N6056

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 258 OF 2010

BETWEEN:

MICHAEL WAFI, EFETE MAX, PETRUS MAGABE, SAMUEL ARAWE, KAIME MAI, HAME HOGOTE, PETER TENAPE
Plaintiffs

AND:

SENIOR CONSTABLE EDWARD CHRISTIAN, VINCENT FRIDAY, AND JOE NANE, POLICE OFFICERS OF GEREHU POLICE STATION
First Defendants

AND:

GARI BAKI, COMMISSIONER OF POLICE
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Cannings J
2015:27th May, 25th June, 24th July

HUMAN RIGHTS – enforcement – trial on liability – alleged police raid of public market – alleged assault of traders by members of Police Force – alleged confiscation of cash, market goods and destruction of property.

The plaintiffs claimed that members of the Police Force raided a public market at which they were traders and assaulted them, destroyed their market goods and stole their cash. The plaintiffs commenced proceedings by writ of summons as a human rights enforcement application against three named members of the Police Force who, they alleged, breached their human rights; and also against the Commissioner of Police and the State (which was claimed to be vicariously liable for the human rights breaches committed by its employees). A trial was conducted to determine whether any of the defendants is liable. The plaintiffs adduced affidavit evidence. The first defendants (the named police officers) failed to file a defence and did not appear at the trial. The second and third defendants filed a defence but adduced no evidence and defended the matter by arguing: that the entire proceedings should be summarily dismissed as the date of the alleged incident pleaded in the amended statement of claim differed from the date given by the plaintiffs' witnesses; that not all plaintiffs had given evidence in support of the claim; that vicarious liability could not be established against the second or third defendants as it was not pleaded in the amended statement of claim that the first defendants were acting within the scope of their employment; that it was not proven that the first defendants were acting on instructions to conduct the raid; and that the requirements of the Wrongs (Miscellaneous Provisions) Act had not been complied with.

Held:

(1)	Leave was granted to change the date on the amended statement of claim to make it consistent with the evidence as it was an obvious clerical error, and this was of no prejudice to the defendants.

(2)	The first four plaintiffs proved the factual allegations; however the last three failed to adduce any evidence, so their claims failed.

(3)	The plaintiffs proved that a number of their human rights were breached by the first defendants, viz:

•	right to the full protection of the law (Constitution, Section 37(1));
•	protection against harsh or oppressive acts (Constitution, Section 41(1));
•	Protection against unjust deprivation of property (Constitution, Section 53(1)).

(4)	The third defendant (the State) was vicariously liable for the human rights breaches committed by its employees, the members of the Police Force who actually committed the human rights breaches, as it was adequately pleaded in the amended statement of claim that the first defendants were acting within the scope of their employment and, given the circumstance in which the raid occurred, it was reasonably inferred that they were acting within the scope of their police employment and the State failed to discharge the onus of showing that what they did was totally removed from the domain of their authorised actions. It was not necessary to prove that the first defendants were acting on express instructions to conduct the raid. Nor was it necessary for the plaintiffs to comply with the requirements of the Wrongs (Miscellaneous Provisions) Act as this was an enforcement of human or constitutional rights and not a claim based on tort.

(5)	Vicarious liability was not established against the second defendant (the Commissioner of Police) as he is not the employer of the first defendants and there was no evidence that the first defendants were acting on his express instructions.

(6)	 Judgment on liability was entered against the third defendant, the State.

Cases cited

The following cases are cited in the judgment:

Aquila Kunzie v NCD Police Mobile Squad (2014) N5584
The State v David Wari Kofowei and Others [1987] PNGLR 5
Eriare Lanyat v The State [1997] PNGLR 253
Wama Kints v The State (2001) N2113

APPLICATION

This was a trial on liability to determine the plaintiffs' application for enforcement of human rights.

Counsel

Y Awi, for the Plaintiffs
I Mugugia, for the second and Third Defendants

24th July, 2015 

1.	 CANNINGS J: There are seven plaintiffs in this case: Michael Wafi, Efete Max, Petrus Magabe, Samuel Arawe, Kaime Mai Hame Hogote and Peter Tenape. They are applying, through an amended statement of claim filed on 14 December 2012, for enforcement of their human rights.

2. The plaintiffs claim that their human rights were breached by members of the Police Force attached to Gerehu Police Station who raided Gerehu Market on 5 April 2009. They have named as first defendants three members of the Police Force who they say raided the market: Senior Constable Edward Christian, Vincent Friday and Joe Nane. The plaintiffs claim that there were other members of the Police Force involved, some in Police uniform, some in civilian clothes, but they have been unable to identify them by name.

3. The plaintiffs claim that the first defendants and other members of the Police Force entered the market looking for people who had earlier started a fight in the market. They were armed with Police-issued firearms and bushknives and proceeded to destroy market stalls and remove the plaintiffs' betel nuts, mustard, cash, cigarettes, playing cards, cigarette lighters, prepaid mobile phone cards, lollies, matches, umbrellas and related items. The plaintiffs claim that they were attacked by the police and that some plaintiffs suffered bodily injury.

4. The plaintiffs have commenced these proceedings under Section 57 of the Constitution. They seek damages under Section 58 of the Constitution against not only the first defendants but also the Commissioner of Police (the second defendant) and the State (the third defendant). The plaintiffs plead that the State is vicariously liable as employer of the first defendants for the human rights breaches that occurred. A trial has been conducted to determine whether any of the defendants is liable.

5. The plaintiffs adduced affidavit evidence. The first defendants (the named police officers) failed to file a defence and did not appear at the trial. The second and third defendants filed a defence but adduced no evidence and defended the matter by arguing:

•	that as a preliminary issue the entire proceedings should be summarily dismissed as the date of the alleged incident pleaded in the amended statement of claim differed from the date given by the plaintiffs' witnesses;

•	that not all plaintiffs had given evidence in support of the claim;

•	that vicarious liability could not be established against the second or third defendants as it was not pleaded in the amended statement of claim that the first defendants were acting within the scope of their employment and it was not proven that the first defendants were acting on instructions to conduct the raid and the requirements of the Wrongs (Miscellaneous Provisions) Act had not been complied with.

PRELIMINARY ISSUE

6. Ms Mugugia pointed out in her submission for the second and third defendants that the date of the alleged incident pleaded in the amended statement of claim (5 April 2008) differed from the date given by the plaintiffs' witnesses in their evidence (5 April 2009). However this is not a good reason to summarily dismiss the proceedings. I granted leave at the trial to change the date on the amended statement of claim to make it consistent with the evidence as it was an obvious clerical error, and this was done without prejudice to the defendants.

THE SUBSTANTIVE ISSUES

7. There are three issues:

(1)	Have the plaintiffs proven the factual allegations?

(2)	Have the plaintiffs proven that their human rights were breached?

(3)	Who, if anyone, is liable, and to whom are they liable?

1 HAVE THE PLAINTIFFS PROVEN THE FACTUAL ALLEGATIONS?

8. The plaintiffs' evidence has been consistent throughout after the incident at Gerehu market. Four of the plaintiffs gave affidavit evidence of the destruction of their market stalls and products including confiscation of their market products and cash. Two independent witnesses submitted affidavits confirming that the incident took place at the market on 5 April 2009. Their evidence supported the plaintiffs' evidence that the plaintiffs' market products were scattered by the first defendants and bystanders and that the first defendants helped themselves to these products including removing the plaintiffs' bags and bilums in which the plaintiffs had other market products and cash. The defendants have not presented any evidence to rebut these allegations.

9. I accept the plaintiffs' evidence that the first defendants and other unidentified members of the Police Force, apparently attached to Gerehu Police Station, did raid the Gerehu market and did commit the acts alleged against them. The first defendants were armed with Police issued firearms and bushknives. They destroyed market stalls and removed the plaintiffs' betel nuts, mustard, cash, cigarettes, playing cards, cigarette lighters, prepaid mobile phone cards, lollies, matches, umbrellas and related items. They assaulted some of the plaintiffs and some of the plaintiffs suffered bodily injury.

2 HAVE THE PLAINTIFFS PROVEN THAT THEIR HUMAN RIGHTS WERE BREACHED?

10. The plaintiffs have proven that their human rights, entrenched by various provisions of Division III.3 (basic rights) of the Constitution, were infringed in three ways:

•	right to the full protection of the law (Constitution, Section 37(1));

•	protection against harsh or oppressive acts (Constitution, Section 41(1));

•	protection against unjust deprivation of property (Constitution, Section 53(1)).

3 WHO, IF ANYONE, IS LIABLE, AND TO WHOM ARE THEY LIABLE?

The State

11. I deal first with the third defendant. I find that the State is vicariously liable for the human rights breaches committed by its employees, the members of the Police Force who actually committed the human rights breaches, as it was adequately pleaded in the amended statement of claim that the first defendants were acting within the scope of their employment. Given the circumstance in which the raid occurred, it is reasonably inferred that the first defendants and other members of the Police Force involved were acting within the scope of their police employment and that they were on duty. The State failed to discharge the onus of showing that what they did was totally removed from the domain of their authorised actions (The State v David Wari Kofowei and Others [1987] PNGLR 5; Eriare Lanyat v The State [1997] PNGLR 253; Wama Kints v The State (2001) N2113). The State is not relieved of liability simply because not all the police officers involved could be identified.

12. It was not necessary to prove that the first defendants were acting on express instructions to conduct the raid. Nor was it necessary for the plaintiffs to comply with the requirements of the Wrongs (Miscellaneous Provisions) Act as this was an enforcement of human or constitutional rights and not a claim based on tort (Aquila Kunzie v NCD Police Mobile Squad (2014) N5584).

The Commissioner

13. I find that the second defendant, the Commissioner of Police, is not liable as he is not the first defendants' employer. And there is no evidence or suggestion that he actively participated in the incident or that he gave any instructions that resulted in the raid.

The first defendants

14. The pleadings and the evidence support a finding of liability against the first defendants. However on my checking of the Court file I am not satisfied that any of them have been personally served or given proper notice of the trial. I decline to enter judgment against them.

To whom is the State liable?

15. I uphold Ms Mugugia's submission that not all plaintiffs gave evidence in support of the claim. The first four gave evidence, the last three did not. I also note that of the first four, the amended statement of claim only contains express pleadings of property loss and damage or personal injury in respect of Efete Max and Petrus Magabe. The pleadings regarding Michael Wafi and Samuel Arawe are rather general, however I deem them in the circumstances of the case to be adequate. It would be contrary to the interests of justice to nitpick over the pleadings in a human rights case such as this, where the evidence is clear and no contrary evidence has been adduced.

CONCLUSION

16. The first four plaintiffs have established a cause of action for breach of human rights against the third defendant. The claims of the last three plaintiffs have failed. As to costs, 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 third defendant will pay the costs of the first four plaintiffs.

ORDER

(1)	The application by the plaintiffs Michael Wafi, Efete Max, Petrus Magabe and Samuel Arawe, for enforcement of human rights is granted and those plaintiffs have established a cause of action for breach of human rights, in particular the rights in Sections 37(1), 41(1) and 53(1) of the Constitution, against the third defendant, in respect of personal injury and property losses caused to them on 5 April 2009; but not against the first defendants or the second defendant.

(2)	The application by the plaintiffs Kaime Mai, Hame Hogote and Peter Tenape for enforcement of human rights is wholly refused.

(3)	The question of assessment of damages shall be determined at a separate trial.

(4)	Costs of the proceedings shall be paid by the third defendant to the plaintiffs Michael Wafi, Efete Max, Petrus Magabe and Samuel Arawe, on a party-party basis, to be taxed if not agreed.

Judgment accordingly.
________________________________________________________
Narokobi Lawyers: Lawyers for the Plaintiffs 
Solicitor-General: Lawyer for the second and Third Defendants