaintiff.

SUMMARY

34. Each of the plaintiffs is awarded the total of the following sums:

(a) loss and damage to properties, various amounts, assessed at the amount of 50% of each claim, totalling K168,117.00;

(b) breach of constitutional rights, K5,000.00 each;

(c) general damages for anguish, mental distress and general hardship, K10,000.00 each; and

(d) exemplary damages, K5,000.00 each,

a grand total of damages of K468,119.00.

35. The total award of damages to each plaintiff who has given evidence is shown in table 2.

INTEREST

36. Interest will be awarded on the total amount of damages awarded to each plaintiff under the Judicial Proceedings (Interest on Debts and Damages) Act 2015, at the rate of 2% per annum, in line with s 4(3) of that Act.

37. As for the period in respect of which interest is calculated, I fix the start date as the date of the incident giving rise to liability, 8 December 2018. The end date will be the date of delivery of judgment, 7 January 2021. The period is 3.08 years. Interest will be awarded by applying the formula D x I x N = A, where D is the amount of damages, I is the interest rate per annum, N is the period in years, A is the amount of interest. Interest has been calculated by multiplying each award of damages by a factor of 0.0616 (0.02 x 3.08) and is shown in table 2.

TABLE 2: TOTAL AWARD OF DAMAGES + INTEREST

COSTS

38. Costs will follow the event.

ORDER

1. Damages are payable by the defendants to each plaintiff whose name appears in the Schedule, in the amount shown for each person.
   
2. In addition, interest is payable by the defendants to each plaintiff whose name appears in the Schedule, in the amount shown for each person.
   
3. Subject to any particular costs order to the contrary, costs of the entire proceedings shall be paid by the defendants to the plaintiffs, on a party-party basis, to be taxed if not agreed.
   
4. The proceedings are thereby determined and the file is closed.
   

SCHEDULE

__________________________________________________________________

Nandape & Associates Lawyers: Lawyers for the Plaintiffs
Solicitor-General: Lawyers for the Defendants