N11697

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO 51 OF 2022 (IECMS) (CC1)

BETWEEN
JOE WARIN for himself and on behalf of his family 
First Plaintiff

AND
JOE BAMBUNDY for himself and on behalf of his family 
Second Plaintiff

AND
BILLY PUIYO 
First Defendant

AND
WANG MING 
Second Defendant

AND
S/O DAVID TERRY 
Third Defendant

AND
ANTHONY WAGAMBIE JR in his capacity as Assistant Commissioner of Police 
Fourth Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

WAIGANI: MAKAIL J
8 DECEMBER 2025; 10 FEBRUARY 2026

LIABILITY – Negligence – Trespass – Destruction of property – Tortfeasors – Members of police – Tort committed in the course of duties – Proof of
 
ASSESSMENT OF DAMAGES – Loss of property – Destruction of property – Injuries – Pain and suffering – General damages – Special damages – Exemplary damages – Damages for breaches of constitutional rights – Assault and unlawful detention – Proof of 

Cases cited

Nil

Counsel

Mr W C Langap, for plaintiffs
No appearance, for first & second defendants
No appearance, for third, fourth & fifth defendants

JUDGMENT

1.	MAKAIL J:  This is a trial on liability and assessment of damages for negligence and trespass to property and person.  Affidavits were tendered with no cross-examination of witnesses followed by submissions.

Plaintiffs’ Evidence

2.	The plaintiffs tendered the following:

(a)	affidavit in support of Joe Warin sworn on 25th July 2022 and filed on 27th July 2022 (exhibit “A”),

(b)	affidavit of Ekias Dansim sworn on 25th July 2022 and filed on 27th July 2022 (exhibit “B”), 

(c)	affidavit of Joe Bambundy sworn on 25th July 2022 and filed on 27th July 2022 (exhibit “C”),

(d)	affidavit of Charles Alop sworn on 25th July 2022 and filed on 27th July 2022 (exhibit “D”),

(e)	affidavit of Nicolas Rodan sworn on 25th July 2022 and filed on 27th July 2022 (exhibit “E”), and
 
(f)	affidavit of Laurie Warin sworn on 25th July 2022 and filed on 27th July 2022 (exhibit “F”).

Defendants’ Evidence

3.	The defendants tendered no affidavits.

Findings of Fact

4.	I have read the affidavits of the plaintiffs and their witnesses, and I find these to be the facts:

•	the first plaintiff is a mechanic by profession.  He resided at Section 87 Allotment 2, Korobosea, National Capital District for over 20 years upon the invitation of the second defendant.  During that period, he operated a motor vehicle repair workshop business on the property including building a house for his family.
•	after a couple years, the second defendant invited the first defendant and second plaintiff to reside on the property.  They occupied another building on the property under an agreement with the second defendant.
•	on 11th January 2022, the first defendant claiming to be the owner of the property, requested the third and fourth defendants to help demolish the first plaintiff’s house on the premise that the first plaintiff and his family were opportunists and has illegally set up and conducted a motor vehicle repair business from ‘wrecks.’ 
•	on 13th January 2022, the third and fourth defendants directed members of the police to help the first defendant demolish the first plaintiff’s house and workshop.
•	on the morning of 18th January 2022, the plaintiffs identified armed members of the police from the Fox 101, 202, 302 and 303 Units in four police issued motor vehicles as the members of the police who entered the property and with the aid of a backhoe and dump truck demolished the house and workshop and removed household goods and personal belongings, tools and motor vehicle spare parts, motor vehicles under repairs from the workshop.
•	the plaintiffs and the members of the family pleaded with the members of the police to stop but they refused.
•	when the first plaintiff filmed the destruction of the house and workshop with his mobile phone camera, the members of the police removed the mobile phone from him and assaulted him.
•	when the second plaintiff came to the aid of the first plaintiff, the members of the police assaulted him.
•	after demolishing the plaintiffs went to the Boroko Police Station to report the matter and ask the police superiors to stop their members but they did not.  They were informed that the members of the police were acting on the complaint by the first defendant.
•	between 18th and 21st January 2022, the members of the police attended the property and threatened the plaintiffs and their family members to vacate the property.
•	at about 3:30 pm on 21st January 2022, the plaintiffs were searched and taken to Hohola Police Station and detained on the ground that they were illegally occupying the property.  After being detained for a few hours, they were released within being arrested and charged with any criminal offences.  

Liability 

5.	The Solicitor General filed a defence on behalf of the third, fourth and fifth defendants on 6th October 2022 which apart from claiming lack of pleading facts to support a cause of action, essentially denied the demolition of the first plaintiff’s house and workshop, looting of household goods and personal belongings, tools and motor vehicle spare parts, motor vehicles under repairs from the workshop and assault and detention of the plaintiffs at Hohola Police Station.  In addition, these defendants claimed that the actions and/or omissions by the members of the police were outside their scope of duties and the fifth defendant is not vicariously liable.

6.	However, based on the above findings, I am satisfied that the plaintiffs have established that the members of the police owed a duty of care to protect lives and property, they breached that duty of care when they entered the property, demolished the first plaintiff’s house and workshop, looted household goods and personal belongings, tools and motor vehicle spare parts, motor vehicles under repairs from the workshop and assaulted and detained the plaintiffs at Hohola Police Station without arresting and charging them with any criminal offences.  As a result, the plaintiffs suffered loss and harm to their property and person.

7.	Also, the conduct of the members of the police constituted trespass because it was unlawful.  It was unlawful because it was instigated by the first defendant when he made a complaint to the third and fourth defendants to have the plaintiffs evicted from the property purportedly because he was the owner of the property. Similarly, because of the conduct of the members of the police, the plaintiffs suffered loss and harm to their property and person.

8.	As to the third, fourth and fifth defendants’ defence that the actions and/or omissions by the members of the police were outside their scope of duties and the fifth defendant is not vicariously liable, I am satisfied that the superiors of the Police at Boroko Police Station including the third and fourth defendants authorised the operations at the property based on the complaint by the first defendant.  Accordingly, I am satisfied that the members of the police were not acting outside their scope of duties.  Thus, the fifth defendant as their ultimate employer, is vicariously liable for their wrongful conduct and misfeasance.  

9.	As to the first and second defendants, I am satisfied that the first defendant is the instigator of this dispute because he was the one who made the complaint to the third and fourth defendants about the plaintiffs’ occupation of the property and want them evicted.  Without him, there would not have been a dispute.  On the other hand, there is no evidence to find the second defendant of any wrongdoing and he must be discharged.   The order is judgment on liability is entered against the first, third, fourth and fifth defendants.  The action against the second defendant is dismissed forthwith.

Assessment of Damages

10.	According to paragraphs 23 and 24 of the statement of claim the first plaintiff seeks the following relief from the:

	(a)	first defendant:

•	loss of property – K325,730.00
•	general damages for trauma and breach of peace – K50,000.00
•	general damages for unwarranted emotional pain, stress and grief – K50,000.00
•	exemplary damages – K300,000.00

(b)	third, fourth and fifth defendants:

•	loss of property – K325,730.00
•	general damages for assault, trauma and breach of peace – K50,000.00
•	general damages for unwarranted emotional pain, stress and grief – K50,000.00
•	damages for breach of constitutional rights – K120,000.00
•	exemplary damages – K720,000.00

11.	According to paragraphs 23 and 25 of the statement of claim the second plaintiff seeks the following relief from the:

	(a)	first defendant:

•	general damages for assault, trauma and breach of peace – K50,000.00
•	exemplary damages – K50,000.00

(b)	third, fourth and fifth defendants:

•	general damages for assault, trauma and breach of peace – K50,000.00
•	damages for breach of constitutional rights – K60,000.00
•	exemplary damages – K110,000.00

12.	In his written submissions, Mr Langap of counsel for the plaintiffs reinforced the heads of damages but with adjustments to the sum sought. Except for the sum sought for loss of property, it should be observed that the sum sought for the other heads of damages in Mr Langap’s written submissions are significantly less than past awards and the severity of the plaintiffs’ property and personal losses.   

Award of Damages for First Plaintiff

13.	In the case of the first plaintiff’s claim against the first defendant for loss of property, Mr Langap conceded that there is no independent valuer’s report to quantify the loss in terms of the value of the house and workshop including household goods, personal items, tools, motor vehicles spare parts and motor vehicles under repairs.  In addition, the are no receipts of payments produced to corroborate the value of the losses.  Quite frankly, this is a difficult claim to assess because of the lack of corroborative evidence and the claim for loss of property should be dismissed.  However, given that there has been significant destruction to the plaintiff’s property, a sum less than K325,730.00 will be awarded.  A global sum of K50,000.00 is awarded.

14.	For general damages for trauma and breach of peace, a sum of K2,000.00 is sought.  K2,000.00 is awarded. 

15.	For general damages for unwarranted emotional pain, stress and grief a sum of K2,000.00 is sought.  K2,000.00 is awarded.

16.	For exemplary damages, a sum of K6,000.00 is sought.  K6,000.00 is awarded.

17.	A total sum of K60,000.00 is awarded.

18.	In relation to the first plaintiff’s claim against the fifth defendant for loss of property, for the same reasons expressed at [13] (supra), a global sum of K50,000.00 is awarded.

19.	For general damages for trauma and breach of peace, a sum of K2,000.00 is sought.  K2,000.00 is awarded. 

20.	For general damages for breach of constitutional rights, a sum of K2,000.00 is sought.  K2,000.00 is awarded.

21.	For exemplary damages, a sum of K6,000.00 is sought.  K6,000.00 is awarded.

22.	A total sum of K60,000.00 is awarded.

Award of Damages for Second Plaintiff

23.	The second plaintiff makes no submissions for the claim for loss of property against the first defendant.  Accordingly, it is disregarded.  

24.	For general damages for unwarranted emotional pain, stress and grief a sum of K2,000.00 is sought.  K2,000.00 is awarded.

25.	For general damages for breach of constitutional rights, a sum of K2,000.00 is sought.  K2,000.00 is awarded.

26.	The second plaintiff makes no submissions for exemplary damages.  Accordingly, it is disregarded.

27.	The total sum of K4,000.00 is awarded.

28.	In relation to a claim of general damages for stress and hardship against the fifth defendant, a sum of K2,000.00 is sought.  K2,000.00 is awarded.

29.	For general damages for breach of constitutional rights, a sum of K2,000.00 is sought.  K2,000.00 is awarded.

30.	A total sum of K4,000.00 is awarded.

Summary 

31.	Below is a summary of the award of damages:

	(a)	first plaintiff against first defendant – K60,000.00

	(b)	first plaintiff against fifth defendant – K60,000.00

(c)	second plaintiff against first defendant – K4,000.00

	(b)	second plaintiff against fifth defendant – K4,000.00

Order

32.	The final terms of the order are:

1.	 Judgment on liability is entered against the first, third, fourth and fifth defendants.

2.	The action against the second defendant is dismissed.

3.	Judgment is entered in favour of the first plaintiff against the first defendant in the total sum of K60,000.00.

4.	Judgment is entered in favour of the first plaintiff against the fifth defendant in the total sum of K60,000.00.

5.	Judgment is entered in favour of the second plaintiff against the first defendant in the total sum of K4,000.00.

6.	Judgment is entered in favour of the second plaintiff against the fifth defendant in the total sum of K4,000.00.

7.	Interest is awarded in favour of the first plaintiff against the first defendant at the rate of 8% per annum on the total sum of K60,000.00 from the date of issue of writ of summons to the date of final settlement pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015.

8.	Interest is awarded in favour of the first plaintiff against the fifth defendant at the rate of 2% per annum on the total sum of K60,000.00 from the date of issue of writ of summons to the date of final settlement pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015.

9.	Interest is awarded in favour of the second plaintiff against the first defendant at the rate of 8% per annum on the total sum of K4,000.00 from the date of issue of writ of summons to the date of final settlement pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015.

10.	Interest is awarded in favour of the second plaintiff against the fifth defendant at the rate of 2% per annum on the total sum of K4,000.00 from the date of issue of writ of summons to the date of final settlement pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015.

11.	The first, third, fourth and fifth defendants shall pay the plaintiffs’ costs of and incidental to the proceedings, to be taxed, if not agreed.

12.	Time for entry of these orders shall be abridged to the date of settlement, by the Registrar, which shall take place, forthwith.

________________________________________________________________
Lawyers for plaintiffs: Zzahaqoo Legal			
Lawyer for third, fourth & fifth defendants: Solicitor General