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Doworop v Yartie [2025] PGNC 343; N11495 (23 September 2025)

N11495

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 713 OF 2019

BETWEEN:
CHRIS HESRON DOWOROP for himself and on behalf of 126 others of Urugen village of Karkar Island of Sumkar District of Madang Province whose names appears in Schedule A of this writ.
Plaintiffs

AND:
CONSTABLE KURIA YARTIE
First Defendant

AND:
DAVID MANNING AS ACTING POLICE COMMISSIONER
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

MADANG: NAROKOBI J
9 JUNE, 23 SEPTEMBER 2025

HUMAN RIGHTS– Assessment of compensatory damages for breach of human rights under ss 57 and 58 of the Constitution, whether an award can be made for breach of ss 41, 53 and 59 of the Constitution.

HUMAN RIGHTS– Assessment of compensatory damages for breach of human rights under ss 57 and 58 of the Constitution, appropriate award of compensatory damages for breach of ss 36, 37 and 44 of the Constitution.

EXEMPLARY DAMAGES – Claims By and Against the State Act 1996 - Whether Plaintiffs entitled to exemplary damages

SPECIAL DAMAGES – Appropriate Award where claim is not corroborated.

Facts
On or about 19 February 2019, the Defendants conducted an illegal raid on a village in Karkar Island, Sumkar District of Madang Province. The raid was unlawful and not justified, thereby breaching their human rights. They claim damages for negligence and compensatory damages for breach of human rights, such remedy being provided for in ss 57 and 58 of the Constitution. On 2 September 2020 default judgement was entered against the Defendants with damages to be assessed. The matter returns for assessment of damages for negligence and breach of ss 36, 37, 41, 44, 53 and 59 of the Constitution and a claim for exemplary damages and special damages for properties destroyed.

Held:

(1) In Madang Timbers Ltd v Matthew (2025) SC2749 the Supreme Court held that violation of s 41 does not attract compensation under s 58 of the Constitution. Since compensation is only claimed under s 58, and not s 23(1)(b), “Sanctions,” of the Constitution no award is made under s 41 of the Constitution.

(2) For breach of s 53 of the Constitution, the critical element for this right to be violated is that there must be compulsory acquisition of property by the State. This is not a case of acquisition of property by the State, but rather of destruction of property (SC Ref No 3 of 1989 Re Forestry (Private Dealings) Act [1990] PNGLR 222 and Donigi v Base Resources Ltd [1992] PNGLR 110 applied).

(3) Section 59, “Principles of natural justice,” is not a right capable of enforcement under ss 57 and 58 of the Constitution. It comes under Division 4, “Principles of Natural Justice.” This provision does not fall under the rights and freedoms in Division 3, “Basic Rights,” of the Constitution.

(4) As to breach of ss 36, 37, and 44 of the Constitution, liability as established in the default judgment is confirmed and an award for damages is made. Following recent National Court decisions such as Yalbees v Amaiu (2023) N10481, a sum of K5,000.00 for each of the three breaches of the Plaintiffs human rights guaranteed by the Constitution is awarded. A sum of K15,000.00 for each of the Plaintiff is ordered.

(5) Exemplary damages for purposes of s 12 of the Claims By and Against the State Act 1996, is made out as the violation of human rights were serious and continuous. Houses were destroyed and most of the Plaintiffs’ properties were lost through arson. Following comparative cases an award of K10,000.00 for each Plaintiff is awarded.

(6) The claim for destruction of property is discounted by 90% as the evidence is not corroborated.

Cases cited
Donigi v Base Resources Ltd [1992] PNGLR 110
Madang Timbers Ltd v Matthew (2025) SC2749
Maku v Maliwolo (2012) SC1171
SC Ref No 3 of 1989 Re Forestry (Private Dealings) Act [1990] PNGLR 222
Yalbees v Amaiu (2023) N10481

Counsel
Mr B Wak for the plaintiffs
Mr E Manihambu for the defendants

DECISION

1. NAROKOBI J: The Plaintiffs filed proceedings against the Defendants for negligence and breach of human rights.
   
2. The first issue to determine is the Plaintiffs entitled to be awarded damages. This issue arose because persons who filed affidavits claiming damages were not listed as Plaintiffs in the consent of authority to act, secondly of those who were named as Plaintiffs, some did not file affidavits detailing their loss, and thirdly were not identified in an identification parade conducted on Karkar Island. Those that have signed the authority, have filed affidavits and were identified will be entitled to damages, interests and costs. These Plaintiffs which I have determined to be eligible are listed hereunder in this table. I have also set out the amount each one of them claimed for loss of properties.
   

3. The statement of claim alleged that on or around 19 February 2019, the Defendants conducted an illegal raid on a village in Karkar Island. The Plaintiffs say that the raid was unlawful and not justified, thereby breaching their human rights. They claim damages for negligence and compensation for breach of human rights, such remedy being provided for in ss 57 and 58 of the Constitution. On 2 September 2020 default judgement was entered against the Defendants with damages to be assessed.
   
4. The nature of damages and compensation sought include loss of houses, properties in the houses such as personal belongings, food garden, livestock and disruption to the peace of their homes.
   
5. In the statement of claim filed on 17 December 2019 several reliefs were sought against the Defendants:
   
   • General damages to be assessed.
   • Damages for breach of human rights to be assessed under Sections 57 and 58 of the Constitution.
   • Special damages in the sum of K2,459,460.00.
   • General damages for pain and suffering to be assessed.
   • Punitive damages to be assessed under s 23 of the Constitution.
   • Costs of the action.
   • Any other orders that the court deems fit and proper.
     
6. Subject to a preliminary issue raised by the State, the main issue is whether the Plaintiffs are entitled to the damages they seek in the statement of claim, as they have obtained default judgment in their favour. No affidavit has been filed by the State to dispute the facts alleged by the Plaintiffs.
   
7. The State submits that I should revisit liability on the aspect of negligence, because the default judgment obtained on 2 September 2020 was in general terms and was not specific on what causes of action the Plaintiff had established. The State relied on the case of Maku v Maliwolo (2012) SC1171 to submit that there is an exception to the general rule that the court should not revisit liability if the pleadings do not disclose a reasonable cause of action. The State took the approach that each cause of action pleaded should be examined to see if it is made out. I bear this in mind when I am determining damages attached to each cause of action pleaded.
   
8. The Plaintiffs filed 128 affidavits to support their claim. Of these affidavits, 127 come from the Plaintiffs. The last affidavit contains photographs of each of the Plaintiff. On the other hand, the State did not file any responding affidavits and chose to address the court on points of law.
   
9. Several rights found in the Constitution, are alleged to have been violated by the Defendants. They are pleaded in the statement of claim. These rights are: s 36, “Freedom from inhuman treatment”; s 37(1), “Protection of the law,”; s 41, “Proscribed acts,”; s 44, “Freedom from arbitrary search and entry,”; s 53, “Protection from unjust deprivation of property,” and s 59, “Principles of natural justice.” From the alleged violation of rights, the Plaintiffs have initiated this case under s 57, “Enforcement of guaranteed rights and freedoms,” claiming compensation under s 58, “Compensation.”
   
10. I address the question of whether I should proceed with awarding damages for each claim, before I decide an appropriate amount. In Madang Timbers Ltd v Matthew (2025) SC2749 the Supreme Court held that violation of s 41 does not attract compensation under s 58 of the Constitution. Since compensation is only claimed under s 58, and not s 23(1)(b), “Sanctions,” of the Constitution I decline making any award under s 41 of the Constitution.
    
11. The next provision worth a closer examination is s 53 of the Constitution. The critical element for this right to be violated is that there must be compulsory acquisition of property. This is not a case of the State taking property, but rather of destruction of property. In SC Ref No 3 of 1989 Re Forestry (Private Dealings) Act [1990] PNGLR 222 and Donigi v Base Resources Ltd [1992] PNGLR 110 the Supreme Court took the view that s 53 of the Constitution only applies if there is compulsory acquisition of property by the State, necessitating the payment of just compensation. This is not a case of the State acquiring property from the defendants, rather it is one of destruction of property. For this reason, I also decline to make an award for breach of s 53 of the Constitution.
    
12. Section 59, “Principles of natural justice,” is not a right capable of enforcement under ss 57 and 58 of the Constitution. It comes under Division 4, “Principles of Natural Justice.” This provision does not fall under the rights and freedoms under Division 3, “Basic Rights,” of the Constitution. The claim under s 59 is refused, too.
    
13. As to breach of ss 36, 37, and 44, I find that liability as established in the default judgment is confirmed and an award for damages will be made. Following recent National Court decisions such as Yalbees v Amaiu (2023) N10481 I award a sum of K5,000.00 each for the three breaches of their human rights guaranteed by the Constitution. I award a sum of K15,000.00 for each of the Plaintiff.
    
14. For exemplary damages, I find for purposes of s 12 of the Claims By and Against the State Act 1996, that the violation of human rights was serious and continuous. Houses were destroyed and most of their property was lost through arson. In Yalbees I awarded K5,000.00. In my view this case needs to be distinguished because ordinary innocent villagers were mercilessly attacked. I will award exemplary damages to the Plaintiffs, a sum of K10,000.00 each.
    
15. For the property that was destroyed, the Plaintiffs claim a total of K2,459,460.00. Where the claim is not corroborated, the courts have heavily discounted the claim, in as much as 90%. In Yalbees I cited a number of authorities which took this approach which I followed. The Plaintiffs submit, I take a similar approach. I therefore award 10% of what each Plaintiff claims in their affidavits as special damages.
    
16. The reliefs not considered are refused on the basis that this is a case largely premised on breach of human rights, and the claim for negligence is remedied by the award for loss of property. There is therefore no justification for an additional award for general damages.
    
17. Each Plaintiff will therefore be entitled to the following damages:
    
    • Breach of human rights – K15,000.00.
    • Exemplary damages – K10,000.00
    • Special damages – Refer to schedule 1, annexed to the court order.
      
18. I also award interest at 2% from the date of filing of the proceedings to the date of judgment, pursuant to s 4 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015.
    
19. Usually costs follow the event. I will order costs in favour of the Plaintiffs, to be taxed if not agreed.
    
20. The State will be held responsible as the violation of human rights and destruction of property were done in the course of employment by the agents of the State.
    
21. The final orders of the court are as follows:
    
    1. The State pays the Plaintiffs listed in Schedule 1 of the orders compensation for breach of human rights a sum of K15,000.00 each.
    2. The State pays the Plaintiffs listed in Schedule 1 of the orders exemplary damages of K10,000.00 each.
    3. The State pays each Plaintiff special damages in the amount set out in Schedule 1 of the Court Order, that is 10% of the amount claimed in their affidavits.
    4. The State pays the Plaintiffs interest on the total judgment sum of K2,983,768.00, inclusive of damages for breach of human rights, exemplary damages and special damages for loss of properties, at the rate of 2% from the time the proceedings were filed to the date of judgement.
    5. The State pays the Plaintiffs’ costs, to be taxed if not agreed.
    6. Matter is considered determined and the file is closed.
    7. Time is abridged.
       
22. Judgment and orders accordingly.

________________________________________________________________
Lawyers for the plaintiffs: Bradley & Co Lawyers
Lawyer for the defendants: Solicitor-General

Schedule 1 to the Orders