N7275
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NOS 953, 5, 6, 7, 8, 9 & 10 OF 2011

ANDY ASUMA TRADING AS ANDY ASUMA TRADING,
JOHN MOLU, NICK ASUMA, BENJAMIN MULU,
ALO REX LANO, LUKAS KUMUI & MARK TOMBIAGO
Plaintiffs

V

MR TIONG JUK CHUONG, OPERATIONS MANAGER,
WAWOI GUAVI TIMBER COMPANY LIMITED
First Defendant

MR WONG KEH YEE, MANAGER STRAITS MARINE,
WAWOI GUAVI TIMBER COMPANY LIMITED
Second Defendant

WAWOI GUAVI TIMBER COMPANY LIMITED
Third Defendant

SENIOR SERGEANT JERRY BIAMAGA
Fourth Defendant

FIRST CONSTABLE FRANK JOHE
Fifth Defendant

SECURITY GUARDS GERO BILLY, IDIE UGU, IDIE WAME,
IVAN IBALE, GIDEON GAIWAI & ULE BAIWABA
Sixth Defendants

Waigani:  Cannings J
2017:  25, 27, 28 April, 29 May,
2018:  30 May

HUMAN RIGHTS – enforcement – trial on liability – police raid of retail business – alleged assault of proprietor and employees – alleged destruction of buildings and properties – alleged unlawful detention – alleged inhuman treatment of detainees – police raid allegedly conducted at behest of timber company – whether company vicariously liable for human rights breaches committed by police.

The first plaintiff conducted a retail business in a remote location near a timber rights purchase area in which the third defendant company conducted logging operations. He lived on the site of his business together with the second to seventh plaintiffs, who were his employees and/or relatives. The fourth defendant, a senior member of the Police Force, led a police operation targeting the first plaintiff’s business premises, after allegations that it was the site of an illicit trade in alcohol and other drugs, which resulted in the first plaintiff being arrested and removed. The first plaintiff claims that the police destroyed his premises, by setting fire to and bulldozing five buildings, and destroyed other properties. All plaintiffs claimed that they were unlawfully assaulted and detained and that their human rights were breached by the police, including the fourth defendant and the fifth defendant (another member of the Police Force), and by the sixth defendants (civilian security guards allegedly engaged to assist in the police operation). The plaintiffs claimed that they were forcibly and unlawfully removed from their homes and their human rights were breached at the behest and with the financial and logistical support of the third defendant company and its management, especially the first and second defendants (senior managers in the company). The plaintiffs claimed that the first, second and third defendants were vicariously liable for the human rights breaches directly committed against them by the police and the fourth, fifth and sixth defendants. All except the sixth defendants filed a defence, denying liability. The defendants raised a preliminary point that the proceedings brought by the first plaintiff were not maintainable as the proceedings were commenced by a business name, not a natural person. As to the substance of the plaintiffs’ claims, the first, second and third defendants denied requesting or authorising the police operation (though admitting to logistical support). The fifth defendant denied committing any human rights breaches and gave evidence that it was an authorised and lawful police operation. The fourth defendant was at the time of trial deceased, but was legally represented. The sixth defendants did not file a defence or appear at the trial. 

Held:

(1)	The first plaintiff commenced proceedings in his own name. The fact that the writ included a description of him trading in a business name did not detract from the fact that he commenced the proceedings in his own name. The defendants’ preliminary point failed.

(2)	The plaintiffs proved the bulk of their factual allegations. There was a police raid of the first plaintiff’s business premises and accommodation compound. Five buildings and other properties were demolished. There was no court order authorising the raid, destruction of property or eviction. The plaintiff was apprehended, assaulted and moved to another location without his consent. Other plaintiffs were detained in custody for a long period without being taken before a court. Their allegations about poor conditions of detention were proven. They were eventually released and flown to another province. That was done with their consent. It was not proven that the first, second or third defendants requested or authorised the police operation. The third defendant only provided logistical support at the request of the police. 

(3)	The plaintiffs proved that some of their human rights were breached. The first plaintiff proved infringement of his rights to liberty (Constitution, s 42), freedom from arbitrary search and entry (Constitution, s 44) and protection from unjust deprivation of property (Constitution, s 53). Other plaintiffs proved breaches of their rights to freedom from inhuman treatment (Constitution, s 36), full protection of the law (Constitution, s 37) and liberty (Constitution, s 42).

(4)	The plaintiffs failed to prove that any of the fourth, fifth or sixth defendants were responsible for infringement of their human rights. They also failed to prove that the first, second or third defendants requested or authorised the infringements or were vicariously liable for what happened. 

(5)	As no liability was established against any of the defendants and the State, though potentially vicariously liable for the actions of the police, was not a defendant, the proceedings were dismissed, with costs.

Cases cited:

The following case is cited in the judgment:

Philip Nare v The State (2017) SC1584

STATEMENT OF CLAIM

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

Counsel:

P Ame & A Rake, for the Plaintiffs
A Mana, for the First, Second & Third Defendants
L Florian, for the Fourth & Fifth Defendants

30th May, 2018

1.   CANNINGS J: On Friday 29 April 2011 there was a police raid of Andy Asuma’s retail business at Kamusie, Western Province, near a timber rights purchase area where the Wawoi Guavi Timber Company Ltd conducted operations. That event led to seven separate legal proceedings. There was a joint trial of those proceedings and this judgment is the result of the trial.

2.  Mr Asuma is referred to as the first plaintiff as he is the most prominent plaintiff, it was his business that was raided and he was the employer or provider for the other plaintiffs: John Molu, Nick Asuma, Benjamin Muli, Alo Rex Lano, Lukas Kumui and Mark Tombiago. They each commenced separate proceedings by writ of summons in 2011, described as WS (HR) Nos 953, 5, 6, 7, 8, 9 and 10 of 2011 respectively.

3.   In each proceeding there are six defendants. Wawoi Guavi Timber Company Ltd is the third defendant. Two of its senior managers, Tiong Juk Chuong and Wong Keh Yee, are first and second defendants. The fourth and fifth defendants, Senior Sergeant Jerry Biamaga and First Constable Frank Johe, are members of the Police Force who were involved in the incident of 29 April 2011 and its aftermath. The sixth defendants are privately engaged security guards who allegedly assisted the police in the raid. 

4.  This is a human rights case. The plaintiffs claim that the defendants breached their human rights and seek damages against all of them. 

5.  Mr Asuma had a substantial retail business at Kamusie. He lived there, together with the other plaintiffs, who were his employees and/or relatives. They are from Ialibu, Southern Highlands Province. Mr Asuma claims that the police destroyed his premises by setting fire to and bulldozing five buildings, and destroyed many other properties. All plaintiffs claimed that they were unlawfully assaulted and detained and that their human rights were breached by the police, including Snr Sgt Biamaga (who led the police raid) and First Constable Johe (who participated), and by the sixth defendants. 

6.   The plaintiffs claim that the police acted at the behest and with the financial and logistical support of Wawoi Guavi Timber Company and its management, especially Mr Tiong and Mr Wong. The plaintiffs claim that the first, second and third defendants are vicariously liable for the human rights breaches directly committed against them by the police and the fourth, fifth and sixth defendants. 

7.  All except the sixth defendants filed a defence, denying liability. The defendants raised a preliminary point that the proceedings brought by the first plaintiff were not maintainable as the proceedings were commenced by a business name, not a natural person.  

8.  As to the substance of the plaintiffs’ claims, the first, second and third defendants denied requesting or authorising the police operation (though admitting to logistical support). The fifth defendant, First Const Johe, denied committing any human rights breaches and gave evidence that it was an authorised and lawful police operation. The fourth defendant, Snr Sgt Biamaga, was at the time of trial deceased, but was legally represented. The sixth defendants did not file a defence or appear at the trial. 

9.  There are four issues:

(1)	Should Mr Asuma’s case be summarily dismissed? If not –

(2)	Have the plaintiffs proven the factual allegations?

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

(4)	Who, if anyone, is liable?

1	SHOULD MR ASUMA’S CASE BE SUMMARILY DISMISSED?

10.   The defendants raised a preliminary point that the proceedings brought by the first plaintiff were not maintainable as the proceedings were commenced by a business name, not a natural person. The first plaintiff is described in WS No 953 of 2011 as “Andy Asuma trading as Andy Asuma Trading”. It is argued that there is no evidence that the business name “Andy Asuma Trading” was registered under the Business Names Act, therefore it was contrary to that Act to commence the proceedings in such a name, Further, that if the proceedings were not summarily dismissed for that reason, a business name was in no position to prove any cause of action or be awarded any damages. 

11.   I reject those submissions. I am satisfied that the first plaintiff commenced proceedings in his own name, “Andy Asuma”, as a natural person. The fact that the writ included a description of him trading in a business name – “trading as Andy Asuma Trading” – does not detract from the fact that he commenced the proceedings in his own name. Just as the first and second defendants are named with additional words to describe their status, in the case of the first plaintiff the additional words “trading as Andy Asuma Trading” are a descriptor of the person, Andy Asuma. The additional words are not necessary but their inclusion does not alter the first plaintiff’s status. Andy Asuma sues in his own name as a human person. The preliminary point fails. 

2	HAVE THE PLAINTIFFS PROVEN THE FACTUAL ALLEGATIONS?

12.   There is no dispute that there was a police raid of Mr Asuma’s premises on 29 April 2011. Senior Sgt Biamaga was in charge. First Constable Johe was involved. The raid was conducted because of allegations that Mr Asuma was engaged in illicit trading in alcohol (in view of an alcohol ban in the area) and other drugs, including marijuana. There is also no dispute that Mr Asuma and other plaintiffs were apprehended and that Mr Asuma was taken to Balimo and that the other plaintiffs were detained at Kamusie. 

13.  There are a number of allegations of the plaintiffs that are contested including that Mr Asuma’s premises were destroyed, that the plaintiffs were assaulted, that the plaintiffs were detained in poor conditions and that the second to seventh plaintiffs were forcibly removed from Kamusie, against their will, by being put on a flight to Mt Hagen, Western Highlands Province. As to the involvement of Wawoi Guavi Timber Company in the raid, the plaintiffs’ allegation that the police raid was at the behest of the company and that the company funded the police operation is strongly disputed by the company and Mr Tiong and Mr Wong. I now summarise the competing evidence.

Plaintiffs’ evidence

14.   All of the plaintiffs’ evidence was by affidavit. Andy Asuma deposed that he had lived and worked at Kamusie since 1992. He established a second-hand clothes business there in 2004. He established a trade store in 2005. Later he branched out to money-lending, there being a big demand in the local area due to the remote location and the absence of banking services. He also built houses for his staff to live in. His business and houses were built on a piece of customary land he purchased from the traditional owner, Kaiks Esami. He heard in March 2011 that a police operation was planned at the request of Wawoi Guavi Timber Company, which wanted Highlanders removed from the area. He was unconcerned about that as was not a newcomer and he had established his business with the cooperation of local people. On 29 April 2011 Snr Sgt Biamaga led the police raid, using four Wawoi Guavi Timber Company vehicles.  A police reservist, Judah Misi (not named as a defendant) forced him at gunpoint to go to Kamusie Police Station. When he went there he was assaulted by a group of policemen who forced him against his will to falsely admit he was selling alcohol and other drugs at his store. A policeman from Central Province cut off his dreadlocks with a blunt instrument, which was very painful. He was assaulted again and put on a barge and taken by river to Balimo. He heard that soon after he was removed, the police moved in and burned down his stores and dwelling houses and nothing was left. He was taken to Daru General Hospital where he was treated by Dr Amos Lano. He was never charged with any offence, before or after the police raid. He estimates his losses to be in excess of K18 million.

15.   The other plaintiffs, John Molu, Nick Asuma, Benjamin Muli, Alo Rex Lano, Lukas Kumui and Mark Tombiago, each deposed that on the day of the raid they were assaulted by the police. Some fled to other locations. Some were apprehended and detained in a shipping container at Kamusie Police Station on the day of the raid. Those that fled were rounded up a week or so later and brought back to Kamusie. They were detained in the same shipping container as the other plaintiffs for several weeks. Conditions were cramped and overcrowded and poorly ventilated and they were given little food. They were not charged or taken before a court. 

16.   The above evidence was supported by affidavits of other persons. Dr Amos Lano deposed that he treated Mr Asuma at Daru General Hospital on 2 May 2011 for multiple cuts, abrasions and lacerations, involving massive tissue injury and significant blood loss and other related injuries including psychological trauma reportedly sustained by the patient three days earlier at Kamusie. 

17.  Ula Baiwaba deposed that he was a security supervisor for a timber company and a police reservist based at Sesereme, Western Province. In April 2011 he was engaged by Wawoi Guavi Timber Company to assist Snr Sgt Biamaga conduct the police raid on Andy Asuma’s place at Kamusie. The company paid him and four other men K700.00 each to assist in the police operation, the aim being to remove all Highlanders from Kamusie. After conducting the raid, a bulldozer was brought in to demolish Mr Asuma’s buildings. The next day the police set fire to the remains of the buildings.  He was paid another K700.00 by the company once the raid was finished. 

18.  Kaiks Esami confirmed that Mr Asuma had established his business on customary land with the approval of the landowners and paid rent to them. He denies requesting that the police raid Mr Asuma’s premises. 

19.   Gais Waiba is a police reservist based at Kamusie. He deposed that he took part in the police raid of Mr Asuma’s premises. He corroborates Mr Asuma’s evidence of being assaulted and forcibly removed to Balimo.

20.   Elvis Kalo is a police reservist based at Sesereme. In March 2011 Snr Sgt Biamaga went to Sesereme and recruited him and others to take part in the police raid on Mr Asuma’s premises. He deposed that he took part in the police raid of Mr Asuma’s premises. He corroborates Mr Asuma’s evidence of being assaulted and forcibly removed to Balimo.

21.   Senior Sergeant Simon Kewa Kur is a member of the Police Force based at the Southern Division Commander’s office, Konedobu, National Capital District. He deposed that Snr Sgt Biamaga was in 2010 and 2011 a member of the Special Services Division, McGregor Barracks, National Capital District. Snr Sgt Biamaga was given a three-month deployment to Sesereme, not Kamusie, from October 2010 to January 2011. After the April 2011 raid, which Snr Sgt Biamaga led, there was an internal inquiry, as the raid was unauthorised and Snr Sgt Biamaga acted outside the scope of his deployment without any approval by the Southern Divisional Commander. 

22.   Henry Jons Amuli is the proprietor of the Kokoda Trading Company, Port Moresby, which prior to April 2011 did a lot of business selling second-hands clothes to Mr Asuma. He deposed that Mr Asuma was a very good customer and was conducting a substantial retail business. 

Defendants’ evidence

23.  Three witnesses gave affidavit and oral evidence for the defendants. The fifth defendant Frank Johe is a member of the Police Force based at McGregor Barracks, NCD, holding the rank of First Constable. He participated in the so-called raid on Mr Asuma’s premises on 29 April 2011, which was a routine police operation following numerous complaints and evidence of large scale drug (marijuana) smuggling operations in the Kamusie area. Mr Asuma was a prime suspect. The police received requests from community leaders to remove Mr Asuma and other “aliens” from the area due to the deteriorating law and order situation. The police moved in on Mr Asuma’s premises and asked him to dismantle his properties, which he did with the assistance of local landowners. Mr Asuma then moved his properties to Balimo, his wife’s place. That was done voluntarily. The police operation was sanctioned through normal police protocols. The police requested the assistance of Wawoi Guavi Timber Company in conducting the operation, which it acceded to in terms of accommodation and food for the police personnel involved. Some illegal settlers were detained at Kamusie police station in the course of the operation. The detention facilities were satisfactory. On 11 May 2011 a memorandum of understanding regarding the removal of illegal settlers was entered into between the police and the persons detained. In accordance with that memorandum, nine of them (including some of the plaintiffs) were flown (at the cost of the police operation) from Kamusie airstrip to Mt Hagen on a chartered Missionary Aviation Fellowship flight. 

24.   Constable Greg Nanu is a member of the Police Force based at Kamusie police station. He testified that the police raid on Mr Asuma’s premises was at the request of the local community in response to the deteriorating law and order situation caused by Mr Asuma’s illicit trade in alcohol and other drugs and his illegal money-lending activities which were causing major social problems. The police raid was not conducted at the direction or request of Wawoi Guavi Timber Company. 

25. The second defendant Wong Keh Yee testified that he has been the operations manager for Wawoi Guavi Timber Company based at Kamusie since 1998. From time to time the company receives requests from police for logistical support for their operations. On 12 April 2011 he received an official police request for assistance with rations and land and water transport for a forthcoming police operation aimed at eliminating crime syndicates at Kamusie. He acceded to the request as he was concerned about reports that Mr Asuma was conducting an illicit trade in beer and other drugs. The company provided rations to the police at the company mess and assisted with land and water transport. At no stage did he or the company direct the police to conduct the raid. The company did not provide cash allowances to anyone involved.

Findings

26.   I am satisfied on the balance of probabilities that the plaintiffs have proven the bulk of their factual allegations. There was a police raid of Mr Asuma’s business premises and accommodation compound. Mr Asuma had established his business on customary land with the approval of the owners. It was a substantial retail business including the sale of second-hand clothes and trade store goods. As to whether he traded illicitly in alcohol or other drugs I make no findings. The evidence is insufficient. 

27.   I am not persuaded by First Constable Johe’s evidence that Mr Asuma was given time to dismantle his buildings and that he agreed to do so. Five buildings and other properties were demolished by the police. There was no court order authorising the raid, the destruction of property or the eviction of Mr Asuma or the other plaintiffs. Mr Asuma was apprehended, assaulted in the manner he described and moved to another location without his consent. 

28.  Other plaintiffs were assaulted and detained in custody. The shipping container they referred to in their evidence as the detention facility is the Kamusie police lock-up. Their allegations about the poor conditions of detention were proven. They were not taken before a court during the period of their detention, which was about two weeks. They were eventually released and flown to Mt Hagen. 

29.  However they failed to prove that they were flown to Mt Hagen without their consent. The plaintiffs have also failed to prove that the first, second or third defendants requested or authorised the police raid. There is no credible evidence to support such a finding. The plaintiffs’ evidence of cash being paid by the company to police and security personnel is vague and unconvincing. Mr Wong was a credible witness and I find that Wawoi Guavi Timber Company provided logistical support such as rations and transport, at the specific and reasonable request of the police. That is all. 

30.   As to whether the police operation was internally authorised, I find that it was. First Constable Johe gave sworn oral testimony on this issue, which I give more weight than then untested affidavit evidence of Snr Sgt Kur (which was that the police raid was unauthorised).

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

31.   The plaintiffs proved that some of their human rights were breached. The first plaintiff proved breaches of his rights to:

•	liberty (Constitution, s 42);
•	freedom from arbitrary search and entry (Constitution, s 44); and 
•	protection from unjust deprivation of property (Constitution, s 53). 

32.   Other plaintiffs proved breaches of their rights to:

•	freedom from inhuman treatment (Constitution, s 36); 
•	the full protection of the law (Constitution, s 37); and 
•	liberty (Constitution, s 42).

4	WHO, IF ANYONE, IS LIABLE?

33.  The plaintiffs have failed to adduce sufficient evidence that any of the fourth, fifth or sixth defendants were responsible for the proven breaches of their human rights. There is only circumstantial evidence implicating Snr Sgt Biamaga (as he led the police raid) and First Constable Johe (as he was present and participated). There is no direct and clear evidence as to what they did or did not do. In these circumstances the case against each of them fails. There is no evidence that any of the sixth defendants were directly involved in the police operation. The case against them fails.

34.   As the plaintiffs have not proven that the first, second or third defendants requested or authorised the breaches of human rights that occurred, the case against them, founded on the principles of vicarious liability, also fails. 

CONCLUSION

35.   No liability has been established against any of the defendants. It is noted that the State, as the employer of the police who, the evidence suggests, were primarily responsible for the human rights breaches that occurred, was potentially vicariously liable for the actions of the police. This is so, notwithstanding that there was little clear and direct evidence as to which members of the police were involved (Philip Nare v The State (2017) SC1584). However, the State was not a defendant, so the proceedings must be wholly dismissed. Costs will follow the event. 

ORDER 

(1)	The proceedings are wholly dismissed.

(2)	The plaintiffs shall pay the first, second, third, fourth and fifth defendants’ costs of the proceedings on a party-party basis, which shall, if not agreed, be taxed. 

(3)	The proceedings are thereby determined and the files are closed.

Judgment accordingly,
___________________________________________________________
Ame Lawyers:   Lawyers for the Plaintiffs	 				
Allens Linklater Lawyers:  Lawyers for the First, Second & Third Defendants Solicitor-General:	Lawyer for the Fourth & Fifth Defendants