N7100
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 19 OF 2015

THOMPSON MUNVI FOR HIMSELF 
AND 1,334 OTHERS NAMED IN THE SCHEDULE TO THE WRIT 
Plaintiffs

V

SENIOR CONSTABLE ARNOLD ULKA TAKAI, 
RAPID RESPONSE UNIT, MADANG
First Defendant
 
CHIEF INSPECTOR, SYLVESTAR KALAUT,
PROVINCIAL POLICE COMMANDER, MADANG
Second Defendant

THE COMMISSIONER OF POLICE
Third Defendant
 
MADANG PROVINCIAL LANDS OFFICER
Fourth Defendant

MADANG PROVINCIAL ADMINISTRATOR 
Fifth Defendant

MADANG PROVINCIAL GOVERNMENT 
Sixth Defendant
 
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant

RD FISHING PNG LIMITED 
Eighth Defendant

Madang: Cannings J
2017: 1 March, 4 April, 1 May, 20 July, 1 August, 
2018:   9 February

DAMAGES – breach of human rights – negligence – Police raid of rural settlement – property damage – assault. 

The plaintiffs sued the defendants (various members of the Police Force and the State and the registered proprietor of a portion of land on which they had been living) in connection with an eviction exercise involving a Police raid of the land on which they were living and destruction of their homes, gardens and other properties and assault of some plaintiffs. The causes of action pleaded in their statement of claim were breaches of human rights and negligence. Default judgment was entered against the defendants. At the trial on assessment of damages, 106 plaintiffs gave evidence and sought damages in three categories: (a) general damages for pain and suffering, distress etc, K50,000.00 each, totalling K5,300,000.00; (b) property losses, various amounts,  totalling K13,015,825.80; and (c) breach of human rights, K5,000.00 each, totalling K530,000.00; a grand total of K18,845,825.80. In response, the defendants adduced no evidence, and the registered proprietor did not appear at the trial.  Those defendants that did appear (the Police and the State) argued that the question of liability should be revisited and the entire proceedings dismissed and the plaintiffs awarded nothing due to defects in the statement of claim; and in the alternative that the plaintiffs should be awarded no more than K5,000.00 each, a total of K530,000.00, due to a lack of evidence to support the claims. 

Held:

(1)	The State’s preliminary argument was rejected as it was made late, without notice and without evidence. Such arguments must be made by notice of motion, in a timely manner and supported by affidavit. In any event the statement of claim was clearly drafted and adequately pleaded causes of action in breach of human rights. The Court proceeded to assess damages on the basis of the evidence before it.

(2)	It was appropriate to award damages to each plaintiff who had given evidence. Though there were some deficiencies in the plaintiffs’ evidence, there was no evidence brought by the State, and no submission, to contest the fundamental allegation that an eviction exercise, unsupported by the order of any Court, took place in the manner alleged, involving destruction of property, fear and distress and bodily assault on some plaintiffs.  

(3)	Damages were awarded to each plaintiff who gave evidence in the following amounts: (a) general damages for pain and suffering, distress etc, K10,000.00 each, totalling K1,060,000.00; (b) property losses, each claim was discounted by 90% to arrive at an appropriate assessment, totalling K1,301,582.58; and (c) breach of human rights, K5,000.00 each, totalling K530,000.00;  a grand total of K2,891,582.58. In addition each plaintiff was awarded interest on the amount of damages awarded to them, at the rate of 2% per annum, for the period from the date of the filing of the writ to the date of judgment, a period of 2.5 years, totalling K144,579.13. The total judgment sum was damages of K2,891,582.58 + interest of K144,579.13 = K3,036,161.71.

Cases cited

The following cases are cited in the judgment:

Albert Baine v The State (1995) N1335
Alphonse Willie v Simon Kaupa (2016) N6553
Anuta Jobou v Alfred Kumasi and The State (2012) N4607
Eton Pakui v The State (2006) N2977
Francis Fuliva v Inspector Tony Wagambie Junior (2013) N5221
Joe Tipaiza v James Yali (2008) N3472
Jonathan Mangope Paraia v The State (1995) N1343
Justin Bau v Paul Karl (2010) N4123
Kolaip Palapi v Sergeant Poko (2001) N2274
Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331
London Association for the Protection of Trade v Greenlands Ltd [1916] 2 AC 15
Peter Wanis v Fred Sikiot and The State (1995) N1350
Philip Nare v The State (2017) SC1584
William Mel v Coleman Pakalia (2005) SC790
Yange Lagan v The State (1995) N1369
Yooken Paklin v The State (2001) N2212

TRIAL

This was a trial on assessment of damages following entry of default judgment.

Counsel

G Pipike, for the Plaintiffs
B B Wak, for the First, Second, Third & Seventh Defendants

9th February, 2018 

1.      CANNINGS J:  This was a trial on assessment of damages following entry of default judgment against various members of the Police Force (the first, second and third defendants) and the State (seventh defendant) and RD Fishing Ltd (the eighth defendant). The proceedings against the fourth, fifth and sixth defendants have been discontinued. 

2.     The plaintiffs are former residents of Maiwara compound, commonly known as Portion 625, in the Vidar area of Madang District, Madang Province. They commenced proceedings against the State and other defendants in August 2015, claiming damages for alleged breaches of human rights committed by members of the Police Force in connection with an eviction exercise conducted in April-May 2014. They alleged that members of the Police Force, most of them members of the rapid response unit at Madang, raided the land on which they were living and destroyed their homes, gardens and other properties and in some cases threatened and assaulted the plaintiffs. It was claimed that the eviction exercise was requested and sponsored by RD Fishing Ltd, even though that company had ceased to be registered proprietor of the land, having surrendered its State Lease on 15 May 2009.  

3.     The defendants failed to properly defend the matter and on 4 March 2016 default judgment was entered against the following defendants:

•	first defendant: Snr Const Arnold Ulka Takai, the member of the Police Force in charge of the eviction exercise;
•	second defendant: Chief Inspector Sylvestar Kalaut, Madang Provincial  Police Commander;
•	third defendant: the Commissioner of Police;
•	seventh defendant: the State; and 
•	eighth defendant: RD Fishing Ltd.

4.    Since default judgment was entered, the Supreme Court has in Philip Nare v The State (2017) SC1584 pointed to the futility of seeking or ordering judgment against the Commissioner of Police in cases such as the present, where the claim and the order should be made only against the State – unless the Commissioner is alleged or found to have been personally involved in the wrongful conduct giving rise to vicarious liability of the State. In this case there has never been any suggestion or finding of personal involvement by the Commissioner. 

5.     I have decided therefore on the own motion of the Court to set aside the default judgment against the Commissioner (the third defendant) and the two other Police defendants (the first and second defendants). I have also decided for the avoidance of doubt that the proceedings against the Commissioner and the other two Police defendants should be dismissed. These decisions, which do not materially prejudice the plaintiffs or the State, are reflected in the final order of the Court and ensure that there are no unresolved issues after entry of judgment on assessment against the State, and RD Tuna Ltd. This will make enforcement of the judgment a more realistic prospect and advance the interests of justice.

PLAINTIFFS’ CLAIMS AND DEFENDANTS’ RESPONSE 

6.     At this trial on assessment of damages, the plaintiffs sought damages in three categories: 

(a) general damages for pain and suffering, distress etc, K50,000.00 each, totalling K5,300,000.00; 

(b) “special damages”, which is better regarded as a claim for property losses, various amounts, totalling K13,015,825.80; and 

(c) breach of human rights, K5,000.00 each, totalling K530,000.00; 

a grand total of K18,845,825.80. 

7.     RD Fishing did not appear at the trial.  Those defendants that did appear (the Police and the State) argued that the question of liability should be revisited and the entire proceedings dismissed and the plaintiffs awarded nothing due to defects in the statement of claim; and in the alternative that the plaintiffs should be awarded no more than K5,000.00 each, a total of K530,000.00, due to a lack of evidence to support the claims. 

EVIDENCE

8.     The plaintiffs’ case consisted of affidavits sworn by 106 plaintiffs and an affidavit by Gibson Kama, a registered valuer, annexing a separate valuation report he prepared in respect of property losses for each plaintiff who gave evidence. Each of the plaintiffs’ affidavits set out what the police had done and the property damage, assaults and threats that the deponent had incurred and/or witnessed. The defendants adduced no evidence. 

PRELIMINARY ARGUMENT

9.     I dismiss the State’s preliminary argument about revisiting the question of liability and dismissing the proceedings. The argument has been made late (well after entry of default judgment), without notice and without evidence. Such arguments must be made by notice of motion, in a timely manner (in this case, soon after entry of default judgment) and supported by affidavit. Alternatively the State should have appealed to the Supreme Court against the entry of default judgment.

10.     As explained by the Supreme Court in William Mel v Coleman Pakalia (2005) SC790, the role of the judge assessing damages after entry of default judgment is: 

•	to make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity; 

•	if the facts and cause of action are reasonably clear, liability should be regarded as proven, ie the default judgment resolves all questions of liability in respect of the matters pleaded in the statement of claim;

•	only if the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability; 

•	the plaintiff has the burden of producing admissible and credible evidence of the alleged damages;

•	any matter that has not been pleaded but is introduced at the trial is a matter on which the defendant can take an issue on liability.

11.     I am satisfied that the facts and the causes of action are pleaded with sufficient clarity. Liability is therefore regarded as proven. The plaintiffs have established causes of action against the first, second, third, seventh and eighth defendants for negligence and breach of human rights, in particular, breach of the following:

•	the right to freedom from inhuman treatment under Section 36 of the Constitution; and 

•	the right to protection against harsh and oppressive acts under Section 41 of the Constitution. 

GENERAL PRINCIPLES FOR ASSESSMENT OF DAMAGES 

12.     In assessing damages I have had regard to the following principles: 

•	The plaintiffs have the onus of proving their losses 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 (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 on assessment of damages – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence (Yange Lagan 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).

•	The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims (Kolaip Palapi v Sergeant Poko (2001) N2274).

APPROACH TO ASSESSMENT OF DAMAGES 

13.     I am persuaded by the submissions of counsel for the plaintiffs, Mr Pipike, that even though only a small proportion of the 1,335 plaintiffs named on the writ have given evidence, the evidence that has been given is of sufficient quality to make an assessment of damages in respect of each of the 106 plaintiffs who has given evidence. I will assess damages in the three categories of damages claimed by the plaintiffs.

(a)	 GENERAL DAMAGES 
 
14.     Mr Pipike submitted that each plaintiff who has given evidence should be awarded K50,000.00 general damages. It is clear that it was a frighting and disturbing experience for all plaintiffs to see the Police enter the land on which they had been living for many years and threaten them with firearms as they set about burning their dwellings. However, there is insufficient evidence and precedent available on which an award of K50,000.00 would be warranted. I award each plaintiff who has given evidence the sum of K10,000.00.

(b)	PROPERTY LOSSES

15.     I am persuaded by the submissions of counsel for the State, Mr Wak, that a lack of corroboration pervades the plaintiffs’ evidence as to property losses, calling into question its veracity. For example, the lead plaintiff Thompson Munvi claims property losses of K508,100.00 plus a house said to be destroyed worth K111,500.00, a total of K619,600.00. He has given evidence in support of these amounts, including a valuation report by Mr Kama, which, frankly I find difficult to accept as it appears to be based on very generous assumptions as to what property the plaintiff had on the land. There is no independent verification of the extent of the damage. I do not find it credible that property of that value would have been on a small rural block. Most plaintiffs are claiming property losses exceeding K100,000.00, which seems incongruous with the standard of living reasonably expected to be applicable to a group of settlers on a rural portion of land. 

16.     The plaintiffs’ claims are in my view exaggerated. It is nonetheless appropriate to arrive at an assessment of damages. Though there are deficiencies in the plaintiffs’ evidence, there was no evidence brought by the State, and no submission, to contest the fundamental allegation that an unlawful eviction exercise, unsupported by the order of any Court, took place in the manner alleged, involving mass destruction of property.  

17.     I have had regard to the approach I have taken in a number of other cases of multiple plaintiffs, most of which are “police raid cases”. In some cases I have discounted each claim by a certain percentage to arrive at reasonable and realistic sums. For example:

•	Eton Pakui v The State (2006) N2977: a case involving an unlawful police raid of Tulipato village, Enga Province. The 16 claims were each discounted by 90%. 

•	Joe Tipaiza v James Yali (2008) N3472: 220 plaintiffs claimed property losses of K3.9 million following an unlawful squatter eviction exercise by Police and the provincial government in Madang. Each claim was discounted by 50%. 

•	Anuta Jobou v Alfred Kumasi and The State (2012) N4607: there was  an unlawful police raid of Bom village in the Rai Coast district of Madang Province in which houses were burned and other property including gardens and livestock destroyed. The claims by the 155 plaintiffs were each discounted by 50%. 

•	Francis Fuliva v Inspector Tony Wagambie Junior (2013) N5221: 1,281 plaintiffs, illegal settlers on Government land in Madang, succeeded at a trial in establishing a cause of action in breach of the agreement governing their eviction. A separate trial was conducted on assessment of damages. The plaintiffs claimed two categories of damages: (1) general damages for breach of agreement and pain and suffering, K5,000.00 each; and (2) specific damages for destruction of property, different amounts being sought by each plaintiff, a sum of K13,585,763.81. It was held that there was no evidence in support of the plaintiffs’ claim for general damages and nothing was awarded. As for the claims for property damage, each claim was discounted by 90% to arrive at an award of damages for property losses. 

18.     In other cases I have awarded the same global sum to each plaintiff who has given evidence. For example:

•	Justin Bau v Paul Karl (2010) N4123: 61 plaintiffs were the victims of a police raid at Muledami settlement in the hilltops around Kimbe, West New Britain. In an assessment of damages following entry of default judgment against the State I concluded that the claims were exaggerated and because of the lack of precision in the amounts being claimed by the plaintiffs I awarded them a flat figure of K10,000.00 each, rather than discounting each claim. 

•	Alphonse Willie v Simon Kaupa (2016) N6553:  1,852 plaintiffs sued the Police and the State after a series of raids on villages in the Gena area of Kerowagi District, Chimbu Province. Default judgment was entered against the State, which was held to be vicariously liable for the torts of trespass to property and detinue and for breaches of human rights committed by members of the Police Force. Because of deficiencies in the evidence, the 1,687 plaintiffs who gave evidence were awarded a global sum of K5,000.00 each to cover all causes of action and all categories of damages. The total amount of damages awarded was K8,435,000.00.

19.     I have decided to take the first approach outlined above. I will discount each claim by 90% to take account of the deficiencies in the evidence. The result of this process of assessment is shown in table 1. Column 1 is the number ascribed to the plaintiff according to the numbering of his or her affidavit. Column 2 is the plaintiff’s name. Column 3 is the amount claimed by the plaintiff for property, apart from house, losses. Column 4 is a claim for the value of the plaintiff’s destroyed house. Column 5 is the total of columns 3 and 4: the plaintiff’s total claim for property losses.  Column 6 is the figure in column 5 multiplied by 10% (representing the discounting of the total claim for property losses by 90%). It is the figure in column 6 that is the amount awarded to the plaintiff for property losses (category (b) of the claims). 

TABLE 1: AWARD OF DAMAGES 
FOR PROPERTY LOSSES INCLUDING HOUSE LOSSES
No	Name	Claim for property losses (K)	Claim for loss of house (K)	Total claim for property losses (K)	Amount awarded
(K)	
1.		Janet Amos	94,848.50	29,000.00	123,848.50	12,384.85	
2.		Prisla Gambura	99,988.00	28,000.00	127,988.00	12,798.80	
3.		Naiwa Lalong	45,070.00	24,500.00	69,570.00	6,957.00	
4.		James Kaut	25,685.70	25,500.00	51,185.70	5,118.57	
5.		Albert Koli	243,450.00	124,500.00	367,950.00	36,795.00	
6.		Thompson
Munvi	508,100.00	111,500.00	619,600.00	61,960.00	
7.		Florin Nanawan	307,834.00	111,000.00	418,834.00	41,883.40	
8.		Gambura Maima	102,482.00	27,000.00	129,482.00	12,948.20	
9.		Bernard Siloi	85,200.00	57,000.00	142,200.00	14,220.00	
10.		Febronia Siloi Taddie	91,608.00	27,500.00	119,108.00	11,910.80	
11.		Hansen Makis	286,711.00	32,500.00	319,211.00	31,921.10	
12.		Bonny Ikon	45,470.00	25,500.00	70,970.00	7,097.00	
13.		Jimmy Dimat	16,273.00	25,500.00	41,773.00	4,177.30	
14.		Joe Nuknai	113,859.00	25,500.00	139,359.00	13,935.90	
15.		Ishmael Kabe	16,441.40	25,500.00	41,941.40	4,194.14	
16.		Tonny Kaut	58,770.00	29,000.00	87,770.00	8,777.00	
17.		Clement Beiyo	15,587.00	25,500.00	41,087.00	4,108.70	
18.		John Jikera	77,962.00	59,000.00	136,962.00	13,696.20	
19.		Jacob Apito	63,400.00	25,500.00	88,900.00	8,890.00	
20.		Belly Jones	79,848.50	25,500.00	105,348.50	10,534.85	
21.		Michael Mauk	83,854.00	20,000.00	103,854.00	10,385.40	
22.		Joseph Kubali	12,395.00	10,000.00	22,395.00	2,239.50	
23.		Johnny Boi Holonga	110,169.00	61,000.00	171,169.00	17,116.90	
24.		Patrick Beiyo	61,645.20	29,500.00	91,145.20	9,114.52	
25.		John Asaruka	128,550.00	25,500.00	154,050.00	15,405.00	
26.		Daniel Ambri	23,043.00	37,500.00	60,543.00	6,054.30	
27.		Smith Beiyo	64,335.00	29,000.00	93,335.00	9,333.50	
28.		Junior Tamen	60,330.00	40,500.00	100,830.00	10,083.00	
29.		Nick Dadu	87,550.00	29,500.00	117,050.00	11,705.00	
30.		Nanigu Peter	43,050.00	29,000.00	72,050.00	7,205.00	
31.		Melchior Naah	47,673.00	17,000.00	64,673.00	6,467.30	
32.		Rodney Kaima	89,840.00	54,000.00	143,840.00	14,384.00	
33.		Mick Awun	19,820.00	24,500.00	44,320.00	4,432.00	
34.		Rosa Luku	41,930.00	29,000.00	70,930.00	7,093.00	
35.		Thomas Bidigut	20,995.00	24,000.00	44,995.00	4,499.50	
36.		Richard Manula	28,751.14	29,000.00	57,751.14	5,775.11	
37.		Robert Nanut	54,626.10	29,000.00	83,626.10	8,362.61	
38.		Thresia Auk	54,970.00	29,000.00	83,970.00	8,397.00	
39.		Henrick Mebo	55,300.00	25,500.00	80,800.00	8,080.00	
40.		Sau Bonga	37,665.00	29,000.00	66,665.00	6,666.50	
41.		Rose Hoe	86,001.00	50,000.00	136,001.00	13,600.10	
42.		Stanley Dulai	26,424.00	24,500.00	50,924.00	5,092.40	
43.		Benjamin Upinguru	93,340.00	25,500.00	118,840.00	11,884.00	
44.		Leo Niangu	44,566.00	24,500.00	69,066.00	6,906.60	
45.		Rex Marky	54,626.10	29,000.00	83,626.10	8,362.61	
46.		John Siune	77,962.00	45,000.00	122,962.00	12,296.20	
47.		Franky Munongsi	94,848.00	32,000.00	126,848.00	12,684.80	
48.		Salome Salameng	94,255.00	42,000.00	136,255.00	13,625.50	
49.		Peter Samigum	90,705.00	54,000.00	144,705.00	14,470.50	
50.		Patrick Yalkuna	86,395.00	54,000.00	140,395.00	14,039.50	
51.		Roger Bomai	49,495.00	29,000.00	78,495.00	7,849.50	
52.		Samson Charlie	22,895.00	24,500.00	47,395.00	4,739.50	
53.		Pamela Thomas Kagl	93,800.00	29,500.00	123,300.00	12,330.00	
54.		Steven Nakra	67,400.00	29,000.00	96,400.00	9,640.00	
55.		Michael Bidam	94,848.50	29,000.00	123,848.50	12,384.85	
56.		Peter Lowa	169,098.66	37,000.00	206,098.66	20,609.87	
57.		Isaac Ibun	57,550.00	25,500.00	83,050.00	8,305.00	
58.		Martin Ibung	91,608.00	19,000.00	110,608.00	11,060.80	
59.		Joseph Souket	77,962.00	52,000.00	129,962.00	12,996.20	
60.		Billy Supin	90,650.00	25,500.00	116,150.00	11,615.00	
61.		Moses Pafu	33,776.00	26,000.00	59,776.00	5,977.60	
62.		Victor Kaitok	61,255.00	29,000.00	90,255.00	9,025.50	
63.		Robert Paliangu	68,278.00	29,000.00	97,278.00	9,727.80	
64.		Bernard Mainduo	86,800.00	25,500.00	112,300.00	11,230.00	
65.		Thomas Morok	280,658.90	100,000.00	380,658.90	38,065.89	
66.		Oscar Pilleng	94,060.00	29,500.00	123,560.00	12,356.00	
67.		Alphonse Kanum	51,500.00	24,500.00	76,000.00	7,600.00	
68.		John Mamine	87,550.00	26,500.00	114,050.00	11,405.00	
69.		Peter Kumane	83,900.00	20,000.00	103,900.00	10,390.00	
70.		Tei Julie	305,980.00	84,000.00	389,980.00	38,998.00	
71.		Plistine Maris	33,190.00	24,500.00	57,690.00	5,769.00	
72.		George Pius	95,938.00	25,500.00	121,438.00	12,143.80	
73.		Claira Anzar	78,800.00	25,500.00	104,300.00	10,430.00	
74.		Paul Singer	144,440.00	54,000.00	198,440.00	19,844.00	
75.		Pius Wakor	44,566.00	29,000.00	73,566.00	7,356.60	
76.		Margaret Hoe	54,940.00	24,500.00	79,440.00	7,944.00	
77.		Casius Morok	99,150.00	25,500.00	124,650.00	12,465.00	
78.		Anna Moi	59,460.00	25,500.00	84,960.00	8,496.00	
79.		Jacob Nomeri	45,470.00	25,500.00	70,970.00	7,097.00	
80.		Tony Dick	61,255.00	29,000.00	90,255.00	9,025.50	
81.		Kaigo Neknek	119,870.00	58,000.00	177,870.00	17,787.00	
82.		John Tumun	121,120.00	65,000.00	186,120.00	18,612.00	
83.		Elizah Otto	55,300.00	25,500.00	80,800.00	8,080.00	
84.		Ruben John	185,284.70	54,000.00	239,284.70	23,928.47	
85.		Andrew Palma	42,000.00	25,500.00	67,500.00	6,750.00	
86.		Paul Karua	48,550.00	24,500.00	73,050.00	7,305.00	
87.		Diana Kepas	57,600.00	25,500.00	83,100.00	8,310.00	
88.		Dickson Mulu	111,960.00	101,000.00	212,960.00	21,296.00	
89.		Joyce Kami	77,962.00	72,000.00	149,962.00	14,996.20	
90.		Roka Gaima	32,790.00	29,000.00	61,790.00	6,179.00	
91.		Thomas Kagl	127,440.00	80,500.00	207,940.00	20,794.00	
92.		Isaac Oisima	87,550.00	25,500.00	113,050.00	11,305.00	
93.		Abigle Bigea	58,300.00	22,000.00	80,300.00	8,030.00	
94.		Casper Beiyo	94,848.50	25,500.00	120,348.50	12,034.85	
95.		Andrew Palinga	51,640.00	29,500.00	81,140.00	8,114.00	
96.		Marcelus Morok	99,355.00	26,500.00	125,855.00	12,585.50	
97.		Rebecca Kaipo	99,988.00	29,000.00	128,988.00	12,898.80	
98.		Solanus Masai	75,068.00	20,000.00	95,068.00	9,506.80	
99.		Joachim Kais	87,550.00	25,500.00	113,050.00	11,305.00	
100.		John Kari	62,390.00	25,500.00	87,890.00	8,789.00	
101.		Maria Igum	18,656.00	20,000.00	38,656.00	3,865.60	
102.		Lina Sazaka	87,550.00	29,500.00	117,050.00	11,705.00	
103.		Veronica Siune	138,630.00	54,000.00	192,630.00	19,263.00	
104.		Joe Munvi	216,100.50	33,000.00	249,100.50	24,910.05	
105.		Ruben Baita	25,347.40	24,500.00	49,847.40	4,984.74	
106.		Rebecca Michael	84,000.00	29,000.00	113,000.00	11,300.00	
Total	9,207,325.80
	3,808,500.00	13,015,825.80	1,301,582.58	

(c)	COMPENSATION FOR BREACH OF HUMAN RIGHTS 

20.     It is appropriate to award a separate sum as compensation for breaches of human rights. I award the amount claimed, K5,000.00 for each plaintiff. 

21.     The total amount of compensation for breach of human rights is 106 plaintiffs x K5,000.00 per plaintiff = K530,000.00.

SUMMARY 

22.     Each plaintiff who has given evidence is awarded the total of the following sums:

(a)	General damages: K10,000.00;
(b)	Property losses: the amount shown for that plaintiff in table 1;
(c)	Compensation for breach of human rights: K5,000.00.

23.     The total award of damages to each plaintiff who has given evidence is shown in table 2. 

TABLE 2: TOTAL AWARD OF DAMAGES 
No	Name	(a)	General damages 	(b)	Property losses	(c)	Compensation
breach of human rights 	Amount awarded
(K)	
1.		Janet Amos	 10,000.00 	12,384.85	 5,000.00 	 27,384.85 	
2.		Prisla Gambura	 10,000.00 	12,798.80	 5,000.00 	 27,798.80 	
3.		Naiwa Lalong	 10,000.00 	6,957.00	 5,000.00 	 21,957.00 	
4.		James Kaut	 10,000.00 	5,118.57	 5,000.00 	 20,118.57 	
5.		Albert Koli	 10,000.00 	36,795.00	 5,000.00 	 51,795.00 	
6.		Thompson
Munvi	 10,000.00 	61,960.00	 5,000.00 	 76,960.00 	
7.		Florin Nanawan	 10,000.00 	41,883.40	 5,000.00 	 56,883.40 	
8.		Gambura Maima	 10,000.00 	12,948.20	 5,000.00 	 27,948.20 	
9.		Bernard Siloi	 10,000.00 	14,220.00	 5,000.00 	 29,220.00 	
10.		Febronia Siloi Taddie	 10,000.00 	11,910.80	 5,000.00 	 26,910.80 	
11.		Hansen Makis	 10,000.00 	31,921.10	 5,000.00 	 46,921.10 	
12.		Bonny Ikon	 10,000.00 	7,097.00	 5,000.00 	 22,097.00 	
13.		Jimmy Dimat	 10,000.00 	4,177.30	 5,000.00 	 19,177.30 	
14.		Joe Nuknai	 10,000.00 	13,935.90	 5,000.00 	 28,935.90 	
15.		Ishmael Kabe	 10,000.00 	4,194.14	 5,000.00 	 19,194.14 	
16.		Tonny Kaut	 10,000.00 	8,777.00	 5,000.00 	 23,777.00 	
17.		Clement Beiyo	 10,000.00 	4,108.70	 5,000.00 	 19,108.70 	
18.		John Jikera	 10,000.00 	13,696.20	 5,000.00 	 28,696.20 	
19.		Jacob Apito	 10,000.00 	8,890.00	 5,000.00 	 23,890.00 	
20.		Belly Jones	 10,000.00 	10,534.85	 5,000.00 	 25,534.85 	
21.		Michael Mauk	 10,000.00 	10,385.40	 5,000.00 	 25,385.40 	
22.		Joseph Kubali	 10,000.00 	2,239.50	 5,000.00 	 17,239.50 	
23.		Johnny Boi Holonga	 10,000.00 	17,116.90	 5,000.00 	 32,116.90 	
24.		Patrick Beiyo	 10,000.00 	9,114.52	 5,000.00 	 24,114.52 	
25.		John Asaruka	 10,000.00 	15,405.00	 5,000.00 	 30,405.00 	
26.		Daniel Ambri	 10,000.00 	6,054.30	 5,000.00 	 21,054.30 	
27.		Smith Beiyo	 10,000.00 	9,333.50	 5,000.00 	 24,333.50 	
28.		Junior Tamen	 10,000.00 	10,083.00	 5,000.00 	 25,083.00 	
29.		Nick Dadu	 10,000.00 	11,705.00	 5,000.00 	 26,705.00 	
30.		Nanigu Peter	 10,000.00 	7,205.00	 5,000.00 	 22,205.00 	
31.		Melchior Naah	 10,000.00 	6,467.30	 5,000.00 	 21,467.30 	
32.		Rodney Kaima	 10,000.00 	14,384.00	 5,000.00 	 29,384.00 	
33.		Mick Awun	 10,000.00 	4,432.00	 5,000.00 	 19,432.00 	
34.		Rosa Luku	 10,000.00 	7,093.00	 5,000.00 	 22,093.00 	
35.		Thomas Bidigut	 10,000.00 	4,499.50	 5,000.00 	 19,499.50 	
36.		Richard Manula	 10,000.00 	5,775.11	 5,000.00 	 20,775.11 	
37.		Robert Nanut	 10,000.00 	8,362.61	 5,000.00 	 23,362.61 	
38.		Thresia Auk	 10,000.00 	8,397.00	 5,000.00 	 23,397.00 	
39.		Henrick Mebo	 10,000.00 	8,080.00	 5,000.00 	 23,080.00 	
40.		Sau Bonga	 10,000.00 	6,666.50	 5,000.00 	 21,666.50 	
41.		Rose Hoe	 10,000.00 	13,600.10	 5,000.00 	 28,600.10 	
42.		Stanley Dulai	 10,000.00 	5,092.40	 5,000.00 	 20,092.40 	
43.		Benjamin Upinguri	 10,000.00 	11,884.00	 5,000.00 	 26,884.00 	
44.		Leo Niangu	 10,000.00 	6,906.60	 5,000.00 	 21,906.60 	
45.		Rex Marky	 10,000.00 	8,362.61	 5,000.00 	 23,362.61 	
46.		John Siune	 10,000.00 	12,296.20	 5,000.00 	 27,296.20 	
47.		Franky Munongsi	 10,000.00 	12,684.80	 5,000.00 	 27,684.80 	
48.		Salome Salameng	 10,000.00 	13,625.50	 5,000.00 	 28,625.50 	
49.		Peter Samigum	 10,000.00 	14,470.50	 5,000.00 	 29,470.50 	
50.		Patrick Yalkuna	 10,000.00 	14,039.50	 5,000.00 	 29,039.50 	
51.		Roger Bomai	 10,000.00 	7,849.50	 5,000.00 	 22,849.50 	
52.		Samson Charlie	 10,000.00 	4,739.50	 5,000.00 	 19,739.50 	
53.		Pamela Thomas Kagl	 10,000.00 	12,330.00	 5,000.00 	 27,330.00 	
54.		Steven Nakra	 10,000.00 	9,640.00	 5,000.00 	 24,640.00 	
55.		Michael Bidam	 10,000.00 	12,384.85	 5,000.00 	 27,384.85 	
56.		Peter Lowa	 10,000.00 	20,609.87	 5,000.00 	 35,609.87 	
57.		Isaac Ibun	 10,000.00 	8,305.00	 5,000.00 	 23,305.00 	
58.		Martin Ibung	 10,000.00 	11,060.80	 5,000.00 	 26,060.80 	
59.		Joseph Souket	 10,000.00 	12,996.20	 5,000.00 	 27,996.20 	
60.		Billy Supin	 10,000.00 	11,615.00	 5,000.00 	 26,615.00 	
61.		Moses Pafu	 10,000.00 	5,977.60	 5,000.00 	 20,977.60 	
62.		Victor Kaitok	 10,000.00 	9,025.50	 5,000.00 	 24,025.50 	
63.		Robert Paliangu	 10,000.00 	9,727.80	 5,000.00 	 24,727.80 	
64.		Bernard Mainduo	 10,000.00 	11,230.00	 5,000.00 	 26,230.00 	
65.		Thomas Morok	 10,000.00 	38,065.89	 5,000.00 	 53,065.89 	
66.		Oscar Pilleng	 10,000.00 	12,356.00	 5,000.00 	 27,356.00 	
67.		Alphonse Kanum	 10,000.00 	7,600.00	 5,000.00 	 22,600.00 	
68.		John Mamine	 10,000.00 	11,405.00	 5,000.00 	 26,405.00 	
69.		Peter Kumane	 10,000.00 	10,390.00	 5,000.00 	 25,390.00 	
70.		Tei Julie	 10,000.00 	38,998.00	 5,000.00 	 53,998.00 	
71.		Plistine Maris	 10,000.00 	5,769.00	 5,000.00 	 20,769.00 	
72.		George Pius	 10,000.00 	12,143.80	 5,000.00 	 27,143.80 	
73.		Claira Anzar	 10,000.00 	10,430.00	 5,000.00 	 25,430.00 	
74.		Paul Singer	 10,000.00 	19,844.00	 5,000.00 	 34,844.00 	
75.		Pius Wakor	 10,000.00 	7,356.60	 5,000.00 	 22,356.60 	
76.		Margaret Hoe	 10,000.00 	7,944.00	 5,000.00 	 22,944.00 	
77.		Casius Morok	 10,000.00 	12,465.00	 5,000.00 	 27,465.00 	
78.		Anna Moi	 10,000.00 	8,496.00	 5,000.00 	 23,496.00 	
79.		Jacob Nomeri	 10,000.00 	7,097.00	 5,000.00 	 22,097.00 	
80.		Tonny Dick	 10,000.00 	9,025.50	 5,000.00 	 24,025.50 	
81.		Kaigo Neknek	 10,000.00 	17,787.00	 5,000.00 	 32,787.00 	
82.		John Tumun	 10,000.00 	18,612.00	 5,000.00 	 33,612.00 	
83.		Elizah Otto	 10,000.00 	8,080.00	 5,000.00 	 23,080.00 	
84.		Reuben John	 10,000.00 	23,928.47	 5,000.00 	 38,928.47 	
85.		Andrew Palma	 10,000.00 	6,750.00	 5,000.00 	 21,750.00 	
86.		Paul Karua	 10,000.00 	7,305.00	 5,000.00 	 22,305.00 	
87.		Diana Kepas	 10,000.00 	8,310.00	 5,000.00 	 23,310.00 	
88.		Dickson Mulu	 10,000.00 	21,296.00	 5,000.00 	 36,296.00 	
89.		Joyce Kami	 10,000.00 	14,996.20	 5,000.00 	 29,996.20 	
90.		Roka Gaima	 10,000.00 	6,179.00	 5,000.00 	 21,179.00 	
91.		Thomas Kagl	 10,000.00 	20,794.00	 5,000.00 	 35,794.00 	
92.		Isaac Oisima	 10,000.00 	11,305.00	 5,000.00 	 26,305.00 	
93.		Abigail  Bigea	 10,000.00 	8,030.00	 5,000.00 	 23,030.00 	
94.		Casper Beiyo	 10,000.00 	12,034.85	 5,000.00 	 27,034.85 	
95.		Andrew Palinga	 10,000.00 	8,114.00	 5,000.00 	 23,114.00 	
96.		Marcelus Morok	 10,000.00 	12,585.50	 5,000.00 	 27,585.50 	
97.		Rebecca Kaipo	 10,000.00 	12,898.80	 5,000.00 	 27,898.80 	
98.		Solanus Masai	 10,000.00 	9,506.80	 5,000.00 	 24,506.80 	
99.		Joachim Kais	 10,000.00 	11,305.00	 5,000.00 	 26,305.00 	
100.		John Kari	 10,000.00 	8,789.00	 5,000.00 	 23,789.00 	
101.		Maria Igum	 10,000.00 	3,865.60	 5,000.00 	 18,865.60 	
102.		Lina Sazaka	 10,000.00 	11,705.00	 5,000.00 	 26,705.00 	
103.		Veronica Siune	 10,000.00 	19,263.00	 5,000.00 	 34,263.00 	
104.		Joe Munvi	 10,000.00 	24,910.05	 5,000.00 	 39,910.05 	
105.		Reuben Baita	 10,000.00 	4,984.74	 5,000.00 	 19,984.74 	
106.		Rebecca Michael	 10,000.00 	11,300.00	 5,000.00 	 26,300.00 	
Total	 1,060,000.00 	1,301,582.58	 530,000.00 	 2,891,582.58 	

INTEREST 

24.     Mr Pipike submitted that interest should be awarded on the total amount of damages awarded to each plaintiff under the Judicial Proceedings (Interest on Debts and Damages) Act 2015. He seeks interest at the rate of 2% per annum against the State (in line with Section 4(3) of that Act) and 8% per annum against RD Fishing Ltd. I will not distinguish between the different defendants in that way. The rate of interest is discretionary. I think it would make enforcement of the judgment debt too cumbersome to award interest at different rates.

25.     As for the period in respect of which interest is calculated, I fix the start date as the date of the filing of the writ, 5 August 2015. The end date will be the date of delivery of this judgment. The relevant period is 2.5 years. Interest will be awarded by applying the formula D x I x N = A, where D is the amount of damages, I is the interest rate per annum, N is the period in years, A is the amount of interest. Interest has thus been calculated by multiplying each award of damages by a factor of 0.05 (0.02 x 2.5) and is shown in the Schedule below. 

APPORTIONMENT 

26.     Mr Pipike submitted that the Court should apportion responsibility for satisfying the judgment debt on a 50:50 basis as between the State and RD Fishing Ltd. I am not sure that that would benefit the plaintiffs. I think a better and fairer approach is to simply order that the seventh and eighth defendants are liable in damages. 

27.     If a judgment is signed against two or more defendants generally for the same cause of action without apportioning liability amongst them the presumption arises that all defendants are jointly and severally liable for damages and for satisfaction of the judgment debt after assessment of damages (London Association for the Protection of Trade v Greenlands Ltd [1916] 2 AC 15). The plaintiff is awarded the entire damages against each defendant. The plaintiff can pursue satisfaction of the entire judgment against one or more of the defendants provided not more than the total judgment is recovered.

COSTS

28.     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. I have given close consideration to awarding the plaintiffs only part of their costs as I have found their claims to be exaggerated. However the State made submissions that were also largely rejected. As for RD Fishing Ltd, it failed to appear and assist the Court. I have decided that costs will follow the event. 

ORDER 

1.	Damages are payable by the seventh and eighth defendants to each plaintiff whose name appears in the Schedule, in the amount shown for each plaintiff.

2.	In addition, interest is payable by the seventh and eighth defendants to each plaintiff whose name appears in the Schedule, in the amount shown for each plaintiff.

3.	The case of each plaintiff whose name does not appear in the Schedule is dismissed. 

4.	The proceedings against the first, second and third defendants are dismissed. 

5.	Subject to any particular costs order to the contrary, costs of the entire proceedings shall be paid by the seventh and eighth defendants to the plaintiffs whose name appears in the Schedule, on a party-party basis, to be taxed if not agreed.

SCHEDULE 
No	Name	Total damages
(K)	Interest
(K) X 0.05	Total award of damages + interest 
(K)	
1.		Janet Amos	 27,384.85 	1,369.24	28,754.09	
2.		Prisla Gambura	 27,798.80 	1,389.94	29,188.74	
3.		Naiwa Lalong	 21,957.00 	1,097.85	23,054.85	
4.		James Kaut	 20,118.57 	1,005.93	21,124.50	
5.		Albert Koli	 51,795.00 	2,589.75	54,384.75	
6.		Thompson Munvi	 76,960.00 	3,848.00	80,808.00	
7.		Florin Nanawan	 56,883.40 	2,844.17	59,727.57	
8.		Gambura Maima	 27,948.20 	1,397.41	29,345.61	
9.		Bernard Siloi	 29,220.00 	1,461.00	30,681.00	
10.		Febronia Siloi Taddie	 26,910.80 	1,345.54	28,256.34	
11.		Hansen Makis	 46,921.10 	2,346.06	49,267.16	
12.		Bonny Ikon	 22,097.00 	1,104.85	23,201.85	
13.		Jimmy Dimat	 19,177.30 	958.87	20,136.17	
14.		Joe Nuknai	 28,935.90 	1,446.80	30,382.70	
15.		Ishmael Kabe	 19,194.14 	959.71	20,153.85	
16.		Tonny Kaut	 23,777.00 	1,188.85	24,965.85	
17.		Clement Beiyo	 19,108.70 	955.44	20,064.14	
18.		John Jikera	 28,696.20 	1,434.81	30,131.01	
19.		Jacob Apito	 23,890.00 	1,194.50	25,084.50	
20.		Belly Jones	 25,534.85 	1,276.74	26,811.59	
21.		Michael Mauk	 25,385.40 	1,269.27	26,654.67	
22.		Joseph Kubali	 17,239.50 	861.98	18,101.48	
23.		Johnny Boi Holonga	 32,116.90 	1,605.85	33,722.75	
24.		Patrick Beiyo	 24,114.52 	1,205.73	25,320.25	
25.		John Asaruka	 30,405.00 	1,520.25	31,925.25	
26.		Daniel Ambri	 21,054.30 	1,052.72	22,107.02	
27.		Smith Beiyo	 24,333.50 	1,216.68	25,550.18	
28.		Junior Tamen	 25,083.00 	1,254.15	26,337.15	
29.		Nick Dadu	 26,705.00 	1,335.25	28,040.25	
30.		Nanigu Peter	 22,205.00 	1,110.25	23,315.25	
31.		Melchior Naah	 21,467.30 	1,073.37	22,540.67	
32.		Rodney Kaima	 29,384.00 	1,469.20	30,853.20	
33.		Mick Awun	 19,432.00 	971.60	20,403.60	
34.		Rosa Luku	 22,093.00 	1,104.65	23,197.65	
35.		Thomas Bidigut	 19,499.50 	974.98	20,474.48	
36.		Richard Manula	 20,775.11 	1,038.76	21,813.87	
37.		Robert Nanut	 23,362.61 	1,168.13	24,530.74	
38.		Thresia Auk	 23,397.00 	1,169.85	24,566.85	
39.		Henrick Mebo	 23,080.00 	1,154.00	24,234.00	
40.		Sau Bonga	 21,666.50 	1,083.33	22,749.83	
41.		Rose Hoe	 28,600.10 	1,430.01	30,030.11	
42.		Stanley Dulai	 20,092.40 	1,004.62	21,097.02	
43.		Benjamin Upinguri	 26,884.00 	1,344.20	28,228.20	
44.		Leo Niangu	 21,906.60 	1,095.33	23,001.93	
45.		Rex Marky	 23,362.61 	1,168.13	24,530.74	
46.		John Siune	 27,296.20 	1,364.81	28,661.01	
47.		Franky Munongsi	 27,684.80 	1,384.24	29,069.04	
48.		Salome Salameng	 28,625.50 	1,431.28	30,056.78	
49.		Peter Samigum	 29,470.50 	1,473.53	30,944.03	
50.		Patrick Yalkuna	 29,039.50 	1,451.98	30,491.48	
51.		Roger Bomai	 22,849.50 	1,142.48	23,991.98	
52.		Samson Charlie	 19,739.50 	986.98	20,726.48	
53.		Pamela Thomas Kagl	 27,330.00 	1,366.50	28,696.50	
54.		Steven Nakra	 24,640.00 	1,232.00	25,872.00	
55.		Michael Bidam	 27,384.85 	1,369.24	28,754.09	
56.		Peter Lowa	 35,609.87 	1,780.49	37,390.36	
57.		Isaac Ibun	 23,305.00 	1,165.25	24,470.25	
58.		Martin Ibung	 26,060.80 	1,303.04	27,363.84	
59.		Joseph Souket	 27,996.20 	1,399.81	29,396.01	
60.		Billy Supin	 26,615.00 	1,330.75	27,945.75	
61.		Moses Pafu	 20,977.60 	1,048.88	22,026.48	
62.		Victor Kaitok	 24,025.50 	1,201.28	25,226.78	
63.		Robert Paliangu	 24,727.80 	1,236.39	25,964.19	
64.		Bernard Mainduo	 26,230.00 	1,311.50	27,541.50	
65.		Thomas Morok	 53,065.89 	2,653.29	55,719.18	
66.		Oscar Pilleng	 27,356.00 	1,367.80	28,723.80	
67.		Alphonse Kanum	 22,600.00 	1,130.00	23,730.00	
68.		John Mamine	 26,405.00 	1,320.25	27,725.25	
69.		Peter Kumane	 25,390.00 	1,269.50	26,659.50	
70.		Tei Julie	 53,998.00 	2,699.90	56,697.90	
71.		Plistine Maris	 20,769.00 	1,038.45	21,807.45	
72.		George Pius	 27,143.80 	1,357.19	28,500.99	
73.		Claira Anzar	 25,430.00 	1,271.50	26,701.50	
74.		Paul Singer	 34,844.00 	1,742.20	36,586.20	
75.		Pius Wakor	 22,356.60 	1,117.83	23,474.43	
76.		Margaret Hoe	 22,944.00 	1,147.20	24,091.20	
77.		Casius Morok	 27,465.00 	1,373.25	28,838.25	
78.		Anna Moi	 23,496.00 	1,174.80	24,670.80	
79.		Jacob Nomeri	 22,097.00 	1,104.85	23,201.85	
80.		Tonny Dick	 24,025.50 	1,201.28	25,226.78	
81.		Kaigo Neknek	 32,787.00 	1,639.35	34,426.35	
82.		John Tumun	 33,612.00 	1,680.60	35,292.60	
83.		Elizah Otto	 23,080.00 	1,154.00	24,234.00	
84.		Reuben John	 38,928.47 	1,946.42	40,874.89	
85.		Andrew Palma	 21,750.00 	1,087.50	22,837.50	
86.		Paul Karua	 22,305.00 	1,115.25	23,420.25	
87.		Diana Kepas	 23,310.00 	1,165.50	24,475.50	
88.		Dickson Mulu	 36,296.00 	1,814.80	38,110.80	
89.		Joyce Kami	 29,996.20 	1,499.81	31,496.01	
90.		Roka Gaima	 21,179.00 	1,058.95	22,237.95	
91.		Thomas Kagl	 35,794.00 	1,789.70	37,583.70	
92.		Isaac Oisima	 26,305.00 	1,315.25	27,620.25	
93.		Abigail  Bigea	 23,030.00 	1,151.50	24,181.50	
94.		Casper Beiyo	 27,034.85 	1,351.74	28,386.59	
95.		Andrew Palinga	 23,114.00 	1,155.70	24,269.70	
96.		Marcelus Morok	 27,585.50 	1,379.28	28,964.78	
97.		Rebecca Kaipo	 27,898.80 	1,394.94	29,293.74	
98.		Solanus Masai	 24,506.80 	1,225.34	25,732.14	
99.		Joachim Kais	 26,305.00 	1,315.25	27,620.25	
100.		John Kari	 23,789.00 	1,189.45	24,978.45	
101.		Maria Igum	 18,865.60 	943.28	19,808.88	
102.		Lina Sazaka	 26,705.00 	1,335.25	28,040.25	
103.		Veronica Siune	 34,263.00 	1,713.15	35,976.15	
104.		Joe Munvi	 39,910.05 	1,995.50	41,905.55	
105.		Reuben Baita	 19,984.74 	999.24	20,983.98	
106.		Rebecca Michael	 26,300.00 	1,315.00	27,615.00	
Total	2,891,582.58	144,579.13	3,036,161.71	

Judgment accordingly.
_______________________________________________________________
GP Lawyers:  Lawyers for the plaintiffs			
Solicitor-General: Lawyer for the First, Second, Third & Seventh Defendants