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Pok and Pok v Independent State of Papua New Guinea [2001] PGNC 27; N2210 (18 December 2001)

N2210

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 554 OF 1995

Between:

MATHEW POK, ELIZABETH POK & (23) OTHERS

- Plaintiffs -

And:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
- First Defendant -

And:

PAUL VAN STEVEN
- Second Defendant -

And:

KINGSLEY DOLE DOLE
- Third Defendant -

And:

LUKE AMBEGINI
- Fourth Defendant -–

Mt. Hagen : Jalina, J.
2000 : 6th November
2001 : 18th December

CIVIL CLAIMS - Actions for wrongs of police officers in village raids – Damage to houses and other properties – Tribesmen advancing on plantation – Police acting to protect lives and properties – Volenti-non-fit injuria – Claims Dismissed.

Counsel:
A. Manase for Plaintiffs
B. Ovia for Defendants

18th December, 2001

JALINA, J. This is a claim for damages rising out of a police raid conducted upon Kalanga, Bunum, Wo and Sigri Villages, Banz in Western Highlands Province on the 16th and 17th January, 1995. The claim for damages relate to destruction by members of the police force to properties including houses, trade stores, vehicles, pigs, cassowaries, chickens and cattle of the plaintiffs. They also claim damages for assault, trespass and conversion, distress and frustration, false imprisonment and unlawful custody, loss of profits, exemplary damages, interest and cost.

The Defendants have filed a defence in which they say that the Second and Third Defendants and other policemen were safeguarding the properties of Koban Plantation and its employees from attack by the First Plaintiff and his tribesmen. The Defendants also in their defence deny that they were responsible for loss and injury suffered by the Plaintiffs as alleged in their Statement of Claim. Alternatively, the Defendants say in their defence that if the Plaintiffs did suffer loss and damage and injury as set out in their Statement of Claim they (Defendants) were excused and justified by law in occasioning such loss and injury to the Plaintiffs as they were fanning off the attacks on the properties at Koban Plantation and safeguarding the lives of its employees from the First Plaintiff and his tribesmen.

The trial is on both liability and quantum. The assessment of damages is of course dependent on the Defendants being found liable.

Except for the 21st Plaintiff, namely Robert Kumie, who has discontinued his claim, this trial involves 23 Plaintiffs.

LIABILITY

During trial, the affidavits of eleven Plaintiffs were tendered by consent of counsel for the Defendants while the other Plaintiffs had their affidavits tendered after their lawyer led them to their respective affidavits and then left them to be cross-examined by the lawyer for the Defendants.

No evidence was adduced either orally or by affidavits on behalf of the Defendants. Notwithstanding the failure by the Defendants to adduce evidence either orally or by affidavit, there is evidence from some of the Plaintiffs to sustain the defence filed by the Defendants which was to the effect that what the Defendants did were done to protect property of Koban Plantation and lives of its employees against the First Plaintiff and his tribesmen who were advancing towards the plantation to destroy it.

This can be seen from the affidavit of Thomas Rai (Exhibit A) which shows that at about 9:00 am on Monday 16th January, 1995 he was at the back of a Blue Mitsubishi Dyna truck Reg. No. LAA 535 and travelling towards Koban Plantation when they were stopped by the Second Defendant and after firing warning shots, he ordered police to fire at them. Many passengers at the back were trying to jump off and run for their lives. No doubt, to shift all the blame to the police he does not say why a truckload of people and himself were going to Koban Plantation that morning.
Paul Nombrol also says in his affidavit (Exhibit V) of being in a Blue Dyna and slowly travelling towards Koban Plantation and being ordered by the Second Defendant to stop at the gate and then police opened fire on them.

The Plaintiff Peter Mek says in his affidavit (Exhibit W) of also driving to Koban Plantation at about 9:00 am on 16th January, 1995. He was driving a Mitsubishi Canter Reg. No. AGE 750 which was clearly a different vehicle to the one the Plaintiff Thomas Rai was driving. Robert Kumie who discontinued his present proceedings and the Plaintiff Thomas Opo were in the cabin with him. They were stopped at the gate of Koban Plantation by the Second Defendant who, after firing warning shots, ordered police to throw tear gas at them and also fire at them.

The affidavit of Thomas Opo (Exhibit K) is similar to that of Peter Mek. Both Peter Mek and Thomas Opo do not say why they were driving to Koban Plantation nor do they say if they were carrying passengers but since Thomas Rai was carrying passengers in his truck, it can safely be inferred that Peter Mek was also carrying passengers.

The Plaintiff Mek Opiune says in his affidavit (Exhibit I) that he was sitting at the back of the Yellow Dyna truck when they were driving into Koban Plantation at about 9:00 am on Monday 16th January, 1995 when they were stopped at the gate by the Second Defendant who, after firing warning shots, ordered police to fire at them. Again for reasons no doubt to shift all the blame to the Defendants he does not say why he was travelling to Koban Plantation that morning. It can safely be inferred that other people were at the back with the Plaintiff Mek Opiune.

The Plaintiff Joseph Apa Kuie says in his affidavit (Exhibit Y) that on the morning of Monday 16th January, 1995 he was travelling with his wife and three children in his Blue Mitsubishi Canter Dyna Reg. No. LAA 535 towards Kimil when a group of young men stopped his truck and ordered him to drive to Koban Plantation. When they arrived at the gate of Koban Plantation, the Second Defendant and others started shooting at them. He further says that a bullet went through the windscreen and injured two men. He then told Paul to drive back home and his truck was left at Sigri Mountain. Interestingly no affidavit has been filed by his wife to confirm that this Plaintiff was forced to travel to Koban Plantation. Aslo the Plaintiff Thomas Rai mentions being in the vehicle bearing the same registration number as that of Joseph Apa Kuie but Thomas Rai says nothing about the driver being stopped by a group of young men and being forced to drive to Koban Plantation. It appears that Joseph Apa Kuie was voluntarily carrying men who were advancing towards Koban Plantation.

The Plaintiff Mathew Pok in his affidavit (Exhibit L) says that at about 9:30 am on Monday 16th January, 1995 he was with his two brothers Martin Asip and Sen Kupil on the side of the road near Simon Mek’s house. They were standing beside his Toyota Hilux Reg. No. HAA 848 which was parked on the side of the road when three (3) police vehicles arrived and asked for him. After identifying him, he was assaulted, thrown into the police vehicle and taken to his house near Koban Plantation where police damaged his properties. His Toyota Hilux was also damaged by police. However, the Plaintiff Gus Kanspol says in his affidavit (Exhibit A) of being with his wife, Mathew Pok and two other friends to catch a bus to Banz to pay bride price for his wife when three police vehicles arrived, identified Mathew Pok and assaulted him and took him away after breaking the windscreen of Mathew Pok’s vehicle. Interestingly, Mathew Pok does not mention Gus Kanspol and his wife being with him that morning nor does Gus Kanspol mention the names of Martin Asip and Sen Kupil in his affidavit. Further more no affidavits have been filed by Martin Asip and Sen Kupil to support the assertions by Mathew Pok. I therefore do not place much weight on Mathew Pok’s affidavit.

Interestingly it appears from the statements of claim that personal injuries were sustained only by men and not women and children. This clearly goes to strengthen the defence filed by the Defendants that the injuries were inflicted when the First Plaintiff and his tribesmen advancing on Koban Plantation and the Defendants and other policemen took the action they took to protect lives and property. The ensuing damage to property in my opinion was a natural consequence of police being in pursuit of the First Plaintiff and his tribesmen including the other Plaintiffs. When people in large numbers decide to take the law into their own hands how can police discharge their duties effectively if they are forced by the decisions courts make to just turn around and let a person who is acting in breach of the law and in total disrespect for the life and property of others to go.

In the circumstances of this case I am of the opinion that the principle of "Volenti-non-fit-injuria" should apply. In other words, the plaintiffs have brought the destruction and injuries upon themselves by their own unlawful actions.

I accordingly find the Defendants not liable. The entire claim is therefore dismissed with costs to the Defendants.
___________________________________________________________________
Lawyer for the Plaintiffs : Pato Lawyers
Lawyer for the Defendants : Solicitor General