Jolpuk v Kabilo [2022] PGNC 395; N9885 (12 September 2022)

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ALOIS JOLPUK, SUSAN JOLPUK, FABIAN TOBI, PETER WRAKOWAFIE, JEFFERY LAWAS, SILO YEHIWANGIE, AND OTHERS LISTED IN THE SCHEDULE “A”

LEO KABILO, JOE KASIENG, JAMES BAUGEN, PAUL SIMM, PETER KAVI, JACKSON WAVIEN, SIMON HOMBIGU, STENARD WOHUIENEN, OSCAR MANIHAO, JOHN MURRAY, NOAH TAKURA

DAMAGES – police raids after armed robbery – assault by police officers – unlawful detention – cruel and inhuman treatment – mental distress and suffering – default judgment on liability – trial on assessment of damages – trial judge duty in the assessment of damages – general damages – exemplary damages – Special Damages – Damages for breach of constitutional rights – exemplary damages ordered against police officers.

2. The Plaintiffs are from Holik, Numboruon, Yaramboin, and Kwarabri villages in the East Sepik Province. The Plaintiffs state that between 6 November 2003 to 6 December 2003, the Defendants conducted police operations after what was alleged to have been an armed hold-up at the Warabung area of the Sepik Highway. The Plaintiffs, therefore, allege that the First Defendants attended at their villages and conducted raids in search of the suspects for the armed hold-up, and in the process, the Plaintiffs cash crops and properties were destroyed, and the Plaintiffs were assaulted and claim that they were unlawfully detained, that they were subjected to cruel and inhumane treatment in which they have suffered loss for injuries sustained, loss as to their cash crops and properties as well as they suffered distress, shame, humiliation, and ridicule. The Plaintiffs, therefore, seek damages as a result of the liability on the Defendants.

3. The duty of a trial judge in a hearing on assessment of damages where liability has been entered by way of default judgment is as set in the Supreme Court case of Mel v Pakalia^[1] where the Court stated these approaches to guide the trial judge:

4. I accept that liability is proven that it is clear what the facts and cause of action is as is pleaded in the Statement of Claim and where the Defendants raise issues on liability in respect to particular aspects of the various heads of damages and or the evidence adduced, I will address them accordingly.

5. In assessing damages, I am guided by the following principles as outlined by the Supreme Court again in the Mel v Pakalia^[2] case where the Supreme Court outlined the following principles:

• The plaintiff has the onus of proving his loss 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. If an allegation forms an essential part of a person’s case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)

• Corroboration of a claim is usually required, and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia J.)

• 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, National Court, Woods J.)

• 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 and Others v The State (1995) N1369, National Court, Injia J.)

• If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, National Court, Injia J.)

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

• 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, National Court, Injia J.)

6. The Plaintiffs have therefore claimed various heads of damages under the following:

7. At the outset, I address the objections by the Defendants in relation to seventy-one Plaintiffs whom the Defendants state that they are not entitled to receive any award at all. The Defendants objections are based on the following grounds;

8. In the Defendants’ submissions, the Defendants state that a total of 71 Plaintiffs who are listed are not entitled to damages as their claim for mental distress and anguish is without any medical corroboration and the evidence as to economic loss is without any foundation in the pleadings.

9. On review of the Statement of Claim, the Plaintiffs have pleaded economic loss in paragraph 14 and particulars of these losses are pleaded under their names in Schedule B attached to the Statement of Claim. I therefore refuse the Defendants submissions in this regard.

10. In relation to the objections on uncorroborated medical evidence to substantiate the claim for mental distress and anguish, I am drawn to various case law submitted by the Plaintiffs that Courts have awarded damages under this heading without any corroboration of medical evidence and based entirely on the facts of the matter and the evidence adduced. In the case of Hai v Walo ^[3], Justice Makail in a case of police raid, the Court awarded damages for disappointment, anguish, mental breakdown. There was no reliance on medical evidence to substantiate this particular head of damage however the award was arrived at after assessing the facts and or the circumstances of the case. The Defendants have not submitted any case law to support this objection and therefore I refuse to accept this objection as for general distress and mental frustration and or some form of mental impact or trauma the Plaintiffs could have been seen to have suffered after a horrific ordeal, the Courts have exercised that discretion to make an award for mental distress and frustration.^[4] The case law varies for circumstances whether to accept medical evidence as proof of mental distress and frustration and or psychological trauma however being confined to cases involving police raid and the destruction of properties and harm to people, I accept that Courts have awarded damages under this head notwithstanding any evidence from medical practitioners but by way of some award to acknowledge the suffering of the claimants. I will therefore take this approach and refuse the submissions by the Defendants in this regard.

11. Mr Manua argues that the Defendants should not be allowed to adduce evidence on matters that have not been pleaded. This is on the basis that the Defendants have not filed a Defence to the claim resulting in default judgement being entered. The Plaintiffs argument is therefore that the pleadings provide a foundational basis on which the evidence follows and therefore the Defendants do not have any foundation by which to bring the evidence. The Plaintiffs rely on the case of Papua New Guinea Banking Corporation (PNGBC) v Tole^[5].

12. Where evidence is adduced on matters not pleaded and the evidence is not objected to, a party cannot hark back to the pleadings and say that it was not pleaded. This can be seen in the Supreme Court case of Motor Vehicles Insurance (PNG) Trust v Pupune ^[6] where the Court said;

“Where evidence is admitted of economic loss which was not pleaded, and the evidence was not objected to, the defendant cannot, on appeal, hark back to the pleadings and submit that economic loss was not pleaded. Reasoning in Domsalla v Barr [1969] 3 All ER 487 adopted.”

13. In so far as matters as to liability, the Defendants have not filed a Defence and therefore I refuse to put weight on any evidence that attempts to revisit the issue of liability however where evidence is adduced by the Defendants as to the damage’s component of the claim, the Court will assess those evidence accordingly to assist the Court arrive at a finding on award of damages.
General Damages and breach of constitutional rights

14. Mr Mileng of the Defendants has submitted the case of Kolokol v Amburuapi^[7] where Justice Cannings has identified two approaches in assessing damages for breach of Constitutional or human rights as to identify the cause of action and award same and or to award a global sum of damages. Justice Cannings therefore said this:

“There are at least two ways of assessing damages in human rights cases. The first is to identify the different causes of action and award damages or compensation for each cause of action. A breach of a human right or constitutional right is properly regarded as a discrete cause of action. An alternative approach is to award just one, global, sum of damages or compensation for all causes of action.

The first approach is demonstrated by cases such as David Kofowei v Augustine Siviri and Others [1994] PNGLR 572.

In Kofowei, the plaintiff was apprehended by two police officers regarding his alleged possession of a stolen handbag. He was taken to Goroka police station and detained for four days, the first two in handcuffs. He was assaulted and subject to inhuman treatment. He sued the police officers involved and the State, claiming damages for false imprisonment, assault, negligence and breach of constitutional rights. He won the case. Ramage AJ identified the different causes of action involved and awarded: K3,800.00 for the assault; K3,500.00 for breaches of constitutional rights; and K1,000.00 for negligence (which consisted of the failure of the officer-in-charge of the police station to take the plaintiff promptly before a court contrary to the Arrest Act, which was merged with the claim for false imprisonment).

In Kombea the plaintiff was arrested, detained for four days and then charged with rape. He was prosecuted over a considerable period in which he had to make numerous court appearances. He was a prominent member of the community and a long-serving member of the Southern Highlands Provincial Assembly. The complaint against him was false. He sued the person who made the false complaint, claiming damages for malicious prosecution, false imprisonment, and defamation. He won the case. Kapi DCJ awarded general damages of K15,000.00 for the malicious prosecution (comprising K2,500.00 for issue of a search warrant, K7,500.00 for criminal proceedings and K5,000.00 for civil proceedings); K4,000.00 for false imprisonment; and K10,000.00 for defamation.

The alternative approach of awarding a global sum of damages is the one I took in Teine Molomb v The State (2005) N2861. The police arrested, detained and charged the plaintiff, a Western Highlands villager, with possession of stolen property (45-day-old chickens) and possession of unlicensed firearms and ammunition. He was acquitted in the District Court of one charge and the other charges were not pursued. He was required to attend court on seven occasions before all matters were resolved. He obtained judgment against the State relying on malicious prosecution, negligence and breach of constitutional rights as causes of action. I held that each case must be treated on its merits. If it is convenient to clearly delineate how different causes of action have caused different injuries, damages should be assessed separately. But if the same facts give rise to different causes of action it will be difficult, and a rather artificial forensic process, to allot different categories of injury to each one; so the causes of action are best regarded as merging, in which case damages should be assessed as a whole.

15. I am of the view that in this case, I will consider the claim for general damages into personal injury and breach of constitutional rights separately from the various causes of actions for loss of property and economic loss and therefore take the Kolokol approach.

16. Mr Jolpuk in his evidence states that he was woken up from sleep in the early morning hours of 6 December 2003 where he was sleeping in his home with his wife and children when armed policemen forced him out of his house and assaulted him demanding whether he received K2 000 from a Mr Ismael Wrakuohao. Mr Jolpuk replied that he had made sago leaves for Ismael Wrakuohao some eight months prior and had only received K150.

17. The Policeman than accused Mr Jolpuk of lying but instead of taking Mr Jolpuk to the police station for proper questioning and interrogation, what ensued was horrific and inhumane to say the least. Mr Jolpuk was severely assaulted by the policemen who had attended at his village, he was hit, kicked and one of the policeman put pliers to his lips and forced him to the police van. He was shoved into the police van and taken to the Yangoru Police Station. On the way to Yangoru police station at Kwagwie village junction, Mr Jolpuk was told to grind stone with his teeth as he was threatened and hit from his head to his toes. He was mocked by the policemen saying “Yangoru ston brukim stony ya” translated to English to mean a phrase derogating Mr Jolpuk and where he came from as “ Yangoru- stone will break stone”. Perhaps to also mean disparagingly that Yangoru people are stubborn and can not reason. This was said mockingly and taunting Mr Jolpuk. Mr Jolpuk was severely assaulted on the way to the Police Station and was threatened to consume the urine of one Mr Jeffery Lawa.

18. At the Yangoru Police Station, Mr Jolpuk was questioned, intimidated, threatened and assaulted. He was forced to sexually penetrate one Peter Wrakowafie in front of the policemen whist being held to a knife much to his shame and reluctance and his dignity stripped off at the hands of Police Officers, officers who were at this stage no longer law officers to my mind, they were performing criminal acts whilst purportedly carrying out their functions. What madness, what inhumane act beyond reason. Mr Jolpuk was told again to sexually penetrate Peter Wrakowafie again after the first attempt much to the disgust of Mr Jolpuk and Mr Wrakowafie whom at the second attempt Mr Jolpuk told Mr Wrakowafie in their language that he’d rather die then do it again even if they had to kill the both of them. Mr Jolpuk’s evidence states that he was weak from all the beatings and brutality at the hands of the police.

19. At that time, Mr Jolpuk’s wife Susan was ushered into the room in which the police forced Mr Jolpuk to instead sexually penetrate his wife in front of them. Mrs Jolpuk was threatened with a knife and told to undress and participate in the forced sexual act with her husband in front of the police watching. This was interrupted when the Police Station Commander Mr Joe Kasieng ordered that the whole ordeal cease. The graphic retelling of this events by Mr Jolpuk in his Affidavit leaves one shocked at such atrocity and unimaginable trauma inflicted in the hands of the policemen. These are officers sworn to uphold the law, sworn to protect the innocent, sworn to safeguard the community. What type of society in PNG have we became when our vulnerable are abused and scorned at by police officers turned criminals at the guise of carrying out the law? It is a scary and abhorrent society when police officers have no regard for human life and dignity acting as tyrants in uniform.

20. Mr Jolpuk has suffered physical, mental and emotional trauma at the hands of the Police Officers on that day. There is medical report proving his injuries. He says he has lost four teeth at his lower jaw and that two of his teeth are also shaky and may fall out. This was at the time of swearing his affidavit on 25 April 2006.

21. Mr Jolpuk also deposes to the fact that after his injuries, he was not able to tend to his vanilla garden resulting in loss of vanilla beans in the total sum of K385, one vanilla bean bag valued at K50 lost in the police raid, he lost two traditional shell money valued at K350, loss of a wristwatch, and loss of a waist belt.

22. Mr Jolpuk also claims for a sum of not less than K50 000 to conduct a customary ceremony to settle his public shame and humiliation towards his maternal relatives for the forced sexual acts with his cousin Mr Peter Wrakowafie and his wife in front of the policemen. This customary obligation Mr Jolpuk claims is common in the Yangoru custom as a feast where it is expected that people from about 20 nearby villages are expected to attend. I am of the view that the shame and the humiliation caused to Mr Jolpuk, his cousin and his wife was unfortunate and at the hands of the police and not by the doing of Mr Jolpuk and therefore any compensation he should receive should be to compensate and rehabilitate him and not for his entire community and neighbouring village to benefit from. It defeats the purpose of compensation if it will not restore him personally let alone restore only his pride, a custom which is respected however in this case, I will refuse to award any sum for customary feast as it is in the context of a celebration unfortunately of a very degrading and dehumanising experience. I will also refuse any other claim under custom as is claimed by all other Plaintiffs in this matter.

23. As for Mr Jolpuk’s personal injuries, having cited the Medical Report of Dr Gideon Kendino, I am satisfied that Mr Jolpuk suffered a 12 percent impairment of his person and a total of 37 percent permanent incapacity, 12 percent spinal and 25 percent dental, with loss of four teeth and two damaged and shaky. In the case of Are v Motor Vehicles Insurance (PNG) Trust^[8], the Court awarded K12 000 for pain and suffering and for 15 percent disability of participating in village life. In the case of Waniholo v Tokam, Commissioner of Police^[9], the Court awarded a total of K14 000 for general damages for the Plaintiff’s injuries as a result of police brutality at being arrested.

24. Mr Manua implores the Court to find that where inflation is a factor over 31 years from the date of that decision, Mr Jolpuk should be granted a total of K220 000 for all his personal injuries. I am not guided by how inflation is calculated though inflation is a factor to my mind in an award for damages of this nature taking into account the current state of the economy. I will award a sum of K30 000 for personal injury to Mr Jolpuk.

25. As for breach of Constitutional rights, I consider that under general damages and though this is sought distinctly from personal injury, I will grant K20 000 under this heading.

26. For mental distress and suffering, no person should be subjected to such agony and trauma. I am of the view that though Mr Mileng specifically sought that mental distress and or psychological trauma should be supported by medical evidence, I accept that just witnessing and or experiencing a traumatic event be it horrendous physical violence in this case a violent police raid and or sexual violence at the hands of the police is traumatic enough. A higher amount should be awarded to those who were involved and have experienced themselves the traumatic event and a lesser amount should be awarded to those who can be seen as being affected at arm’s length and or less severely affected. I will grant a sum of K10 000 for Mr Jolpuk.

27. For economic loss, I refuse the sum claimed of K111 680.80 as it is speculative of a future earning potential based on the crops of cocoa and vanilla which is lacking in evidence. I will award a total sum of K5000 for loss of vanilla beans, personal items and loss of business during and after the police raid. I will also take this approach for all other Plaintiffs in this matter.

29. Mr Manihuambu was also assaulted by the police in the said police raid. He was accused of harbouring an escapee and criminals which was the subject of the police raid. Mr Manihuambu suffered physical injury and over 77 percent hearing impairment and a 20 percent dental impairment from being physically assaulted by police.

30. The case of Pyakalo v Motor Vehicles Insurance (PNG) Trust^[10], the Court awarded K8 000 for some hearing loss. Mr Manihuambu also suffered dental impairment and head injury.

32. Mr Tobi was unlawfully detained and was physically assaulted resulting in hearing loss of 23 percent, post traumatic retrograde amnesia, permanent scaring of face and scalp of 5 percent and lumbar lordosis at 2 percent as per his medical report.

34. Mr Cletus was targeted by the Police as a suspect and was shot on 9 December 2003. Mr Cletus was shot on his left leg and right thigh at close range. He was urinated on his wounded parts by policemen and was paraded on the front bonnet of a vehicle as a public display and paraded around Wewak town.
35. Mr Cletus was 27 years old at the time of the accident and underwent surgeries as the gunshot wounds affected his abdomen, scrotum, and his left upper and lower leg. He is medically estimated to have suffered a 45 percent permanent impairment.

37. Mr Wrakowafie suffered at the hands of the police brutal assault and sustained physical injury. He was also forced into doing a sexual act with Mr Alois Jolpuk his cousin. He also lost personal items and possessions in the police raid.

39. Mrs Jolpuk suffered the humiliation of being sexually penetrated by her husband Mr Jolpuk in front of the policemen whom she was being threatened and abused at the Police Station by police officers.

41. Mr Lawas was severely beaten up by the police as a result of the police raid. He suffered physical injuries including a broken toe on the right foot. He was detained at the police station for about three days and later released. He also lost vanilla beans and for not attending to his vanilla business at the time of sustaining injuries.

43. For the remaining Plaintiffs who have suffered loss in terms of lost vanilla beans and or possessions as a result of the police raid and destruction and being threatened and suffering some form of mental distress as a result of witnessing the whole ordeal, they are awarded damages as in the following table:

Names of Plaintiffs	Breach of Constitutional Rights	Property Losses/Economic Losses	Distress and mental suffering
Andrew Simbiehao	K5000	K1000	K1 000
Agnes Simbiehao	K5 000		K1000
Thomas Paringu		K300	K1000
Philip Uram		K1000	K1000
Pius Salaho		K1000	K1000
Jimbukie Huasiura		K500	K1000
Joseph Huasiura		K400	K1000
Terrence Kondi		K400	K1000
Pretty Kamie		K1 000	K1000
Monias Kaski		K500	K1 000
Beldon Huasmani		K2000	K1000
Patrick Naris		K1 000	K1000
Sato Naris		K1000	K1000
Ingwai Horis		K600	K1000
Wilbert Horis		K300	K1000
William Sauseneng		K1000	K1000
Petrus Ani		K100	K1000
Wilson Sauseneng		K300	K1000
Paul Mania		K300	K1000
Ismael Haluhu		K400	K1000
James Yama		K50	K1000
Elvis Sausea		K100	K1000
John Yenui		K200	K1000
Alphonse Sauseneng		K300	K1000
Lemos Simi		K200	K1000
Silo Yehiwangwie	K1000	K1000	K1000
Rex Willie	K2000	K2000	K1000
Marijo Willie	K1000		K1000
Kondi Yehiwangie	K1000	K300	K1000
John Lingana		K1000	K1000
Livai Wangi		K200	K1000
Cherrol Felix		K200	K1000
Nipo Yehiwangwie		K1000	K1000
Nono Senginao		K1000	K1000
Philipus H		K300	K1000
Parinduo Kalimo		K1000	K1000
Felix Kalimo		K1000	K1000
Sengi Lingana		K1000	K1000
Swanji Kalimo		K1000	K1000
Apel Nani		K1000	K1000
Jimmy Lingana		K1000	K1000
Rex Nahembe		K1000	K1000
Willie Sarenduo		K1000	K1000
Scotty Willie		K1000	K1000
Geoffrey Waffi		K50	K1000
Lazarus Waffi		K500	K1000
Sony Wamaingu		K500	K1000
Andreas Wrakohao	K1000	K300	K1000
Moses Kenni		K300	K1000
Saura Numbo		K1000	K1000
Steven Senginao	K1000	K2000	K1000
Robinson Isu		K3000	K1000
Karu Kenden		K200	K1000
David Wanted		K300	K1000
Jomo Nimiereke		K1000	K1000
Bonny Davie		K500	K1000
Otto Waugi		K1000	K1000
Elias Wamaingu		K500	K1000
Dennis Huasihao		K500	K1000
Mocky Waffi		K300	K1000
Stoko Wamaingu		K1000	K1000
John Wrakowafie	K1000	K1000	K1000
Elvis Jolpuk		K500	K1000
Ani Hembendi		K100	K1000
Nasmi Uram		K100	K1000
Christina Scotty		K1000	K1000
Nichol Noah		K1000	K1000
Jumori Ningiwanguie		K1000	K1000
Freddy Pukiei		K1000	K1000
Michael Inanaka		K300	K1000
Adrian Wrakoi		K1000	K1000
Kenneth John		K500	K1000
Lasman Topi		K200	K1000
Topi Imbari		K300	K1000
Joel Uranen		K300	K1000
Urin Uranen		K200	K1000
Rickson Inanaka		K100	K1000

Exemplary Damages against the Individual Policemen named as First Defendants

44. The claim for exemplary damages as pleaded in the Statement of Claim by the Plaintiffs is basically to punish the offenders who are the First Defendants as police officers responsible for the assault and inhumane and unlawful treatment of the Plaintiffs during the said police raid. The Court in Solmein v Lim^[11] considered the Constitutional breaches in that matter and ordered K6 000 as exemplary damages. In the case of Komaip Trading v Waugulo and The State, exemplary damage is awarded as against the individual perpetrators and not vicariously against the State. The Court therein said this;

“Where the police have obviously acted too strongly, unless there is clear Government policy or directive for the police to act the way they have, how can the People as embodied in the Preamble of the Constitution as the State be punitively responsible for conduct which is really conduct in the independent discretion of the individual police officers involved.”

45. I will therefore order exemplary damages in the sum of K11 000 for each police officer named as the First Defendant to pay a sum of K1 000 each as exemplary damages to the Plaintiffs. This is so the individual police officers can bear some individual responsibility that the law condemns such unlawful conduct which is criminal in nature.

________________________________________________________________
Rageau Manua & Kikira Lawyers: Lawyers for the Plaintiffs

[4] In the case of Central Bank of Papua New Guinea v Tugiau [2009] PGSC 50; SC1013 (22 December 2009), in a matter involving a claim for breach of employment agreement, claims for psychological effects, stress, embarrassment, defamation of reputation and character following unlawful dismissal, the Supreme Court has said that there must be proper foundation on pleadings and that there must be evidence of such loss actually being suffered.

National Court of Papua New Guinea

Jolpuk v Kabilo [2022] PGNC 395; N9885 (12 September 2022)