N1322

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE AT MOUNT HAGEN]

WS 134 OF 1993 (H)

BETWEEN:

JAMES G. KOIMO
Plaintiff

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

MOUNT HAGEN: INJIA, J
1995: JANUARY 16, MAY 31ST

Police - Police raid and illegal search of a village - Destruction and seizure of property - Compensatory damages - General damages - K37,312.18

Constitutional rights - Infringement of - Whether separate damages should be awarded for infringement of constitutional rights in respect of the same property which were searched before being destroyed or seized for which compensatory damages of K37,312.18 is awarded - Constitution, Ss.44, 49, 53, 57, 58, 38(3). 

Damages - Exemplary damages - Policemen involved not identified and sued - Action against State only - Whether exemplary damages should be awarded against the State - Constitution Ss.44,49,53, (38(3).

HELD

(1) 	Compensatory damages in the form of general damages in the total sum of K37,312.18 awarded for illegal search, seizure and destruction of properties.

(2) 	Separate damages for infringement of constitutional rights should not be awarded where compensatory damages is awarded for the same properties which are illegally searched before they are seized or destroyed as it would unjustly enrich the plaintiff:

	David Wari Kofewi -v- The State [1983] PNGLR 449; Tom Amaiu -v- The Commissioner for Corrective Institutions [1983] PNGLR 87 and Heni Pauta and Kenneth Susuve -v- Commissioner for Corrective Institutions, and his Agents and Servants [1982] PNGLR 7 all distinguished.

(3) 	Pursuant to Constitution, S.58(2) and (4)(b), the State is vicariously liable in damages including exemplary damages for the unconstitutional actions of policemen:

	Toglai Apa -v- The State, Unreported N 1267; Peter Kuriti -v- The State, Unreported N1271; Alphonse Kopi -v- The State, Unreported N1270 and John Tuink Salmon -v- The State, Unreported N1272 and Unpublished judgment in Mark Mase -v- The State WS No. 203 of 1994 (Mt. Hagen) all considered but not followed:

	The State -v- David Wari Kofewi [1987] PNGLR 7 applied.

(4) 	In the absence of any provision in respect of practice and procedure in Constitution 58 relating to onus and standard of proof of infringement of constitutional rights to warrant an award of damages including exemplary damages, the following ad hoc rules are formulated pursuant to Constitution, S.185:

(a) 	The plaintiff bears the evidentiary onus establishing a prima facie case of infringement of the constitutional right.

(b) 	The standard of proof required of the plaintiff is on the balance of probabilities. In discharging this standard all that the plaintiff is required to show is that the actions of the policemen constituted a violation of the constitutional right. Where exemplary damages is sought, the plaintiff must show that the actions of the policemen were oppressive, arbitrary or unconstitutional. He is not required to produce evidence that the actions were officially sanctioned, directed or approbated or conducted in pursuance of an official policy of the Police Department or the State.

(c) 	The onus is then on the State to prove why the actions of the policemen were required or justified by law or that the actions were reasonably necessary in the circumstances of a particular situation. This burden is a heavy one:

	SCR No. 2 of 1982 [1982] PNGLR 214 at p.238 applied in (a),(b) and (c) above.

(d) 	The Court will determine the issue of liability and damages including exemplary damages in the normal way it does in a civil case but paying due regard to(a),(b) and (c) above.

	State -v- Quati [1990] PNGLR 57 and Re Conditions at Buimo Corrective Institutions [1988-89] PNGLR 266 applied.

(5) 	The amount of exemplary damages must be relative to the scale of the police operation and the extent of the destruction.

(6) 	In the circumstances, exemplary damages in the nominal sum of K400.00 is awarded to each plaintiff.

CASES CITED IN THE JUDGMENT
Rookes -v- Barnard [1964] AC 1129; [1964] A11 E.R. 367
SCR No. 2 of 1982 Re Organic Law [1982] PNGLR 214
Heni Pauta and Kenneth Susuve -v- The Commissioner for Corrective Institution, his Servants and Agents [1982] PNGLR 7
David Wari Kofewi -v- The State & Others [1983] PNGLR 449
Tom Amaiu -v- The Commissioner for Corrective Institutions [1983] PNGLR 87
State -v- David Wari Kofewi & Others [1987] PNGLR 5
Re Conditions at Buimo Corrective Institution [1988-89] PNGLR 266
State -v- Quati [1990] PNGLR 57
Toglai Apa -v- The State, Unreported N1267
Alphonse Kopi -v- The State, Unreported N1270
Peter Kuriti -v- The State, Unreported N1271
Mark Mase -v- The State, WS No. 203/94(H) (Unpublished)
Iki Doa -v- The State, WS NO. 120/93(H) Unpublished)
Robert Kola Maima -v- The State, WS No. 123/93(H) (Unpublished)
Tony Tagai -v- The State WS No. 121/93(H) (Unpublished)

P. Kopunye for the Plaintiff
No appearance for the Defendant

31ST MAY 1995.

INJIA, J.: The plaintiff sues for and on behalf of himself and 27 other plaintiffs pursuant to Authority to Act filed on 25 February 1995. Liability is not disputed as there is a default judgment against the defendant ordered on 25 March 1994. This is an undefended trial on assessment of damages.

The plaintiff’s claim for damages arises from an illegal search and raid conducted by certain unidentified policemen in a combined police operation involving policemen from Minj Police Station, Nondugl Police Station and Mt. Hagen Police Station at Konmal village on 13 July 1992. The raid followed an armed robbery on the Okuk highway some days earlier. Armed policemen converged at Konmal village on the early morning, fronted up at the doorstep of the dwelling houses, fired shots into the air and after scaring away the occupants, indiscriminately burnt down houses together with their contents, shot and killed live stock such as pigs and took others away and carried out general destruction of the plaintiffs’ food gardens and other personal belongings. Oral evidence of the raid was given by James Koimo, Ben Binja, Peter Gele and Caspar Kiye. Photographs of burnt down houses were also tendered. The evidence of James Koimo is impressive. He is an experienced rural development officer with the Department of Primary Industry for some 23 years and currently employed as a Field Development Manager with the Coffee Industry Corporation. He took stock of all the properties lost or destroyed and allocated a monetary value to each item. As for the economic value of cash crops and trees, he used the Department of Primary Industry price list formulated on 19 October 1988 which is currently in use. I have carefully checked the estimated values and consider them to be fair and reasonable. The plaintiff’s lawyer has calculated the total value of the properties at K37,312.18 which is apportioned between 28 plaintiffs including the plaintiff. I accept his calculations. I award general special damages in the total sum of K37,312.18. I also award 8% interest on the K37,312.18 commencing from the date of commencement of the proceedings, which is 14 December 1993, to the date of judgment. The amounts due to each plaintiff is set out in the schedule at the end of this judgment.

The plaintiff also seeks separate damages for violation of constitutional rights and exemplary damages pursuant to Const. S.58(2). I will first deal with violation of constitutional rights. The plaintiff identifies the constitutional rights violated as freedom from arbitrary search and entry (Const. S.44) and right to privacy (Const. S.49). To those, I would add protection from unjust deprivation of property (Const. S.53). In support, Mr Kopunye cites various cases including David Wari Kofewi -v- The State [1983] PNGLR 449; Tom Amaiu -v- The Commissioner for Corrective Institutions [1983] PNGLR 87 and Heni Pauta and Kenneth Susuve -v- Commissioner for Corrective Institution, and his Servants and Agents [1982] PNGLR 7.

The evidence is that the illegal search was conducted on the same properties or houses before they were burnt or destroyed. This evidence is consistent with paragraphs 6 and 7 of the Statement of Claim where the plaintiff alleged that the "method of the said raid and search were by indiscriminately burning down of houses together with the contents, shooting and killing of live stocks taking custody of live stock and general destruction of properties of the Plaintiff(s)" I have already made an award for compensatory damages for loss and destruction of property in the sum of K37,312.18. That compensation should also cover violation of Constitutional rights under Ss.44, 49 and 53 because these violations were committed in the same act. The illegal search and invasion of privacy in the house becomes merely academic when the very property is destroyed or lost. I do not think separate damages under the category of violation of constitutional rights is justified for to so do would unjustly enrich the plaintiff twice for the same properties which were searched and seized or destroyed.

The plaintiff’s claim for exemplary damages is advanced in the context of judicial divergence of opinion among various judges of the National Court as to whether exemplary damages should be awarded against the State for the wrongs committed by its servants such as policemen. On one hand, Mr Kopunye refers to the decisions in Peter Kuriti -v- The State Unreported N1271, Alphonse Kopi -v- The State Unreported N1270; John Tuink Salmon -v- The State N1272 and Toglai Apa -v- The State Unreported N1267, in which the National Court declined to award exemplary damages against the State in claims arising out of village raids by policemen. The decisions in Peter Kuriti and Toglai Apa have been appealed against and they are pending determination by the Supreme Court. On the other hand, I am referred to decisions in various cases including Iki Doa -v- The State WS 120/93; Robert Kola Maimel -v- The State WS 123/93, and Tony Tagai -v- The State WS 121/93, in which the National Court at Mt. Hagen, Akuram AJ presiding, awarded exemplary damages relying upon the cases of Tom Amaiu and other cases referred to by Mr Kopunye. I am also referred to Paul Marinda -v- The State in which I awarded K1000.00 for exemplary damages for personal injuries but I think that is not an important case because it was a judgment by consent and the personal injury was not sustained in a village raid.

The reasoning in those cases where exemplary damages have been awarded are based on principles enunciated earlier in the cases of David Wari Kofowei case, Tom Amaiu and followed through in other decisions like Heni Pauta & Kenneth Susuve. But those cases relate to assaults committed upon persons held in custody by either police personnel or correctional services personnel. Exemplary damages in relation to illegal search, entry and destruction of property in the village must rest on a different footing. 

The reasoning given by Woods, J in the cases of Peter Kuriti; Alphonse Kopi; John Tuink Salmon and in the more recent case of Mark Mase -v- The State WS No. 203 of 1994 are similar to reasons given by Sheehan, J in Toglai Apa’s case. The arguments advanced in favour of awarding exemplary damages against the State in these cases is that whilst exemplary damages may be awarded against the individual policemen involved, it cannot be awarded against the State unless there is evidence produced by the plaintiff to show that the State, as an institution, officially sanctioned, directed or approbated these raids or that the raids were conducted in pursuance of a policy of the Department or the State. The argument goes that the State cannot be held responsible for the deliberate action of protagonists. Further, an award for exemplary damages will not have a punitive or deterrent effect on the State.

These arguments are valid as being relative to the exercise of judicial discretion in awarding exemplary damages in general. Support for these arguments may be found in the common law principle which takes a rather restrictive view on exemplary damages. At common law, whilst exemplary damages is normally awarded against the State for the "oppressive, arbitrary or unconstitutional" actions of its servants and agents, the exercise of that discretion is fairly restricted by three considerations which were spelt out by Lord Deplin in the House of Lords decision in Rookes -v- Barnard [1964] AC 1129 at 1227 [1964] 1 A11 E.R. 367 at 411 where Lord Deplin said:

"I wish now to express three considerations which I think should always be borne in mind when awards of exemplary damages are being considered. First, the plaintiff cannot recover exemplary damages unless he is the victim of the punishable behaviour. The anomaly inherent in exemplary damages would become an absurdity if a plaintiff totally unaffected by some oppressive conduct which the jury wished to punish obtained a windfall in consequence. Secondly, the power to award exemplary damages constitutes a weapon that, while it can be used in defence of liberty, as in the Wilkes case (164), can also be used against liberty. Some of the awards that juries have made in the past seem to me to amount to a greater punishment than would be likely to be incurred if the conduct were criminal; and moreover a punishment imposed without the safe-guard which the criminal law gives to an offender. I should not allow the respect which is traditionally paid to an assessment of damages by a jury to prevent me from seeing that the weapon is used with restraint. It may even be that the House may find it necessary to follow the precedent it set for itself in Benham -v- Gambling [165), and place some arbitrary limit on awards of damages that are made by way of punishment. Exhortations to be moderate may not be enough. Thirdly, the means of the parties, irrelevant in the assessment of compensation, are material in the assessment of exemplary damages. Everything which aggravates or mitigates the defendant’s conduct is relevant."

In relation to the question of whether an employer is vicariously liable to pay exemplary damages for the actions of his employee, Sheehan, J endorsed the statement from Atiya, Vicarious Liability in the Law of Torts (Butterworths 1967). The learned author noted that there was no English authority in which there has been any decisions on the question of whether exemplary damages can be awarded against an employer who is vicariously liable for the tort of a servant. He went on to suggest that exemplary damages should only be awarded in four situations, namely:

(a) 	The principle authorised the damage and manner of the wrongful act, or

(b) 	the agent was unfit and the principal reckless in employing him, or

(c) 	the agent was employed in a managerial capacity and was acting within the scope of that capacity, or

(d) 	as the principal or manager, he rectified or approved the actions causing damage.

With respect, I would differ from the views expressed by Woods, J and Sheehan, J. The approach taken in the above cases is too restrictive and not consistent with the Constitution. As in this case, in a case where the plaintiff claims exemplary damages for violation of Constitutional rights, the source of primary law is the Constitution: in Const. S.58 which provides:

58. COMPENSATION

(1) 	This section is in addition to, and not in derogation of, Section 57 (enforcement of guaranteed rights and freedoms).

(2) 	A person whose rights or freedoms declared or protected by this Division are infringed (including any infringement caused by a derogation of the restrictions specified in part X.5 (internment) on the use of emergency powers in relation to internment) is entitled to reasonable damages and, if the court thinks it proper, exemplary damages in respect of the infringement.

(3) 	Subject to Subsections (4) and (5), damages may be awarded against any person who committed, or was responsible for, the infringement.

(4) 	Where the infringement was committed by a governmental body, damages may be awarded either -

	(a)	subject to Subsection (5), against person referred to in Subsection (3); or

	(b) 	against the governmental body to which any such person was responsible,

	or against both, in which last case the court may apportion the damages between them.

(5) 	Damages shall not be awarded against a person who was responsible to a governmental body in respect of the action giving rise to the infringement if -

(a) 	the action was an action made unlawful on by Section 41(1) (proscribed acts); and

(b) 	the action taken was genuinely believed by that person to be required by law,

	but the burden of proof of the belief referred to in paragraph (b) is on the party alleging it.(emphasis is mine)

The award of exemplary damages in respect of the infringement of a constitutional right in appropriate cases is discretionary: Subsection (2). "Exemplary damages" is not defined by the Constitution. Generally speaking, exemplary damages is awarded to punish the offender. In situations where actions of government servants is involved, exemplary damages are awarded where the action is "oppressive, arbitrary or unconstitutional": Halsbury Laws of England, 4th Edn. Vol. 12, para 1190. The term "exemplary damages" only appears in Subsection (2). Subsection (3) - (5) only use the word "damages." I interpret "damages" in Subsections (3) - (5) as inclusive of "exemplary damages". Subsection (3) empowers the Court to award exemplary damages against a "person" meaning a natural person, who committed or was responsible for, the infringement. Subsection [4) applies to situations where the infringement committed was by a governmental body through its agents or servants. Under Subsection (4)(a), exemplary damage may be awarded against a natural person referred to in Subsection (3) subject to a defence of genuine belief raised and shown by the person under Subsection [5). Under Subsection [4)(b), exemplary damages may be awarded against the government body to which such "person" was responsible. However, by excluding the words "subject to Subsection (5)" in Subsection (4)(b), by implication, it seems that a defence of genuine belief under Subsection (5) is not available to a governmental body. The rationale is that a "genuine belief" relates to a personal belief held by a natural person. So on the force of Subsections (2) and (4)(b) alone, exemplary damages can be awarded against the State being the governmental body for the infringement of constitutional rights by its officers, in this case, policemen. A policeman is a servant of the government or the State and the State is vicariously liable for the wrongful actions of a policeman, whether deliberate or otherwise: State -v- David Wari Kofewi & Others [1987] PNGLR 5. Subsection (2) and (4)(b) are founded on the principle of vicarious liability of the State for the actions of its servants. There is no doubt that whilst a punitive award against the State may not have the desired punitive effect immediately, it will certainly, in principle, show the Court’s disapproval and the public’s indignation of the oppressive actions of its servants and agents and require the State to take appropriate action to rectify the situation. It will also adversely affect the reputation of the State.

There is one other important related matter. There is no provision in Const. S.58 or S.57 relating to the practice and procedure related to the onus and standard of proof of the infringement and the defences which are available to the defendant and the standard of proof of that defence. Except for the defence of genuine faith in S.58(5) which is only available to an individual person who committed the infringement under S.58(4)(a), there is no provision in S.58 on these matters. 

The National Court has wide powers to enforce infringement of constitutional rights: Const. S.57 and S.58(2). The National Court is also empowered by Const. S.185 to make ad hoc rules of practice and procedure where there are no rules of practice and procedure in cases where enforcement of constitutional rights are involved: State -v- Quati [1990] PNGLR 57. Also see Re Conditions At Buimo Corrective Institution [1988 - 89] PNGLR 266. I would formulate the following ad hoc rules and related principles in relation to proof of claims for damages on constitutional infringement generally and in particular, exemplary damages:

1. 	The plaintiff bears the evidentiary burden of establishing a prima facie case of proving the infringement of the constitutional right. 

2. 	The standard of proof is on the balance of probabilities. In cases where actions of policemen is involved the plaintiff merely has to produce some credible evidence of the infringement of the constitutional right and where exemplary damages are sought, that the actions of the policemen were "oppressive, arbitrary or constitutional" as such that a punitive award of damages is justified. It is not necessary for the plaintiff to show that the police raid was officially sanctioned, directed or approbated or conducted in pursuance of an official policy of the Police Department or the State. The reason for this is simple. How will ordinary village people be expected to know the scheme or policy and operational system of the police force to be able to give evidence about it. The nature of police work is confidential and secretive. 

	Almost all village raids involving large number of policemen are planned from the top police hierarchy down, in secret and carried out without warning. The identity of individual policemen are hardly known to ordinary village people. In many cases, policemen do not co-operate with village people in disclosing information regarding their operations as was the situations is in the instant case. Therefore, the ordinary village people cannot be able to sue the individual policemen. That is why the evidentiary burden is one of merely establishing a prima facie case.

	Also see the case of Re Conditions at Buimo Corrective Institution, ante.

3. 	The onus is then on the government, as an institution, to show why the action of its officers were justified or required by law. This rule is analogous to Const. S.58(5) which places the evidentiary burden on the government servant to justify his action. It is also analogous to Const. S.38(3) which places the burden on the State to show the validity of a law which infringes a constitutional right. 

	The State must place sufficient evidence before the Court to satisfy the Court that the actions were required or justified by law or where action taken was in pursuance of a discretion conferred by law, that the action was reasonably necessary or justified in the circumstances of a particular situation. This burden is a heavy one.

	Support for (1),(2) and (3) above is found in the principle enunciated by Kapi J (as he then was) in SCR No. 2 of 1982; Re Organic Law [1982] PNGLR 214 at p.238:

	"It would be sufficient for a party who alleges that a law is unconstitutional merely to prove that his right is infringed. He is only required to show a prima facie case. Where this is shown, then the onus is on the party who relies on the validity of the law to prove that it is within the limitation provided by the Constitution." 

4. 	The Court will determine the issues of liability and damage in the normal way it does in a civil case but paying due regard to (1),(2) and (3) above.

In the instant case, there is sufficient evidence that the policemen acted in an oppressive and arbitrary manner. They had no search warrant to search the village. They had no lawful excuse whatsoever to burn down houses, slaughter livestock, remove coffee machines, and so on in the process of conducting the search. There is no defence raised or any evidence before me from the State or the policemen concerned that such actions were required or justified by law. In the circumstances, I am inclined to make an award for exemplary damage.

As to the amount of exemplary damages, I am referred to the awards in the cases referred to by the plaintiff. The Court has a discretion to award damages in such amount as it sees fit. My own view is that the amount must be relative to the nature and scale of the operation and the extent of the destruction or loss of property. I consider that a nominal amount of K400.00 for each plaintiff is an appropriate amount.

My final calculations for each of the 28 plaintiffs are as per schedule below. I order the defendant to pay each of the plaintiffs the amount shown in the last column, forthwith.

SCHEDULE

NAME	COMPENSATORY GENERAL DAMAGES	AWARD FOR EXEMPLARY DAMAGES	TOTAL INITIAL DAMAGES	8% INTEREST FROM 14 DEC 93 TO 31 MAY 1995 (533
DAYS)	FINAL DAMAGES	

1. Kaspar Kiye	

K2,707.20	

K400.00	

K3,107.20	

K362.99	

K 3,470.19	

2. Malamb Yedai	
 450.50 	
 400.00	
 850.50	
 99.36 	
 949.86	

3. Papua Konjo	
 480.00	
 400.00	
 880.00	
 102.80	
 982.80	

4. Rosa Marum	
 40.00	
 400.00 	
 440.00	
 51.40	
 491.40	

5. Joseph Burum	
 815.50	
 400.00	
 1,215.50	
 142.88	
 1,357.50	

6. Dorum Akipe	
 556.30	
 400.00	
 956.30	
 111.72 	
 1,068.02 	

7. Dongal Alne	
 459.00	
 400.00	
 859.00	
 100.35 	
 959.35	

8. Walep Puk	
 1,611.00	
 400.00	
 2,011.00	
 234.93	
 2,245.93 	

9. Noah Bal	
 1,060.00	
 400.00	
 1,460.00	
 170.56	
 1,630.56	

10. Peter Gele	
 5,063.88	
 400.00	
 5,463.88	
 638.30	
 6,102.18 	
						
11.Dalap	 413.00	 400.00	 813.00	 94.98	 907.98 	

12. Nunal	 
 443.00	
 400.00 	
 843.00	
 98.48	 
 941.48	

13. Alu Siwi	
 1,880.00	
 400.00 	 
2,280.00	
 266.35	
 2,546.35	

14. Guan Maike	
 357.20	
 400.00	
 757.20	
 88.46	
 845.66	

15. Dan Pere	
 239.00	
 400.00	
 639.00	
 74.65	
 713.65	

16. Michael Por	
 3,912.00 	
 400.00 	
 4,312.00	
 503.74	
 4,815.74	

17. Toom Gabriel	
 1,439.50	
 400.00 
	
 1,839.50	
 214.89	
 2,054.39	
18. Bari	 1,392.00	 400.00	 1,792.00	 209.34	 2,001.35	

19. Issac Emb	
 5,746.00	
 400.00	
 6,146.00	
 717.99	
 6,863.99	

20.Gui Wurum
 Bol	
 1,210.00	
 400.00	
 1,610.00	
 188.08	
 1,798.08	
21.Opo Wal

22. Pis Teine 	 1,694.00

 626.50	 400.00

 400.00 	 2,094.00

 1,026.50	 244.63

 119.92	 2,338.63

 1,146.42	
						
23. Kawan Gele	 760.40	 400.00	 1,160.40	 135.56 	 1,295.96 	

NAME	
COMPENSATORY GENERAL DAMAGES	
AWARD FOR EXEMPLARY DAMAGES	
TOTAL INITIAL DAMAGES	
8% INTEREST FROM 14 DEC 93 TO 31 MAY 1995 (533
DAYS)	
FINAL DAMAGES	

24. John Aipe	
 805.60	
 400.00 	
 1,205.60	
 140.84	
 1,346.44	

25. Moses Bari	
 724.00	
 400.00	
 1,124.00	
 131.31	
 1,255.31	
26. Sil Philip	 912.50	 400.00	 1,312.50	 153.33	 1,465.83	

27. Philip Kasil	
 925.10	
 400.00	
 1,325.10	
 154.80	
 1,479.90	

28. Geru Kapil 	 
 590.00	
 400.00	
 990.00	
 115.65	
 1,105.65	

				

TOTAL:	

K54,180.60	

I am asked by the plaintiff to defer decision on this claim pending the decision in the appeals lodged against the other decisions referred to in which exemplary damage is involved. However, as I have awarded exemplary damages to the plaintiff, I do not think the outcome of the Supreme Court decision will affect my decision. Nevertheless, I will grant liberty to either party to apply for variation of this order on the question of exemplary damage depending on the decision of the Supreme Court on the issue.

I make no order as to costs.

**************************************************

Lawyer for the Plaintiff: Peter C. Kopunye