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Kasap v Morere [2022] PGNC 307; N9824 (15 August 2022)

N9824


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1061 OF 2017

BETWEEN:
MELCHIOR KASAP for himself and 66 others whose names are listed in Schedule 1 attached herein who are all villagers of Mirap Village, Madang Province.
Plaintiff

AND:
SENIOR INSPECTOR MORERE AND OTHER POLICE MEN OF THE BOGIA POLICE STATION
First Defendant

AND:
INSPECTOR JACOB BANDO AND OTHER POLICE MEN AND WOMEN OF THE MADANG TASK FORCE
Second Defendant

AND:
INSPECTOR TONY WAGAMBIE JR, PROVINCIAL POLICE COMMANDER, MADANG PROVINCE
Third Defendant

AND:
SAM INGUBA, POLICE COMMISSIONER
Fourth Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant


Madang: Narokobi J
2021: 12th August
2022: 15th August

NEGLIGENCE – sufficiency of pleadings - illegal police raid -duty of care – breach of duty of care – injuries suffered and destruction of property – injuries not too remote – police negligent in the discharge of their duties.

HUMAN RIGHTS – breach of human rights- pleadings and evidence – evidence established demonstrate breach of human rights.

VICARIOUS LIABILITY – negligence and breach of human rights – police purportedly acted in the course of duty – State vicariously liable

Facts

The plaintiffs were villagers of Mirap Village along the North Coast of Madang. They claim that they were the subject of an illegal police raid. In the raid, they allege that they were threatened, ordered at gunpoint to congregate to meet the police demands, had property destroyed and were physically and verbally assaulted. The defendants did not file any defence nor tendered any affidavits.

Held:
(1) The plaintiffs have established on the balance of probability that there was an illegal police raid and during the raid they were physically and verbally assaulted. There was also property of the plaintiffs destroyed in the raid.

(2) Considering the statement of claim and the facts as proven, the plaintiffs have established a cause of action for negligence and breach of human rights.

(3) The first and second defendants were purporting to act in the course of duty, and the fifth defendant, that is the State is therefore vicariously liable for the actions of the first and second defendant. The claim against the third and fourth defendant is dismissed as they have not been shown to be involved in the events constituting the basis of the claim.

(4) The plaintiffs are entitled to damages and compensation for breach of human rights under s 58 of the Constitution.


Cases Cited:

Jobou v Kumasi (2012) N4607
Kembo Tirima v ANGAU Memorial Hospital Board and The State (2005) N2779
Kerry v The State (2007) N3127
Kuman v Digicel (2013) SC1232
Nare v Independent State of Papua New Guinea (2017) SC1584

TRIAL

This is a trial on liability.

Counsel


Ms D Ephraim, for the Plaintiff
Mr E Manihambu, for the Defendants


JUDGMENT


15th August, 2022


  1. NAROKOBI J: INTRODUCTION: The plaintiffs allege that on 13, 14 and 15 October 2008, the Bogia Rural Command together with the police personnel from Madang under the command of the first defendant unlawfully entered Mirap Village and destroyed the plaintiffs’ houses, properties and personal possessions. Mirap Village is in Sumkar District of the Sumgilbar Local Level Government area of Madang Province.
  2. They plead the following heads of claim against the defendants:
  3. The defendants did not file a Defence to the claim, nor did they file any affidavits in response. They only made submissions at the conclusion of the trial.

Issues


  1. I must determine the following issues:

Evidence


  1. The Plaintiffs relied on 70 affidavits that are marked as exhibits P1 to P70. The Defendants did not tender any affidavits as stated above.
  2. I will summarise what each of the plaintiffs’ deponents attest to.
Name of deponent and date of filing of affidavit
Evidence
Exhibit No.
1.Joseph P Muneer, affidavit filed 21 May 2008.
States that his mother JAYLEEN MUNEER is a Plaintiff but has since died. He will represent her in the proceedings.
P1.
2,Agnes Meten, affidavit filed 21 May 2008.
States that she is fluent in both the English and Pidgin language, and she translated the affidavits.
P2.
3.Nancy Mukol, affidavit filed 21 May 2008.
States that her husband Bonaventura Mukol is a plaintiff, and he died in 2013, and she will represent him in the proceedings.
P3.
4.Schola Kasap, affidavit filed 21 May 2008.
States that she witnessed aftermath of destruction to the village, and as the wife of the principal Plaintiff and an educated person. She helped prepare the statements and claims K67,000 for her services.
P4
5. Armsca Kulem Marau, affidavit filed 21 May 2008.
She is the wife of the Plaintiff Venancius Kulem Marau, who died on 18 July 2017. She will represent him.
P5
6. Mugur Mangun, affidavit filed 21 May 2008.
He is the husband of Mrs Maria Mugur Malek, who has since died. He will represent her. He recalls a statement his wife gave to their lawyer about police assaulting her and her baby on 15 October 2008.
P6.
7.Schola Kasap, affidavit filed 21 May 2008.
Repetition of Exhibit P4.
P7
8.Agusta Waka, affidavit filed 21 May 2008.
She is 50 years old, and comes from Mirap Village, Sumkar District, Madang Province. She says she witnessed a police raid on 13, 14 and 15 October 2008. They have eight children and were in the house when they heard gunshots. They were threatened, chased and sworn at by the police. Her husband has since died.
P8
9.Alexia Sangan, affidavit filed 21 May 2008.
She was forced at gunpoint to leave her house. Police entered her house, searched it and took K800, proceeds from her market sales. She recalls she was sworn at and assaulted by the police. She does not say when the incident occurred.
P9.
10. Andrew Kasap, affidavit filed 21 May 2008.
He is 40 years old and a former Defence Force officer. He recalls that on 13, 14 and 15 October 2008, a police raid took place at Mirap Village along the North Coast of Madang. On 15 October 2008 the police opened fire and ordered them to meet at the community hall. On his way to the hall, he was met by First Constable John Imburi (11527), who was based at Bogia Rural Command. John Imburi assaulted him and kicked him.
P10
11. Anselem Dagil, affidavit filed 21 May 2008.
He is 30 years old. He heard a gunshot and was ordered out of the house. A girl was nearly run over by a car. He saved her but was bumped. He was assaulted by the police. Does not say who or say when it occurred.
P11
12.Andrew Kurek, affidavit filed 21 May 2008.
He is 40 years old and comes from Mirap Village, Sumkar District, Madang Province. He works as a Village Court magistrate. He is married and has seven children and many grandchildren. He had bought K50 worth of food and when the police raided them on 14 October 2008, they took all the food. He names specific persons who witnessed this incident, one of which is Melchior Kasap.
P12
13
Anseem Dagil, repetition

14 Apolonius Besen, affidavit filed 21 May 2018.
Says there was a police raid at Mirap Village, Sumkar District, Madang Province on 14 and 15 October 2008. At that time, he was at the market to sell his banana and betelnut. When the police came, they hit him with a tree branch, and kicked him with boots. He had K60 that went missing at that time.
P14
15. Arnold Maik, affidavit filed 21 May 2018.
He comes from Mirap Village, Sumkar District, Madang Province. He is 72 years old, has nine children and many grandchildren. He is old and cannot walk properly. On 13, 14 and 15 October 2008 police from Bogia and Madang came and raided their village. He was with the family in their house when the police came and started to open fire and ordered them to move to the community hall. His house was around this area. A policeman came and kicked the door of their house breaking it and ordering him out to the hall. He was told to sit on the wet grass. Police threatened to set fire to the coconut fronds some of them sat on. He says his witness are Ellis Francis, Sabina Maik and Magdaline Maik.
P15
16.Barong Mureng, affidavit filed 21 May 2018.
Says the raid occurred on 13, 14 and 15 October 2008. He was at the market area on 14 October 2008 when the police came and threatened the mothers at the market. He ran to his house and the police went after him. He could see from a distance that they were asking his daughter where the ward councillor was from. He heard them swearing at his wife and children. On 15 October 2008 he was at his house with his grandchildren. Police came in and assaulted him and his grandchild (baby) he was carrying. He says that his witnesses are Anna Barlong, Cynthia Barlong, Cecilia Warek and Melchior Kasap.
P16.
17. Banabas Keturam, affidavit filed 21 May 2018.
He is 25 years old, and comes from Mirap Village, Sumkar District, Madang Province. He was at his house when he heard gunshots. The police opened fire at him and swore at him. They stole his shoes and broke his radio.
P17.
18. Benjamin Tulem, affidavit filed 21 May 2018.
He is 38 years old, married and reside at Mirap Village. On 15 October 2008 he was at his house when the police came and were firing their guns. When he saw them coming, he ran away from his house. They kicked the door of his chicken house and stole chickens and stockfeed. There were witnesses of the loss of his property items.
P18.
19. Barry Kawik, affidavit filed 21 May 2008.
He is 41 years old, and from Mirap Village, Sumgilbar LLG, Sumkar District, Madang Province. He says he saw what happened to Kathrine Kavik. He says the police damaged their property and stole K150 from him.
20.Bonny Yamai, affidavit filed 21 May 2018.
States that on 15 October 2008, at about 10am he was with his wife and three children, sitting on the veranda of their house. Suddenly the police arrived and started firing shots everywhere. This shocked him and he ran into the bushes beside his house. They approached his wife, swore at her and ordered her to walk 300m to the community hall. They were ordered to sit on the dry coconut fronds. Police threatened to burn down the fronds. He says the following properties were stolen and or damaged – K400, cut open a 25kg bag rice and poured out its contents, made a hole in a 40l petrol container, kicked a new hurricane lamp worth K30 and it broke. Properties were to be used to build his new permanent building. His children have nightmares from the incident. His witnesses are Jessica Yamai (wife), Melchior Kasap (Ward 6 Councillor).
P20
21. Camilus Winki, affidavit filed 21 May 2018.
He is 67 years old and was away teaching at Usino Bundi. He says there was a police raid on 13, 14 and 15 October 2008. His wife and children were assaulted and sworn at by the police. The police broke the veranda to his house.
P21
22. Clements Yamang, affidavit filed 21 May 2018.
States there was a police raid on 13, 14 and 15 October 2008. During that time (does not say which of the three days) he was ordered to the community hall. On his way there he saw a policeman go into his house. His wife was in there. She was frightened and jumped out the window, about 7m distance. Money, K1,500 for his son’s school fees was taken. He wants compensation for this.
P22
23. David Bassen, affidavit filed 21 May 2018.
He is 54 years old and is from Mirap Village, North Coast, Sumkar District, Madang Province. He recalls on 15 October 2008, police came, and he ran into the sago area. He fell badly and twisted his legs. He was later diagnosed as having arthritis.
P23
24. David Gual, affidavit filed 21 May 2018.
He is a Ward 6 Development Committee
Says that on 13, 14 and 15 October 2008 the police came and raided the Mirap village, Sumkar District, Madang province. He recalls that those police forcefully entered his house and assaulted him and swore at him.
P24
25. Edith Winki, affidavit filed 21 May 2018.
She is a plaintiff in the proceedings. She was at her house at Mirap Village on 15 October 2008 when the police raided their village. When the police from Bogia and Madang arrived, one of them threw a branch of a tree at them. The branch missed them but damaged their veranda. They were also sworn at. She was ordered to go to the hall. She has given her statement and wants the police to be charged.
P25
26. Elias Francis, affidavit filed 21 May 2018.
He is a plaintiff, 48, married and from Mirap Village. Recalls that police raid took place on 13, 14 and 15 October 2008. When he heard gunshots, he took his baby and ran away into the sago patch. They were poked by sago thorns. When police went into his house, they destroyed utensils in the house. They then shot three of his pigs, that were big, and took them away. He names his witnesses as to his recollection of what happened.
P26
27. Elias Gaiama, affidavit filed 21 May 2018.
She is a plaintiff, and she is 27 years old. Her father, since deceased is a policeman, Mr John Gaiama and her mother is Mrs Maria Gaiama. She now lives at Dimer Village with her husband but is from Mirap Village. She says the incident started on 13 October 2008 between some youths from Mirap Village and Bogia police and some civilian. The first raid was on 14 October 2008. On 15 October 2008 she was at her house with her widowed mother when the third raid occurred. Police came in vehicles and started firing guns. They became scared and went out of the house. Police swore at them and damaged her property, which is the same as what her mother Mrs Maria Gaiama reported in her statement.
P27
28. Felix Aiyu, affidavit filed 21 May 2018.
He is a plaintiff. He is 54 years old, from Mirap Village and has seven children. He says that on Wednesday morning 15 October 2014, police from Bogia and Madang came and raided Mirap Village. They fled and hid amongst some sagos. Police found them and pointed a gun at the forehead of a four-year-old. He was scared and started crying. They were told to go to the community hall. He was carrying his two-year-old child. As they were walking the policeman hit him with a branch. The branch also hit his baby, causing the baby to bleed. He congregated with the other village people and they were ordered by the police to pay compensation to them. He names witnesses who saw what the police did to him.
P28
29. Gabriel Lamuk Jr Gala, affidavit filed 21 May 2018.
He is a plaintiff. He is 54 years old, married with five children and a grandchild. On 15 October 2008, he was walking back from his garden, when they were met by the police who assaulted him. He was hit on the head, and still suffers from this incident four years later. He has given his statement to their consultant and names eyewitnesses of this incident.
P29
30. Gideon Kirerong, affidavit filed 21 May 2018.
He is a plaintiff. He is 38 years old and is from Mirap. He is married with two children. His house is next to the main road. He has a small bench he uses to do his market. When the police came, they destroyed his small market and whatever goods he had. Money to the value of K100 went missing. They also cut five of his betelnut trees, cut five pawpaw trees and stole his betelnut. He names his eyewitnesses.
P30
31. Gertrude Kapi, affidavit filed 21 May 2018.
She is a plaintiff. She is married with eight children. At the time the police came she was pregnant. They fled from the house. The police went into their house and destroyed the following: - food they had cooked, threw pots to where the pigs were, cut down three betelnut trees, stole betelnut from the trees they cut. She names her witnesses.
P31
32. Godfried Komang, affidavit filed 21 May 2018.
He is a plaintiff. He is 46 years old. He is married with seven children. He is the chairman of the raid committee. They were waiting for the mothers and fathers to meet when he was punched breaking his teeth and causing him to bleed. He couldn’t eat properly for a week. He recognises Joseph Bando, a policeman who took part in the raid. He has given his statement and names eyes witnesses who can testify as to what happened to him.
P32
33. Greg Iwok, affidavit filed 21 May 2018.
He is a plaintiff, and is 76 years old, with seven children. Four of his sons have died, but his three daughters are alive and married. He says the police raid first occurred on 13 October 2008, which was done by police based in Bogia. On 14 and 15 October it was a joint operation between police from Bogia and Madang. They raided Mirap Village, Sumkar District, Madang Province. On 13 October 2008, he was hit with a fan belt and was also sworn at. He couldn’t go and get himself treated at Mugil Health Centre as he says he received word that the police had stopped them from going there for treatment. He has provided his statement and names eyewitnesses of what happened to him.
P33
34.Hildagard Kulem, affidavit filed 21 May 2018.
She is a plaintiff. She says that their village, Mirap, Sumkar District, Madang Province, was raided by the police on 13, 14 and 15 October 2008. She said that about 14 October the police from Bogia with the police from Madang conducted the raid. They fired their guns to frighten them. Police also shot at her, missing her and her baby, and instead hit a banana tree. Police later took her purse and took out K17. She also had her trousers checked and K7 was removed. She was threatened to be sexually assaulted. Her disabled baby was traumatised too. She gave her statement to their consultant, and she names persons who witnessed what happened to her.
P34
35.Jeremiah Cosmas, affidavit filed 21 May 2018.
He is a plaintiff. He says the police raid at Mirap happened on 13, 14 and 15 October 2008. He is disabled. When he wanted to run away, he fell. Police came and kicked him on his ribs hurting him. When the policeman realised, he was disabled they left him. From where he was, he could see police going into houses and destroying things and assaulting people. He gave his statement to their consultant and names persons who witnessed what happened to him.
P35
36. John Mosi, affidavit filed 21 May 2018.
He is a plaintiff. He is 38 years old and is married with four children. He comes from Mirap Village, Sumgilbar LLG, Sumkar District, Madang Province. He says police threatened his three children and they ran away. They went into the house and stole K300. He has given his statement to their consultant. He wants justice to be done.
P36
37. Johnson Gaiama, affidavit filed 21 May 2018.
He is a plaintiff. He is 40 years old and married and has six children. He is the eldest son of the late Sergeant Mr John Gaiama from Mirap Village. He also does community work and is the Mirap Ward six LLG treasurer. On 13, 14 and 15 October 2008, the Madang and Bogia Police raided Mirap village. On 15 October 2008 he heard gunshots and ran away from his house, to hide in the sago palms. When he came back, he saw that his house was broken into, and that money K500 was stolen. Two betelnut trees were cut and the bunches too were stolen. He names his witness and wants justice for what the police did to him.
P37
38. Jonathan Alim, affidavit filed 21 May 2018.
He is a plaintiff. On 13, 14 and 15 October 2008 the police raided Mirap Village, Sumkar District, Madang Province. At the time of the raid he was with his mother and father. When they heard the gunshots, they ran away. When he came back later, he realised they stole one of his live chickens, three big bushknives, broke his radio and speaker, stole 50 cassettes, 3 big pots, 1 large food storage container, broke the wall of his house, chopped down 7 betelnut trees and stole seven bunches of betelnut. He says his witness is Melchior Kasap who was the ward 6 member from 2008 to 2013. He also gave his statement to their consultant. He wants justice.
P38
39. Kathrine Kawik, affidavit filed 21 May 2018.
She is a plaintiff. She is now 70 years old. She has three children. At the time of the raid, she ran away, but fell as her body aches a lot. When she returned, she realised that they broke her house, ate three plates of food, broke plates and threw them outside the house and stole K150 cash. She gave her statement to their consultant and her witness is Berry Kawik. She wants justice.
P39
40. Kirima Mangun, affidavit filed 21 May 2018.
He is a plaintiff. He is 52 years old and has children and is from Mirap Village, Sumgilbar LLG, Sumkar District, Madang Province. When the police came, they hit his mouth causing it to bleed and forced him to walk to the community hall. He has given his statement to their consultant and wants justice for what the police did to him.
P40
41. Laurence Pandore, affidavit filed 21 May 2018.
He is a plaintiff. He is 40 years old, married to Yata Pandore and they have a child, Justin Marot. He is from Mirap Village, Sumkar District, Madang Province. On 13, 14 and 15 October 2008 the police conducted a raid at Mirap. When he heard the gun shots he ran away. The police broke into his house and stole a brand-new sewing machine, a DVD radio double deck and cassettes, and money to the value of K150. He has given his statement to their consultant. He wants justice.
P41
42,Lina Maminge, affidavit filed 21 May 2018.
She is a plaintiff. She says during the police raid, she stood next to the step of the house. She started crying after she witnessed two men being assaulted, Andrew Marik and Terence Besen. A policeman asked why she was crying, and when she did not respond, he slapped her, and this caused her to urinate. She was ordered to go to the community hall, and she was so frightened that she quickly complied. She did not realise that she went without her bilum. When she returned, she saw her bilum on the ground. The bilum only had betelnut and lime, but did not have K1,083 which she received from selling second hand clothes. She gave her statement to the consultant. She wants to be compensated for her lost items and wants justice.
P42
43.Francisca Yamai, affidavit filed 21 May 2018.
She is a plaintiff. She is 65 years old, has five children and many grandchildren. When the police raid occurred on 13, 14 and 15 October 2008, she was with her two-year-old grandchild. The mother was away teaching. She was at Mirap with her grandchild. When the gunshots rang out, they got a shock and ran into the bushes. All her grandchildren felt sick from the incident. They continued to have sleepless nights and did not eat properly. She gave this statement to the consultant too. She names witnesses of the incident. She wants justice.
P43.
44. Ludwina Mapul, affidavit filed 21 May 2018.
She is a plaintiff. She is 35 years old and comes from Mirap Village, Sumkar District, Madang Proviince. She was going to wash her pots when police stopped her on the road. They took her pots and threw it on the ground and started assaulting her. She wanted to run away, but police pointed a gun at her and told her to go the community hall. She and her husband are disabled, and they have a 12-year-old son. She gave her statement to the consultant and wants justice for what happened.
P44.
45. Lukas Marau, filed 21 May 2018.
He is a plaintiff. He is 50 years old and is married and has five children. He has been working for the Catholic Archdiocese of Madang as an electrician for 15 years. His wife is a primary school teacher. He is the Chairman of the Parish Pastoral Council of the Catholic Church at Mirap. On 15 October 2008, two police car drove into his residential area, and opened fire. They then ordered him and his two brothers Vinansius Kulem and Gabriel Lamuk to go to the community hall. On the way to the hall, he was belted four times using the bark of the tree and his two brothers were also belted. At the hall they were ordered to sit on the grass. He gave his statement to the consultant and wants justice.
P45.
46. Magdaline Yalang, filed 21 May 2018.
She is a plaintiff. She is 65 years old, At the time of the police raid, when she heard the gun shots, she ran into the bush. She had gone into some sago palms and was pierced by the sago thorns. When she came out she noticed that four of her betelnut trees were chopped, and the betelnuts from the trees taken away. Her hybrid coconuts had coconuts cut by bush knife. She gave her statement to their consultant and wants justice.
P46.
47. Maring Nair, affidavit filed 21 May 2018
She is 63 years old and is a plaintiff. She is from Mirap Village, Sumgilbar LLG, Sumkar District, Madang Province. She gave her statement of what happened to their consultant Mrs Schola Kasap.
P47.
48. Maria Gaima, affidavit filed 21 May 2018.
She is a plaintiff. She is 64 years old and is a widow and is from Mirap. She is a member of various Catholic devotional groups. She has eight children and 18 grandchildren. She said it was not a big problem with the Bogia police. It eventuated from disputes with the youths on 13 October 2008. Jacob Bando led the police from Madang and OIC Mr Morere led the police from Bogia on 15 October 2008. They swore at her and went into her house and emptied two of her bags of clothes. At the community hall they were scolded by the police, and the place they sat in was threatened to be burnt. She saw the policeman John Imbri kick Andrew Kasap and Andrew Kurum with his heavy boots on their face and mouth and bled heavily as a result. They told them to contribute K1,678 to compensate them for the damage done to a police vehicle from Bogia, a Toyota Landcuiser, PAC 854, they suspected that they had damaged. She names her witnesses and wants compensation for the damage done to her. She wants justice.
P48.
49. Martin Alung, affidavit filed 21 May 2018.
He is a plaintiff. He is 60 years old and married to his late wife Mrs Bernath Alung from Kavieng. He used to work as a vocational school instructor. He has eight children and 15 grandchildren. He says the police raid by the Bogia and Madang Police took place on 13, 14 and 15 October 2008 at Mirap Village, Sumkar District, Madang Province. He is the deputy chairman of the Mirap Ward 6 Development Committee. He heard gun shots and left his house. Policemen told him to raise his hands and walk to the community hall. He was whipped with a tree branch and he fell and the policemen used a gun butt to force him to stand up. They all congregated at a coconut frond roofed house, which the police threatened to burn with them all in the house. The police forced them to contribute K1,678.00 to pay for the car the police suspected them of damaging. He went later to Jomba Police Station with his ward member to pay this money. He later provided a statement to their consultant. He names persons who witnessed what happened to him. He wants compensation and justice for how he was treated.
P49.
50. Melchior Kasap. Affidavit filed 21 May 2018.
He is the lead plaintiff. He is 68 years old and has 12 children and 30 grandchildren. He was the ward member for Ward 6 from 2008 to 2013. He was a primary school teacher from 1970 to 1976. He was Catholic Education Secretary from 1976 to 1987. From 1987 to 1990 he was the Madang Regional Member of Parliament. He was Director of Student Affairs from 1989 to 1999 and was awarded Madang Provincial Government Medal for good services to people of Madang in 1988 and received Logohu Medal from the Governor-General in 2014. He says the policemen and women knows him as a leader who has served at the local, provincial and national level, and did not approach him before they started the raid on 14 October 2008 from 8am to 10am. On 15 October 2008 he was at his village when the raid took place by police from Bogia, Talidig and Madang. Gun shots were heard around the four corners of the village. He took a loud hailer and was calling for the people to gather to hear what the police had to say. It was at this time that the Assistant Police Station Commander came from the back and hit his left arm and broke his loud hailer. His left arm was swollen and painful for two weeks. The coconut leaf house they congregated was threatened to be burnt down by the police. The policeman Mr J. Imbri – F/C 11527 kicked his son Andrew on his face and broke his teeth. Also kicked was Amdrew Kurum and Martin Alung. They were bleeding. He wants the court to order the defendants to compensate him for the damages done to his fruit tree, for hitting him and breaking his loud hailer. He wants the K1,678 to be refunded and the whole community to be compensated including the schools, where the children did not go to school for two weeks. He and his wife are assisting their people and they should all be compensated for the last eight years.
P50.
51. Melchior Ruben, affidavit filed 21 May 2018.
He is a plaintiff. The police raid on Mirap Village, Sumkar District, Madang Province took place on 13, 14 and 15 October 2008. He is a Catholic Church leader. He was at the house with his wife Meriam Ruben when the raid took place. The following were the damages done to him – entered his house, took his USA point knife, hit on the neck with a tree branch and became unconscious. He was beaten badly. They threatened him and forced him to the community hall. He names his witnesses. He gave his statement and wants justice.
P51.
52. Michael Murei, affidavit filed 21 May 2018.
He is a plaintiff. He was with his family at his house around 10am and 2pm, when the police came. They came with guns and started swearing at them. The police fired guns and told them to go to the community hall. He says two policemen jumped into the house and broke the door of his house and they went inside, they stole his hunting gun, brand new bush knife, stole his new dressing shoes, and they cut the thatched roof of his kitchen down. He names persons who witnessed what happened to him. He wants justice.
P52.
53. Morris Alam, affidavit filed 21 May 2018.
He is a plaintiff. On 13, 14 and 15 October 2008 Police from Bogia and Madang came and raided Mirap Village, Sumkar District, Madang Province, where he is from. He was with his wife and when they heard the noise, they became scared and ran away. The police stole K400 from his house, stole a big bush knife, cut rubber from his hunting gun and damaged utensils. He gave his statement to their consultant and names persons who witnessed what happened to him. He wants justice.
P53.
54. Norman Alongo, affidavit filed 21 May 2018.
He is a plaintiff. He is 24 years old and the fifth member of the Alongo family. He completed his grade seven at Mirap community school. He was looking after his elderly father who was 70 years old when the incident happened. On 15 October 2008 he heard gunshots and ran away from the house and hid at the cocoa gardens. Sometimes between 6:30pm and 7pm he went back to the house and saw his things been destroyed. The police entered his house and broke his eight-battery radio cassette player, tore three of his jean trousers, stole two packets of his cigarettes (Cambridge). They cut down three betelnut tress and stole three betelnut bunches. His elderly father died in 2009. The raid started on 13 and 14 October 2008, but the big damage was done on 15 October 2008. It was a combined effort from the Bogia and Madang Police. He names his witnesses. He gave his statement to their consultant. He wants justice.
P54.
55. Paisi Komang, affidavit filed 21 May 2018.
He is a plaintiff. He is 33 years old, is married and has four children, he comes from Mirap Village, Sumkar District, Madang Province. He says on 15 October 2008 the police raid occurred between 9am and 10am in the morning. When gun shots rang out the family fled, and he stayed in the house. He was badly assaulted. They stood on his face, and he ate dust and sand. They went into his house and stole K100. They obtained a bush knife and cut 10 bananas that had fruit on them, and they also cut five betelnut trees and five pawpaw trees that had fruit on them and stole a speaker. He gave his story to their consultant. He names persons who witnessed what happened to him. He wants justice.
P55.
56. Panam Baumur, affidavit filed 21 May 2018.
He is a plaintiff and is 23 years old. He was not there but his wife and their disabled child were there. The first raid occurred on 13 October 2008. They cut five of his betelnut trees and also hybrid coconuts. Later they went into his house and cut the pandanus wall of the house. They were very scared as a result of the incident. He provided a statement to their consultant. He wants justice.
P56.
57. Petronella Mosi, affidavit filed 21 May 2018.
She is a plaintiff and is 43 years old and comes from Mirap Village, Sumkar District, Madang Province. At the time she was in the house and when she heard the gun shots she became very scared. A policeman pointed a gun at her and swore at her. She says they broke into her house and stole K65, cut her mosquito nets and cut two pans, pot and a dish. She gave her statement to their consultant and names persons who witnessed what happened to her. She wants justice.
P57.
58. Roselyn Jacob, affidavit filed 21 May 2018.
She is a plaintiff and is 30. She is married with four children. She says on 15 October 2008 a raid occurred at their village, Mirap Village, Sumkar District, Madang Province. She was on her way to the garden when the police came and stopped her and swore at her. They told them to go back to the village and on the way wanted to run them over, but they escaped and hid in the bush. They hit her with a branch. They swore at her and destroyed her big teapot and dish. They also stole her grass knife. She gave her statement to their consultant and names persons who witnessed what happened to her. She wants justice.
P58.
59. Sebestian Alongo, affidavit filed 21 May 2018.
He is a plaintiff, is 48 years old and comes from Mirap Village, Sumkar District, Madang province. He was at his coconut plantation and got a shock when the police came. He tried to hide, but it was too late, and the police pointed a gun at him and told him to go to the community hall. On the way, he was hit badly by a tree branch and was in a lot of pain. He gave his story to their consultant and names persons who witnessed what happened to him. He wants justice.
P60.
60. Stanley Mainde, affidavit filed 21 May 2018.
He is a plaintiff. On 14 and 15 October 2008, he was with his family when the police came and raided the village. They fired guns, made them scared and used a tree branch to assault him, causing him to fall and then also using the barrel of the gun to hit him. He names persons who witnessed what happened to him and he wants justice.
P60.
61. Stella Langaiuu, affidavit filed 21 May 2018.
She is a plaintiff, 38 years old, and is the mother of a nine-month-old baby. She comes from Mirap Village, Sumkar District, Madang province. When she heard the gunshots, she became scared and took her baby and ran away. In her haste the baby fell from her, hit the ground and became unconscious. She gave her story to their consultant. She names persons who witnessed what happened to her. She wants justice.
P61.
62. Suba Alongo, affidavit filed 21 May 2018.
He is a plaintiff. He is 36 years old and comes from Mirap Village, Sumkar District, Madang province. At the relevant time, he heard gun shots, became scared and ran away. When he was away the police cut one of his betelnut trees. He names persons who witnessed what happened to him. He wants justice.
P62.
63. Suguman Tulem, affidavit filed 21 May 2018.
He is a plaintiff. He is 39 years old. He recalls that on 13, 14 and 15 October 2008 the police from Bogia and Madang conducted a raid on their village, that is Mirap Village, Sumkar District, Madang province. He got a shock when the police stopped in front of his house and started to open fire. He was carrying his three-year-old baby and was struck by the policeman and sworn at. He was at the community hall. Police threatened to burn the place they congregated at. He found out that his sewing machine was damaged, they broke his chicken house and the container waters for the chickens, and they cut open the bag which contained the chicken feed. They cut two of his betelnut trees and stole two bunches of his betelnuts. They also cut his young coconuts. He names people who witnessed what happened to him.
P63.
64. Terrence Bassen, affidavit filed 21 May 2018.
He is a plaintiff. He is 32 years old and comes from Mirap Village, Sumkar District, Madang province. He is married and they have a son and an adopted daughter. He was injured in his ribs by the police. He gave his statement to the consultant. He wants justice.
P64.
65. Thaddeus Kalik, affidavit filed 21 May 2018.
He is a plaintiff, 40. He comes from Mirap Village, Sumkar District, Madang province. He is married and has four children. He recalls that police came suddenly and fired their guns. He became scared and took his wife and child and went and hid at the school area. He came back and from a hidden area saw two policemen jump into his house, broke the door open and went in. They took his DVD player. He names his witness. He wants justice.
P65.
66. Theodiu Tulem, affidavit filed 21 May 2018.
He is a plaintiff. He is 63 years old, has children and comes from Mirap Village, Sumkar District, Madang province. At the time of the incident his cocoa weighing scale and big bush knife was stolen. He gave his statement to their consultant and wants justice.
P66.
67. Thomas Gaima, affidavit filed 21 May 2018.
He is a plaintiff. On 13, 14 and 15 October 2008, police did a raid on Mirap Village, Sumkar District, Madang province. He is 31 years old. At the time he was at his house planting betelnut trees, when he saw the police vehicle arrive. He was told to remove the pig fence by his father, but it was too late. The police swore at him, shot at him and chased him. He crossed the river and ran away. They stole four big pigs and three piglets. They stole a bilum to put the piglets in. He states names of persons who witnessed what happened to him. He wants justice.
P67.
68. Veronica Winki, affidavit filed 21 May 2018,
She is a plaintiff. She is 45 years old and comes from Mirap Village, Sumkar District, Madang province. She saw a police vehicle stop and six policemen jumped out and ran straight for her, swearing at her in the process. Another policemen then swore at her and told her to go to the community hall. She wants justice.
P68.
69. Yaring Dumo, affidavit filed 21 May 2018,
He is a plaintiff, and recalls that on 13, 14 and 15 October 2008, a police raid occurred at Mirap Village, Sumkar District, Madang province. He is 43 years old and after he heard the gunshots, he knew that it was a raid. He told his family to leave. They left and he went back to get his child. Police approached him and fired over his head. He says that the consultant reports are correct. He names his witnesses and wants justice.
P69.
70. Lainus Yamai, affidavit filed 21 May 2018.
He is a plaintiff. On 15 October 2008, the Charismatic prayer group were having a meeting when the raid occurred. The police approached him and threatened him to go to the community hall or he will be shot. At the hall they congregated at a shelter that had coconut thatched roof. The police threatened to set it alight. While sitting down, a policeman kicked his throat upwards disturbing his voice box. He could not go to Mugil Health Centre for check-up because the police said they will wait for them there. To this day his throat hurts from swallowing food. He gave his report to the consultant. He names persons who witnessed what happened to him. He wants justice.

P70.

Submissions


  1. The plaintiffs submit that they have proven the tort of negligence against the defendants. This is evident from the affidavits admitted into evidence. The plaintiffs further submit that whilst the pleadings have not expressly pleaded negligence, the defendants have not objected to the pleadings nor led any evidence to rebut the claim. The plaintiffs rely on the case of Jobou v Kumasi (2012) N4607.
  2. The plaintiffs also submit that the evidence also show that the defendants have breached the plaintiff’s human rights.
  3. The defendants’ contention is that whilst they have not filed any defence, they submit that the plaintiffs’ statement of claim is vague and the evidence is not corroborated. For example, most of the plaintiffs rely on Melchior Kasap to corroborate their evidence.

Findings of Facts


  1. From reading these affidavits, I find the following facts to have been established on the balance of probability. In my view the way the story is recounted does not sound incredible or illogical. The findings are also based on the consistency of the evidence led by the plaintiffs and the lack of any rebuttal evidence from the defendants. Whilst the defendants submit that there are no medical reports, it is in evidence that the plaintiffs were afraid to go to the nearest health centre at Mugil because they were warned by the police that they would be there waiting for them.
  2. This case concerns a police raid on the villagers of Mirap Village, Sumgilbar LLG, Sumkar District, Madang Province on three consecutive days – 13, 14 and 15 October 2008.
  3. The police from Bogia believed that youths from Mirap Village had damaged one of their vehicles, a Toyota Landcuiser, PAC 854.
  4. The police from Bogia, Talidig and Madang were involved in the police raid at Mirap Village to exact revenge and to get them to pay for the costs of the damage to the vehicle, which according to the police was K1,678.00.
  5. The main destruction in the village occurred on 15 October 2088 between 8am and 10am. As soon as the police arrived, they started firing shots. This startled the people and many of them fled into the bush. The police went and ordered them with the aid of their firearms to come to the community hall.
  6. When the people fled, the police went into a number of the houses and took money and destroyed items in the houses. Plaintiffs have deposed to what they lost from their houses.
  7. Melchior Kasap, the Ward Member for Ward 6 which covers Mirap Village is a public figure in Madang. He has served at the Local, Provincial, and National level in the country. At one point he served as the provincial member for Madang in the National Parliament. He tried to assist the police by using his loud hailer to call the people together to hear what the police had to say. But he was hit strongly on his left arm by the police, causing his hailer to fall and the police quickly destroyed his loud hailer.
  8. There was a lot of swearing that was going on at the same time. Many of the women were sworn at using the human private parts to denigrate them and threatened to sexually assault them.
  9. The police randomly cut several betelnut trees, took away the betelnut bunches from the fallen betelnut trees, slashed hybrid coconuts, bananas and pawpaw trees were also cut.
  10. Most of the male plaintiffs were hit using the branch of a tree, while the women were sworn at, using very offensive language.
  11. The place where they congregated had coconut fronds for its roof and the police threatened to burn the plaintiffs in there. A few men were assaulted there.
  12. The police demanded that they pay them K1,678.00 as compensation for damaging their vehicle, a Toyota Landcuiser, with registration number plate, PAC 854. The plaintiffs eventually raised this sum and went to Jomba Police Station in Madang and paid the money.
  13. From the pleadings and the evidence led, I can see that the two main causes of action being claimed against the defendants are negligence and breach of human rights.

Negligence


  1. I have considered the issue of sufficiency of pleadings. I have had regard to the case of Kuman v Digicel (2013) SC1232. This case stands for the proposition that though desirable it is not essential that every element of every cause of action be expressly pleaded in a statement of claim. What is essential is that the statement of claim read as a whole discloses a cause of action in sufficiently clear terms to put the defendant on notice as to the claim that it has to meet. I have also had regard to the case of Kerry v The State (2007) N3127 where the National Court held that a statement of claim should state clearly the cause of action relied on and plead the elements of the cause of action. However, the court should be reluctant to dismiss a claim by an individual citizen against the State due to deficient pleadings. Provided that the general nature of the claim has been pleaded and the State is not unduly prejudiced, the court should proceed to deal with the claim. I apply these principles to this case and determine that the pleadings considered with the evidence and the lack of a defence by the defendants is sufficient.
  2. In a claim for negligence, the plaintiff must prove that there is a duty of care, that duty was breached, the plaintiff suffered injuries and the injuries suffered were not too remote from the conduct of the tortfeasor. (see Kembo Tirima v ANGAU Memorial Hospital Board and The State (2005) N2779)). The fifth element of contributory negligence in that case is not relevant to the facts of this case.
  3. From the evidence tendered, the police came from Bogia, Talidig and Madang. They were on normal police duties. The police therefore have a duty of care to the public at large to carry out proper policing methods, comply with the law and not to abuse the rights of citizens while enforcing the law.
  4. The undisputed evidence is that the police entered the village without reasonable cause and destroyed properties and physically and verbally assaulted the plaintiffs. I am therefore satisfied that the duty of care was breached.
  5. The evidence of the police illegally entering the village and the plaintiffs’ houses, causing destruction to their properties and harming the plaintiffs physically and verbally demonstrate the injuries caused to the plaintiffs.
  6. I also find that the injuries suffered was not too remote from the tortfeasors conduct, in fact it was directly caused by the tortfeasors.
  7. For these reasons, I find the defendants liable for negligence for what they did to each of the plaintiffs in this case.

Breach of Human Rights


  1. From the facts that I have found, I find the following rights of the plaintiffs under the Constitution have been breached by the defendants. They are:

Breach of s 36 was occasioned by the illegal raid, discharge of firearm to cause fear, ordering plaintiffs at gunpoint, the assault, the swearing, and the destruction of property.


➢ Section 37(1), Protection of the Law

Breach of s 37(1) happened when the police illegally entered their village and their residence and assaulted them and destroyed their properties. They failed to observe the law in their duties.


➢ Section 41, Proscribed Acts

The way they were treated was also harsh and oppressive, not warranted by the circumstances ie subjecting the whole village to terror, and not reasonably justifiable in a democratic society.


➢ Section 42, Liberty of the Person

Forcing the people to meet at the community hall at gun point, so that the plaintiffs can satisfy the defendants’ demand deprived them of their liberty.


➢ Section 49, Right to Privacy

Police went into the privacy of their homes without any search warrants and took out items and destroyed clothes, utensils, and radios amongst other items. This is breach of the privacy of the plaintiffs.


➢ Section 53, Protection from Unjust Deprivation of Property

Money was stolen, utensils and clothes destroyed, houses broken, and crops destroyed. These actions of the defendants deprived the plaintiffs of the use and enjoyment of their property contrary to s 53 of the Constitution.


Vicarious Liability


  1. In Nare v Independent State of Papua New Guinea (2017) SC1584, the Supreme Court made the following findings which I adopt:

“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.”


  1. The uncontested evidence was that the police who are agents and employees of the State were involved. They were purporting to act in the course of their duties. This was done by the fact that they were in police unform, they came in police vehicles, they had official issued firearm, and they were on official business to demand compensation for the damage done to a police vehicle. The first and second defendant are specifically identified. There is however no mention of the involvement of the third and fourth defendant. The claim against them is dismissed. I therefore find the first, second and fifth defendant liable to the plaintiffs for negligence and breach of their human rights. Consequently, the fifth defendant is vicariously liable for the actions of the first and second defendants and the policemen and policewomen who conducted the illegal raid.

Orders


  1. From my findings of facts and discussion on the law, I make the following orders:
    1. The first, second and third defendant are liable in negligence and breach of the human rights of the plaintiffs.
    2. The third defendant is vicariously liable for the actions of the first and second defendants and its servants and agents and shall pay damages and compensation under s 58 of the Constitution to the plaintiffs.
    3. The third defendant shall pay the plaintiffs costs of the proceedings, to be determined after trial on assessment of damages and compensation for breach of their human rights.
    4. Matter is adjourned to the next call over in September 2022 to allocate a trial date for assessment of damages and compensation for breach of the plaintiffs’ human rights.
    5. Time is abridged.

Orders accordingly.


________________________________________________________________
Public Solicitor: Lawyers for the Plaintiffs
Solicitor-General: Lawyer for the Defendants

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