Lanyat v Wagulo [1996] PGNC 44; N1481 (24 October 1996)

	Home \| Databases \| WorldLII \| Search \| Feedback National Court of Papua New Guinea

WS NO 76/93, WS NO 104/93, WS NO 106/93 & WS NO 107/93
BETWEEN
ERIARE LANYAT (WS NO. 76/93) - PLAINTIFF
BETWEEN
HENRY JAMES TAMARUA (WS NO. 104/93) - PLAINTIFF
BETWEEN
KAPATE STANFORD & 30 ORS (WS NO. 106/93) - PLAINTIFFS
BETWEEN
NAIVEN YATO & 9 ORS (WS NO. 107/93) - PLAINTIFFS
AND
GEORGE WAGULO - FIRST DEFENDANT
AND
THE STATE - SECOND DEFENDANT

VICARIOUS LIABILITY - of State for torts committed by policemen - Wanton destruction to properties of warring clansmen whilst war in progress - Whether State vicariously liable - Wrongs Act (Ch 295), S. 1 (4).

(1) &#1ursuant to S. 1 (4) of t of the Wrongs Act Ch No 295, the State is only liable for torts committed by policemen in the course of performing their functions “as if the functions had been y cond or ed by virtueirtue of i of instrunstructions lawfully given by the Government”.

(2) ـ In a tr a tribal fight situation, the policemen were lawfully authorised to stop the war and restore peace and the modus operandi options to perfheir ould been left to the policemen on the fieldfield to determine. The ories oies of modf modf modus operandi options may be never closed.

(3) ـ In orde for the Sthe State to exonerate itself from vicarious liability, the onus is onState to produce evidence snce showing that the modus operandi employed by the policemen on the field would not have been or was not lawfully authorised by the State.

(4) In the circumstancet of cais case, the onus was not discharged by the State and the State was held vicariously liable for the destruction of property by unidentified policemen committed in the cou160; oppin warring clansmennsmen.

Nogo Suzuke & Anor v The State Unpublished judgment of Injia J dated 21 June 1996 delivered in Mount Hagen (WS 951/94(H))

INJIA J: hese claims arise out of t of the same police raid allegedly conducted on 3 August 1992 at Sirunki village, Laiagam in the Enga Province. Although the claims wiled iled separately, they were heard together. The evidence ofesses in soin some of the matters were relied on by the Plaintiffs in other matters whilst the Defendants called the same wses fl these matters.&ers. And whils Plaintiffs filedfiled separate written submissions inns 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 issuesiability and qund quantum of damages were disputed by the Defendants and a trial was conduc/p>

This Plaintiff is a man aged 30 years old from Sirunki village. Hems in the Writ that on 3 on 3/8/92, unidentified policemen based at Wabag led by their Officer-In-Charge, the First Defendant, cted a raid at Sirunki village and unlawfully destroyed his trade store building including sing stock, cash, tools and beddings. He claims he also lost a residential house and 3 pigs. It is nary to set out in f in full the pleadings:

1. ـ Tae Plffntiff aged about 3out 30 years was at all material times owner of a trade and conducting business inss in the Surinki area of the Enga Province.

2. &##160; A60; At all materime tihe the First Defendant was employed by the Police Department and attached to the Wabag Police Station as its Provincial Police Station Commanderas sus a st and or agent of the Second Defendant.

3.&#160 ټ O60; On Monday 3rd August 1992 at Surinki, Laiagam in the Enga Province the First Defendant as Commanding Officer approved, ordered, permitted or otherwise led an unspecinumbepolicall attached to the Wabag Police Station andn and unde under hisr his immediate supervision entered the Plaintiff’s premises and committed the following trespasses:

The said policemen destroyed the Plaintiff’s trade store building and other stuff by burning down same to the ground with stock, cash, tools and beddings.

4. ҈& A60; As a re a result of the unlawful actions referred to above, the Plaintiff suffered loss and damage.

Items List

		Value for Item Lost
1.	Trade Store	K15,000.00
2.	Trade Store Goods	K10,000.00
3.	6 x Fertiliser Bags @ K25.00	K150.00
4.	Vacuum Pump Double State	K1,500.00
5.	Generator	K1,800.00
6.	2 x 2 Boxes (electrical)	K1,500.00
7.	House (residence)	K5,200.00
8.	Beds, Blankets, tools and etc.	K600.00
9.	3 x pigs @ K700.00, K600.00 and K600.00	K1,900.00
Total:	<	K37,650.00

5. ;ټ T60; Thintifintiff in seeking damages for the loss he suffered is instituting the proceedings pursuant uant to the provisions of the Wrongs (Misceous sions Chapter No 297 and Claims By and AgainAgainst thst the State Act Chapter No 30.

To the above Wove Writ, rit, the Dthe Defendefendant iant in then their joint Defence pleaded:

1. ټ&#The Dants dots do not not know know and therefore cannot admit paragraph 1 of the Statement of Claim.

3. &#160 ; Save that that the policeolice attach the Police Station went to Surinki, Laiagam, Enga Prga Province on the 3rd August 1992 the Defe Defendants deny each and every particula tresas pl in paragraph 3 oh 3 of thef the Stat Statement of Claim.

4. ;ټ A60; Any desy destruction of the properties of Riare Layat were not caused by the policemen but rather by the foes of the people involved in the tribal fight.

5. ҈&ـ The DefenDefenDefendants deny paragraph 4 of the Statemeatement of Claim and say that it was not the Defendants, their servants, a or employees who have destroyed, if there was such destruction, the properties of Riare Lare Layat as particularised in paragraph 4 of the Statement of Claim. The Defendants therefore repeat paragraph 4 of this Defence.

6. ; A60to p ragraph 5 of the the Statement of Claim the Defendants say that the Plaintiff is not entitled to seek damages unhe Wr(Misceous Provi) Acto 297 and the Claim By and Against the State Act Chct Ch No 3 No 30.

7.&#17. &##160; A60; As to papagraof 6 e Sthe Statement of Claim the Defendants say that in law the Plaintiff is not and cannot claim general damages, eary ds, int and.

The evidence from thom the Plaintiff comprise of the affidavitdavit of t of the Plhe 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 addi the Plaintiff was was cross-examined on his affidavit. In his written submission, the Plaintiffs’ lawyer says the Plaintiff also relies on the affidavitGeorge Pyati, Peter Peaete, Peter Simon and affidavits file filed in the other matters. Howeverleave was sought toht to rely on those affidavits in the trial and they cannot be available to the Plaintiffs.

To counter this evidence, the Defendant caS/Const. Robert Burner who was a member of the police partyparty headed by Sgt. Wagulo. He alsod an affidavit swor sworn on 11 and a further sworn worn statement dated 16 August 1993 which the defence relied upon.

The only evidence from the Plaintiaintiff in his affidavit on the raid is that appearing on para. 3 where he says “on Monday 3rd August 1992 a member of policemen entered my village and set fire to the buildings, trade stores, looted store goods, killed pigs and even shot dead 4 youths”. In para. 4 of his affidavet, he sets out a list of items he lost and their value. In par of his affidavit, hit, he says “as a result of the uul actions on the part of the police personnel, I lost the property described above to the the total value of K37,650.00”.

“police personnel did caused an unlawful destruction of the property on 3rd August 1992...at that time I personally witnessed the destruction’s of the trade stores and homes belonging to the innocent people including Riare 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 who were policemen. Much of the report is did cted at the circumstances surrounding the death of 4 young meegedly edly killed by the raiding police party. His discussion e evidence ence before him and his findings on the destruction of property appears at page f his report as follows:

“Upon my site inspectspection, I find that the Tambitanis singsing ground is located within the heart of the Koane clan. The ad wounding of the Kiie Kii man took place on Koane land. The Kin lives some four kiur kilometres away from Tambitanis and at the centre of these two tribes, is the Sirunki Government Station.

The actual fighting had place about two kilometres away from Tambitanis singsing ging ground and that is 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. Evidevailable before me reme reveal that the police did not attend to the actual scene of the tribal fight with the ultimate aim of dispersing the two clans, but rather they stopped some two kilometres away from where the actual fight was and started burning down houses and looting and shooting at innocent people. These arocent peoples prop properties. had not convened a meetingeting to wound the Kii clansman. They only having a merry trry time at the singsing ground thinke dancing and marketing. I as a corfier find this ahis acts by the police totally unly unwarranted and unacceptable. The me is no declaring wing wing war on an ordinary group of village people. There was no use of any kind of guns at that time by the arring clans. When they were fightiney whey were only using traditional weapons.&#160 I am not hesito put all thll the bln the commanding officer and that is inspector Uvovo. #160; He is in my op reckleeckless and infact negligence in the conduct aecution oflawful wful duties as a police officer. He ; He should have taks mhis men to the fighting area and dispersed the two s at nd if possible male make arrests.

It would seem, this never eventuated. Each mach member was g hisg his own way, there w control it seems, as one wone would always require from a disciplined force in operation.

There is evidence that village leadrom the area had halted the fight and were negotiating sett settlement when police unexpectedly came and interrupted. Even in trly part of the mthe morning when the reservist was wounded. Eve suggest that the Kii cKii clan were retreating and were hg towards the Sirunki Police Station which is the direction of their village.

Seniorenior Sergeant Roymabe, Police Station Comr, Laiagam (as he was then)then) is the other officer who can bear some responsibilities. James#8217;s arrow wound wund was minor. It was his command that sent the Kii clansman home. If he urther commanded hisd his men to remain and not to go bag for re-enforcement, I do not think the shooting and thed the rampaging could have occurred.

It would seem a number of females hlso been raped by Police duce during the raid but 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 r was produced tced 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 props were either destroyed, lod, looted or burned down by the police. They not only had caused destruction tot he village of the Koane clan but rather rampaged half a dozen other clans who live nearby. It is quite evident too duat during the early parthe tribal fight on the 2nd of August 1992, after the woundiounding of the Kii clansman by the Koane clan, the Kii’s have burnt a couple of the Koane clansman houses and I’ve seen teen them to be only a handful.

Some submitted list with their values to the inquest but this was by only those who were privileged and able to give evidence at the inquest. These propertiesuded, trad traditional kunai houses (haus meri or man), modern kunai house with weaved pitpit wall, trade stores with stocks, ligs farmsheds with stocks, poultry projects, local church buildings, good gardens, cash mone money and many others.

I now wish to comment a bit on the evidence given at the inquest by the police from Enga. Generally sng, they hadn&#adn’t been co-operating right from the start to the end. My assisting offion numeroumerous occasions approached them and especially tctional commanders, from Wabag Police Station, Police StatiStation Commanders from the Laiagam, Sirunki, Muritaka and Yaibos to come th statements as to where aere and what they were doing on the day of the incident but on all occasions the calls were never attended or responded too. And as I had not choice bice but to use force and that is issuing of summons. And when I did that, thsporesponded well and especially by those who were around and received the summons.

Generally their evidence were not mucan assistance to the inquest. Mf them were either tellinelling lies or beating aroundround 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 ed to d 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, eere all burnt down or destrdestroyed by warriors from the Kii clan in the early morning of Monday 3rd August 1992. He was the nmmissioned offd officer-in-charge of the Sirunki Highway Patrol which went to the scene of the fight on 3/8/92 after it started 8/92. He says the destruction oecurred before the police arrived and police did not dnot destroy the properties.

In this oral evidence, S/C Berner said he first visited the fight area with 5 other policemen on the afternoon of Sunday, 2/8/92 at 4.00 p.m. The next day, that is Mo3/ay 3/8/92, at 2.30 p.m. he also went to the area. This time h accompanied byed by many mobile policemen from Wabag. He arriv5 minutes after ther the first police vehicle carrying policemen entered the village. e policemeceeded to the scee scene of the fight whereas he s he remained on the roadside about 1 mile away from the scene of the fight andped other people from going into the village where the fight was in progress. About 6out 6-7 mi after ther the Police entered the village, he saw smokes coming out. But he did not see what toe riot squad policemen were doing in the village. Hed not tellhe people them themselves or the police destroyedroyed the properties. That is the same story hd told the Coronial In.

S/C Berner has given a conflicting account of who cauhe destruction - in the affidavit, he says it was not the police but the warring clans them themselves. In his oral evidence, hiesenies seeing what the riot squad policemen from Wabag did in the village because he was 1 mile away from the scene and contro traffic on the highway. In thercumstances, I am noam not prepared to accept his evid evidence.

I note that the Plaintiff did not witness the destruction of his property because he was away from the village that day. But he has given evidence of the destruction of his trade store and the evidence of Pastor Yapata Yoko which supports the destruction.

As to the methodestruction employed by the police, there is no direct evidence but that can be inferred.&#1d. Ild be by setting fire to e to buildings, chopping down trees, shooting livestock and animals with guns, etc.

In this action, there is no evidence from thintiff to show that the First Defendant was in fact the offe officer-in-charge of the said police operation. The Coroner’ort impl implicates commanding officer Inspector Uvovo but he has not been sued. The identitieshe policemencemen involved heir commander is unknown. But, it ite law that the Sthe State as their employer can can be held responsible for the wrongful ns of unidentified policemen.

This claim is brought ught under provisions of the Wrongs Act (Ch 297) pursuant to S. 1 (1) (a) of this Act. Under that provisihe StateState can only be liable for torts committed by its agents or servants, such as policemen in this case: See David Wari Kofewi v Augustine Siviri & Ors [1987] PNGLR 5. Pursuant to (2), an actionction does not lie against the State for any act or omission of a policemen unless the act or omission would have given rise to a cause of action rt against the policeman concerned. Pursuant to S. 1 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 instons lawfully given by the Gthe Government.

“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) peovides that the primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament - (a) to presence 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 9 of the Police Forc 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 unn Act”. At comm common lalicemen hmen 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 R42 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 somg wing which he was not empowered to do? It is clear that the oion tion was authorised. In theess of carrying out out the operation, this policemanght the best way to locate and apprehend the robbers was toas to set fire to the dry grass. How illogicalrrational he l he was in higment is not for this CourtCourt to question, suffice it is that that was a judgment he formed in the course of performing his duties0; Further, nothing further can be inferred from the separaeparation of this vehicle from the other five. It was a joint operatnvolvnvolving 6 police vehicles and how they organised the search in terms of movement of manpower and vehicles was best left tomen on the field that day. It ificult for me to draw draw fine lines in operational mnal matters such as this. For these reaso am of the the view that the provisions under S. 1 (4) of the Wrongs Act has not been made out by the Defendant in this case.&#I find in favour of the Plaintiff on the question of liability.”

In the presenresent case, there is no doubt that the operation was authorised by the police hierarchy. It was a n part of their feir function to restore peace between warring clans and in turn preserve and maintain law and order and peace in the community. As to the modusandi they ehey employed to rm their function is a matt matter left in the discretion of the Police Force.

It is correct to say that it may never be part eir function to deliberately destroy properties, etc, as a as a means of restoring peace among warring clans because 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 ce evidence to show that what the policemen did was totallytally removed from the domain of “authorised” actions in a triight situation so that the State will not be vicariously lily liable for their actions. That ha been done in this this case.

In these circumstances, I conclude that the State, the Second Defendant, is vicariously liable for the wrongful actions of nidentified policemen. On the ece I find that that that the actions of the unidentified policemen were wrongful or tortuous.

[Note: His Honour found for the Plaintiff on liability in all the other claims for the same reasons. His Honour then assesamageamages in respect of all individual claims. These appear oes 14-59 of 9 of His Honour’s judgment. For pubion purposhese page pages have been excluded.]

National Court of Papua New Guinea

Lanyat v Wagulo [1996] PGNC 44; N1481 (24 October 1996)