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Mano v Wagambie Junior [2023] PGNC 179; N10410 (21 July 2023)

N10410

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 724 OF 2004

BENJAMIN MANO AS REPRESENTATIVE OF 75 OTHER SETTLERS OF PORTION 511, BILIA POINT, MADANG
Plaintiffs

V

INSPECTOR TONY WAGAMBIE JUNIOR
First Defendant

SAM INGUBA, COMMISSIONER OF POLICE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
2022: 6^th April
2023: 26^th May, 21^st July

DAMAGES – breach of human rights – destruction of houses and property by police at settlement during eviction exercise – assessment of damages after trial on liability.

The plaintiffs, settlers on Government land, succeeded at a trial in establishing a cause of action in breaches of human rights committed against them by members of the Police Force during an eviction exercise. Judgment was entered against the member of the Police Force who led the squad that entered the settlement and burned and destroyed houses and other property, and the State. A separate trial was conducted on assessment of damages. The 54 plaintiffs who gave evidence claimed six categories of damages: (1) damages for cash stolen or destroyed, K27,100.00; (2) damages for property losses, K1,163,739.00; (3) general damages, K540,000.00; (4) special damages, claim abandoned; (5) exemplary damages; (6) damages for breaches of human rights, K810,000.00. The total amount of damages sought was K2,910,839.00. The defendants argued that the claims were excessive, but did not argue that the question of liability should be revisited or that the plaintiffs should be awarded nothing.

Held:

(1) Though there were deficiencies in the plaintiffs’ evidence, damages were awarded to each plaintiff who gave evidence, in the following amounts: (a) damages for cash stolen or destroyed, K13,550.00; (2) damages for property losses, K29,108.39; (3) general damages, K540,000.00; (4) special damages, 0; (5) exemplary damages, K270,000.00; (6) damages for breaches of human rights, K810,000.00. Total damages was K1,748,073.90.

(2) 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 judgment on liability to the date of judgment on assessment of damages, a period of 2.83 years, a total of K98,940.98. The total judgment sum was K1,847,014.88.

Cases Cited

The following cases are cited in the judgment:

Albert Baine v The State (1995) N1335
Alphonse Willie v Simon Kaupa (2016) N6553
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] 1 PNGLR 142
Jacinta Albert v Joseph Aine (2019) N7772
Joe Tipaiza v James Yali (2008) N3472
Jonathan Mangope Paraia v The State (1995) N1343
Kolaip Palapi v Sergeant Poko (2001) N2274
Michael Jacob v Jim Namora & The State (2020) N8385
Peter Wanis v Fred Sikiot and The State (1995) N1350
Stanley Baine v Arnold Ulga & The State (2019) N8076
Thompson Munvi v Arnold Ulka Takai & The State (2018) N7100

Counsel
D F Wa’au, for the Plaintiffs
E Manihambu, for the Defendants

21^st July, 2023

1. CANNINGS J: This is an assessment of damages following a trial on liability. The first defendant (a member of the Police Force) and the third defendant (the State) were found liable for human rights breaches committed against the plaintiffs during a provincial government-sponsored eviction exercise conducted by police in Madang town in December 2003.

2. The 54 plaintiffs who gave evidence were living at the Bilia Point settlement, Portion 511, when the police, under the control of the first defendant, Inspector Tony Wagambie Junior, entered the settlement without sufficient notice being given to the settlers to vacate the settlement. The police went on a rampage, destroying homes and other properties. At the trial on liability, the plaintiffs established a cause of action in breaches of three human rights:

• right to freedom from inhuman treatment under s 36 of the Constitution
• right to freedom from arbitrary search and entry under s 44 of the Constitution;
• right to protection from unjust deprivation of property under s 53 of the Constitution.
  

3. The plaintiffs claimed six categories of damages:

(1) damages for cash stolen or destroyed, K27,100.00;

(2) damages for property losses, K1,163,739.00;

(3) general damages, K540,000.00;

(4) special damages, claim abandoned;

(5) exemplary damages, K270,000.00;

(6) damages for breaches of human rights, K810,000.00.

The total amount of damages sought was K2,910,839.00.

4. The defendants argued that the claims were excessive, but did not argue that the question of liability should be revisited or that the plaintiffs should be awarded nothing.

EVIDENCE

5. The plaintiffs’ case consisted of affidavits sworn by 54 plaintiffs, deposing to what the police had done and the property damage the deponent had incurred and/or witnessed. There was no evidence for the defendants.

GENERAL PRINCIPLES FOR ASSESSMENT OF DAMAGES

6. 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 Pakilin 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 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
7. I will assess damages in the six categories of damages pleaded in the statement of claim.

(1) Cash stolen or destroyed

8. Twelve plaintiffs gave evidence that their cash in the following amounts was stolen or destroyed:

Benjamin Mano K3,700.00
Sonny Mathew K2,500.00
Benedict Yambi K2,500.00
Sakias Fomusa K1,300.00
Lukas Lukumang K2,000.00
Joseph Windi K1,950.00
Gim Windi K1,450.00
Bari Mathew K2,000.00
Philip William K1,500.00
Paul Mase K2,000.00
Mathias Mari K2,500.00
Thomas Wandi K1,200.00.

9. I agree with the submission of Mr Manihambu for the defendants that it is difficult to accept these claims at face value as there is no evidence to corroborate what the plaintiffs have deposed to in their affidavits. These are large amounts to have in a house at a settlement. Some healthy scepticism is required when assessing such claims. I will award the 12 plaintiffs 50% of what they claimed.

10. This group of plaintiffs is awarded the following amounts:

Benjamin Mano K1,850.00
Sonny Mathew K1,250.00
Benedict Yambi K1,250.00
Sakias Fomusa K650.00
Lukas Lukumang K1,000.00
Joseph Windi K975.00
Gim Windi K725.00
Bari Mathew K1,000.00
Philip William K750.00
Paul Mase K1,000.00
Mathias Mari K1,250.00
Thomas Wandi K600.00.

(2) Property losses

11. Each of the 54 plaintiffs gave evidence of the police destroying or seriously damaging their homes and other properties. Mr Manihambu pointed out the deficiencies in this evidence. I take into account that there is a detailed valuation report corroborating the plaintiffs’ claims but I agree that the evidence as to how it was prepared and completed within a few weeks of the incident, in the middle of the festive season, strains credibility. I uphold Mr Manihambu’s submission that the plaintiffs’ claims are exaggerated. However, I do not think it would be appropriate to award them nothing. Clearly the incident happened as alleged. A lot of homes and other properties were destroyed. The plaintiffs have a right to be compensated for their property losses.

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

• 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] 1 PNGLR 142: 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%.
  
• Stanley Baine v Arnold Ulga & The State (2019) N8076: there was an unlawful police raid of a village on Karkar Island in Sumkar district of Madang Province in which houses were burned and other property including gardens and livestock destroyed. Default judgment was entered against the defendants. At the trial on assessment of damages, 76 plaintiffs gave evidence. Their claims for property losses were each discounted by 90%.
  
• Michael Jacob v Jim Namora & The State (2020) N8385: there was an unlawful police raid of villages on Bagabag Island in Sumkar district of Madang Province in which houses were burned and other property including gardens and livestock destroyed. Liability was established at a trial. At the trial on assessment of damages, 107 plaintiffs gave evidence. Their claims for property losses were each discounted by 90%.
  

13. The only case in which I applied a discount of 50% was Tipaiza. In the other cases I applied a discount of 90%. I will apply 90%. This is a fair and realistic approach when the evidence is deficient. The result is shown in table 1. Column 1 is the number ascribed to the plaintiff according to the numbering in Mr Waáu’s submission. 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 10% (representing the discounting of the total claim for property losses by 90%). 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

(3) General damages for pain and suffering, distress etc

14. Mr Waáu submitted that each plaintiff who has given evidence should be awarded K10,000.00 general damages. That amount would be consistent with the awards of general damages in the cases of Munvi, Jacob and Baine. This is a valid claim. Clearly it was a traumatic and disturbing experience for the plaintiffs. I award each plaintiff who has given evidence the sum of K10,000.00. A total of K540,000.00.

(4) Special damages
15. This claim has been abandoned. Nothing is awarded.

(5) Exemplary damages

16. Mr Waáu submitted that each plaintiff who has given evidence should be awarded K5,000.00 exemplary damages. That amount would be consistent with the awards of exemplary damages in the cases of Munvi, Jacob and Baine. This is a valid claim. It is a punitive form of damages, but it is warranted in this case. Having regard to s 12(1) of the Claims By and Against the State Act 1996, there has been a breach of constitutional rights so severe as to warrant an award of exemplary damages. I award K5,000.00 to each plaintiff.

(6) Damages for breach of human rights

17. Mr Waáu submitted that each plaintiff who gave evidence should be awarded K5,000.00 damages for each of their human rights proven at the trial on liability to have been breached, ie breaches under ss 36, 44 and 53 of the Constitution. He submits that each plaintiff should be awarded K15,000.00. That amount would be consistent with the specific awards for breaches of human rights in the cases of Munvi and Baine. This is a valid claim. I award each plaintiff who has given evidence the sum of K15,000.00. A total of K810,000.00.

SUMMARY

18. The plaintiffs are awarded the following amounts:

(1) damages for cash stolen or destroyed, K13,550.00;

(2) damages for property losses, K116,373.90;

(3) general damages, K540,000.00;

(4) special damages, 0;

(5) exemplary damages, K270,000.00;

(6) damages for breaches of human rights, K810,000.00.

Total = K1,748,073.90.

19. The total award of damages to each plaintiff is shown in table 2.

INTEREST

20. Mr Waáu submitted that interest should 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 8% per annum. He argued that, as the incident giving rise to liability occurred in 2003, the plaintiffs’ right to interest pre-dated the commencement of the 2015 Act, and the capping to 2% of interest on judgments against the State, which nowadays applies, is irrelevant.

21. That sort of argument is foreclosed by s 2 (application) of the 2015 Act, which states:

This Act applies to all Court Orders made against the State on or after 1 January 2014.

22. I uphold the submission of Mr Manihambu that interest must be assessed in accordance with s 4 (pre-judgment interest on debts and damages) of the 2015 Act, which states:

(1) Subject to Section 5, in proceedings in a court for the recovery of a debt or damages, the court may order a rate as it thinks proper to be applied to the sum for which judgment is given interest, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.

(2) Where the proceedings referred to in Subsection (1), including proceedings arising out of a breach of express or implied contract or mercantile usage, are taken against the State, the rate of any interest under that subsection shall not exceed 2% yearly.

(3) The maximum rate of interest in Subsection (2) applies notwithstanding that the proceedings against the State arose out of a breach of express or implied contract or mercantile usage and the relevant interest rate in the contract or mercantile usage is higher than 2%.

(4) A judgment entered contrary to Subsections (2) and (3) is a nullity and is liable to be set aside and re-issued according to law by the same judge or judges on application —

(a) by the lawyer for the State; or

(b) by the registrar, clerk or other proper officer of the court by which the judgment is given; or

(c) by any party to the proceedings.

23. As I said in Alphonse Willie v Simon Kaupa (2016) N6553 I cannot read these provisions in any way other than capping the award of interest against the State at the rate of 2%. This restriction applies to all Court orders made on or after 1 January 2014, irrespective of the date on which the proceedings were commenced. It applies in this case, even though the cause of action accrued in 2003 and the proceedings were commenced in 2004.

24. I exercise the restricted discretion conferred by the 2015 Act by awarding interest at the rate of 2% per annum.

25. As for the period in respect of which interest is calculated, I emphasise that this case has been continuing for 19 years. This delay is not obviously attributable to the defendants. I do not think it would be appropriate to fix the start date as the date of the incident in 2003 or the issuance of the writ in 2004. I will fix the start date as the date of judgment on liability, 8 September 2020. The end date will be the date of this judgment. The period is 2.83 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 0.0566 (0.02 x 2.83), as shown in table 2.

TABLE 2: TOTAL AWARD OF DAMAGES + INTEREST

COSTS

26. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. However, Mr Waáu has asked the court to award costs in a fixed sum. He proposes K100,000.00. Mr Manihambu responded that K50,000.00 would be more appropriate.

27. The National Court may award costs in a fixed sum, without any requirement for taxation, under Order 22 rule 6(1)(c) of the National Court Rules (Pua v Magiten (2005) N2892. It has the great advantage of being a simple and straightforward process. It saves time and effort on both sides of a case. The challenge is to arrive at an amount that is fair and reasonable. Preparation of this matter for trial, bearing in mind that there were originally 75 plaintiffs and by the time of the trial on assessment the number had been reduced due to deaths and other exigencies of life to 54, and the case has been continuing for almost 19 years, and there have been two separate trials, would inevitably involve a considerable amount of time and effort. There was no costs order in the judgment on liability. I will order costs, as a compromise of the competing arguments, in the sum of K75,000.00.

ORDER

1. Damages are payable by the first and third defendants to each plaintiff whose name appears in the schedule, in the amount shown for each plaintiff.
   
2. In addition, interest is payable by the first and third defendants to each plaintiff whose name appears in the schedule, in the amount shown for each plaintiff.
   
3. The first and third defendants shall pay the plaintiffs ‘costs of the entire proceedings in the fixed sum of K75,000.00.
   
4. The proceedings are thereby determined and the file is closed.
   

SCHEDULE

______________________________________________________________________________
DFW Lawyers: Lawyers for the Plaintiffs
Solicitor-General: Lawyers for the Defendants