N11583
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
 
WS NO. 1112 OF 2012

BETWEEN
COUNCILLOR ALU PETER for himself and on behalf of 339 others of Parakis Village, Mumeng, Bulolo District, Morobe Province as per the names attached to this Writ. 
Plaintiffs
   
AND:
WILLIE MAKENDA 
First Defendant

AND
PETER GUINESS AS MOROBE PROVINCIAL POLICE COMMANDER 
Second Defendant

AND:
TONY WAGAMBIE as COMMISSIONER OF POLICE 
Third Defendant

AND
THE INDEPEPENDENT STATE OF PAPUA NEW GUINEA 
Fourth Defendant

LAE: DOWA J
11, 12 JULY, 22 AUGUST 2023; 7 NOVEMBER 2025

CIVIL – Tort of Negligence– whether defendants owed plaintiffs duty of care – whether defendants’ actions or inactions breached any duty of care– whether police function under section 197 of the Constitution imposes a duty of care to the public at large  

Held: 
No duty of care owed by defendants to the plaintiffs – Police are not subject to direction or control by any person outside the Police Force. Plaintiff’s claim is dismissed. 

Cases cited
Yooken Paklin v The State (2001) N2212
Jonathan Mangope Paraia v The State (1995) N1343
 Samot v Yame (2020) N8266
 Daniel Occungar v Luke Kiliso (2010) N4102
John Kul v The State (2010) N3898
 Eton Pakui v The State (2006) N2977
Titus Banga v Madang Port Services Ltd (2011) N4302 
 Allen Anis v Dobon Taksey (2011) N4468 
 Kay Pure -v- Tonnesi Ewebi (2021) N9013
 Kofowei v The State [1983] PNGLR 449
Peter Agilio v The State (2001) N2102 
Abel Tomba v The State (1997) SC518 
Simon Awaria v Sam Inguba &others (2006) N3044
Catholic Diocese of Wabag v Enga Provincial Government & others (2011) N4562
Maku v Malivolo (2012) SC1171

Counsel
G. Konjib for the plaintiffs  
S Maliaki for the defendants 

DECISION

1.	DOWA J:	This is a decision on liability only. The Plaintiffs filed these proceedings claiming damages for breach of constitutional rights and for statutory negligence on the part of Police personnel.
 
FACTS

2.     	The Plaintiffs numbering 339 are all villagers and residents of Parakis village, Mumeng LLG, Bulolo District, in the Morobe Province. On 16th November 2010, the members of the Patep tribe, fully armed, attacked the Pakaris tribe. They burned down homes and destroyed properties and food crops to the value of K 9 million plus.

3.	The Plaintiffs allege that on that fateful day, the police personnel were present but failed to stop the onslaught by the Patep tribe. They failed to protect the properties of the Plaintiffs. Aggrieved the Plaintiffs filed these proceedings seeking damages for breach of constitutional rights and for breach of duty of care to protect the properties of the Plaintiffs.

4.	The Defendants filed a Defence denying liability. The Defendants pleaded in the Defence that they do not owe a duty of care to the public at large and the Plaintiffs.

	Trial

5.	By agreement of parties, the Court conducted trial on liability only. The Plaintiffs called evidence both orally and by affidavits. The Defendants did not call any evidence but relied on their Defence.

	Plaintiffs ‘evidence

6.	The Plaintiffs called six (6) witnesses and relied on the following Affidavits:

	a. Affidavit of Alu Peter-filed 31st August 2020-Exhibit P1,
	b, Affidavit of John Nearu filed 5th October 2020-Exhibit P2
	c. Affidavit of Mathias Philip filed 31st August 2020-Exhibit P3.

7.	The three deponents were cross examined on the contents of their affidavits. The witnesses, Allan Waimba, Samuel Yai and Paul Pet gave oral evidence. 

8. 	This is the summary of their evidence. On the morning of 16th November 2010, the Patep tribesmen comprising tribal members of Patep Hambu, Mahumba, Munaniu and Denglu numbering up to 1,000.00 men in horizontal line converged on the Plaintiff’s land from the Western end of the mountain. They were fully armed with high powered guns and other weapons and marched onto the Plaintiffs’ land. They fired shots indiscriminately and marched into the Plaintiffs’ village without restraint. They burnt down buildings, killed livestock like pigs and poultry, and chopped down everything. They looted and destroyed everything in their path.

9.	The Plaintiffs allege they could not defend themselves and their property that day because police personnel announced in a loud Hailer/speaker telling them to leave their village for safety. The Plaintiff’s allege they left their village unattended trusting the police personnel to protect it. The policemen from MS15, from Bulolo and Mumeng Police Station numbering up to 20 were present at the village before the Patep men arrived. The first Defendant, Willie Makenda, was the Police Station Commander at that time. The policemen were fully armed but did not stop the Patep from destroying the Plaintiffs’ village. The policemen could have prevented the onslaught but did nothing despite repeated pleas from the lead Plaintiff and the President from Mumeng LLG. The Plaintiffs allege that they could have resisted, fought back and defended their property had it not been for the advice given by the police to leave their village unattended. 

10.	The witnesses were cross examined. During cross examination, it was suggested that police were concerned about saving lives than properties, the witnesses agreed lives are more important than properties, however they would rather fight and defend their properties than retreating. They also agreed that the fight between the tribes had nothing to do with the police although policemen were there to protect both lives and property. The witnesses also agreed that the Patep tribesmen numbering up to 1,000 was more than the policemen who were about 20 but maintained that the policemen were armed and well equipped and could have stopped the destruction yet did nothing. 

Issues 

11.  The issues for consideration are:

a.	Whether the Defendants owed a duty of care to the Plaintiffs
b.	Whether the Defendants breached that duty of care.

Submissions of Counsel

12.	Mr. Konjib, counsel for the Plaintiffs, submitted that policemen have a duty of care under common law and Section 197 of the Constitution. In the instant case the Defendants failed to discharge their duty of care. The policemen numbering up to 20 under the command of the first Defendant were present and stationed at strategic locations but did nothing to stop or prevent the Patep tribesmen from destroying the Plaintiffs’ properties. 

13.	Ms Maliaki, counsel for the Defendants, submitted that police owe no duty of care to the public at large including the Plaintiffs for public policy reasons. The Plaintiff’s properties were destroyed by their enemies and not the police. She submitted that there was no breach of duty of care and the State is not vicariously liable for any loss suffered by the Plaintiffs.

Burden of Proof

14.	The burden of proving the claim rests on the Plaintiffs and they must discharge the burden on the balance of probabilities. Refer: Yooken Paklin v The State (2001) N2212,  Jonathan Mangope Paraia v The State (1995) N1343, and Samot v Yame (2020) N8266.

Law on Negligence

15.	The Plaintiffs’ claim is based on the tort of negligence. The burden of proving the elements of the tort of negligence is upon the party alleging it, not the party who denies it. Refer:  Daniel Occungar v Luke Kiliso (2010) N4102, John Kul v The State (2010) N3898, Eton Pakui v The State (2006) N2977, Titus Banga v Madang Port Services Ltd (2011) N4302 and Allen Anis v Dobon Taksey (2011) N4468 and Kay Pure -v- Tonnesi Ewebi (2021) N9013.

16.	The elements of the tort of negligence particularly set out in the case Anis -v- Taksey (Supra) are:

(1)	Tortfeasor or his principal owed a duty of care to the plaintiff and/or victim.
(2)	The tortfeasor breached that duty, i.e. by act or omission, the tortfeasor's conduct was negligent.
(3)	Tortfeasor's negligent conduct caused injury to the plaintiff and/or victim.
(4)	Plaintiff and/or victim’s injuries were not too remotely connected to the tortfeasor's conduct; and
(5)	Plaintiff and/or victim did not contribute to his own injuries, e.g. by being contributorily negligent or voluntarily assuming the risk of injury.

17.	The Plaintiffs allegation is that the State is vicariously liable for breach of duty of care by police under the command of the first Defendant in failing to protect their properties from destruction by the enemy tribe. The law on vicarious liability is settled in this jurisdiction. The State is vicariously liable for tortious actions of its servants pursuant to Section 1 of the Wrongs (Miscellaneous Provisions) Act, provided the alleged acts are done within the scope or in the course of their lawful duties. Refer; Kofowei v The State (1983) PNGLR 449, Peter Agilio v The State (2001) N 2102 and Abel Tomba v The State (1997) SC 518.

18.	The Plaintiffs submitted that the police owe a duty of care to the Plaintiffs under common law and Section 197 of the Constitution. Section 197 (1) and (2) is relevant, and it reads: 

“197. FUNCTIONS OF THE POLICE FORCE.

 (1) The primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament -  
(a) to preserve peace and good order in the country; and 
(b) to maintain and, as necessary, enforce the law in an impartial and objective manner. 
(2) Subject to Subsection (4), insofar as it is a function of the Police Force to lay, prosecute or withdraw charges in respect of offences, the members of the Police Force are not subject to direction or control by any person outside the Force.”

19.	While Section 197 is consistent with the common law that police have a responsibility for maintaining law and order, police are however, not subject to any specific requirements or direction from any person outside of the Police Force in carrying out their responsibilities.

20.	 The law is now settled in this jurisdiction that police do not owe a duty of care to the public at large. Refer: Simon Awaria v Sam Inguba &others (2006) N3044, Catholic Diocese of Wabag v Enga Provincial Government & others (2011) N4562, and Maku v Malivolo (2012) SC1171. 

21.	In Maku v Malivolo (supra), the Supreme Court stated the law in the headnotes of the judgment in the following terms:

“…2. At common law, the police owe no duty of care to the public at large. Further, there will be no duty of care if it is against wider policy issues, such as where it may adversely affect the way in which the police carry out their duties for fear of litigation. Hill -v- Chief Constable of West Yorkshire (1987) UKHL 12 (Hill); (1989) AC 53 followed.

3. The common law is consistent with section 197 of the Constitution where the police have a responsibility for maintaining law and order but are subject to no specific requirement as to the way in which they do it. Therefore, the police owe no duty of care to the public at large and there is no duty of care if it is against public policy.

4. In the present case, the destruction and looting of the appellants' property was done by the enemy tribe. The police were not the ones who destroyed and looted the appellants' property. The allegation that the police owed a duty of care to the appellants to attend and stop the tribal fight, does not exist in law because police owe no duty of care to the public at large and it is against public policy.”

Consideration

22.	In the present case, the police personnel were present in the precinct when the enemy tribe destroyed the Plaintiffs’ properties. According to the Plaintiffs’ evidence, police were stationed in two strategic locations, one at the entry to the Plaintiffs’ village and the other at Zepa Community School, and they could have but failed to prevent the enemy tribe from destroying their properties. The Plaintiffs allege the police did not take any practical actions like firing warning shots.
 
23.	Is the Plaintiff’s evidence sufficient to prove police failed in their constitutional duty to preserve peace and good order. Did they owe a duty of care to the Plaintiffs. 

24.	The evidence shows, the policemen were outnumbered. There were about 20 police personnel at the scene while the Patep tribal warriors numbering up to more than 1,000 armed with high powered guns and other weapons converged on the Plaintiff’s village from two directions. Police acted quickly and more wisely by telling the Plaintiffs by use of loud hailers to leave their village immediately for their safety. This was urgent and necessary to avoid being killed by the enemy tribe. The people adhered to the call and left their village for safety, but all their properties were destroyed by the enemy tribe. None of the lives lost that day.

24.	The evidence shows the police acted reasonably in warning the Plaintiff’s and their families to leave their village and not to confront their enemies. If the police did not warn them, it would have resulted in loss of human lives. The Court notes the Plaintiff’s contention that they would rather fight and defend their properties than to retreat, but at what cost. Human life is precious, sacred and not cheap compared with things.

25.	The constitutional function of the police to preserve peace and good order are not subject to any specific requirements as to how they carry out their responsibilities. To impose a duty of care to the extent of the protecting the Plaintiffs’ properties from destruction by their enemies would be a diversion of their primary responsibility and is against public policy. This will have a negative effect in a country that is riddled with so many tribal conflicts with little manpower in the Police Force to handle. This will also discourage police from attending to tribal wars and ethnic conflicts for fear of facing litigation. The immunity provided is necessary for police to do their jobs freely without fear of repercussions. 

26.	Turning to the present case, the Plaintiffs’ properties were destroyed by their enemies, and not the police personnel. Police presence prevented possible loss of lives and preservation of public properties like the Zepa Community School. It is unfortunate that police could not prevent the destruction of the Plaintiffs’ properties by their enemy tribe.  The evidence shows the tribal conflict started many years back with underling issues of land disputes. The conflicts were ignited a month earlier in October 2010.The Local Peace and Good Order Committee’s attempts to mediate and resolve the issues were unsuccessful.  The conflicts escalated resulting in a death of a young man on 14th November 2010, just two days earlier. Police attended to the earlier killing and tried to resolve the conflict between the tribes but proved unsuccessful. On the morning of 16th November 2010, the Pateps were out for a full-scale war.  Police got a wind of their plans and turned up early. Despite the best efforts, as it turned out, the rampage by the Pateps came like a flood and was irresistible, proving it difficult even for police to handle. It is the enemy tribe that destroyed the Plaintiff’s properties, and it would be absurd to attribute fault on the police.

Conclusion

27.	In the end the Plaintiffs have the onus to prove their claim on the balance of probabilities. I am not satisfied that the first Defendant and police personnel had a duty of care to the Plaintiffs, and thus there can not be a breach of that duty of care by the police. The Defendants are therefore not liable for damages caused by Pateps, the enemy tribe. The Plaintiffs’ proceeding shall be dismissed.

Costs

28.	The Defendants have succeeded in defending the claim. They will be entitled to the costs of the proceeding.

Orders

29.     The Court orders that:

1.	The Plaintiff’s proceeding is dismissed.
2.	The Plaintiffs shall pay the Defendants’ costs of the proceeding to be taxed, if not agreed.
3.	Time be abridged.
________________________________________________________________
Lawyers for the plaintiffs:    Konjib & Associates Lawyers
Lawyer for the defendants: Solicitor General