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Alep v Madang Provincial Government [2011] PGNC 149; N4442 (11 November 2011)

N4442

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 184 OF 2005

ALPHONSE ALEP
Plaintiff

V

MADANG PROVINCIAL GOVERNMENT
First Defendant

HON JAMES YALI, GOVERNOR, MADANG PROVINCE
Second Defendant

DUNSTAN AUGUSTINE, PROVINCIAL ADMINISTRATOR
Third Defendant

JIM NAMORA, MADANG POLICE STATION COMMANDER
Fourth Defendant

TONY WAGAMBIE JNR, GOROKA MOBILE SQUAD COMMANDER
Fifth Defendant

INSPECTOR HENRY MONG, TASK FORCE COMMANDER
Sixth Defendant

SERGEANT TARIAWI, RAPID RESPONSE UNIT, MADANG
Seventh Defendant

JOSHUA KAS, TASK FORCE MADANG
Eighth Defendant

SAM INGUBA, COMMISSIONER OF POLICE
Ninth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Tenth Defendant

Madang: Cannings J
2011: 25 February, 25 March, 11 November

DAMAGES – breach of agreement – breach of human rights – unlawful destruction of properties by police – squatter eviction exercise – plaintiff claims K3,347,667.10.

A squad of police officers raided a block of State land as part of a squatter eviction exercise and destroyed a house and other properties owned by the plaintiff. The plaintiff sued the police officers involved, the provincial government and its leaders who authorised the exercise and the State, claiming damages for breach of an agreement and breach of human rights. The defendants were found liable by entry of default judgment. This is the trial on assessment of damages. The plaintiff sought eight categories of damages: (1) exemplary damages, K35,000.00; (2) general damages, K521,069.10; (3) trespass on land, K15,000.00; (4) distress and mental suffering, K30,000.00; (5) breach of constitutional rights, K15,000.00; (6) special, damages, K95,000.00; (7) loss of future earnings, K2,626,598.00; and (8) loss of payments to witnesses, K10,000.00; being a total claim of K3,347,667.10.

Held:

(1) The plaintiff failed to adduce sufficient evidence to support most of the claims.

(2) The court awarded a total amount of damages of K255,150.28; plus interest of K161,254.98, being a total judgment sum of K416,405.26.

Cases cited

The following cases are cited in the judgment:

Abel Tomba v The State (1997) SC518
Albert Baine v The State (1995) N1335
Eles Jay Clothing Ltd v The State WS No 858 of 1998, 29.09.06
Graham Mappa v ELCOM (1992) N1093
James Liwa v Markis Vanimo (2008) N3486
John Pias v Michael Kodi & Ors (2006) N2972
Jonathan Mangope Paraia v The State (1995) N1343
Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331
Marcus Mong v John Selou (2002) N2208
Misac Pokonoming v Jeffery Simiri WS 1596/2005, 26.10.07
MVIT v Tabanto [1995] PNGLR 214
Nelson Pawa v Linus Yumbun (2009) N3784
Peter Wanis v Fred Sikiot and The State (1995) N1350
Spirit Haus Ltd v Robert Marshall (2004) N2630
Stettin Bay Lumber Company Ltd v Gesring Gabing Bob (2011) SC1096
Wama Kints v The State (2001) N2113
Yange Lagan and Others v The State (1995) N1369
Yooken Paklin v The State (2001) N2212

TRIAL

This was a trial on assessment of damages.

Counsel

B W Meten, for the plaintiff
T Tanuvasa, for the defendants

11 November, 2011

1. CANNINGS J: This is an assessment of damages against Madang Provincial Government and the State, six police officers and the provincial governor and provincial administrator, who have been found liable for the unlawful actions of the police in carrying out a squatter eviction exercise at Sisiak 3, Madang, on State land, Portion 637, occupied by the plaintiff, Alphonse Alep. He had lived on the land for 30 years and established his home and businesses there. On Thursday 18 December 2003 an armed police squad burned down the plaintiff's house and destroyed other property. The causes of action relied on by the plaintiff are breach of an agreement (which recognised that the plaintiff was a genuine settler and protected him against such police action without the leave of the National Court) and breach of human rights. The plaintiff seeks eight categories of damages:

(1) exemplary damages, K35,000.00;

(2) general damages, K521,069.10;

(3) trespass on land, K15,000.00;

(4) distress and mental suffering, K30,000.00;

(5) breach of constitutional rights, K15,000.00;

(6) special, damages, K95,000.00;

(7) loss of future earnings, K2,626,598.00;

(8) loss of payments to witnesses, K10,000.00;

being a total claim of K3,347,667.10.

THE EVIDENCE

2. The plaintiff relied on six affidavits, admitted into evidence by consent. There was no oral evidence. The defendants offered no evidence. The six affidavits are summarised in the following table.

AFFIDAVIT EVIDENCE RELIED ON BY THE PLAINTIFF

APPROACH TO ASSESSMENT OF DAMAGES

3. Though the plaintiff has secured default judgment and the defendants have presented no evidence the plaintiff still must prove his case. The following principles will be applied:

• The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person's case, that person has the onus of proving the allegation (Yooken Paklin v The State (2001) N2212).
  
• Corroboration of a claim is usually required and the corroboration must come from an independent source (Albert Baine v The State (1995) N1335; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331).
  
• The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim (Peter Wanis v Fred Sikiot and The State (1995) N1350).
  
• The same principles apply after default judgment is entered and the trial is just on assessment of damages. A person who obtains a default judgment is not entitled as of right to receive any damages. Damage suffered must still be proved by credible evidence (Yange Lagan and Others v The State (1995) N1369).
  
• The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the Court must do the best it can (Jonathan Mangope Paraia v The State (1995) N1343).
  

1 EXEMPLARY DAMAGES

4. The plaintiff claims K35,000.00 exemplary damages. As the squatter eviction exercise was conducted in accordance with instructions given by senior police officers and was not an unauthorised series of acts by individual members of the Police Force, and the plaintiff's human rights were breached by the police, the plaintiff is eligible for an award of exemplary damages (Abel Tomba v The State (1997) SC518). The assessment of exemplary damages is, however, subject to Section 12(1) of the Claims By and Against the State Act 1996, which states:

No exemplary damages may be awarded against the State unless it appears to the court that, regardless of the nature of the claim, there has been a breach of Constitutional rights so severe or continuous as to warrant an award of exemplary damages.

5. The question to be asked is: was the breach of constitutional rights so severe or continuous as to warrant an award of exemplary damages? The constitutional rights of the plaintiff that were breached were:

• the right to the full protection of the law (Constitution, Section 37);
• the right to freedom from arbitrary search and entry (Constitution, Section 44);
• the right to protection from unjust deprivation of property (Constitution, Section 53).
  

6. The actions of the police were threatening and violent and therefore can be properly regarded as so "severe" as to warrant an award of exemplary damages. As to the amount that should be awarded a reasonable sum is K5,000.00 for each of the rights that were breached, being a total of K15,000.00.

2 GENERAL DAMAGES

7. The plaintiff claims K521,069.10, comprising the following items:

8. I make the following awards:

(a) House & buildings: K125,000.00, as this is the total value of the improvements appearing in Mr Hosa's valuation report.

(b) Vehicles: K30,000.00, as this is the total value of the improvements appearing in Mr Hosa's valuation report.

(c) Personal items: K10,150.28, as this is a reasonable sum in the context of the evidence as to the type of dwelling the plaintiff had constructed and the amount claimed is less than that appearing in Mr Hosa's valuation report.

(d) Commercial goods: K30,000.00, being the approximate amount appearing in Mr Hosa's valuation report.

(e) Crops: Nil, as there is insufficient evidence of the nature and extent of crop damage and this item does not appear in Mr Hosa's valuation report.

(f) Building materials: K30,000.00, being the approximate amount appearing in Mr Hosa's valuation report.

(g) Loss of profits: Nil, as there is a separate claim for loss of future earnings (including loss of profits) which must be assessed separately.

(h) Consequential losses: Nil, as this claim has been inadequately pleaded and particularised and is too vague to assess.

The total award of general damages is K225,150.28.

3 TRESPASS ON LAND

9. Nothing is awarded for trespass as the land did not belong to the plaintiff and he had no right to its possession. It was State land (Stettin Bay Lumber Company Ltd v Gesring Gabing Bob (2011) SC1096).

4 DAMAGES FOR DISTRESS AND MENTAL SUFFERING

10. The only evidence in support of this claim is the plaintiff's wife's statement that she feels she has psychologically suffered due to witnessing the actions of the police. This is insufficient evidence. Nothing is awarded.

5 DAMAGES FOR BREACH OF CONSTITUTIONAL RIGHTS

11. The statement of claim alleged breaches of four constitutional rights:

• the right to protection from inhuman treatment (Constitution, Section 36);
• the right to the full protection of the law (Constitution, Section 37);
• the right to freedom from arbitrary search and entry (Constitution, Section 44);
• the right to protection from unjust deprivation of property (Constitution, Section 53).
  

12. There is ample evidence of breaches of the last three in that list. As to the inhuman treatment claim, though the actions of the police were unlawful and unwarranted, there was no actual physical violence done to any person, so it is not appropriate to assess damages in respect of inhuman treatment. I will allow K5,000.00 each for breach of the other rights, a total of K15,000.00.

6 SPECIAL DAMAGES

13. Mr Tanuvasa, for the defendants, pointed out that no claim for special damages was made in the statement of claim and submitted that nothing should be awarded. I uphold that submission. The plaintiff is confined to what is in his statement of claim (MVIT v Tabanto [1995] PNGLR 214). Nothing is awarded.

7 LOSS OF FUTURE EARNINGS

14. The plaintiff claims loss of future earnings of approximately K2.6 million, a figure which emerges from the spreadsheet prepared by and annexed to the affidavit of Tabby Elu. I regard Mr Elu's affidavit as having no probative value. It is not primary evidence (John Pias v Michael Kodi & Ors (2006) N2972). The courts are increasingly alert to spurious claims for lost profits in the case of businesses that appear to have been operated outside the lawful market (Graham Mappa v ELCOM (1992) N1093; Jonathan Mangope Paraia v The State (1995) N1343; Wama Kints v The State (2001) N2113; Marcus Mong v John Selou (2002) N2208; Spirit Haus Ltd v Robert Marshall (2004) N2630; Eles Jay Clothing Ltd v The State WS No 858 of 1998, 29.09.06; Misac Pokonoming v Jeffery Simiri WS 1596/2005, 26.10.07; James Liwa v Markis Vanimo (2008) N3486; Nelson Pawa v Linus Yumbun (2009) N3784). There is no evidence that the plaintiff was operating his businesses under any conventional structure or that they were registered in any way or that income tax was being paid. No business records are available. Nothing is awarded.

8 LOSS OF PAYMENTS TO WITNESSES

15. This is a very vague claim, which is not included in the statement of claim. Nothing is awarded.

SUMMARY OF DAMAGES ASSESSED

(1) exemplary damages: K15,000.00;

(2) general damages: K225,150.28;

(3) trespass on land: 0;

(4) distress and mental suffering: 0;

(5) breach of constitutional rights: K15,000.00;

(6) special damages: 0;

(7) loss of future earnings: 0;

(8) loss of payments to witnesses: 0;

being a total amount of K255,150.28.

INTEREST

16. Interest will be awarded at the rate of 8 per cent per annum on the total amount of damages under Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Interest is calculated from the date on which the cause of action accrued, 18 December 2003, to the date of this judgment, a period of 7.9 years, by applying the following formula:

• D x I x N = A
  

Where:

• D is the amount of damages assessed;
• I is the rate of interest per annum;
• N is the appropriate period in numbers of years;
• A is the amount of interest.
  

Thus K255,150.28 x 0.08 x 7.9 = K161,254.98.

COSTS

17. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. The question of costs is a discretionary matter. There are no special circumstances in this case that warrant departure from the general rule. The plaintiff is the successful party and he shall get his costs.

ORDER

18. The court orders that:

(1) the defendants pay to the plaintiff damages of K255,150.28 plus interest of K161,254.98, being a total judgment sum of K416,405.26; and

(2) the defendants pay costs of the proceedings to the plaintiff on a party-party basis, to be taxed if not agreed.

Judgment accordingly.
_____________________________

Meten Lawyers: Lawyers for the Plaintiffs
Solicitor-General: Lawyer for the Defendants