N2889

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 618 OF 1999

BETWEEN:

STANLEY MAGI EREMUGOM
on his own behalf and as representative of 82 members of Mainamo village, Chuave District, Simbu Province
First Plaintiffs

AND:

DANIEL TANDE –
ACTING SIMBU PROVINCIAL POLICE COMMANDER
First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Goroka : Batari, J
2005	:21 July
:4 August

Damages – -Claim arising out of police raid – Loss and damages – Assessment of – Onus on plaintiff to prove claim.

Damages - Exemplary Damages - retribution and deterrence effect of – Where police involved not named as a party – Discretion to award - Section 22, 155(2) Constitution.

Cases Cited:
Albert Baine –v-The State (unreported) National Court Judgement) N1335
Paraia –v- Inspector Jacob Yasuan & Ors (unreported National Court Judgment) N1343
Berham – Carter –v- Hyden Park Hotel Ltd [1948] 64 TLR 177
Biggin –v- Permanite [1951] 1 KB 314
Aimon Aure & Ors v The State [1996] PNGLR 85
John Hiyewe & Ors v Titus Pembel & Anor,
Peter Kuriti v The State [1994] PNGLR 262
Tony Wemin & Ors v The State (unreported National Court Judgement (2001)) N2134
Abel Tomba v The State (unreported Supreme Court Judgement (1997) SC518
Nari & Nari v The State (unreported National Court Judgement (2004)) N2769

Counsel:
Mr. G. Muroa for the Plaintiffs
No appearance for the Defendants

JUDGEMENT

4 August 2005

BATARI, J:	By writ of summons filed 29 June, 1999 the Plaintiffs are claiming damages for loss of properties and personal injuries as a result of unlawful acts of the Defendants. It is alleged that on 10 June 1999, the Second Defendant by its servants, agent or employees, generally, members of the police force under the command and control of the First Defendant based at Chuave police station, initially assaulted some villagers from Mainamo village in Chuave, Eastern Highlands Province then, on the next two days of 11 and 12 June, the same members trespassed upon the lands and buildings of the plaintiffs in the early hours of the morning and committed various atrocities and breaches of constitutional rights against the villagers and their properties resulting in damages, losses and injuries.

Default judgement having been obtained against the Defendants on 1 June, 2001 in Waigani, the matter was transferred to Goroka for trial on assessment of damages. I am therefore not concerned here with the issue of liability. However, if no cause is shown on the evidence before me, a finding against the claim is open on a no liability finding. This is because of the legal position that, although liability has been determined, it does not follow that the Plaintiffs can automatically get damages. They must prove the form and extent of their losses or damages: See, Nari & Nari v The State (unreported National Court Judgment (2004)) N2769.

The plaintiff represents eighty-two other claimants from his village of Mainamo. In support of the claim, counsel relies on the same number of affidavits from each plaintiff attesting to what he or she lost or suffered as a result of the police raids. The plaintiffs are in the main claiming damages for loss of personal properties and possessions while a number of them have additional claims for damages for unlawful assault and personal injuries.

A summary of those individual claims appear in a tabular form in the latter part of this judgment.

There is no independent evidence affirming the raid, the assault and other constitutional breaches alleged against the defendants. However, the defendants having failed to refute the allegations, it is open to find on the strength of the affidavits that there was in fact a police raid in which the plaintiffs suffered losses and damages. Hence, it is incumbent on the Court to carefully examined the materials before it asserting the form, extent and validity of the claim and determine if quantification of loss and damages is supported on the evidence.

Generally, the evidence is far from satisfactory in ascertaining damages and loss to properties, the assault and consequential injuries. Apart from self-assertive Affidavits, there is no other independent evidence concerning the nature, detail, quality and value of loss for each individual claim. This is a typical case scenario that so often presents the Court difficulty in dealing with class actions of this nature.

In Albert Baine –v- The State (unreported National Court Judgement) N1335, Woods J when faced with a similar situation stated:

"The Court must demand more corroboration of such a value and cannot go merely on the talk of the Plaintiff. By analogy if a car is damaged in an accident, a Court requires an appropriate valuation from a reputable car dealer, if a house in town is destroyed it is usually assessed by an insurance assessor. Whilst I am not expecting an insurance assessor to assess village raid destruction, the Court must have some independent evidence to support estimates of value, such as a coronial inquiry, evidence from people in authority like District Officers who knew the area and who are called upon to visit the site immediately after an incident".

In Jonathan Paraia -v- Inspector Jacob Yasuan & Ors (unreported National Court Judgement) No. N1343, Injia J (as he then was) was more to the point in quoting Lord Goddard CJ in Berham – Carter –v- Hyden Park Hotel Ltd [1948] 64 TLR 177 at p.178:

"Plaintiffs must understand that, if they bring action for damages, it is for them to prove their damage; it is not enough to write down particulars and, so to speak, throw them at the head of the Court, saying, "This is what I have lost, I ask you to give me damages. They have to prove it".

I join those Judges in expressing the same sentiment. A person who claims to have been wronged by another and as a result suffered personal inconveniences, loss of amenities, properties, business and so forth always has the onus to prove on the balance of probability, the damage.

The court should be slow in accepting mere assertions on face value particularly where the claim is easily ascertainable as in the situation referred to by Woods, J in Albert Bains v The State (supra). If store goods or items are claimed, their value at the time of purchase can also be ascertainable from the retailer in the area or the administrative centre. Further, experience has shown bogus claims being made some so ridiculously unsustainable as in one case where an illiterate villager claimed for loss of university text books without saying how he came to be in possession of those items which would be least expected of a villager of his background to own. 

The fact that the other party had not contested the general claim lends support to a claim not being denied by that party. The onus however, remains with the plaintiff to produce the evidence required in Court to prove his or her claim. Failure to adduce such evidence leaves it open for the Court to either dismiss the claim, reduce it or where the evidence permits and justice of the case allows, the Court would do the best it can in arriving at a probable value of the chattel claimed. (See Biggin –v- Permanite [1951] 1 KB 314).

In the case before me, the claims can be placed in broad categories of: property damage; property loss; unlawful assault and injury. 

1.	 PROPERTY DAMAGE

This is a claim for damaged buildings and household goods, motor vehicles, trade stores and trade store goods. Because there is no proof of the value of each item, I will do any of the following: decline the claim; estimate the value, or accept the value claimed as reasonable or probable value of the damage or loss of property.

(a) 	Buildings.

The plaintiffs say in their affidavits that their houses were damaged in various ways like broken doors, door locks, louver blades, etc from the raid. There is no evidence on the type, quality and valuation of those fixtures or house components. I will do the best I can to make an overall award in respect of each claim, which will take into account the loss suffered under this category.

Only one plaintiff, Miopa Mineh attested to her house being destroyed by fire. She valued her loss at K2,000.00. The house was built of bush-material. Aside from that, there is no evidence on the size, age and type of house that was destroyed. There is also no evidence as to the valuation of the house by an independent source. Such evidence could come from a District Officer who knew the area and who was called upon immediately following the raid to visit the site and assess the damage to houses and other properties.

There has been no fixed and precise method of valuating a bush material house. In some cases I have had regard to, the estimates were not consistent. For instance, in Albert Baine v The State (unreported National Court Judgement) N1335, the Court accepted without further evidence, claims for 4 bush material houses at K300.00 and K500.00. In John Hiyewe & Ors v Titus Pembel & Anor, (unpublished national Court judgement (2002)) Kirriwom J, awarded K250.00 up to K500.00 for 6 bush material houses as reasonable compensation. In Aimon Aure & Ors v The State [1996] PNGLR 85 Woods J, felt that the general valuation of the village houses are far lower than the Court has been open to accept in recent years. His Honour noted that, where evidence was given by appropriate government officers, it has been established that the value of the normal village house is K500.00 – K600.00. His Honour rejected a claim of K1,500.00 for a standard bush material house and awarded K700.00 in that case. 

Having decided in this case to award a claim for loss of a house the Court is left to do the best it can in estimating the value of a building in the absence of an independent valuation. In other cases the court may accept the value claimed as a reasonable or probable value of the loss of the property. I do not consider the value of K2,000.00 without any supporting evidence of valuation, genuine. I will allow for depreciation and award K300.00.

(b) 	Motor vehicle & Trade store and store goods 

The claim in this category in so far as it related to estimated value of damage is reasonable and is allowed in the overall assessment of the plaintiff’s claim. 

2.	PROPERTY LOSS

This is a claim for loss of household goods and cash; gardening, hunting and general implements; and trade store goods and cash; domesticated animals; coffee bags. Again, there being no proof of the value of each loss, I will either decline the claim, accept the value claimed as reasonable or probable value of the damage or loss of property or estimate the value.

(a)	Household Goods and Cash etc.

These are related losses of basic items like clothing, cooking utensils, gardening implements. There is no evidence on the valuation of store goods like clothing, garden implements etc being claimed. But I think the prices given were based on the current selling price at the shops. I award this claim and allow for depreciation where the value given appeared unreasonable for each different item claimed. Where there is a claim for loss of cash, I award at the most K50.00 because unsafe homes are not the place to keep substantial amounts of money and people must by now trust the banks as a safe place to keep their savings. Moreover, there being no proof on the reason for the retention of any such large sums of money which generally would be beyond the reach of the ordinary villager, claims of this nature is not intended to unjustly enrich bogus claims. 

(b)	Trade store goods and Cash. 

It was generally pleaded in the Statement of Claim that, the defendants entered upon the lands and buildings including a trade store and took away chattels and cash. The trade store belonged to the plaintiff, Gerawa Michael. In his affidavit, he attested to his store being broken into and store goods either damaged or removed by police. 

There is no documentary evidence to support a legitimate trading by the plaintiff. Such evidence may be in the form registration certificate or licence, receipts, invoices or trading account. It was possible that he traded or operated the store, illegally. Generally, the claim should be disallowed. Then again, the loss claimed comprised normal consumable items usually sold at small village canteens or retail outlets. The operation did not appear to be on a large scale and there is no evidence that it was a well-established, fully operational and profitable venture. Further, the estimated value of loss is not based on any stock-take of the goods lost. I will allow the claim and award K600.00 for uncertainty of money for value. 

Other claims for loss of cash are modest and within reasonable expectation. I would allow those losses. 

(c)	Domesticated Animals.

This category related to pigs in particular. There is no evidence as to the size and age of the domesticated animal and that is significant because I think in the highlands as anywhere else where a pig is a precious commodity, the value to be given depends on the age and size of the animal. The social and economic value of pigs in a traditional ceremony cannot be underestimated. It is highly priced. There is however no fixed or common pricing as one particular locality may place different monetary value on pigs than the next. I will allow a global value of K200.00 for each claim because of the uncertain description of the claim.

(d) 	Coffee Bags.

These are claims for loss of coffee bags which do not state if they were coffee cherries or parchments. The weight in kilograms, the paying price as per weight at the time of loss is also not given. The prices of coffee for the relevant period of claim are easily ascertainable by receipts, sales dockets or by pricing indexes from the numerous coffee dealers and factories in Goroka. However, that evidence is not produced to support the plaintiffs’ assertions. I award the value claimed by half and include it in the overall assessment of the whole of the claim by each claimant.

3.	UNLAWFUL ASSAULT AND INJURY

A number of Plaintiffs are claiming for breach of constitutional rights in the form of unlawful assaults. Each claim is supported by an affidavit and medical report on the assault or injury received.

Where injuries are supported by Medical evidence, percentage losses are estimated but the reports do not include current medical prognosis of those injuries and whether there had been any change of percentage losses as at the time of trial. I bear in mind also that the disability in each case is merely an estimated percentage loss and is not conclusive. However, the victims are still entitled to compensation for the pain and suffering inflicted on them.

Having considered some awards made in similar cases by this Court, I award K300.00 for general assault, K500.00 for physical assault and a global sum of K2,000.00 where injury is involved, to each plaintiff.

4.	EXEMPLARY DAMAGES

The plaintiffs have asked for exemplary damages. The award of exemplary damages may be determined by the Court as a mark of the Court’s disapproval of excessive authoritative action resulting in substantive violations of the plaintiff’s constitutional rights. It is not an absolute entitlement. As woods, J stated in Peter Kuriti v The State [1994] PNGLR 262 at p.263:

"Exemplary damages are not to unjustly enrich a party but, rather, are symbolic of the public indignation".

It is always a question of discretion whether or not exemplary damages are awarded. The power vested in the court under s. 22 and s. 155 (4) of the Constitution is to make such orders as are necessary to do justice in the circumstances of a particular case. And the issue of what justice is encompasses considerations of all the relevant facts of the case.

In the case before me, the raid on the plaintiffs’ village conducted over two days resulted in excessive use of police lawful and constitutional powers. The individual policeman who instigated and ordered the raid was not named as a party to the proceedings. He was the person who actively led and participated in those illegal acts, which gave rise to constitutional breaches of the rights of the plaintiffs. Those members of the police force involved in the raid were also not named in the Writ by the plaintiffs. These omissions are crucial and the concessions by the plaintiffs that the raid was not authorised by the first defendant do not assist the support this claim.

For those reasons, any award of exemplary damages will be pointless and will serve no useful purpose there being no individual against whom exemplary damages may be ordered and/or enforced.

I have considered if the defendants herein can in any event be held liable for the negligent acts of their agents and servants. It is clear that individual members of the police force had acted beyond their lawful powers and there is no evidence that the excess use of legitimate authority followed lawful instructions or authority of the Police Commissioner or the first defendant. In my view, the circumstances of this case do not support award for exemplary damages against the defendants herein.

If State agents or servants had deliberately exceeded their legitimate powers under any legislation, policy direction or instructions, the State and in the ultimate, the people of Papua New Guinea should not be held responsible on their behalf. In the words of Kirriwom, J in Tony Wemin & Ors v The State (unreported National Court Judgement – (2001)) N2134:

"… I do not think the people of Papua New Guinea through the State be held punitively liable for the criminal acts of a few hooligans amongst a majority of good law-abiding policeman".

The State is indeed protected from liability for exemplary damages under s. 12 of the Claims by and Against the State Act 1996 where there was no severe breach of a constitutional right as observed by Kapi, DCJ (as he then was) in John Yama & Ors. v Mathew Minok & Ors. (Unreported National Court Judgment) N2198.

A useful and illustrative discussion on this principle which I follow is found in the leading judgment of Los, J in the Supreme Court Case of Abel Tomba v The State (unreported Supreme Court Case (1997)) SC 518. Where the State may be held liable for exemplary damages, the case of Andale More and Manis Andale. v H. Tokam and The State (unreported National Court Judgment) N1641 provides a helpful guide on the issue.

The particular policeman and policemen/women involved in the raid have not been identified or named as parties in this action. If one or some names were given, it would not be sufficient to hold them liable on the evidence that points generally to their presence and in particular when they are not named as parties in this action.

For these reasons, I would not award exemplary damages against the State in the exercise of my discretion.

The claims in summary are:

SUMMARY OF CLAIMS PER PLAINTIFF

No	Plaintiff	Amount Claimed	Claim Allowed	Assault / Injured	Total	
1	Stanley Eremugom	4,436 	3,000	2,000	5,000	
2	Steven Baurom	2,400	1,000	-	1,000	
3	Akoi Subamo	552	250 	-	250	
4 	Paul Koma	852 	400	-	400	
5	Michael Kumo	235	100	-	100	
6	Subamo Moropau	1,027 	500	-	500	
7	Teine Tanine	345	150	-	150	
8	Brandy Kumo	65	50	-	50	
9	Tony Miopa	507 	200	2,000	2,200	
10	Erick Baundi	418	200	-	200	
11	Philip Baundi	218	100	-	100	
12	Baurom Aro	592 	200	500	700	
13	Pasuke Magi	396	150	-	150	
14	Baundi Wainem	200	100	-	100	
15	Cook Wauri	154 	80	-	80	
16	Aro Ba	125	60	-	60	
17	Tom Teine	210	100	-	100	
18	Ina Itiro	160	80	-	80	
19	Mathew Magi Yanopa	423	200	-	200	
20	Kelly Supa Kono	3,645	1,500	-	1,500	
21	Michael Bomai	494	200	500	700	
22	Samson Baria	280	100	-	100	
23	Mathias Aro	1,207	500	-	500	
24	Siwi Sirinuka	5,126.25	2,000	-	2,000	
25	Charlie Wawo	Injured	-	2,000	2,000	
26	Siwin Paul	Injured	-	2,000	2,000	
27	Steven Yanopa	310 	100	500	600	
28	Auwo Josi	705	350	-	350	
29	Mathew Kennedy	1,644	800	-	800	
30	Teine Nicko	267	100	-	100	
31	Rope Pasuke (Com Ass)	1,263	500	-	500	
32	Erick Togoa	555	300	-	300	
33	Suba Suba	1,018	500 	500	1,000	
34	Yanopa Bigbel	486 	200	-	200	
35	Kaupa Robin	1,142 	600	-	600	
36	Lapok Baurom	370	150	-	150	
37	Joshua Aro	925	450	-	450	
38	David Goro	492	250	-	250	
39	Peter Mau	320 	150	-	150	
40	Paul Aro	357 	150	-	150	
41	Kora Philip	Injured 	-	2,000	2,000	
42	Kiap Baurom	62	50	-	50	
43	Kaupa Samuel	608	300	-	300	
44	Mary John	802	400	-	400	
45	Miopa Mineh	2,500 	1,200	-	1,200	
46	Magi Mioba Steven	2,154	1,000	-	1,000	
47	Sine Koibu	156 	80	500	580	
48	Koura Easse	520.80	250	-	250	
49	Nin Iso	1,141.00	500	-	500	
50	Ina Kai	450.00	200	-	200	
51	Tony Kaupa	340	150	-	150	
52	Goro Bo Aro	515	250	-	250	
53	Baunom Daniel	90	50	-	50	
54	Jimmy Jeming	419.50	200	-	200	
55	Tommy Kono	796	350	-	350	
56	Rex Aro	653	300	-	300	
57	Kuria Nareka	400	200	500	700	
58	Mendi Gene	303	150	-	150	
59	Leo Magi	105	50	-	50	
60	Ubano Bakley	973	450	-	450	
61	Geraura Michael	1,212	600	-	600	
62	Triupe N.	59	50	-	50	
63	Kono Daniel	175	100 	-	100	
64	Baurom Belden	4,295	2,000	-	2,000	
65	Siwin Eremugom	288	100	500	600	
66	Nancy John	268	100	-	100	
67	Kongou Phinepe	190	100	-	100	
68	Kiap Maino	593	250	-	250	
69	Bontine Magi	558	250	-	250	
70	Munom Kare	170	80	-	80	
71	Philip Kama	291	150	-	150	
72	Peter Kari	220	100	-	100	
73	Wapo Paul Kimane	171 	80	500	580	
74	Timmy Magi	169	100	2,000	2,100	
75	Paul Kaupa	149	70	-	70	
76	Alois Francis	260	130	-	130	
77	John Wagi Kombre	48 	40	-	40	
78	Dere Aro	1,534	700	300	1,000	
79	Yainu Kari	300 	150	300	450	
81	Dinney Jenniker	63	60	-	60	
81	Philip Kongou	134	60	-	60	
82	Francis Aro	325	150	-	150	
83	Aro Alphonse Ubano	294	100	-	100	
TOTAL:		27,470	16,600	44,070	

By virtue of s.1 of the Judicial Proceedings (Debts & Damages) Act, I award 8% interest from the date of the writ to the date of decision on the compensatory damages for loss and assault.

The final awards are as follows:

1.	Compensatory damages for loss	:	K27,470.00	
2.	Assault and battery	:	K16,600.00	
3.	Exemplary damages	:	Nil	
4.	8% interest	:	K25,026.90	
Total		K69,096.90	

I order settlement of this claim at K69,096.90. I further order that the Defendants pay the Plaintiffs’ costs.
__________________________________

Lawyers for the Plaintiffs		:	Nonggorr & Associates Lawyers
Lawyers for the Defendant		:	Solicitor-General