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Vakao v Somia [2024] PGNC 157; N10808 (15 May 2024)

N10808

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HR (WS) NO. 172 OF 2021

BETWEEN:
JACK VAKAO FOR HIMSELF & ON BEHALF OF 49 OTHERS WHOSE NAMES APPEARS IN THE SCHEDULE ‘A’ TO THIS WRIT
Plaintiff

AND:
CONSTABLE ISACAH SOMIA & MEMBERS OF MADANG POLICE
First Defendants

AND:
MAZUIAC RUBIAN AS PROVINCIAL POLICE COMMANDER OF MADANG PROVINCE
Second Defendant

AND:
DAVID MANNINGS AS POLICE COMMISSIONER OF PAPUA NEW GUINEA
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Madang: Narokobi J
2023: 15th August
2024: 15th May

DAMAGES – breach of human rights – destruction of houses and property by police at settlement during an illegal search – assessment of damages after trial on liability.
The 50 plaintiffs are residents in Madang town of two urban settlements, called “Wagol” and “LBC Saw Dust.” A police raid was conducted on 13 December 2019 at these two settlements destroying homes, properties and garden crops. Those who lost their homes and properties are now seeking damages against the defendants for the illegal police raid conducted. They claim the following damages:

(a) General damages for negligence in the sum of K2,250,000.00;
(b) Damages for breach of human rights K1,750,000.99;
(c) Special damages for property losses – K1,271,655.65;
(d) General damages for pain and suffering – K500,000.00;
(e) Exemplary damages for K250,000.00;
(f) Interests; and
(g) Costs.

This is the court’s decision after trial on assessment of damages.

Held:

(1) The evidence of the plaintiffs was not corroborated nor verified by independent sources with the values of properties claimed substantially discounted with the following amounts awarded: total judgment sum: K2,254,331.01, composed of loss of property, K254,331.01; general damages, K500,000.00; breach of human rights, K750,000.00; and exemplary damages K250,000.00.

(2) Interest at 2% was awarded on the judgment sum and costs against the State defendant.

Cases Cited

Amaiu v Yalbees (2020) SC2046
Kolokol v Ambuarapi (2009) N3571
Mano v Wagambie Junior (2023) N10410
Mel v Pakalia (2005) SC790
Stanley Baine and others v Arnold Ulga and Others (2019) N8076
Yalbees v Amaiu (2023) N10481


Counsel

B B Wak, for the Plaintiffs
E Manihambu, for the Defendants

JUDGEMENT

15th May 2024

1. NAROKOBI J: The 50 plaintiffs are residents in Madang town of two urban settlements, called “Wagol” and “LBC Saw Dust.” A police raid was conducted on 13 December 2019 at these two settlements destroying homes, properties, and garden crops. Those who lost their homes and properties are seeking damages against the defendants for the illegal police raid.
   
2. Liability was determined by default judgment on 13 October 2021. The matter now comes back for assessment of damages. Each of the 50 plaintiffs have filed their affidavits detailing their losses from the disastrous events of 13 December 2019.
   
3. I have perused the statement of claim and I confirm that I should not disturb the finding of liability against the defendants on the two main causes of action pleaded, that is for negligence and for breach of human rights, except for breach of ss 53 and 59 of the Constitution which I will come to shortly. The plaintiffs have also pleaded that what the named defendants did was in the course of employment and pursuant to ss 1(1) and 4 of the Wrongs (Miscellaneous Provisions) Act 1975 the state should be vicariously liable. The state has not contested this, and from a cursory appraisal of the statement of claim, I find that I should also confirm that the state is vicariously liable for the actions of its servants and or agents as it was in the course of employment.
   
4. The facts of the case pleaded in the statement of claim states that there was a fight at around 13 December 2019 between 9am and 10am at Milders Market of Madang Town, Madang Province, and a policeman was stabbed in the fight. He subsequently died from the stab wounds. At about 11.00am the second defendant issued instructions on the police on duty in Madang at the time to mobilise and search the premises of the plaintiffs situated at Wagol and LBC Saw Dust. Rather than just confining themselves to doing a general search, members of the Madang Police raided, looted, destroyed properties and burned down houses of the plaintiffs without any lawful justification. In the process the plaintiffs were threatened, which included persons living with disability in the community. This went on from 12.00pm to 4.00pm.
   
5. The plaintiffs claim damages from the negligence of the defendants and breach of the following rights – s 36 (Freedom from inhuman treatment), 37(1) (Protection of the law), s 41 (Proscribed acts), s 53 (Unjust deprivation of property) and s 59 (Principles of natural justice). I follow the decision of the Supreme Court in Amaiu v Yalbees (2020) SC2046, to decide which rights I should uphold. In a police raid case, the Supreme Court held that s 53 was not applicable for two reasons – firstly that defendant was not the state, but more relevant here, the nature of a police raid cannot be said to be a case of expropriation. I will therefore dismiss the claim for breach of s 53 of the Constitution. Section 59 (Principles of natural justice) is also not a provision capable of being enforced as a right, but adopts general principles public authorities are required to observe in making decisions which are the subject of administrative judicial review. I therefore do not consider breach of s 59 as a valid claim. I am therefore left with breach of three rights that I consider for an award for damages:
   
   • Section 36 – This happened when the plaintiffs were threatened and sworn at;
   • Section 37(1) – Not protecting the plaintiffs from an unlawful search; and
   • Section 41(1) – The treatment meted out was harsh and oppressive and not warranted by the circumstances of the case.
     
6. Fifty affidavits, one from each of the plaintiffs was filed, detailing their losses. No additional evidence was tendered to corroborate their claims. The defendants have also not tendered any affidavits rebutting the plaintiffs’ losses.
   
7. In the statement of claim each plaintiff pleads the losses they suffered. These amounts are backed up by the affidavits filed. The aggregate damages the plaintiffs ultimately claim from the State are stated hereunder:
   
   • (a) General damages for negligence in the sum of K2,250,000.00;
   • (b) Damages for breach of human rights K1,750,000.99;
   • (c) Special damages for property losses – K1,271,655.65;
   • (d) General damages for pain and suffering – K500,000.00;
   • (e) Exemplary damages for K250,000.00;
   • (f) Interests; and
   • (g) Costs.
     
8. The question now is what is the appropriate amount of damages the plaintiff should be entitled to. I will determine this question by looking at the following categories of damages:
   
   • Property losses;
   • Damages for breach of human rights;
   • General damages for pain and suffering; and
   • Exemplary damages.
     
9. I reject the claim for general damages for negligence. It is not appropriate to claim general damages for negligence, and then make a further claim for general damages for pain and suffering. It will result in a duplication of damages. My view is fortified from regard to police raid cases such as Mano v Wagambie Junior (2023) N10410 where damages was awarded for the following - (a) damages for cash stolen or destroyed, (2) damages for property losses; (3) general damages; (4) exemplary damages; and (5) damages for breaches of human rights.
   
10. Generally, the principles on assessment of damages, which I consider in this matter are stated in the case of Mel v Pakalia (2005) SC790. I quote these principles from that case and adopt them in this case in my assessment of damages:
    
    • 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 [1992] PNGLR 254, National Court, Woods J; MVIT v Pupune [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.)
      
11. The plaintiff submits I should not take the approach in Mano v Wagambie Junior where the court discounted the claim by 90% because in this case there is no deficiency in the evidence. I should instead discount the claim by 50% and award K1,271,655.07. In Yalbees v Amaiu (2023) N10481 I made the following observations at [55] when discounting the loss of property by 90% in a case where properties were destroyed in an eviction exercise:
    

The largest claim is for loss of houses. Whilst the affidavit lists what each Plaintiff has lost in the eviction exercise, what I see lacking is additional information to verify their claim. The evidence should state the occupation of the plaintiff, when the houses were built, what it cost them to build, and the type of materials used to build the house. This will enable the court to get an appreciation of the income of the Plaintiff and his or her ability to expend the kind of money they claimed that was used to construct such properties. This is all the more important given that this was a urban-settlement setting, and it is safe to say that the houses constructed usually do not have building board approval and may or may not be permanent high covenant houses.

12. I am not persuaded by the plaintiffs’ submissions because their evidence is not corroborated and additionally, they have not verified their claims from independent sources. The loss of property will therefore attract a discount of 90%.
    

Table 1 – Loss of Property Claim and Actual Amount Awarded

13. For general damages the plaintiff relied on the case of Stanley Baine and others v Arnold Ulga and Others (2019) N8076, where the National Court awarded K10,000.00 in a police raid case for general damages for pain and suffering and submitted that the same amount should be awarded. Considering that this was a sudden, unprovoked attack that surprised the plaintiffs who were innocent of any wrongdoing, and left traumatised by the incident, I accept the plaintiffs’ claim and award K10,000.00 to each plaintiff as general damages for pain and suffering. The total I award is K500,000.00 for the 50 plaintiffs.
    
14. For breach of human rights, there was three infringements of rights. That is breach of ss 36, 37(1), and s 41 of the Constitution. I accept counsel’s submission that I should assess damages for each occasion of the breach relying on Kolokol v Ambuarapi (2009) N3571. I restate what I said above regarding the instances in which the plaintiffs’ rights were breached (see paragraph 5 above). Following Mano v Wagambie Junior I will award K5,000.00 for each occasion there was a breach of their rights, a total of K15,000.00 for each plaintiff. The total award for this category of damages will be K750,000.00.
    
15. For exemplary damages, I have had regard to s 12 of the Claims By and Against the State Act 1996. The circumstances in which the rights were breached speaks to the opposite of what the Royal Papua New Guinea Constabulary stands for, a disciplined force. They behaved in a manner that was unwarranted and spells of vigilante justice, rather than allowing the due process of the law they are sworn to uphold take its course to investigate the suspected killer of their colleague. The illegal raid went on from 12pm to 4pm. It was continuous and serious. Following Mano v Wagambie Junior on police raid cases, I will award K5,000.00 to each plaintiff in exemplary damages. The total award for exemplary damages will be K250,000.00.
    
16. The total judgment sum awarded will be K2,254,331.01 composed of loss of property, K254,331.01; general damages, K500,000.00; breach of human rights, K750,000.00; and exemplary damages K250,000.00. Each plaintiff will be awarded the following:
    

Table 2 – Summary of Damages Awarded

17. I will order interests on the judgement sum, and since the State is being sued in vicarious capacity, the interest rate shall be 2% pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015 from the date of filing of the proceedings to the date of judgement.
    
18. The normal rule is that costs follow the event, and I order that the State will pay the plaintiffs costs, to be taxed if not agreed.
    
19. The final orders of the court are as follows:
    
    1. The State pays the plaintiffs a total judgment sum of K2,254,331.01, with each plaintiff being entitled to the sum set out in the last column of Table 2 at paragraph 16 in the judgement.
    2. The State pays the plaintiffs interest on the judgement sum of K2,254,331.01 at 2% from the date of filing of the writ to the date of judgement.
    3. The State pays the plaintiffs costs, to be taxed if not agreed.
    4. The matter is considered determined, and the file is closed.
    5. Time is abridged.
       

Judgment and orders accordingly.
________________________________________________________________
Bradley and Company Lawyers: Lawyers for the Plaintiffs
Acting Solicitor General: Lawyers for the Defendants