N3911

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1166 OF 2004

BETWEEN

MEMBERS OF PYAIN TRIBE
consisting of ROBERT TAROPEN, MAX PASSOMB, 
WAPEN LAIS, STEVEN KUIMA, LAS MAS, PETER GOROKA, 
ARNOLD JOHN, HOWAPE YALUMA, MAKI TALUM, 
MANUS LYAKAE & LASEN MAS
Plaintiffs

AND

JOHN ANAWE,
PROVINCIAL POLICE COMMANDER
OF ENGA PROVINCE
First Defendant

AND

SAM INGUBA,
COMMISSIONER OF POLICE
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Mount Hagen: Makail, J
2009: 18th June &
2010: 8th March

DAMAGES - Assessment of - Unlawful police raid - Destruction and looting of property - Proof of - Breaches of constitutional rights - Freedom from arbitrary search and entry - Freedom from inhuman treatment - Deprivation of liberty - Deprivation of property - Constitution - Sections 42, 44, 53, 57 & 58.

Cases cited:

Aimon Aure & Ors -v- The State [1996] PNGLR 85; (1995) N1346
Tabie Mathias Koim -v- The State [1998] PNGLR 247; (1998) N1737
Abel Tomba -v- The State (1997) SC518
Nelson Pawa -v- Linus Yumbun & The State (2009) N3784
Kawi Yawi -v- Torepa Nenga, Anton Sinawai & The State (2002) N2209
James Gunambo & Anor -v- Sergeant Thomas John Upaiga & The State: WS No 1321 of 2002 (Unnumbered & Unreported Judgment of 25th January 2010)

Counsel:
Mr P Dowa, for the Plaintiffs
Ms T Tupou, for Defendants

JUDGMENT

08th March, 2009

1. MAKAIL, J: In this action, the eleven plaintiffs are villagers from Pyain tribe of Laiagam in the Enga Province and are suing the defendants for damages arising from an alleged unlawful raid by members of the police at their village on 14th August 2003. They alleged that the members of the police under the command and control of the first defendant destroyed and looted their property and livestock of various descriptions and as a result, they suffered loss. They placed a monetary value of K29,409.20 in the writ of summons filed on 03rd September 2004 and seek general damages, exemplary damages, special damages, legal costs and interest. The defendants had not denied the claim and default judgment was entered against them with damages to be assessed on 21st August 2007. Hence, trial was conducted on assessment of damages.

2. At the trial, counsel for the plaintiffs abandoned the claim for plaintiffs Arnold John, Howape Yaluma, Maki Talum, Manus Lyakae and Lasen Mas because none of them had filed affidavits or were available to give oral evidence and pursued the claim for the remaining six plaintiffs Robert Taropen, Max Passomb, Wapen Lais, Steven Kuima, Peter Goroka and Las Mas. In support of the claim, the plaintiffs relied upon the following affidavits which were admitted into evidence by consent:

1.	Affidavit of Robert Taropen sworn and filed on 21st July 2008, (exhibit "P1");

2.	Affidavit of Wapen Lais sworn and filed on 24th July 2008, (exhibit "P2");

3.	Affidavit of Max Passomb sworn and filed on 24th July 2008, (exhibit "P3");

4.	Affidavit of Peter Goroka sworn and filed on 24th July 2008, (exhibit "P4");

5.	Affidavit of Las Mas sworn and filed on 24th July 2008, (exhibit "P5"); and

6.	Affidavit of Steven Kuima sworn and filed on 24th July 2008, (exhibit "P6").

3. The defendants had offered no evidence in rebuttal and elected not to cross examine the plaintiffs in relation to the contents of their affidavits. Briefly, the evidence of the plaintiffs is that, on 14th August 2003, members of the police from the Kerowagi, Mt Hagen, Wabag and Laiagam Mobile Squads armed with firearms, entered their village at Mamale in Laiagam, Enga Province and broke into their houses and trade stores and destroyed property of various descriptions and even looted them. The description of the property destroyed and looted were clothes, sleeping gears, eating utensils, gardening tools, generators, store goods and cash money. They also arrested and detained plaintiffs Max Passomb, Arnold John, Peter Goroka and Steven Kuima, for 10 days at Wabag Police Station cell without charging them with any offence and later released them. 

General damages

4. The plaintiffs claimed general damages. Given that general damages is intended to compensate a plaintiff for pain and suffering and loss of amenities caused by the wrongful conduct of a defendant, in the present case, I am satisfied that the actions of the members of the police have put the plaintiffs through a great deal of pain and suffering and loss of amenities because the plaintiffs had essentially lost the basic human needs in life for survival; shelter (houses), sleeping gears and cooking utensils. Without them, life will be miserable and not worth living, hence I have no difficulty in finding that they had suffered at the hands of the members of the police. In my view, they ought to be compensated by an award of general damages. I shall deal with each plaintiff below:

Robert Taropen

5. This plaintiff lost the following personal items:

1.	1 x Suit case 	K 400.00	
2.	1 x Coleman lamp	K 280.00	
3.	1 x Brand new axe 	K 87.00	
4.	1 x Bush knife	K 20.00	
5.	2 Dishes	K 46.00	
6.	Cash	K16,000.00	
7.	1 Generator 	K 3,000.00	
	Total	K19,833.00	

6. I have considered the value of each item and in my view they seemed reasonable and relatively modest. But there is one item which I am not satisfied with and that is item 6 - cash of K16,000.00. Whilst he stated at paragraph 9 of his affidavit that he used that money to conduct his business, he does not give the specific details or nature of his business. A Court of law would not accept this kind of evidence as in my view, that evidence is vague. The amount is huge and the Court cannot accept bare assertions of such loss. In the case of Aimon Aure & Ors -v- The State [1996] PNGLR 85; (1995) N1346, a case of unlawful raid by members of the police and defence force which resulted in loss of several personal items including allegations of theft of huge amounts of cash, Woods, J said that:

"This Court cannot accept bare assertions of such loss. First it is not prudent practice to keep large amounts of cash in one's home and anyone who does that does so at their own risk. Also large amounts of cash suggest an income, which could be liable for tax and therefore the Court, must require the appropriate evidence of how such large amounts of cash were obtained and of compliance with tax laws. So couple with instances where large amounts of cash are claimed this court cannot accept that claim without appropriate evidence to support the holding of such amounts of cash."

8. In Tabie Mathias Koim -v- The State [1998] PNGLR 247; (1998) N1737, the plaintiff maintained loosing K750.00 of his own money and his father losing K9,000.00 in a police raid but was not sure whether it was stolen by police or burnt. He did not positively assert a claim for these monies. Injia, J (as he then was) declined an award for the missing cash. For these reasons, I am not satisfied that he had lost K16,000.00 during the raid. I make no award for this claim but shall award K3,833.00 as general damages for the other personal items destroyed and looted by the members of the police.

Wapen Lais 

9. This plaintiff lost the following personal items:

1.	10 x Cambridge packets @ K60.00 each 	K 600.00	
2.	4 x Highway beef biscuit cartons @ K55.00 each	K 220.00	
3.	4 x Liklik wopa biscuit cartons @ K54.00 each	K 216.00	
4.	3 x Globe tin meat cartons @ K54.00 each 	K 162.00	
5.	Cash	K 460.00	
6.	2 x PK Packets @ K15.00 each	K 30.00	
7.	10 x Gas/match @ K1.00 each	K 10.00	
8.	8 x Coca cola cartons @ K38.40	K 307.20	
	Total	K 2,005.20	

10. This plaintiff owned a trade store and lost the above items during the raid. The value of each item seemed reasonable in light of the kind of trade store goods one would purchase from a wholesaler and sell as a retailer. I am satisfied that I should award general damages in the sum of K 2,005.20 inclusive of the cash of K460.00. I am awarding K460.00 because I am also satisfied that it was money earned from sale of goods and held in the trade store as cash on hand. I award K 2,005.20 as general damages for this plaintiff.

Max Passomb

11. This plaintiff lost the following personal items:

1.	2 x Traveling bags containing clothes 	K 300.00	
2.	1 x Suitcase with clothes	K 500.00	
3.	Pair of Dunlop and Stockman shoes	K 400.00	
4.	2 x Axes, 2 Bush knives, a hammer and a hand saw	K 500.00	
5.	Set of mechanical tools	K 2,000.00	
6.	1 x Brand new sonny radio	K 800.00	
7.	Eating utensils, furniture like chairs & tables	K 800.00	
	Total	K 5,300.00	

12. Again, in my view the value of each item seemed reasonable and relatively modest. I am satisfied that I should award general damages in the sum of K5,300.00. In additional to that, he claimed that he was unlawfully arrested and detained at Wabag Police Station cell for 10 days without being charged with any offence. He was later released. I accept his undisputed evidence that he was unlawfully arrested and detained by members of the police. He should be compensated for this. I consider K2,000.00 a fair and reasonable amount for this head of claim. In total, I award K7,300.00 as general damages for this plaintiff.

Peter Goroka

13. This plaintiff lost the following personal items:

1.	2 x Cooking pots @ K32.00 each 	K 64.00	
2.	8 x Plates @ K3.50 each	K 28.00	
3.	6 x Cups @ K3.50 each	K 21.00	
4.	Frying pan	K 12.00	
5.	Suitcase	K 87.00	
6.	Cash	K 25.00	
	Total	K 237.00	

14. Again, in my view the value of each item seemed reasonable and relatively modest in light of the kind of household items one would have purchased and owned. I am satisfied that I should award general damages in the sum of K237.00. In additional to that, he claimed that he was unlawfully arrested and detained at Wabag Police Station cell for 10 days without being charged with an offence or offences. He was later released. Again, I accept his undisputed evidence that he was unlawfully arrested and detained by members of the police. He should be compensated for this. I consider a fair and reasonable amount for this head of claim is K2,000.00. In the circumstances, I award a total sum of K2,237.00 as general damages for this plaintiff.

Las Mas 

15. This plaintiff lost the following personal items:

1.	Cash 	K 57.00	
2.	Wallet	K 6.00	
3.	Axe 	K 67.00	
	Total	K 130.00	

16. Again, the value of each item seemed reasonable and relevantly modest in light of the kind of household items one would have purchased and owned. I am satisfied that I should award general damages in the sum of K130.00. I award K130.00 as general damages for this plaintiff for the loss of the above personal items.

Steven Kuima 

17. This plaintiff lost the following personal items:

1.	4 x Highway beef biscuit cartons @ K55.00 each	K 220.00	
2.	4 x Liklik wopa biscuit cartons @ K54.00 each	K 216.00	
3.	10 x Soft drinks including coca cola cartons @ K54.00 each	K 384.00	
4.	4 x Globe tin meat cartons @ K54.00 each 	K 216.00	
5.	6 x Cambridge Cigarette packets @ K60.00 each 	K 360.00	
6.	Cash	K 563.00	
	Total	K 1,959.00	

18. This plaintiff also owned a trade store and lost the above items during the raid. The value of each item seemed reasonable in light of the kind of trade store goods one would purchaser from a wholesaler and sell as a retailer. I am satisfied that I should award general damages in the sum of K1,959.00 inclusive of the cash of K563.00. I am awarding K563.00 because again, I am also satisfied that it was money earned from the sale of goods and held in the trade store as cash on hand. Further, this plaintiff is also one those unlawfully arrested and detained by the police at Wabag Police Station cell for 10 days without being charged with any offence and later released. Again, I accept his undisputed evidence that he was unlawfully arrested and detained by members of the police. He should be compensated for this. I consider a fair and reasonable amount for this head of claim is K2,000.00. I award K3,959.00 as general damages for this plaintiff.

Special damages

19. The plaintiffs also claimed special damages. Counsel for the plaintiffs submitted that each plaintiff should be awarded K200.00 to cover for costs incurred in paying legal costs for attending to application for bail and attendance at the District Court including related costs. However, the problem with this submission is that, there is no evidence of the costs incurred by the plaintiffs placed before the Court. Given the nature of special damages where it must be strictly proven, that means, the plaintiffs must produce evidence of receipts of payments to establish the claim. As there are none, I am not satisfied that they have established this claim and reject it.

Exemplary damages

20. In relation to the claim of exemplary damages, I am not satisfied that the defendants, more so, the third defendant should be ordered to pay exemplary damages for unlawful actions of the unidentified members of the police although it is noted that they were members of the Mobile Squad based in Kerowagi, Mt Hagen, Wabag and Laiagam and the first defendant is the Provincial Police Commander of Enga Province. In my view, it is still not sufficient to hold them liable for exemplary damages. As for the first defendant, there is no evidence from the plaintiffs that he ordered or directed the members of Mobile Squads to raid their village. Hence, there is no basis to hold him liable for exemplary damages.

21. In my view, individual members of the police should have been identified and named in this action to enable the Court to order them to personally pay exemplary damages as was the case in Abel Tomba -v- The State (1997) SC518. That was a case where the Supreme Court was reluctant to award exemplary damages against the State for abuse of power by members of the disciplined forces. In my opinion, the facts of this case do not warrant an award of exemplary damages because the destruction and looting though severe was not continuing and further, no individual policemen have been named in the proceeding to enable the Court to make an order against them. For these reasons, I dismiss this claim.

Damages for breaches of Constitutional rights

22. The plaintiffs also claimed damages for breaches of Constitutional rights. At paragraph 14 of the statement of claim, they alleged that the defendants breached section 57 (protection of the law), section 44 (freedom from arbitrary search and entry), section 42, (Liberty of person) and section 53 (protection from unjust deprivation of property). I am satisfied that the members of the police committed breaches of sections 42, 44, 53 and 57 of the Constitution when they raided the plaintiffs' village and destroyed and looted their personal property including arrest and detention of some of them without charges.

23. As every person in this country has rights to be protected from inhuman treatment, free from arbitrary search and entry and protection from unjust deprivation of property, the actions of the members of the police were a serious violation of the plaintiffs' rights. In my view also, the actions of the members of the police can be best described as inhuman and cruel and done without any regard or respect to the dignity of mankind. In the circumstances, it is only fair that the plaintiffs be compensated by an award of damages for these breaches and this Court having wide powers to enforce breaches of Constitutional rights under sections 57 and 58 of the Constitution may award a reasonable award of damages to compensate the plaintiffs for the breaches of their Constitutional rights.

24. What is a fair and reasonable amount to award as damages under this head of claim? I consider K3,000.00 fair and reasonable in the circumstances of the case because in my view, the manner in which the members of the police destroyed and looted the plaintiffs' property was inhuman and cruel, hence making this case a serious case of breaches of Constitutional rights. I also take into account awards in past cases of similar nature in Nelson Pawa -v- Linus Yumbun & The State (2009) N2784 where I awarded K5,000.00, Kawi Yawi -v- Torepa Nenga, Anton Sinawai & The State (2002) N2209 where Jalina, J awarded K2,000.00 and James Gunambo & Anor -v- Sergeant Thomas John Upaiga & The State: WS No 1321 of 2002 (Unnumbered & Unreported Judgment of 25th January 2010) where I awarded K2,000.00. In the circumstances, I award K3,000.00 for each plaintiff.

25. I also award interest at 8% on the principal judgment for each plaintiff from the date of issue of writ of summons to the date of judgment at a total of 2007 days which shall be calculated as follows:

1.	Robert Taropen: (General damages and damages for breaches of Constitutional rights) - K6,833.00.

8% of K6,833.00 is K546.64 divided by 365 days in a year is K1.50 per day. Multiply K1.50 per day by 2,007 days gives K3,010.50. I award this amount as 8% interest.

2.	Wapen Lais: (General damages and damages for breaches of Constitutional rights) - K5,005.20.

8% of K5,005.20 is K400.42 divided by 365 days in a year is K1.10 per day. Multiply K1.10 per day by 2,007 days gives K2,207.70. I award this amount as 8% interest.

3.	Max Passomb: (General damages and damages for breaches of Constitutional rights) - K10,300.00.

8% of K10,300.00 is K824.00 divided by 365 days in a year is K2.26 per day. Multiply K2.26 per day by 2,007 days gives K4,535.82. I award this amount as 8% interest.

4.	Peter Goroka: (General damages and damages for breaches of Constitutional rights) - K5,237.00.

8% of K5,237.00 is K418.96 divided by 365 days in a year is K1.15 per day. Multiply K1.15 per day by 2,007 days gives K2,308.05. I award this amount as 8% interest.

5.	Las Mas: (General damages and damages for breaches of Constitutional rights) - K3,130.00.

8% of K3,130.00 is K250.40 divided by 365 days in a year is K0.69 per day. Multiply K0.69 per day by 2,007 days gives K1,384.83. I award this amount as 8% interest.

6.	Steven Kuima: (General damages and damages for breaches of Constitutional rights) - K6,959.00.

8% of K6,959.00 is K556.72 divided by 365 days in a year is K1.52 per day. Multiply K1.52 per day by 2,007 days gives K3,050.64. I award this amount as 8% interest.

26. To summarize:

1.	Robert Taropen		
(a)	General damages (loss of property)	K 3,833.00	
(b)	Breaches of constitutional rights	K 3,000.00	
(c)	8% interest	K 3,010.50	
	Total	K 9,843.50	

2.	Wapen Lais		
(a)	General damages (loss of property)	K 2,005.20	
(b)	Breaches of constitutional rights	K 3,000.00	
(c)	8% interest	K 2,207.70	
	Total	K 7,212.90	

3.	Max Passomb		
(a)	General damages (loss of property and unlawful arrest and detention)	K 7,300.00	
(b)	Breaches of constitutional rights	K 3,000.00	
(c)	8% interest	K 4,535.82	
	Total	K14,835.82	

4.	Peter Goroka		
(a)	General damages (loss of property and unlawful arrest and detention)	K 2,237.00	
(b)	Breaches of constitutional rights	K 3,000.00	
(c)	8% interest	K 2,308.05	
	Total	K 7,545.05	

5.	Las Mas		
(a)	General damages (loss of property)	K 130.00	
(b)	Breaches of constitutional rights	K 3,000.00	
(c)	8% interest	K 1,384.83	
	Total	K 4,514.83	

6.	Steven Kuima		
(a)	General damages (loss of property and unlawful arrest and detention)	K 2,959.00	
(b)	Breaches of constitutional rights	K 3,000.00	
(c)	8% interest	K 3,050.64	
	Total	K 9,009.64	

27. Finally, I order the defendants to pay the plaintiffs' legal costs to be taxed if not agreed and time shall be abridged.

Judgment accordingly.

Paulus Dowa Lawyers: Lawyers for the Plaintiffs
Acting Solicitor-General: Lawyers for the Defendants