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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
ERIARE LANYAT;
HENRY JAMES TAMARUA;
KAPATE STANFORD & 30 ORS; and
NAIVEN YATO & 9 ORS
V
GEORGE WAGULO
THE STATE
MOUNT HAGEN: INJIA J
6 March, 15, 18 April, 24 October 1996
Facts
Police personnel raided a village in the course of stopping a tribal fight and destroyed properties of plaintiffs. State is second defendant in the proceedings.
Held
Cases cited
David Wari Kofowei v Augustine Siviri & Ors [1987] PNGLR 5.
Nogo Suzuke & Anor v The State, Unpublished judgment of Injia J. dated 21 June 1996 delivered in Mount Hagen. (WS 951/94(H)).
Counsel
P Dowa, for the plaintiffs.
M Pokia, for the defendants.
24th October, 1996
Injia J. All these claims arise out of the same police raid allegedly conducted on 3 August 1992 at Sirunki village, Laiagam in the Enga Province. Although the claims were filed separately, they were heard together. The evidence of witnesses in some of the matters was relied on by the plaintiffs in other matters whilst the defendants called the same witnesses for all these matters. And whilst the plaintiffs filed separate written submissions in respect of each mater, the defendants filed joint written submissions in respect of some of the matters. In the circumstances, I have decided to deal with all these matters together. Both issues of liability and quantum of damages were disputed by the defendants and a trial was conducted.
Lanyat v Wagulo and State
This plaintiff is a man aged 30 years old from Sirunki village. He claims in the writ that on 3/8/92, unidentified policemen based at Wabag led by their Officer-In-Charge, the first defendant conducted a raid at Sirunki village and unlawfully destroyed his trade store building including stock, cash, tools and beddings. He claims he also lost a residential house and 3 pigs. It is necessary to set out in full the pleadings:
Statement of claim
Particulars of trespass
The said policemen destroyed the Plaintiff’s trade store building and other stuff by burning down the same to the ground with stock, cash, tools and beddings.
Particulars of Items Lost
Items List Value for Item Lost
and K600.00 - K 1,900.00
Total: - K37,650.00
(a) General Damages
(b) Exemplary Damages
(c) Interest and Cost
To the above writ, the defendant in their joint defence pleaded:
The evidence from the plaintiff comprise of the affidavit of the plaintiff filed on 21/2/96, the affidavit of Pastor Yapata Yoko filed 21/2/96 and the affidavit of the plaintiff’s lawyer Paulus M. Dowa filed 21/2/96 to which is annexed a copy of the relevant coroner’s report of Magistrate Patrick Nasa. In addition, the plaintiff was cross-examined on his affidavit. In his written submission, the plaintiffs’ lawyer says the plaintiff also relies on the affidavits of George Pyati, Peter Peaete, Peter Simon and affidavits filed in the other matters. No leave, however, was sought to rely on those affidavits in the trial and they cannot be available to the plaintiffs.
To counter this evidence, the defendant called S/Const. Robert Burner who was a member of the police party headed by Sgt. Wagulo. He also filed an affidavit sworn on 11/3/96 and a further sworn statement dated 16 August 1993, which the defence relied upon.
I will deal with the issue of liability and quantum separately.
Liability
The only evidence from the plaintiff in his affidavit on the raid is that appearing on para. 3 where he says "on Monday 3rd August 1992, a number of policemen entered my village and set fire to the buildings, trade stores, looted store goods, killed pigs and even shot dead four (4) youths". In para. 4 of his affidavit, he sets out a list of items he lost and their value. In para. 18 of his affidavit, he says, "as a result of the unlawful actions on the part of the police personnel, I lost the property described above to the total value of K37,650.00".
In his oral evidence given under cross-examination and re-examination, he said that he is a member of the Malya clan of Kunalin tribe. Sometimes before the 2/8/92, there was a killing of a young man of the Kunalin tribe. As a result, the Koane clan and the Kii clan of the Kunalin tribe went to war. His clan was not involved in the war. The war started at Tambitanis village on Sunday 2/8/93 and spread out to the area where the Police Station is. The war continued to Monday 3/8/96. As a result, police invaded the area. As to what exactly happened during the police raid, he did not see. He was working at Porgera at that time. He is adamant, however, that his properties, trade store and stock which he jointly owned with Epea Mulyapae was burnt down in the raid. He denied, however, that warring clansmen burnt it down, but that it was the police who did.
Pastor Yapata Yoko confirms in his affidavit that "police personnel did caused an unlawful destruction of the property on 3rd August 1992...at that time I personally witnessed the destruction of the trade stores and homes belonging to the innocent people including Eriare Lanyat."
The coronial report of magistrate Patrick Nasa sets out the findings of his inquest conducted between 9/6/93-15/9/93 in which he examined statements from a total of 48 witnesses, a vast number of whom were policemen. Much of the report is directed at the circumstances surrounding the death of four (4) young men allegedly killed by the raiding police party. His discussion of the evidence before him and his findings on the destruction of property appears at page 5-7 of his report as follows:
"Upon my site inspection, I find that the Tambitanis singsing ground is located within the heart of the Koane clan. The alleged wounding of the Kii man took place on Koane land. The Kii clan lives some four kilometres away from Tambitanis. At the centre of these two tribes, is the Sirunki Government Station.
The actual fighting had taken place about two kilometres away from Tambitanis singsing ground, about 600 metres before reaching the Sirunki Government Station.
The instruction by the Provincial Police Commander, was that all police personnel was to go and disperse the two warring clans. Evidence available before me reveals that the police did not attend to the actual scene of the tribal fight with the ultimate aim of dispersing the two clans. Rather they stopped some two kilometres away from where the actual fight was. They started burning down houses, looting and shooting at innocent people. These are innocent peoples’ properties. They had not convened a meeting to wound the Kii clansman. They were only having a merry time at the singsing ground doing things like dancing and marketing. I as a coroner find this acts by the police totally unwarranted and unacceptable. These to me are no doubt declaring war on an ordinary group of village people. There was no use of any kind of guns at that time by the two warring clans. When they were fighting, they were only using traditional weapons. I am not hesitant to put all the blame on the commanding officer and that is inspector Uvovo. He is in my opinion reckless and in fact negligence in the conduct and execution of his lawful duties as a police officer. He should have taken his men to the fighting area, dispersed the two tribes at war, and if possible make arrests.
It would seem, this never eventuated. Each member was having his own way. There was no control it seems, as one would always require from a disciplined force in operation.
There is evidence that village leaders from the area had halted the fight and were negotiating settlement when police unexpectedly came and interrupted. Even in the early part of the morning when the reservist was wounded. Evidence suggests that the Kii clan were retreating and were heading towards the Sirunki Police Station, which is the direction of their village.
Senior Sergeant Roymabe, Police Station Commander, Laiagam (as he was then) is the other officer who can bear some responsibilities. James Ape’s arrow wound was minor. It was his command that sent the Kii clansman home. If he had further commanded his men to remain and not to go to Wabag for re-enforcement, I do not think the shooting and the rampaging could have occurred.
It would seem a number of females have also been raped by Police during the raid. The only one that brought to light was a young girl by the name of Me-Enda Laraen (Menda Lekai) aged 20 from Tambitanis village. A medical report was produced to this effect, which positively confirmed such an act had taken place.
Apart from shooting down of the four deceased, there is evidence that a numerous number of properties were destroyed, looted or burned down by the police. They not only had caused destruction to the village of the Koane clan but rather rampaged half a dozen other clans who live nearby. It is quite evident too that during the early part of the tribal fight on the 2nd of August 1992, after the wounding of the Kii clansman by the Koane clan, the Kiis have burnt down a couple of the Koane clansman houses. I’ve seen them to be only a handful.
Some submitted list with their values to the inquest. This was by only those who were privileged and able to give evidence at the inquest. These properties included, traditional kunai houses (haus meri or man), modern kunai house with weaved pitpit wall, trade stores with stocks, live pigs farmsheds with stocks, poultry projects, local church buildings, good gardens, cash money and many others.
I now wish to comment a bit on the evidence given at the inquest by the police from Enga. Generally speaking, they hadn’t been co-operating right from the start to the end. My assisting officers on numerous occasions approached them and especially the sectional commanders, from Wabag Police Station, Police Station Commanders from the Laiagam, Sirunki, Muritaka and Yaibos to come up with statements as to where and what they were doing on the day of the incident. On all occasions the calls were never attended or responded to. And as such, I had no choice but to use force and that is issuing of summons. And when I did that, they responded well and especially by those who were around and received the summons.
Generally their evidence were not much of an assistance to the inquest. Most of them were either telling lies or beating around the bush and more particularly when coming to those parts of the evidence which suggested as to where and what they were doing at Tambitanis on arrival from Wabag in the afternoon of the 3rd of August 1992. And as such, I have decided to give less weight to their evidence."
The affidavit evidence of Robert Berner says the trees, the houses, trade stores, semi-permanent or permanent residential houses, were all burnt down or destroyed by warriors from the Kii clan in the early morning of Monday 3rd August 1992. He was the non-commissioned officer-in-charge of the Sirunki Highway Patrol which went to the scene of the fight on 3/8/92 after it started on 2/8/92. He says the destruction occurred before the police arrived. Police did not destroy the properties.
In this oral evidence, S/C Berner said he first visited the fight area with five (5) other policemen on the afternoon of Sunday, 2/8/92 at 4.00 p.m. The next day, that is Monday 3/8/92, at 2.30 p.m. he also went to the area. This time he was accompanied by many mobile policemen from Wabag. He arrived 4-5 minutes after the first police vehicle carrying policemen entered the village. These policemen proceeded to the scene of the fight. He remained on the roadside about 1 mile away from the scene of the fight and stopped other people from going into the village where the fight was in progress. About 6-7 minutes after the Police entered the village, he saw smokes coming out. But he did not see what the riot squad policemen were doing in the village. He could not tell if the people themselves or the police destroyed the properties. That is the same story he told the Coronial Inquest.
On the evidence, I find that between 2/8/92 - 3/8/92, there was a tribal fight in progress between the Kii clan and the Koane clan of the Kunalin tribe which occupy the village known as Tambitanis and surrounding areas in the Sirunki area. There is no evidence to show whether the other clans of the Kunalin tribe such as Malya to which this plaintiff belongs and other tribes in the area were also involved in the fight on either side of the fight. In the absence of any other evidence to the contrary, I accept the evidence for the plaintiff that his clan was not involved in this fight. That being the case, it is unlikely that their properties would be destroyed by either of the two warring clans on 2/8/92 or on the morning of 3/8/92. The evidence points to destruction being caused by the raiding police party on 3/8/92.
S/C Berner has given a conflicting account in the affidavit of who caused the destruction. He says it was not the police, but the warring clans themselves. In his oral evidence, he denies seeing what the riot squad policemen from Wabag did in the village. He was 1 mile away from the scene and controlling traffic on the highway. In these circumstances, I am not prepared to accept his evidence.
I note that the plaintiff did not witness the destruction of his property. He was away from the village that day. He has, however, given evidence of the destruction of his trade store. The evidence of Pastor Yapata Yoko supports the destruction.
As to the method of destruction employed by the police, there is no direct evidence but that can be inferred. It could be by setting fire to buildings, chopping down trees, shooting livestock and animals with guns and so on.
In this action, there is no evidence from the plaintiff to show that the first defendant was in fact the officer-in-charge of the said police operation. The coroner’s report implicates commanding officer Inspector Uvovo, but he has not been sued. The identities of the policemen involved and their commander is unknown. But, it is trite law that the State as their employer can be held responsible for the wrongful actions of unidentified policemen.
This claim is brought under provisions of the Wrongs Act (Ch. 297) pursuant to s 1(1)(a) of this Act. Under that provision, the State can only be liable for torts committed by its agents or servants, such as policemen in this case: See David Wari Kofowei v Augustine Siviri & Ors [1987] PNGLR 5. Pursuant to s 1(2), an action does not lie against the State for any act or omission of policemen unless the act or omission would have given rise to a cause of action in tort against the policeman concerned. Pursuant to s 1(4), the State is vicariously liable for torts committed by policemen in the course of performing their functions to the extent that functions had been solely conferred or imposed by virtue of instructions lawfully given by the Government.
Section 1(4) is in these specific terms:
"Where functions are conferred or imposed on an officer of state as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the state in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by Government.’’
Recently, in the case of Nogo Suzuke & Anor v The State (WS No. 951/94) which I decided on 21 June 1996, I observed the following in relation to functions of the members of the Police Force and the application of those principles to the facts of that case:
"The duty of the police force and its members is defined by both statute and the common law. Constitution s 197(1) provides that the primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament - (a) to preserve the peace and good order in the country; and (b) to maintain and as necessary, enforce the law in an impartial and objective manner. Under s 239 of the Police Force Act Ch. 65, policemen "have the same powers, duties, rights and liabilities as constables under the underlying law, except so far as they are modified by or under an Act". At common law, policemen have wide powers to take all steps necessary for keeping the peace, for preventing crime, or for protecting property from criminal injury or to detect crime and bring an offender to justice: Rice v Connolly [1966] 2 Q.B. 414, R v Waterfield and Lynn [1963] 48 CR. R.42 at 57, and Coltin and Anor v Smith [1980] 72 CR. APP. R 221.
Could it be said that the policemen involved in this case committed a tort in the course of doing something, which he was not empowered to do? It is clear that the operation was authorised. In the process of carrying out the operation, this policeman thought the best way to locate and apprehend the robbers was to set fire to the dry grass. How illogical or irrational he was in his judgment is not for this Court to question, suffice it that, that was a judgment he formed in the course of performing his duties. Further, nothing further can be inferred from the separation of this vehicle from the other five. It was a joint operation involving six (6) police vehicles and how they organised the search in terms of movement of manpower and vehicles was best left to the men on the field that day. It is difficult for me to draw fine lines in operational matters such as this. For these reasons, I am of the view that the provisions under s 1(4) of the Wrongs Act have not been made out by the defendant in this case. I find in favour of the plaintiff on the question of liability."
In the present case, there is no doubt that the operation was authorised by the police hierarchy. It was a normal part of their function to restore peace between warring clans, and in turn preserve and maintain law and order, and peace in the community. As to the modus operandi they employed to perform their function is a matter left in the discretion of the Police Force.
It is correct to say that it may never be part of their function to deliberately destroy properties as a means of restoring peace among warring clans. Such instructions would never have been issued lawfully by the government. But in a tribal fight situation, it may be that the categories of modus operandi options open to the policemen may be never closed. The onus is on the State as the nominal defendant to produce evidence to show that what the policemen did was totally removed from the domain of "authorised" actions in a tribal fight situation. The State will not be vicariously liable for their actions. That has not been done in this case.
In these circumstances, I conclude that the State, the second defendant, is vicariously liable for the wrongful actions of the unidentified policemen. On the evidence I find that the actions of the unidentified policemen were wrongful or tortuous.
[Editors Note: His Honour found for the plaintiff on liability in all the other claims for the same reasons. His Honour then assessed damages in respect of all individual claims. These appear on pages 14-59 of His Honour’s judgment. For publication purposes, these pages have been excluded.]
Lawyer for the plaintiffs: Paulus M. Dowa Lawyers.
Lawyer for the defendants: Solicitor General.
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