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Paru v Wobiro [2024] PGNC 361; N11005 (21 September 2024)

N11005


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS (HR) NO. 996 OF 2014


BETWEEN
WAKI PARU as next friend of Dickson Paru
Plaintiff


AND
GEANE WOBIRO
First Defendant


AND
DAVID TAVOLA, Sergeant
Second Defendant


AND
POLICE COMMISSIONER
Third Defendant


AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant


Alotau: Toliken J
2024: 21st September


DAMAGES – dependency claim - police shooting – damages claimed – general for negligence – Breach of human rights – suffering, mental distress and anxiety – exemplary damages – special damages - Damages for suffering, mental distress, anguish, and anxiety - Special damages.


Cases Cited:
Mel v Pakalia (2005) SC790
Yooken Paklin v The State (2001) N2212
Albert Baine v The State (1995) N1335
Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331
Peter Wanis v Fred Sikiot and The State (1995) N1350
Yange Lagan and Others v The State (1995) N1369
Obed Lalip and Others v Fred Sikiot and The State (1996) N1457
MVIT v Tabanto [1995] PNGLR 214
Waima v MVIT [1992] PNGLR 254
MVIT v Pupune [1993] PNGLR 370
Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247
Jonathan Mangope Paraia v The State (1995) N1343
Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274
Michael Buna v The State (2004) N2696
Komba v Duwaba [2006] N2979
Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274
Michael Buna v The State (2004) N2696
Komba v Duwaba [2006] N2979
Bayava v Minisang Wankiar and Lufa Local Government Council [1978] PNGLR 39
Kerr v Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251
Richard Dennis Wallbank and Jannette Minifie v The State [1994] PNGLR 78
Kembo Tirima v ANGAU Memorial Hospital Board and The State (2006) N3106
Wandokun v Manase Leeman & Madang Provincial Government (2015) N5950
Motor Vehicle Insurance Ltd v Manduru (2018) SC1750
Koko v Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 167
None v MVIT [1990] PNGLR 561
Tape v MVIT [1990] PNGLR 568
More v Tokam (1997) N1645
Napiri v The Independent State of Papua New Guinea (2006) N2076.
Muna Uokare v The State [1988-89] PNGLR 655
Simin Dingi v MVIT [1994] PNGLR 385
Puk Kum v The State; WS No 44 of 1996 (unreported judgment of 12.09.03
Wiwa v The State (2012) N5271


Counsel:
T. Ilaisa, for the Plaintiff
Nil Appearance by and for the Defendants.


JUDGMENT


21st September 2024


  1. TOLIKEN J: This an undefended estate and dependency claim for which default judgment on liability was entered on 11th December 2015. Trial for assessment of damages was heard on 14th July 2016 and the decision was reserved. This is the decision on the assessment of damages.

Background Facts


  1. On the night of Sunday 03rd March 2013, at about 8.00 o’clock the deceased Dickson Paru and his friend Emmanuel Sakaiyo were walking from the Kwato Community College or Skills Training Centre where they were attending as students to the Kwato Mission Church for choir practice.
  2. At the same time, the First and Second Defendants who are policemen and another colleague of theirs were conducting a motorized patrol around the area, in search of criminal suspects who had earlier that night held up a taxicab within the vicinity.
  3. The deceased and his friend were about to cross the road when the policemen saw them. The police discharged some shots in the air and as the boys turned to run away, the Second Defendant fired a couple of rounds after them, hitting and killing the deceased instantly. The First and Second Defendants were later charged for the wilful murder of the deceased. The First Defendant was acquitted but the Second Defendant was convicted and sentenced to 25 years. (The State v David Tavolla; CR 1042 of 2013 (Unnumbered and unreported judgment dated 15 May 2017).
  4. On 13th August 2014. The Plaintiff Waku Paru commenced proceedings by way of Writ of Summons, wherein, apart from Geane Wobiro and David Tavolla, he also named one Martin Virani as the First Defendant. The State (Fourth Defendant) filed its Notice of Intention to Defend on 10th November 2014. None of the other defendants filed any similar notice.
  5. On 17th July 2015, leave was, however, granted for the Plaintiff to remove Martin Virani as a party to the proceedings. The Plaintiff was also ordered to file and serve his Amended Writ of Summons and Statement of Claim by 31 July 2015. The Amended Writ was duly filed on 30th July 2015. The First and Second Defendants were duly served on 03rd August 2015. On 31st July 2015, the Third Defendant was duly served with the Orders of 17th July and the Amended Writs of Summons.
  6. The defendants did not file any defence at all. The Plaintiff issued the necessary warning for default judgment. On 20th November 2015, the Fourth Defendant (State) was, through the Solicitor General, duly served with a Notice of Motion for default judgment. Default judgment was entered against the Defendants on 11th December 2015. I heard the Plaintiff on assessment of damages on 14th July 2016. Despite the necessary notices by the Plaintiff, the Defendants did not make any appearance either in person or by counsel.

The Claim


  1. The Plaintiff seeks damages for the following –

THE EVIDENCE

  1. The Plaintiff relied on his Affidavit in Support sworn and filed on 31st March 2016, and Additional Affidavit sworn on 08th July 2016 and filed on 11th July 2016. His evidence which went uncontested can be summarized as follows; he is the father of the deceased Dickson Paru who was his first-born child. He comes from Mutuyuwa Village on the outskirts of Alotau Town. He was born on 13th March 1965 at the Alotau General Hospital. He is married to Nelly Wake, and they had their first child, the deceased, on 25th September 1994.
  2. The late Dickson completed his Primary School education at KB Primary School in 2010 and completed High School at Cameron Secondary School in 2012 but was unable to continue to Grade 11.
  3. In 2013 the Plaintiff and his wife enrolled Dickson at the Kwato Skills Training Centre at KB Estate, Alotau. This is a vocational training school offering trade courses in carpentry, mechanics, and home economics for school leavers who are unable to progress to tertiary institutions. Dickson wanted to be an electrician but since classes had just started at the time of his death, he was unable to stream to his desired field of training.
  4. The deceased was killed under the following circumstances. On 03rd March 2013, an attempted robbery of a taxi at KBD Estate, Alotau was reported by the victim at the Alotau Police Station. Using the complainant’s taxi, the First and Second defendants proceeded to the scene. They were armed with firearms.
  5. They did not locate the suspects and so they proceeded towards the Kwato Skills Training Centre. There they spotted the deceased Dickson and a colleague of his namely Emmanuel Sakaiyo walking towards the intersection with the main road from the Training Centre. The First and second Defendants stopped the taxi, got off and called out to the deceased and his friend and fired at them. The deceased was hit by a bullet on the head and died instantly.
  6. At the time of the killing the first defendant was a Constable and was attached to the Alotau Police Station. The Second Defendant held the rank of Sergeant. He was the Commander of the Southern Command Task Force which had been deployed to Alotau to capture the notorious Tommy Baker and his gang.
  7. The Plaintiff was notified of his son’s death after his body was taken away by the ambulance to the Alotau General Hospital.
  8. Subsequently the plaintiff made the necessary arrangements for his son’s funeral followed later by the installation of a headstone which was flown in from Port Moresby. The Plaintiff incurred costs for these activities as well as receive cash assistance from the then Local Member of Parliament Mr. Charles Abel and his (Plaintiff) sister Pepi Paru. He also took out a loan from KB Development Limited to help with his expenses.
  9. This case attracted public outcry from within the local Alotau and Milne Bay community as well as within the country. Incidentally, the First and second defendants were charged for the wilful murder of the deceased. The First Defendant was acquitted while the Second defendant was convicted and sentenced to 25 years.

Issues

  1. What needs to be determined here are the following issues –
    1. Has the Plaintiff proved his losses?
    2. What is the measure for each head of damages?

Principles On Assessment Of Damages

21. For our present purposes I adopt the summation by the Supreme Court of the applicable principles on assessment of damages in Mel v Pakalia (2005) SC790 (Los, Jalina and Cannings JJ). These are:

  1. In (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274, Jalina J also held that 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. (See also Michael Buna v The State (2004) N2696 (Cannings J) and Komba v Duwaba [2006] PGNC 218; N2979 Cannings J).
  2. Let me now consider whether the Plaintiff has proved his losses and the measure of such damages.

Deliberations


(I) Damages for Constitutional Breaches
  1. The plaintiff seeks damages for the following breaches of human rights under the Constitution:
    1. Section 35 - Right to life: The deceased was deprived of his fundamental right to life by the collective actions of the First and Second Defendants.
    2. Section 36 – Freedom from Inhuman Treatment: The deceased was denied his right from inhuman treatment when he was shot by the First and Second Defendants without warning and without offering any threat of violence to or threat to the lives of the First and Second Defendants.
    3. Section 37 – Protection of the Law: The deceased was not accorded protection of the law by the First and Second Defendants when they acted as they did which resulted in the death of the deceased.
    4. Section 41 - Proscribed Acts: The actions of the First and Second Defendants against the deceased, even if lawful, were harsh and oppressive.
  2. Has the plaintiff proved his losses under each of the above?
  3. Constitutional rights are personal rights (in personam). And estate and dependency claims are recoverable by persons so entitled to the same extent under the provisions Wrongs (Miscellaneous Provisions) Act (the Wrongs Act) and subject to the same standard and onus of proof as in all civil claims.
  4. The plaintiff must therefore prove his losses by providing supporting evidence on the preponderance of evidence. It is not sufficient for the plaintiff to merely plead breaches of Constitutional rights and leave it at that or expect the court to pick up the pieces and make an award.
  5. In the instant case, there is no doubt that the deceased’s rights were breached by the first and second defendants who at the relevant time were acting in the course of their duty and that his father, the Plaintiff can maintain an action and recover damages against the defendants – the First and Second Defendants as tortfeasors and vicariously against the State (fourth defendant).
  6. The plaintiff did not provide any evidence at all or quantify his losses in respect to these breaches. He does not mention what losses he suffered in his supporting Affidavit, nor did his counsel make any submission in that regard. Can the Court still award damages despite that failure?
  7. As important as Constitutional rights are, and that breaches of those rights must be met with sanctions by the award of adequate, if not substantial damages against those breaching them, the preponderance of case authorities cited above is that the onus is on the plaintiff to prove his loss by adducing credible and where necessary corroborative evidence. Where judgment is by default or the defendant had failed to provide evidence countering the losses alleged, the plaintiff is not excused from discharging that duty.
  8. Since the Plaintiff has failed to prove his loss on this head of damages none will be awarded.

General Damages for Negligence


  1. Despite failing to recover any damages for breach of Constitutional rights the Plaintiff is entitled to recover general damages for negligence as the first and second defendants were negligent when they caused the death of the deceased.
  2. The Plaintiff claims and adduced evidence in support of the following:
  3. I must say here that funeral and related expenses are not a separate head of damages but come under special damages. I will therefore treat them as such. Let me now turn to assessing each of these heads of damages.

Estate Claim - Loss of Expectation of Life


  1. An estate claim is provided by Section 34 of the Wrongs Act which provision preserves a deceased person’s estate to sue or be sued as if he had not died. Subsection (1) of Section 34 provides that on the death of person all causes of action existing or subsisting against or vested in him survive against or for the benefit of, as the case may be, his estate.
  2. An estate claim is primarily for loss of expectation of life. The Court has over the years awarded a conventional sum under this head. For instance, the sum of K1500.00 was awarded in Bayava v Minisang Wankiar and Lufa Local Government Council [1978] PNGLR 39 (See also Kerr v Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251). The Supreme Court, however, increased this to K3000.00 in Richard Dennis Wallbank and Jannette Minifie v The State [1994] PNGLR 78. This held sway for some 12 years until Cannings J in Kembo Tirima v ANGAU Memorial Hospital Board and The State (2006) N3106 awarded K6000.00 which his Honour felt was a more realistic sum. In Wandokun v Manase Leeman & Madang Provincial Government (2015) N5950, his Honour increased this to K8000.00. When trial was conducted for assessment of damages in the instant case it appeared that this latest increase had not been set aside by the Supreme Court on appeal. In fact, for interest’s sake, the Supreme Court did subsequently approve the increase set in Wandokun three years later Motor Vehicle Insurance Ltd v Manduru (2018) SC1750).
  3. The plaintiff sought K8000.00 under this head. I award that sum.

Dependency Claim (Future Economic loss)


  1. A dependency claim is not compensation for the loss of a spouse or child, compensation for loss of service, or grief suffered because of the loss of the deceased. Rather it is meant for economic or pecuniary benefits which the plaintiff might reasonably have expected from the deceased had he or she not died. (Koko v Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 167).
  2. The plaintiff here claims K26520.00 for future economic loss. He deposed that the deceased, who was born on 25th September 1994, died at the age of 19 years, just after enrolling at the Kwato Skills Training Centre where he intended to train to be an electrician. The plaintiff himself was born on 13th March 1965.
  3. The deceased was only 19 years old and was barely into the first year of vocational training. He therefore had no earning capacity and even if he were to have completed his vocational training, however long it was to be (the evidence is silent on this), it would have taken several more years before he would have realistically entered formal and gainful employment. And so, what then would be the measure of damages in a situation such as this?
  4. The conventional worldview is that children are dependent on their parents until they reach the age of majority. In other words, children depend on their parents and not vice versa. Parents are therefore not entitled to a dependency claim in respect of their deceased children. This was the view taken in cases such as Koko v Motor Vehicle Insurance (PNG) Trust (supra), None v MVIT [1990] PNGLR 561, Tape v MVIT [1990] PNGLR 568 and More v Tokam (1997) N1645. The plaintiff parents in those cases could not succeed precisely for that reason.
  5. Cannings J, however, departed from these authorities first in the case of Napiri v The Independent State of Papua New Guinea (2006) N2076. There, the mother of a 16-year-old boy who was allegedly shot dead by the police brought proceedings in negligence against the State based on vicarious liability (s 1 of Wrongs Act), dependency, and estate claim (Parts IV and V of the Wrongs Act). The State unsuccessfully challenged both vicarious liability and the dependency claim. On the dependency claim the State sought to rely on More v Tokam (supra) which as we have seen stipulated that parents were not dependent on their children. In refusing to follow More v Tokam which was not binding on him, Cannings J pertinently said:

104. The third reason for rejecting the claim in Andale More was a substantive, not a procedural, one: the parents of a young man negligently shot dead by police when he was 18 years old could not succeed as, the court held, they were not dependent on him. He had not reached the age of majority (21 years of age). If there were any relationships of dependency, it was the deceased who was dependent on his parents, not the other way around.

105. This view of the world is a conventional one, demonstrated by cases such as Jackson Koko and Elisha Koko v MVIT [1988] PNGLR 167. Children of a marriage are regarded as dependants of their parents up to the age of 16 or 18. After that they are treated as independent. In that case two children lost their mother in a car accident. The children were aged four and two when she died. A dependency claim was brought on their behalf against MVIT (as insurer of the negligent driver who caused the accident, the children's father). When calculating the dependency claim Bredmeyer J held that the children were entitled to damages for the loss of any pecuniary benefits that they might reasonably have expected to enjoy had their mother not died plus the loss of their mother's extra services, eg instruction on essential matters to do with upbringing and help with homework, over and above those that could be provided by a housekeeper. These losses were assessed to be worth K3.50 per week, which was multiplied by the number of weeks from the date of death to the date on which each child would turn 16 years of age. In more recent National Court cases the age of independence was lifted to 18 years (eg None v MVIT [1990] PNGLR 561, Brunton AJ; Tapi v MVIT [1990] PNGLR 568, Woods J). Those two cases fine-tuned the general principle applied tacitly in Koko and expressly in Andale More: children are dependent on their parents; parents are not dependent on their children.

106. That, in my opinion, is not necessarily the case. It might represent the way things are meant to work in a western, nuclear family. But I do not think it is a true reflection of the way that families operate in Papua New Guinea. Extended families are the norm and the wantok system holds sway. From the date of birth, a child in PNG is an investment. In the village environment he is an investment for both the father's side and the mother's side of the family. A boy can be a warrior for his tribe. As he grows older, he will provide food and security to his mother and sisters. He will be a provider not only to his parents, brothers, and sisters but also for his uncles, particularly on his mother's side. A girl is also very much cherished and protected. She will typically help her mother greatly while she is growing up. She will fetch a bride price and bring peace if she marries into another tribe. When the child is growing up, he or she will help the mother look after pigs, chickens and help generally in the garden with cleaning, planting and harvesting. There is no doubt that in PNG any child is an investment unit to the parents as well as the extended family. I consider that the death of a 16-year-old boy would, in addition to the tragedy and trauma associated with the death, cause an economic loss to his parents, brothers and sisters and to the extended family. Furthermore, many children continue to live at home after they turn 16 or 18. When they marry they often still live at home. If they get a paid job they are expected to contribute to the maintenance of the extended family unit. If they are living a predominantly subsistence lifestyle in the village environment they are still expected to contribute to the maintenance of the family. The PNG family unit involves a much more complex, intricate set of interdependent relationships than in western societies, from where the principles that have been applied in the cases referred to above seem to have emerged.

107. The best approach to take, in my view, is to consider each case on its merits, free of the strictures of a western or common law prism, and ascertain whether, in fact, a parent who is a plaintiff was or was likely to be dependent on a child.

  1. His Honour found support for this position in Muna Uokare v The State [1988-89] PNGLR 655 (Woods J); Simin Dingi v MVIT [1994] PNGLR 385, (Woods J) and Puk Kum v The State; WS No 44 of 1996 (unreported judgment of 12.09.03, Salika J (as he then was)). Justice Batari also followed this approach in Wiwa v The State (2012) N5271.
  2. Mr. Ilaisa submitted that I should follow the position taken by Cannings J in Napiri and Wandoku and uphold the Plaintiff’s dependency claim.
  3. There is indeed no doubt that a dependency claim by a parent in respect of the death of child is a proper one – one that is peculiarly appropriate to the circumstances of Papua New Guinea. As Cannings J, correctly observed in Napiri, children in Papua New Guinea are universally regarded as investments. Parents invest heavily in their children and expect them to do well academically and get a job that will not only support themselves but also their parents as well in old age.
  4. Girls regardless of whether they do well academically or not, are legitimately expected to fetch a good bride price which will be shared between parents and relatives. Children who do not do well in school, stay back in the village where they are fully assimilated into village life, and again, society expects and requires them to support their parents. This mutual interdependence between parent and child forms an integral thread in the fabric of Papua New Guinean society and the courts have given judicial recognition to this.
  5. But how should damages be assessed, particularly in a situation such as this, where the deceased child had not yet reached the age of majority let alone started to earn an income, or in the case of a village boy, one who is still dependent on his parents?
  6. Mr. Ilaisa submitted that I should follow and apply the formula developed by Cannings J in the above cases which is:

(Income per week) x (52 weeks) x (life expectancy - age at death of child = Dependency Award.


  1. In Napiri the Court applied the rate of K20.00 per week. This was increased to K30.00 in Wandokun in 2015. Mr. IIaisa submitted that K30.00 should be applied in this case.
  2. The Plaintiff was born on 13 March 1965. He was therefore 48 years old. Applying a life expectancy of 65 years as was done in Wandokun the Plaintiff would have a life expectancy of 17 years. Hence a dependency award for him ought to be:

K30.00 x 52 weeks x 17 years = K26,520.00.


  1. Is this a fair award? I think it is and I therefore award the Plaintiff the sum of K26,520.00 for loss of expectation of life.

Pain and Suffering


  1. The Plaintiff also claim damages for pain and suffering in his Amended Statement of Claim. It was submitted for the Plaintiff that K20,000.00 would be an appropriate award under this head. This because when considered against Wandokun where the deceased child was only 10 years old and the Plaintiff was awarded K10,000.00, the deceased in this case was 17 years old and attending the Kwato Skills Training Centre at the time of his death. Much was expected from him by his parents. The comfort and security expected from him to his siblings is no longer there. How he was brutally killed continues to weigh heavily on the Plaintiff and his family evoking much sorrow, suffering, and pain. This should justify an award of K20,000.00.
  2. Mr. Ilaisa did not cite any authority for this proposition but the pain, sorrow, and suffering the Plaintiff and his family went through and obviously were going through when this matter went to trial and continue to feel up till now cannot be understated. The Plaintiff is from Mutuyuwa Village which borders KB Estate and is a mere stone’s throw away from the Skills Training Centre. One can only imagine the pain the Plaintiff and his wife went through when their son was tragically killed in a place where they least expected him to be killed. Regret for putting him in boarding school when he would have done perfectly well as a day student would also have weighed heavily on them, and for all we know, they might be still feeling guilty about it. This only added to their suffering.
  3. I do not think that K20,000.00 for this head of damages is unreasonable. The circumstances under which the deceased was so tragically, brutally, and unlawfully killed, and taken away from his family justifies such an award. I therefore award K20,0000.00 to the Plaintiff for pain and suffering.

Funeral Expenses


  1. An award for reasonable funeral expense including the cost of erecting a headstone or tombstone over the grave of a deceased person if such expenses were incurred by the Plaintiff is provided by Section 28 (2) of the Wrongs Act, which relevantly provides:

Amount of damages


(1) ...

(2) In an action referred to in Section 25 [Liability for death caused wrongfully, etc.], damages may be awarded in respect of medical expenses incurred as a result of the injury causing the death, together with reasonable expenses for the funeral or cremation of the deceased person (including the cost of erecting a headstone or tombstone over the grave of the deceased person), if those expenses have been incurred by one or more the parties for whose benefit the action is brought.
  1. The award under this head is discretionary and may be awarded only upon proof that such expenses were in fact incurred. This means that receipts and other proof of purchases of goods and services must be produced. A person claiming funeral expenses and costs of erecting a headstone for the grave of the deceased must provide evidence of such expenses. In a village setting where expenses will largely comprise garden food and pigs a monetary value may be hard to place but can still be done because people would normally have a general idea of such costs.
  2. It must be noted, however, that people have now shifted away from this and have incorporated store goods into burial/funerary feasts. Thus, expenses can run into tens of thousands of kina. Simply put, funeral expenses have become very expensive. Families are often pressured into incurring such huge expenses out of duty to maintain the “haus krai” which can run into weeks and in some societies the series of mortuary feasts that often follow. Pigs which are an integral part of the Melanesian funerary rites may not be readily available within the family unit or clan, thus forcing the family to procure them on a credit basis.
  3. When it comes to deaths in urban and peri-urban centres, expenses become more expensive to cover the costs of the “haus krai” (which can run into weeks), medical expenses, coffins, funeral homes where available, hire of halls for the funeral service, and transport including coffin freight and airfares for the accompanying party, and municipal charges etc.
  4. It is therefore not an understatement to say that the costs of burials and funerals in Papua New Guinea have become exorbitant to say the least, not to mention the financial burden that these immediately place on the deceased’s family.
  5. Here the Plaintiff is claiming K18,236.51, not for burial expenses which were met from a cash contribution of K20,000.00 by the then Member for Alotau Open Mr. Charles Abel. Rather the expenses are associated with the installation of his son’s headstone and the accompanying feast. These he said were met entirely by himself. He deposed that headstone was bought from L & A Construction in Port Moresby and airfreighted to Alotau at the cost of K2800.00. He was unable to produce any receipts as the headstone was brought to him by a Mr. Leleki while he was still mourning. He is not corroborated in any way on this, but I do not think that the headstone and associated costs totalling K2800.00 is a fabrication. I accept this item of expense.
  6. He deposed also that he borrowed K5000.00 from his sister Pepi Paru to buy store goods and garden food for the headstone feast as well as use her PMV Truck (“X-Choka”, Rego. # P3973J), and her private vehicle for the sum K2880.00. He annexed Invoices from Pepi Paru to that effect. (Annexure E to Affidavit sworn and filed on 31st March 2016).
  7. Furthermore, he borrowed K1000.00 from KBD Ltd. The loan remained outstanding and KBD Ltd issued an Invoice dated 29th February 2016 to the Plaintiff for the recovery of the sum of K1356.51. (Annexure F).
  8. Finally, as is customary for these feasts, the Plaintiff deposed that he had to buy a total of five pigs of different sizes and prices. He bought one from Topura on the North Coast for the sum of K1500.00 which he later presented to his wife’s relatives in the Trobriand Islands. He then travelled over by boat to Nuakata Island where he bought one for K1000.00, another for K1200.00, and two smaller ones for K500.00 each. He therefore spent a total of K4700.00 for the 5 pigs. No receipts are ever issued for transactions like this. So how sure are we that the Plaintiff did in fact buy those five pigs for his son’s headstone feast? His evidence is not corroborated in any way but there is no suggestion that he is not telling the truth here either.
  9. Are five pigs for such a feast an exaggeration? Hardly! This number may be on the lower end of the spectrum owing to the relatively young age of the deceased. Had he been of a chiefly clan or some other standing in his community, the number of pigs would have been higher. Therefore, despite lack of corroboration, I will accept that the Plaintiff did in fact buy five pigs for the total sum of K4700.00 for his son’s headstone feast.
  10. The total expenditure for the headstone feast is K16736.51 and not K18236.51 as claimed by and submitted on behalf of the Plaintiff. I find this sum to be reasonable and conservative. I therefore award K16736.51 for funeral expenses.

Exemplary damages


  1. The award of exemplary damages is again discretionary. They go beyond compensating a plaintiff and are specifically aimed at punishing a tortfeasor – often an officer or agent of the State - for his unlawful, unconstitutional, oppressive, arbitrary, wilful, or grossly negligent acts and to deter others from engaging in similar conduct in the future. They are therefore punitive. The discretion to award exemplary damages will of course depend on the circumstances and the justice of each case.
  2. Mr. Ilaisa submitted on behalf of the Plaintiff that an appropriate award for him ought to be K80,000.00. He drew the Court’s attention to what Batari J awarded the plaintiff in Wiwa v The State (supra). The facts there, counsel submitted are quite like the current case. There plaintiff’s son was apprehended and detained by the police. During his apprehension and detention, he was assaulted and subjected to atrocities by the police and finally shot in the leg. He later died at the hospital from the injuries he sustained. His Honour awarded K60,000.00 in exemplary damages.
  3. Counsel submitted that the deceased in the instant case was shot in the head on the mere suspicion that he was involved in the attempted robbery of a taxicab. He urged the court to take a similar approach as in Wiwa but considering the circumstances under which the deceased here was killed an award of K80,000.00 is justified.
  4. I agree that the facts and circumstances of the instant are distinguishable from those in Wiwa. There was absolutely no reason for the police to as much as suspect that the deceased and his friend were involved in the botched robbery. They attended to the scene of the attempted robbery more than an hour after it happened. Of course, they did not locate the suspects and drove a couple of hundred meters up from the scene to the place where they spotted the deceased and his friend. What self-respecting criminal would hang around the scene of a crime knowing well that the potential victim would report the matter to the police?
  5. While the First Defendant discharged into the air the second defendant fired straight at the deceased and his friend as they turned and ran back towards their school after seeing the police. The Second Defendant acted unlawfully, and deliberately. He essentially extrajudicially and unconstitutionally killed the deceased.
  6. The fact that the Second Defendant and his men were in the province to hunt down and capture members of the notorious Baker gang and their leader did not justify the actions he took that night. This was not an error of judgment. Rather the Second Defendant was grossly negligent and acted arbitrarily and unconstitutionally. This should be met with a substantial award of exemplary damages. An award of K80,000.00 is justified in the circumstances. I therefore awarded that sum for this head of damages.

Special Damages


  1. Special damages which are out of pocket expenses must be strictly proved by production of receipts. The Plaintiff claimed K50.00 for filing fees, K120.00 for formalin injection and casket run by the hospital and a further K5,981.00 for other funeral expenses.
  2. Apart from the filing fee of K50.00, the Plaintiff failed to prove the other expenses he is claiming by producing necessary receipts. He will therefore only recover K50.00 under this head.

Summary of Award

  1. I therefore award the following damages to the Plaintiff:

Estate Claim - K8,000.00

Dependency Claim - K26,250.00

Funeral Expenses - K16736.51

Pain and Suffering - K20,000.00

Exemplary Damages - K80,000.00

Special Damages - K50.00

Total = K151,036.51


Interest

  1. The Plaintiff is entitled to interest at the rate of 2% pursuant to Judicial Proceedings (Interest on Debts and Damages Act Ch. 52 (as amended). There is nothing that takes this case out of the ordinary. Interest should be calculated from the date of accrual of the action (3 March 2013) to the date of judgment on assessment of damages (20 September 2024).
  2. In calculating the amount interest, I adopt the formula formulated by Cannings J in cases like Koloko and Meta (supra) which is:

Damages assessed x Interest rate x Number of years = Amount of Interest

K151,036.51 x 2% x 11. 06 = K33,409.28


  1. The interest to be paid shall therefore be K33409.28. The total award shall therefore be K184,445.79 which shall be paid by the Fourth Defendant.

Costs

  1. Cost shall follow the event on a party/party basis.

JUDGMENT

  1. I direct that judgment be entered for the Plaintiff in the following terms:
    1. The Fourth Defendant (State) shall pay to the Plaintiff the sum of K151,036.51 for damages.
    2. The Fourth Defendant shall pay interest in the sum of K33409.28.
    3. The Fourth Defendant shall pay the Plaintiff’s costs on a party/party basis which shall be taxed if not agreed upon.

Ordered accordingly.
________________________________________________________________
The Public Solicitor: Lawyers for the Plaintiff
The Solicitor General: Lawyers for the Defendants

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