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Lebasi v Klembassa [2020] PGNC 484; N8901 (22 December 2020)

N8901

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 1107 OF 2007

BETWEEN
DAVID LEBASI AND 30 OTHERS
Plaintiffs

AND
STEVEN KLEMBASSA
First Defendant

AND
LASSAM PHILIP, KEVIN SAMOA, MICKEY JOSEPH, NOAH MALAI AND HAROLD SAMOA
Second Defendants

AND
THE NATIONAL FISHERIES AUTHORITY
Third Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Alotau: Toliken J

2019: 05^th, 06^th, 07^th June, 16^th August

2020: 22^nd December

NEGLIGENCE – Assessment of damages – General damages – Mental stress and frustration – Breach of Constitutional rights – Past economic loss – Damage to property – Exemplary damages.

PRACTICE & PROCEEDURE – Vicarious liability – Misapprehension of facts on judgment on liability – Slip – Slip rule – Whether Court can correct its mistake.

Cases Cited

National Capital District Commission v Dademo (2013) SC1260
Motor Vehicles Insurance Limited v Maki Kol (2007) SC902
Latham v Peni [1997] PNGLR 435
Salamon v The State [1994] PNGLR 265
Chapok v Yali (2008) N3474
Komba v Duwaba (2006) N2979
David Lebasi & 30 Others v Steven Klembassa & Ors (2018) N8900

Other Reference

Sea Cucumbers and Beche-de-mer of the Tropical Pacific: A handbook for Fishers (Rev. edn), Handbook/South Pacific Commission No. 18), 1994.

Counsel

M Michael, for the Plaintiffs
F Kuvi, for the First, Second, Third and Fourth Defendants
M Pepi, for the Fifth Defendant.

JUDGMENT ON ASSESSMENT OF DAMAGES

22^nd December, 2020

1. TOLIKEN J: This is an assessment of damages following a trial and finding of vicarious liability against the Fourth Defendant (the State) for the actions of the First Defendant. For the judgment on liability see David Lebasi & 30 Others v Steven Klembassa & Ors (2020) N8900.
   

BACKGROUND

2. The brief background facts surrounding this case are that on 07^th February 2007, the Plaintiffs were harvesting beche-de-mer on the reefs around Nabaina/Abaiwalan Islands, the ownership of which had been awarded by the Land Courts to David Lebasi’s Meisoga Clan of Pana-Ala-Alan Island in the Samarai-Murua District, Milne Bay Province.
   
3. The Plaintiffs were apprehended in a citizen arrest by the Second Defendants and fellow villagers of Ware Island on suspicion of using illegal hookah gear. They were taken by dinghy to the main village at Ware Island together with their motorized dinghies, diving gear, camping equipment and semi processed beche-de-mer. At Ware they were paraded through the village, assaulted, shamed, and publicly ridiculed. They were detained in the village until a government team from Samarai Island arrived the next day and transported them to Samarai Island.
   
4. The government team was led by the First Defendant – then a Fisheries Officer with the Milne Bay Provincial Administration. He was accompanied by the Officer-in-charge of the Samarai Police Station and other officers. Apart from taking the Plaintiffs to Samarai, the First Defendant and the police also confiscated 4 motorized dinghies with fishing gear (flippers and diving masks) and semi-processed beche-de- mer. The dinghies were safely locked away at Samarai while the Plaintiffs were taken over to Alotau.
   
5. They were detained at the Police Station to await instructions from the National Fisheries Authority or NFA (Third Defendant). After some 6 hours the Plaintiffs were released when a lawyer intervened on their behalf. They were, however, advised not to leave Alotau while the Police and NFA decided on what cause of action to take against them.
   
6. After about 2 weeks of waiting, the Plaintiffs, apart from David Lebasi who resides in town, were able to return to their home island but without their motorized dinghies, fishing gear and Beche-de-mer products. The motorized dinghies were returned to the Plaintiffs after about 4 months when the Provincial Administration intervened on behalf of the Plaintiffs. By the time they were released the Beche-de-mer season had already closed.
   
7. In their Writ of Summons the Plaintiffs claimed damages under the following heads:
   

(a) General Damages

(b) Damages for mental stress and frustration

(c) Damages for Breach of Constitutional Rights

(d) Exemplary Damages

(e) Damages for economic loss and future economic loss

(f) Special damages

(g) Costs

8. At trial on liability the Court specifically found the Fourth Defendant (the State) vicariously liable for the torts committed by the First and Second Defendants for:
   
   • (1) Embarrassment, shame, and ridicule caused to the Plaintiffs upon the arrest by the Third Defendants and other villagers of Ware Island.
   • (2) Damages to the Plaintiffs boats and fishing gear etc.
   • (3) Economic loss arising out of the seizure, confiscation and detention of the Plaintiffs’ boats and beche-de-mere by the second and third defendants.
     
9. The Court found that there were no breaches of any of the Constitutional rights alleged by the Plaintiffs in their Statement of Claim for the reasons stated in the judgment on liability. The Court also found that the Plaintiffs Peter Wesley, Ronny Edward, Kenny Edward, Peter Mark, and Dalton Malona were in the process of using a hookah – an illegal equipment - to harvest sea cucumber when they were caught by the Ware villagers and therefore cannot benefit from their illegal enterprise. Their claims were therefore dismissed at the trial on liability, thus reducing the number of plaintiffs for assessment of damages to 25 only.
   
10. Of the remaining 25, only 13 filed affidavits for assessment of damages. The others did not and therefore they are deemed to have abandoned their claims. Of the 13 who filed affidavits, 3 did not appear at the trial in spite of the fact that the State had filed the necessary notices to cross-examine them all. Having failed to appear at the trial they are also deemed to have abandoned their claims.
    

THE EVIDENCE

Plaintiffs’ evidence

11. The 10 plaintiffs who appeared at the trial on assessment of damages and were cross-examined on their affidavits were David Lebasi, Dipole Simi, Jeffery Japhet, Kevin Labana and Lediken Tensi, Kuli Labana, Lama Teddy, Lesley Abraham, Moses Isikel and Lendiken Labana. The following are summaries of their evidence.
    
12. David Lebasi deposed that he and his fellow plaintiffs were taken to Alotau without their properties - fishing gear, dinghies and outboard motor engines and beche-de-mer. The dinghies and engines were returned to them in June 2005 some four months after they were confiscated. By that time, the beche-de-mer season had closed thus depriving him and the others the opportunity to earn money from the fishery. He tabulates his losses as follows:
    

13. In respect of the two Banana boats and their engines, David Lebasi referred to a Letter of Demand allegedly from RFI Limited (Alotau) from whom he took out a loan of K20,000.00 for the purchase of boats, engines, and fuel for the purpose of harvesting Beche-de-mer for the 2005 season. He refers to an Annexure “A” to his affidavit, but no such document is annexed thereto. Annexures “B” and “C” are quotations from Ela Motors for Banana boats and 40HP engines dated 01^st and 02^nd November 2018.
    
14. Lebasi further deposed to being subjected (together with his fellow plaintiffs) to verbal insults and physical violence when they were met by the Second Defendants and other villagers on arrival at Ware Island who were armed with a gun and bush knives. They were hit with stones and sticks from which they suffered physical injuries. He does not state what injuries he or any of his fellow plaintiffs sustained.
    
15. Lendiken Tensy deposed to having suffered the following losses:
    

16. Lendiken Tensy annexed the following quotations to his affidavit (Annexures A & B):
    • Ela Motors Engine dated 1^st November 2018 - 40HP Yamaha Outboard Motor (K12,871.10)
    • Ela Motors dated 2^nd November 2018 (K11130.00) – 19 footer Banana Boat
    • Milne Chan Ltd - clothing items and cooking utensils (K367.00) dated 12 November 2018
    • Nako Marine centre dated 12 November 2018 for fishing gear (K565.00)
    • Alotau Enterprises Ltd dated 12 November 2018 – Tools valued at K758.55
      
17. He deposed also to being verbally insulted and assaulted physically by the second defendant and other Ware villagers. They also issued threats to kill him and burn down his house. And the experience traumatized him.
    
18. Apart from being detained for 6 hours at the Alotau Police station and thereafter prevented from returning home for about two weeks, thus being deprived of the opportunity to earn more from beche-de-mer, his boat and engine were damaged and locked up. By the time they were released the beche-de-mer season had closed thus further denying him from earning further income. In examination-in-chief he, however, said that the boat and engine were never returned to him.
    
19. He further deposed that had he not been detained, and his boat confiscated, he would have made about K200,000.00. He said he had employed five divers. Each diver could bring up about 200 sea cucumbers a day, so in a week that is 1000 sea cucumbers. The harvesting season was for 6 months but they were only able to harvest for 3 days before they were stopped by the Second Defendants and others.
    
20. In cross-examination, Teddy Lendiken admitted that the invoices he annexed to his affidavit were not the originals because the originals were lost when they were apprehended. When asked, he said that he had made similar earnings from sales in seasons prior to 2005 as the fishery was bountiful then. When asked if the price of K180 per kg was consistent for the whole season he said it was. He further said that his products were graded after they were weighed. On re-examination he said that had the harvest not been prematurely stopped he could have easily made half a million Kina.
    
21. Lama Teddy deposed to having suffered the following losses which he tabulated in paragraph 16 of his affidavit:
    

22. Annexed to his affidavit is a quotation from Cheong’s Wholesale for fishing gear and other tools. (Annexure A) He also deposed to being paraded before the villagers of Ware and of being insulted and assaulted publicly with knives, sticks and stones and of suffering physical injuries and of being traumatized by the incident. In examination-in-chief he said he was hit on the head with a stick and speared on the chest. He was also prevented to from returning to his family and restrained for 3 days before government officers arrived from Samarai. Furthermore, their boats were damaged as well. He does not, however, provide any details or proof of the types of injuries he suffered or the types of damage to his friend’s boats.
    
23. Lama Teddy said in examination-in- chief that he would have made K100,000.00 from sales for the whole season (6 months) and from the beche-de-mer seized by the defendants he would have made K50,000.00.
    
24. He was asked in cross-examination if the injuries he said he suffered were serious, he said they were. He, however, provided no supporting medical report. He agreed that his products were not graded, and that the different species did not fetch the same price of K180 per kg that he is claiming. He was also referred to paragraphs 10 and 16A of his affidavit. In paragraph 10 he states that 20kg of Amber were seized but at paragraph 16B 30kg is stated. He agreed to this discrepancy and conceded that he would have made less than the amount of K11160.00 he is claiming. He admitted that the amount he is claiming for fishing gear/equipment does not reflect the value at the time of loss. He also said that prior to the 2005 season he had made K50,000.00 from beche-de-mer sales.
    
25. On re-examination, he confirmed that the Defendant Samoa was led by Lassam Philip when he and others were assaulted but said that the First Defendant never assaulted them. He admitted that he did not measure or grade his beche-de-mer before they were seized but said that the amount, he is claiming was less than what he could have actually made.
    
26. When questioned by the Court he said that he had been diving for about a month before the incident happened and that his beche-de-mer were already completely dry. However, he also said that he had dried the beche-de-mer for 3 – 4 days when asked how he had dried his produce. He agreed when it was put to him that if that were the case, then the produce would still have had a lot of moisture in them.
    
27. Jeffery Japhet – deposed to having incurred the following losses:
    

28. He annexed quotations from Wenghem Holding Ltd and Nako Marine Centre dated 12 November 2018. A third document is not titled and undated. It bears the name of Jeffery Japhet and names of beche-de-mer species (white teat, black teat and Big black) and respective weights against each species.
    
29. Like the other plaintiffs, Jeffery Japhet also deposed to being shamed, ridiculed, insulted verbally and physically assaulted. He also deposed to suffering physical injuries which he did not specify and of being traumatized by the incident.
    
30. In paragraph 10 of his affidavit, he said he lost 10kg of White Teat but when it was suggested to him in cross-examination that this was inconsistent with paragraph 16A where he states that he lost 88kg of White Teat, he said it was not. He was not re-examined about this inconsistency.
    
31. Kevin Labana deposed to being physically assaulted with stones, knives and sticks and of being verbally insulted and shamed when he and the other plaintiffs were paraded before the Second Defendants and other villagers at Ware. He deposed further to being traumatized by the whole incident and of suffering physical injuries which he unfortunately did not give any details of.
    
32. At paragraph 10 of his affidavit, he deposed that the defendants confiscated 10kg of White Teat beche-de-mer from him, but in the table in paragraph 16 he added more to what he stated at paragraph 10. This contradiction was put to him in cross- examination but he did not appear to realize contradiction or the consequences thereof. I reproduce his table of losses per paragraph 16 of his affidavit here below:
    

33. Dipole Simi also deposed that like the other Plaintiffs, he was verbally insulted, ridiculed, and shamed and physically assaulted by the Second Defendant and others and that he was traumatized and suffered unspecified injuries. He deposed to losing a total of 124 kg of beche-de-mer, other properties such as fishing gear, utensils, food rations and loss of further earnings for the duration of the season had he and others not been prematurely stopped. Below is a table of particulars of his losses –
    

34. He annexed quotations from Weghem Holdings Ltd, Nako Marine Centre and Alotau Enterprise Ltd as well as a document bearing his name and different species of beche-de-mer and their respective weights.
    
35. When asked in examination-in-chief what the price for each species of beche-de-mer was, he said the price for White Teat was K180 per kg, Black Teat was K80 per kg, Big Black was K60 per kg and Prickly was K50 per kg. At paragraph 16A he, however, is claiming K180 per kg for the 124 kg of beche-de-mer he said he lost, irrespective of species for the total sum of K22,320.00.
    
36. Kuli Labana – Like his fellow plaintiffs, Kuli Labana also deposed of being paraded before the Second Defendants and other villagers where he was publicly ridiculed, shamed and insulted and physically assaulted with sticks and stones. He also said he was injured physically but did not say what types of injuries he suffered. He also deposed to losing Beche-de-mer of different species and weight, assorted fishing gear and equipment and loss of earnings from the time he was apprehended to the close of the season, a period of about 4 months. He tabulated his losses at paragraph 16 of his affidavit which I reproduce below:
    

37. In cross-examination he agreed that the different species did not all fetch the same price (i.e., K180 per kg) He admitted also that he did not grade or measure his products but said that within the four months of season he could have easily made K200,000.00. In re-examination he admitted though that the figures he supplied were his best estimates.
    
38. Lesley Abraham deposed also to the manner in which he and the other plaintiffs were stopped from diving for beche-de-mer by the Second Defendants and others acting on their instructions and escorted back to Ware Island where they were paraded before the village and insulted and assaulted with sticks, knives, and stones while their boats were also damaged. He deposed to the loss of personal fishing gear/equipment and other things during the incident. He further deposed to losing 10 kg of White Teat. At paragraph 15 of his affidavit, he deposed that had he not been interrupted he would have made K100,000.00. He tabulated his losses at paragraph 16 of his affidavit which I reproduce below:
    

39. In examination-in-chief he said that his 10kg of White Teat were weighed by Lendiken Tensy who had a scale. However, they did not grade the products at that time apart from weighing them. And had their season not be interrupted he would have made about K50,000.00.
    
40. In cross-examination Lesley Abraham said that it was the defendant Lassam Philip and his group who confiscated his properties. And he agreed that the First Defendant did not confiscate any of his properties. He also agreed that he did not state the grade and sizes for his Beche-de-mer in his affidavit and that the price of K180 per kg would not have been the correct rate. He, however, denied that his 10kg of White Teat would have fetched different prices. He was asked how much he had earned in previous seasons over the same period (4 months). He said that he had previously earned between K90,0000.00 – K100,000.00. On re-examination, Lesley Abraham admitted that he did not grade his produce, but they were large and would have fetched K180 per kg.
    
41. Moses Isikel largely corroborated the evidence of his co-plaintiffs regarding how they were stopped from diving for beche-de-mer at Nabaina reef and escorted back to Ware island by or on instructions from the Second Defendants and how they were paraded through the village, insulted, and physically assaulted and injured with stones, sticks and knives. He, however, did not state the nature of injuries he personally sustained.
    
42. He deposed to losing personal items to the value of K2449.60 and K56,000.00 for 98 kg of White Teat, 85.09 kg of Black Teat, 78.21 kg of Prickly, and 50.10kg of Black Teat at a price K180 per kg for each species. He further claimed K190,000.00 for loss of earnings from the period he was apprehended to the closure of the season. His losses are tabulated in paragraph 16 of his affidavit which I reproduce below:
    

43. In examination-in-chief he said that he would have made about K56000.00 had he not been interrupted, and for the whole season he would have made a total of K200,000.00. When asked further if the amounts he had stated were estimates, he said they were actual losses.
    
44. On cross-examination Isikel agreed that he did not state the sizes or grades of his products, but the products were weighed by Lendiken Tensy. He maintained that the amount he is claiming, which he stated in his affidavit is not an estimate but represents his actual loss. However, he agreed that the different species of beche-de-mer listed in paragraph 10 of his affidavit fetched different prices and not uniformly at K180 per kg, when that was put to him. He further agreed that his total loss would therefore have been less than K56,000.00. He disagreed though when it was put to him that the loss of earnings for that season which he put K190,000.00 would have been less given that the different species of beche-de-mer fetched different prices. When asked about his earnings for the previous season, he said that he made about K150,000.00. On a question put to him by the Court, he said he had been diving for 4 days only before being stopped and that his products still had a lot of moisture in them, hence not completely dried.
    
45. Lendiken Labana – This plaintiff pretty much corroborated the evidence of his co-plaintiffs about being stopped from diving for beche-de-mer on the reefs of Nabaina by or on instructions of the First Defendant in pursuance of the interest of the Third Defendant. He deposed also to being escorted back to Ware Island by the Second Defendants and other villagers where they were paraded publicly through the village. They verbally insulted and suffered physical injuries from being assaulted with stones, sticks and knives. The First Defendant and policemen arrived the day after and confiscated 4 dinghies, 3 bags of beche-de-mer and diving and fishing gear. These were locked up at Samara while the Plaintiffs were taken to Alotau.
    
46. Lendiken Labana deposed that he lost 82kg of White Teat and 32kg of Black Teat which he said were priced at K180 per kg.
    
47. He further said that he was traumatised by the actions of the defendants and could not harvest beche-de-mer for the period (2 weeks) he and his co-plaintiffs were prevented from leaving Alotau awaiting further action by State authorities. He said he could have easily made K160,000.00 had it not been for the actions of the Defendants.
    
48. His total losses are tabulated in the table below:
    

49. On examination-in-chief, Lendiken Labana said that he lost 32kg of Black Teat @ K80.00 per kg, 82kg of White Teat @ K180.00 per kg and 15 kg of Greenfish @ K60.00 per kg. (127kg in total) He said these were weighed using a scale. He said he could have earned K20,000.00 from these and for the whole season he could have earned K40,000.00. He said he classified the White Teat and Black Teat as large. He, however, did not grade the Greenfish as they were too small. He said that the prices were estimates.
    
50. When asked by the Court, he said that he normally sold his products to RFI in Alotau when they are well dried and that the prices he quoted were for well dried products.
    
51. When cross-examined as to who confiscated his 82kg of White Teat and 32kg of Black Teat he said it was Lassam Philip and his group. He agreed that he did not state the grades and prices of these products. He denied that he did not state the price and grade of the 82kg of White Teat and 32kg of Black Teat in his affidavit when it was put to him, and further denied that K180 per kg was not the price for White Teat nor for the 32kg of Black Teat. While he did not state that he also lost 15kg of Greenfish in Paragraph 10 of his affidavit and only mentioned it in Paragraph16A, he did agree that he did not state the unit price and grade. He did not agree that the amount he would have earned would have been less than K20,640.00. He somehow answered in the affirmative that he was not entitled to that amount. He agreed that the value of the fishing gear & equipment, utensils, and food rations he is claiming would have been less than the amount he is now claiming. As to past economic loss he was asked how much he had earned the previous season for the same period of 4 months and he said he earned K20,000.00. And he agreed that he was now claiming K160,000.00 for the same period.
    
52. When re-examined if he had graded his products, he said he did not because he was busy diving and processing. He confirmed when asked by the Court that the price for Greenfish was K60.00 per kg and that he would have earned K300.00 for his 15kg of Greenfish.
    
53. The affidavits of Jericho Dennis, Willie Japhet, and Jonathan Dennis were not accepted into evidence as they did not appear for cross-examination despite the necessary notices being issued on them by the Defence as stated earlier.
    

Defendants’ Evidence

54. For the Defence, the following Defendants filed affidavits and were cross-examined; Steven Klembassa, Lassam Philip, Micky Joseph and Roger Alby.
    
55. Steven Klembassa – The First Defendant Steven Klembassa is now a Senior Compliance Officer attached to the Compliance Unit of the National Fisheries Authority, but at the time this cause of action arose he was employed as a Fisheries Officer with the Milne Bay Provincial Administration. He was personally involved in the events from which these proceedings arose.
    
56. In his affidavit sworn on 21^st January 2019 and filed 23^rd January 2019, he deposed to the following: In early 2005 he was based on Samarai Island. On 07^th February 2005 he was asked by the Area Manager for Bwanabwana Local Level Government to lead a team of government officers to Ware Island to investigate an incident where certain people were detained by villagers for allegedly using prohibited fishing gear to harvest bech-de-mer. He and the officers, including the Police Station Commander, left for Ware Island the next day, 08^th February 2005. They were met on arrival by members of the Ward Development Committee. A meeting with the community was convened and the Plaintiffs and their boats, equipment and bech-de-mer were handed over to Klembassa and his team.
    
57. During the meeting, as Fisheries Officer, he emphasized the importance of the Fisheries Management Act with particular emphasis on the Bech-de-mer Management Plan. He informed the 31 suspects that they will be brought to Alotau to be charged by the appropriate authorities and that the equipment and bech-de-mer seized from them will be confiscated.
    
58. The following items were confiscated:
    
    • (1) 2 x 19footer Banana dinghies
    • (2) 2 x 23footer Banana dinghies
    • (3) 3 x 40 Horsepower Yamaha outboard motors
    • (4) 1 x 30 Horsepower Yamaha outboard motors
    • (5) 1 x Compressor/Hookah gear
    • (6) 3 ½ bags of assorted species bech-de-mer products
    • (7) 1 x set of diving hose; and
    • (8) 1 x set of diving flippers.
      
59. The 31 suspects were then escorted to Samarai together with the confiscated items. The items were safely stored away in Samarai while the suspects were eventually transferred to Alotau where they were detained at the Police cells for not more than 3 hours before they were released.
    
60. The suspects were never charged by the police or NFA. However, there were out of court negotiations between NFA, the Provincial Authorities and leaders such as the then Member for Samarai-Murua, Mr. Gordon Wesley and Sir John Luke Critten (current Governor) for the release of the 31 suspects. This resulted in the release of the following:
    
    • 2 x 19footer banana dinghies
    • 2 x 23footer banana dinghies
    • 3 x 40hp Yamaha outboard motors engines
    • 1 x 30hp Yamaha outboard motor engines
    • 1 x set of diving flippers.
      
61. The compressor/hookah equipment and compressor hose were retained for disposal as well as the 3 ½ bags (512kg) of beche-de-mer which had rotted as they were not fully dried.
    
62. Klembassa said the 3 ½ bags of assorted species of partly processed bech-de-mer totalling 512 kg were weighed at Samarai by him in front of the Plaintiffs. They agreed to the weight and the products were locked up but because they were not fully dried, they soon got rotten and had to be disposed of.
    
63. On examination-in-chief Klembassa said that as Fisheries Officer he also performed delegated duties from NFA. He said the beche-de-mer that were handed over to him were half dry and some were still very wet. These were the only beche-de-mer handed over to him and they belonged to David Lebasi. He weighed them at Samarai in front of David Lebasi. He denied receiving or seizing any BDM products from any other plaintiff or suspect. The seized products were disposed of after two weeks when they had rotted.
    
64. Klembassa said the dinghies and outboard motors were under his custody for two weeks. After that NFA took over the matter and eventually decided not to lay charges against the Plaintiffs. Except for the hookah equipment all other properties were returned to the Plaintiffs in good condition and that no-one raised any issue about any damages at the time they were released.
    
65. Klembassa deposed at paragraph 14 of his affidavit that beche-de-mer is bought according to species, size, and quality. He was not aware of any buyers in Alotau who was paying K180.00 per species back in 2005. He annexed two price lists from two beche-de-mer buyers who traded in the fishery back in 2005. These were Asiapac Limited and RFI Enterprises Ltd. (Annex A1 and A2 to his affidavit) These were accepted into evidence despite objections from the plaintiffs’ lawyer because they were relevant to the issues at hand.
    
66. In examination-in-chief he said from those price lists the highest paid species – sandfish - attracted only K120.00 while the prices for all other species of the 24 species of commercial sea cucumber were a lot less than that. Furthermore, prices differed from species to species and were determined by the exporters who graded the products according to size and quality, and not quantity. Back in 2005 Milne Bay had 6 exporters of beche-de-mer.
    
67. In cross-examination he agreed to seizing 512 kg of beche-de-mer which he locked away at Samarai for safe keeping. He maintained that he returned the dinghies and the outboard motor engines after two weeks in good condition. He denied keeping them for 5 months and that they were damaged while in his custody.
    
68. He maintained in re-examination that the properties were returned to David Lebasi and others at Samarai in good condition. The beche-de-mer seized were of assorted species, some Big Black, White Teat, Black Teat, Curry and Lolly. Sandfish was, however, not found in the area where these claims arose out of.
    
69. For completeness, I extract the relevant prices from Asiapac’s and RFI’s price lists (Annexures “A1” and “A2” to Steven Klembassa’s affidavit) for each of the species of sea cucumber seized from David Lebasi:
    

Asiapac Limited List

RFI Enterprises Ltd List

70. Lassam Philip is the current Councillor for the Ware Island Ward of Bwanabwana Local Level Government. In 2005 he was the Village Clerk (Secretary) while the Lead Plaintiff David Lebasi was the Ward Member or Councillor.
    
71. On 3^rd February 2005, on one of his trips into Alotau, he was informed by a person from the neighbouring Engineer Group of Islands that David Lebasi and men in his company were on Abaiwalan Island diving for sea cucumbers using a hookah gear – a prohibited equipment.
    
72. He immediately returned to Ware Island and convened a meeting of the Ward Law and Peace Committee to inform them of the matter and discuss how best to prevent the use of the illegal equipment. Members of the Committee were aware of the problem and demanded that the matter be reported immediately to the authorities, particularly the Fisheries Officer on Samarai.
    
73. A general meeting of other village leaders was later convened where the leaders expressed the same concerns. Lassam Philip and some community leaders then travelled Samarai Island the next day, 04^th February 2005, and reported the matter to the authorities and returned to Ware Island. On 06^th February 2005, Defendant Mickey Joseph led a team of villagers to Abaiwalan Island. They returned to Ware with the Plaintiffs together with the compressor and sea cucumbers which they had confiscated from the Plaintiffs. The Plaintiffs were met by angry villagers, who were frustrated that their Ward Councillor David Lebasi, had disregarded Fisheries Regulations, by using prohibited equipment in harvesting sea cucumbers. At the time the compressor hose was damaged by angry villagers. Lassam Philip conceded that David Lebasi and others were pushed about, but were not harmed in any way. He said he quickly intervened and took control of the situation.
    
74. He returned to Samarai Island on 07^th February and informed the authorities, who went to Ware Island the next day, 08^th February 2005. When they arrived, the Plaintiffs were handed over to them together with the equipment seized from them. All throughout this time, none of the Plaintiffs were harassed or assaulted and none of them sustained any injuries, not even David Lebasi who said he sustained a fractured hand.
    
75. Lassam Philip denied the losses claimed by the Plaintiffs. He said that only about 3 bags of sea cucumber were seized from them which he understood belonged to David Lebasi who he further understood had hired the others to fish for him. They were not fishing for themselves.
    
76. As an islander and fisherman, Lassam Philip said that he also harvests sea cucumber, but on average he would harvest roughly around 5 to 6 kilograms which would reduce significantly once dried or processed. He would make about K500 – K800 from these. He said therefore that the amounts the Plaintiffs are claiming are unrealistic and totally untrue. He denied seeing the villagers damage any boats or engines.
    
77. Lassam Philip said in examination-in-chief that 2 x 23footer dinghies, 2 x 40HP Yamaha engines, 1 x 19footer dinghy and 1 x30 HP Yamaha engine were confiscated from the Plaintiffs. Two of the dinghies and their engines were loaned from RFI by David Lebasi while one with the 30HP engines belonged to one of his divers. He did not see anyone do anything to the dinghies and the dinghies but said the villagers cut the compressor hose in frustration. He reiterated that only 3 ½ bags of sea cucumber were taken from the plaintiffs which were not properly dried. The only other item taken were a pair of diving flippers.
    
78. He said that a day’s sea cucumber catch would depend on the species and the depth of the sea. On a good spot he could harvest up to 20 animals per day, and depending on the size he could earn between K500 – k800 for 10 pieces. For a season he could earn between K1000 – K5,000. And of course, 30 men could harvest and earn a lot more. He, however, denied knowing anyone who was making more than K200,000,00 per season. On average people would make K10,000.00 and below. He said seasons were several months long and that the 2005 season lasted 6 months.
    
79. In cross-examination Lassam Philip admitted that one could earn more than K10,000,00 if one had people diving for him. He did not agree, though, that the value of 512kg of sea cucumber could exceed K20,000.00 but agreed that 30 men could easily harvest more than K20,000.00 worth of sea cucumber.
    
80. In re-examination he agreed that the 512kg of sea cucumber could not have fetched more than K60,000.00, but it could fetch an amount in excess of K20,000.00.
    
81. Mickey Joseph is one of the defendants. He is a member of the Ware Village Committee. In 2005 he was working under David Lebasi the Ward Councillor. In his affidavit sworn and filed on 21 January 2019, he deposed of being told by a villager that David Lebasi had brought in outsiders and they were diving for sea cucumber at Abaiwalan Island using hookah/compressor gear.
    
82. After the matter was reported to the authorities on Samarai, he led a team of villagers to Abaiwalan Island where he informed David Lebasi why they had come for him. In the meantime, they dispatched Tailor Faiteli, Roger Alby and other boys to Taubala Kana Dunali Reef to search for the divers and the hookah gear. They rounded them up and then returned to Abaiwalan with the hookah gear and sea cucumbers. They then escorted David Lebasi and his companions back to Ware Island.
    
83. He said the villagers were very angry with David Lebasi, but they were able to restrain them from taking the law in to their own hands. When the government officers arrived from Samarai the next day David Lebasi and his companions and the equipment seized from them were handed over to the officers.
    
84. Mickey Joseph corroborated Lassam Philip that the Plaintiffs were not assaulted by the villagers. And having read the Plaintiffs’ affidavits in support of their claims for damages, he said that he absolutely disagreed with amount of beche-de-mer each of the plaintiffs said they lost. He said that if the Plaintiffs did not use hookah gear, they could not have harvested 20 kilograms a day. As a diver himself it would be impossible for him to harvest that much in a day. He would be extremely lucky to get more than 8 kilograms.
    
85. He corroborated Lassam Philip and Steven Klembassa that only 3 ½ bags of sea cucumber were confiscated from David Lebasi and his co-plaintiffs, that none of them were assaulted, that their boats and engines were not damaged and that the only thing damaged by the villagers was hookah gear hose. He did concede, though, that David Lebasi was pushed around a bit, but not punched, kicked, or hit with bush knives, stones or axes and sticks. This witness was not cross-examined.
    
86. Rodger Albi was the last witness for the defence. In his affidavit sworn on 21 January 2019 and filed on 25^th January 2019 (EXH. 4 for the defence) Alby corroborated much of Klembassa, Lassam Philip and Mickey Joseph’s evidence that only 3 ½ bags of semi-processed beche-de-mer were seized from the Plaintiffs, that none of them were assaulted or injured and that none of the boats and engines were damaged. The only thing damaged was compressor or hookah gear hose.
    
87. Alby deposed that he had read the affidavits of the 13 Plaintiffs wherein they claimed to have lost between 10 to 552 kilograms of beche-de-mer due to the unlawful actions of the defendants including him. He also noted that regardless of species, the Plaintiffs all claimed that the different species of sea cucumber all fetched K180.00 per kilogram.
    
88. Alby deposed that he had been involved in the fishery since 1999 and he would be extremely luck to harvest 10 kilograms a day. His daily harvest averaged between 5 – 7 kilograms, However, once dried the weight will be much less. He said it was impossible to fish all day let alone continuously due to the cold and other factors. He would normally fish for half a day for about two days, go home to rest before going out again. Other villagers follow more or less the same routine. He therefore finds it unbelievable that any one of the Plaintiffs could have lost so much beche-de-mer.
    
89. Alby disputed that all species of beche-de-mer claimed to have been lost by the plaintiffs fetched K180.00 per kilogram irrespective of species. On the contrary he said each was bought at different rates depending on size and grade. He thus corroborated Klembassa in this regard.
    
90. Back in 2005, Large White Teat was bought at K80.00 per kilogram, Medium at K60 per kilogram and Small at K50 per kilogram. And to prove this point he annexed seven receipts or invoices for sales he and others had made between 2001 and 2004. These showed the buying prices for various species including White Teat. One of his sales receipts (Docket No. 44181) dated 17 March 2004 from Nako Fisheries T/A Kiwali Exports shows that Large White Teat was buying at K80 per kilogram, Medium at K60 per kilogram and Super Large at K100.00 per kilogram. He also annexed the same 2005 Price List from Asiapac Ltd which Klembasa also annexed to his own affidavit which showed among others that Large White Teat was at that time buying at K90.00 per kilogram. Nowhere in this price list was a species of beche-de-mer paying K180 per kilogram.
    
91. Finally, Alby deposed that it was common knowledge among the villagers that David Lebasi had hired the other plaintiffs to fish for him, so whatever beche-de-mer they harvested belonged to David Lebasi and not them.
    

THE LAW

92. The law on assessment of general damages is settled. The authorities are too numerous to cite but as the Supreme Court said in Motor Vehicles Insurance Limited v Maki Kol (2007) SC902:
    

6. Generally speaking, a desire to compensate one’s loss and suffering is at the very core of the whole body of law governing the assessment of damages, be it for a breach of contract situation or personal injuries. Usually, the law looks at awarding damages in monetary terms not more or not less than what has actually been suffered or lost. Lord Blackburn in Livingstone v. Rawyards Coal Co,[(1880) 5 App Cas 25 (HL), at 39] formulated the classical and often quoted principle in the following terms:

"where any injury is to be compensated by damages, in settling the sum of money to be given for ... damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation."

7. In time, this principle has become known as the principle of restitutio[] in integrum. This principle applies to personal injuries cases with emphasis on the plaintiff being compensated to make good "so far as money can do’" his loss or damage. At the same time, it is accepted that, an order for payment of money cannot possibly fully restore a condition of physical injury or loss by a person. In other words, assessing damages for personal injuries is not a matter of mathematics. It is rather an estimate in money terms, what one’s loss or injury is, with the aim of, trying to restore the loss as is nearly as is possible to do. This therefore, leaves much room for difference of views in assessment of damages in anyone given case. ...

8. In addition to the main principle set out above, there are a number of other well accepted principles of law governing the assessment of damages. One of them is the need to take into account the prevailing circumstances, especially the economic conditions at the time of the assessment of damages in the country as well as the views of the community as to what is fair and reasonable compensation. ...

9. Another principle is the need to take into account, awards in previous similar or comparable cases and arrive at an award of damages that are similar to the awards in the comparable verdicts. This does not however, mean that the Court must be oblivious to the change in circumstances since the award in the past comparable verdicts. Instead, they are duty bound to take into account such things like rise in inflation and chances in the economy since the awards in the previous cases. A latest statement and application of that principle in our jurisdiction is by the Supreme Court in the case of Andrew Moka v. the Motor Vehicles Insurance Limited

[(2004) SC729] This is how the Court put it after referring to a number of earlier cases:

"We are of the opinion that in the light of the high rate of inflation existing at the present time the courts ought to consider that as a factor in considering awards for general damages for pain and suffering. We consider that due to inflation, the award for general damages for pain and suffering ought to be much higher now then what the Court was awarding in 1988 and 1998, when the above cases were decided."

93. For economic loss, the court went on to say:
    

26. The principles on which both past and future economic loss can be awarded is clear, ... One of the most important principles is that, a plaintiff must establish his economic loss, before the Court can make an award for any such losses. This is not a difficult thing to do. If the plaintiff was engaged in an income earning activity as at the time of his or her sustaining the injuries, he or she must produce evidence of both the income generating activity and its monetary value, the amounts he or she has lost and stands to lose as a result of the injuries and the disabilities. Where a plaintiff produces such evidence, the Court is duty bound to assess the plaintiff’s past and future economic losses. On the other hand, if a plaintiff fails to produce any such evidence, the Court can either make no award or make a nominal award having regard to the reduction in the plaintiff’s income earning capacity to support him or herself and his or her dependants.

94. Cannings J in Komba v Duwaba (2006) N2979 restated other relevant principles on assessment of damages. These are:
    
    • 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, Jalina J.)
      
    • Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, Lenalia AJ.)
      
    • 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, Woods J.)
      
    • 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 and Others v The State (1995) N1369, Injia J.)
      
    • If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, Injia J.)
      
    • 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, Injia J.)
      
    • Where default judgment is granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214, , National Court, Woods J; MVIT v Pupune [1993] PNGLR 370, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, Injia J.)
      
    • 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 and Others v Sergeant Poko and Others (2001) N2274, Jalina J.)
      
95. I respectfully adopt these principles.
    

ASSESSMENT OF DAMAGES

96. I have heard the evidence and have considered the oral and written submissions by counsel. At this juncture, I reiterate what I found at the trial on liability – that only the following heads of damages were proved:
    
    • Embarrassment, shame, and ridicule caused to the Plaintiffs upon the arrest by the Third Defendants and other villagers of Ware Island.
    • Damages to the Plaintiffs boats and fishing gear
    • Economic loss arising out of the seizure, confiscation, and detention of the Plaintiffs’ boats and beche-de-mer by the second and third defendants.
      
97. I must also reiterate that I found that no Constitutional rights of the Plaintiffs were breached hence no damages should flow there-from. In particular the Plaintiffs were held in the police cells in Alotau for a very short time - 6 hours. They were detained lawfully on suspicion of using prohibited equipment for harvesting sea cucumber, but were released after 6 hours when a lawyer stepped in on their behalf. And while they were advised to await further action by the relevant authorities, i.e., the police and NFA and having waited for two weeks in Alotau before they finally returned to their island village, they were not restrained in any way or prevented from leaving Alotau.
    
98. In my judgment on liability, I found that only the State, but not NFA was vicariously liable for the actions of the First Defendant Mr. Klembasa, who at the relevant time was not employed by the NFA, but by the Milne Bay Provincial Administration.
    
99. I now find, however, from Mr. Klembasa’s evidence both at trial on liability and on assessment of damages that he also performed duties delegated to him by NFA to ensure compliance with the National Fisheries Management Act, and in particular, the National Beche-de-mer Management Plan.
    
100. In that regard I concede that I slipped by misapprehending the facts. This slip ought to be corrected. But do I have the power to correct a slip? The Supreme Court answered this question in National Capital District Commission v Dademo (2013) SC1260 (Injia CJ, Sawong and Murray JJ) when it held, among others, that the same court or judge who gave the judgment on damages may vary the judgment under the slip rule principle. At paragraphs 7 and 8 of the judgment the court said:
     

7. The National Court's jurisdiction to correct its own mistakes in a judgment under the slip rule principle is part of the Court's inherent discretionary jurisdiction. It is an open ended and flexible procedure developed by case law that permits the judge or Court to correct errors in a judgment that would be either "clerical, accidental omission in a judgment or order or would be a misapprehension of fact or law": Laimo v Kama, [(2010) SC1063] Clearly the jurisdiction may be exercised by the Court of its own motion or invoked by a party on application, in an appropriate case, at any time after judgment is given.

8. The provisions of O 8 r 59 of the National Court Rules 1987 reinforces the slip rule principle insofar as "clerical mistakes" in a judgment is concerned. It permits a judge on application by a party or of the Court's own motion, to correct clerical mistakes in a judgment at any time after judgment has been given. A slip rule application under this provision is not premised on whether or not the orders have been entered.

101. I therefore correct that slip and hold that both the Third and Fourth Defendants (NFA and the State) were vicariously liable for the actions of the First Defendant, in so far as they concerned his confiscation of the Plaintiffs’ properties and any damages or destruction incurred therein while they were in his custody.
     
102. Let me now assess the heads of damages which I have allowed to proceed to assessment in respect of the Plaintiffs, either collectively or individually as appropriate.
     

General Damages for Embarrassment, Shame and Ridicule etc.

103. As I found at the trial, all the plaintiffs were paraded before other villagers on Ware Island when they were escorted in from the Abaiwalan Island. They were individually and collectively subjected to ridicule, shamed, and publicly embarrassed. I found also that given the tense situation, they would have been physically assaulted and indeed they were. The plaintiffs’ evidence is mutually corroborative of this, despite denials by the defendants Lassam Philip, Mickey Joseph and Roger Alby to the contrary. None of the Plaintiffs, however, provided evidence – corroborated or otherwise - of the injuries they said they suffered. Nevertheless, they were humiliated, shamed, ridiculed, and embarrassed when they were publicly paraded through the village and of course assaulted.
     
104. Mr. William submitted on behalf of the Plaintiffs that appropriate damages ought to be K5000.00 for each Plaintiff. Counsel relied on the case of Chapok v Yali (2008) N3474. There the plaintiff was summoned to a meeting by the defendant, who was the governor of Madang. As soon as he arrived at the meeting, the defendant verbally abused him and punched him to the ground. The plaintiff sustained a bloodied nose and facial abrasions. His injuries were not permanent nor was he hospitalized.
     
105. In Latham v Peni [1997] PNGLR 435, the plaintiffs were assaulted by the defendant whilst travelling from Singapore to Port Moresby on an Air Niugini scheduled flight for no apparent reason at all. The plaintiffs did not know the defendant. They suffered bodily injuries requiring medical attention. They sought punitive, aggravated, special and general damages. Among others, Doherty J awarded K1500.00 to each plaintiff in general damages for assault, pain, suffering and injury and for aggravated damages K9,000.00 for each plaintiff.
     
106. The circumstances of the current case are indeed similar to those in Chapok v Yali (supra) and I therefore award each of the 10 plaintiffs K5000.00 in general damages for assault, pain, suffering, embarrassment and ridicule and shame. That is a total of K50,000.00.
     

Damage to Dinghies, Fishing Gear, Utensils Etc.

(a) Dinghies & Outboard Motor Engines

107. The four dinghies and outboard motor engines that were confiscated from the Plaintiffs belonged to David Lebasi and Lendiken Tensy. David Lebasi owned two of the dinghies - a 23footer and 19footer which were powered by two 40hp Yamaha outboard motor engines. Lendiken Tensy owned the 19footer dinghy powered by a 40hp Yamaha outboard motor engine. There is no evidence as to who the owner(s) of the fourth motorized dinghy was and so nothing more should be said about it.
     
108. Be that as it may, both David Lebasi and Lendiken Tensy claimed that their boats and engines were damaged, not only when they were apprehended by the Ware villagers, but also when they were in the custody of Steven Klembasa at Samarai. They both further deposed that the dinghies and engines were completely unserviceable or damaged beyond repair when they were returned to them some 5 months later.
     
109. Steven Klembassa of course denied this. He said that all the dinghies and engines that were in his custody were returned to David Lebasi undamaged and in good working condition.
     
110. The plaintiffs here have to prove, with credible evidence, that their dinghies and motor engines were indeed damaged, either when they were confiscated upon their apprehension and escorted back to Ware Island or while they were in Steven Klembassa’s custody. A mere general statement that the properties were damaged is not sufficient. How were the damages sustained and what were the nature of the damage? They provided no evidence at all as to the nature of the damage done to the dinghies and engines. Furthermore, there is no evidence to corroborate their broad and general statements. They have not adduced or provided reports from reputable mechanics, for instance, to verify that the boats and engines were indeed damaged beyond repair.
     
111. As we have seen, 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 (supra). In this case Steven Klembassa was corroborated by Philip Lassam and the other two witnesses who denied that the properties in question were ever damaged. That being the case, I am not satisfied on the balance of probabilities that these Plaintiffs’ dinghies and outboard motor engines were damaged beyond repair, if at all. These claims are therefore denied.
     
     • (b) Fishing Gear, Utensils Etc.
       
112. All the 10 Plaintiffs individually deposed that they lost various fishing gear and assorted equipment, cooking utensils, food rations and items of clothing. Again, they each provided no corroborating evidence. They did not even corroborate what the other plaintiffs said they lost. Notwithstanding that, it is not beyond the bounds of possibility that they indeed may have lost some of these properties or that they left them back on Nabaina Island when they were escorted out of there by the Second Defendants.
     
113. Despite Steven Klembassa saying that he only confiscated one pair of flippers which belonged to David Lebasi, I am satisfied that the plaintiffs would indeed have lost some of things they said they lost. But did they really lose everything they said they lost? I am satisfied that they would have had the necessary fishing gear for the task at hand and that they would have had sufficient rations for the period they planned to be out on the reefs.
     
114. However, the Court was not told how long they intended to be out diving. Judging by the volume of the rations they said they lost, one would be led to believe that they intended to be out on the islands for a fair bit of time. I am, however, not convinced that the Plaintiffs, individually and collectively, indeed lost the number of the items they claimed to have lost. Again, the Plaintiffs’ evidence in respect of these items was not corroborated whether independently or mutually. In spite of that, I am satisfied that they would have suffered some loss and I would think that a liberal sum of K500 for each of the 10 Plaintiffs would be a fair compensation for any loss under this head. I will award a small sum for K500.00 for each plaintiff for the loss of fishing gear, utensils, and food rations. That is a total sum of K5000.00.
     

Loss of Beche-de-mer

115. Each plaintiff claimed and deposed to losing a large quantity of beche-de-mer. I will assess their respective claims individually.
     
     • (i) Claim by David Lebasi
       
116. David Lebasi said he lost 512 kg of Beche-de-mer on site and another 40kg were damaged or lost while in police custody. He claims K99,360.00 as lost earnings from these at K180 per kg at the time of the incident. He does not state what species and grades they were.
     
117. Steven Klembassa deposed, and he was corroborated by Lassam Philip and others that only 3 ½ bags of beche-de-mer were confiscated from the Plaintiffs. These were taken to and weighed at Samarai in the presence of David Lebasi by Klembassa. Their total weight was 512kg. If that were the case, and I believe it to be, where did the extra 40kg said to have been lost while in police custody come from? Did the police confiscate them separately from those handed over to Steven Klembassa?
     
118. David Lebasi provided no proof for this nor did he provide any evidence that the 512kg which were pleaded in the Writ of Summons were indeed lost on site and not during storage at Samarai. I am inclined to believe Steven Klembassa and Lassam Philip, Mickey Joseph and Roger Alby that only 3 ½ bags of partly processed beche-de-mer totaling 512kg were confiscated from him. In fact, David Lebasi did depose at Paragraph 19D of his affidavit of losing 512 kg of beche-de-mer (3 ½ bags) a fact he readily confirmed in examination-in-chief and cross-examination.
     
119. David Lebasi deposed that the total value of these products at the time of the incident was K99,360.00 at K180.00 per kilogram. He did not state the species and grades, nor did he provide proof of what the prices for each species and grade of beche-de-mer were at the relevant time. At best, the prices he and his co-plaintiffs claimed were unsupported estimates only.
     
120. Mr. Klembessa deposed that the price of beche-de-mer was fixed by buyers/exporters according to species and graded according to quality and size and not by quantity. He was able to provide the Price Lists from two of the six exporters whom he said were trading in beche-de-mer back in 2005 in Alotau. These were RFI Enterprises Ltd and Asiapac Limited. According to these Price Lists, the highest paying species was sandfish - the highest grade of which was paying K120.00/kg, but this species was not found on the waters around Ware Island. Mr. Klembassa said no other species was fetching anything more than that, least of all K180.00/kg. Mr. Klembassa was amply corroborated by Roger Alby.
     
121. I accept Mr. Klembassa and Roger Alby’s evidence that the price of beche-de-mer was based on grade and species. As such there is and was no universal price for all species of commercial beche-de-mer.
     
122. I accept Klembassa’s evidence that the 3 ½ bags of beche-de-mer weighing 512kg which were confiscated from David Lebasi were of assorted species. There were some Black Teat, White Teat, Big Black, Curry and Lolly. Mr. Lebasi did not offer any evidence to prove otherwise. Since they were not fully processed, they were therefore not graded – a process which I understand happens after the product had been fully dried at the buying point. That being the case, it would have been premature to fix any price for the semi-processed products seized from David Lebasi.
     
123. Now, according to the price list from Asiapac Ltd, the highest grade of White Teat fetched K90.00 per kg, Black Teat @ K80/kg, Big Black @ K45/kg, Curry @ K30/kg and Lolly @ K6.00/kg. And RFI Enterprises Ltd was paying K100/kg (White Teat), K60/kg (black Teat), K45/kg for Big Black, K35/kg for Curry and Lolly (L) at K7.50/kg.
     
124. If that were the case, then David Lebasi’s 3 ½ bags or 512 kg of assorted beche-de-mer would have fetched only a fraction of what he is claiming. If for the sake of argument, the haul consisted entirely of high-grade White Teat at K100kg at RFI’s price with whom Lebasi had dealings, he would have received K51200.00 only but only if the product had been fully processed and dried. However, since not all of it was White Teat, and even if it were, the fetching price would likely be lower given that not all of it would have been of high grade, and most important of all, they were not completely processed and dried.
     
125. It must be noted that the process of drying the beche-de-mer would inevitably results in shrinkage in the size and a decrease in the weight of the product. As one Handbook on processing beche-de-mer puts it:
     

“Processing causes a considerable decrease in both length and weight. Shrinking starts during the boiling processes and continues during smoke-drying and sun-curing. Weight loss is high because of gutting and dehydration, both essential for a properly preserved beche-de-mer product. Decreases in length and weight vary with the species, the size of the individual sea cucumbers, the shape of the species and the thickness of the body wall”.

(Sea Cucumbers and Beche-de-mer of the Tropical Pacific: A handbook for Fishers (Rev. ed.), Handbook/South Pacific Commission No. 18), 1994.)

126. According to this publication, White Teat can lose as much as 44% in length and 8% of body weight during processing while for Black Teat the percentage of shrinkage and weight loss would be 51% and 8% respectively. Blackfish will lose 3% of body weight. I am forced to go out of the record sua sponte because this point is extremely important in determining a fair award and none of the parties discussed this in their evidence or submissions.
     
127. Be that as it may, I am of the view that the amount of K99,360.00 claimed by Lebasi is a gross overestimate of the real value of the beche-de-mer seized from him. There is, however, no question that he lost earnings from the seized products though.
     
128. I have not been referred to any precedents for this type of loss hence I will have to assess David Lebasi’s losses as best as I can. The beche-de-mer industry is very lucrative and the rewards are high for fishermen. There is no doubt therefore that David Lebasi would have earned quite handsomely for his produce. However, that would have been dependent on the several factors I have alluded to above which would have impacted on the quality of the product and ultimately the price.
     
129. Mr. Pepi, with whom Mr. Kuvi agreed, relied on what he said in submissions to be the Standard Formula applied by the NFA for calculating the estimated value of unprocessed beche-de-mer to arrive at the sum of K18,176.00 for the 512kg of assorted species that were seized from David Lebasi. But while there might indeed be such a formula, no evidence was adduced before the Court and what Counsel was doing here was actually leading evidence from the bar table.
     
130. Be that as it may, the figure suggested by Mr. Pepi appears to reasonably represent what David Lebasi could have earned from the seized products. I am not convinced that he would have earned K99,360.00, The sum was grossly inflated and based on a price that appears to me to have been plucked out of the air as none of the buyers in Alotau at the relevant time was paying K180 per kilogram for any of the species of beche-de-mer that are endemic or found around the area the plaintiffs come from.
     
131. I would therefore award a round figure around the sum suggested by the State. I award David Lebasi the sum of K20,000.00 for the 512kg of assorted species of beche-de-mer seized from him.
     
     • (ii) Beche-de-mer lost by other Plaintiffs
       
132. Now, did the other Plaintiffs lose beche-de-mer as well? They all claimed to have lost varying quantities. They did not say where from and who seized their produce. It remains unclear if these were seized on the Abaiwalan Island or elsewhere. They are claiming a combine total of 1308.40 kg of assorted species which of course would have not been fully processed as well. Like David Lebasi, they are claiming K180 per kilogram across the board for all species which included White Teat, Black Teat, Big Black, Lolly, Green fish and Prickly. The total value claimed stands at K235,512.00.
     
133. Apart from the fact that none of the buyers in Alotau, at the relevant time was paying K180.00 for any species at all, and the fact that all species were fetching different prices, hence, the inevitable conclusion that these figures were concocted, there is also ample evidence from Lassam Philip, Mickey Joseph and Roger Alby that these Plaintiffs were hired by David Lebasi to fish for him. And that explains why only 512 kg of assorted species were seized at the time of their apprehension and handed over to Klembassa at Ware Island by Lassam Philip and other village leaders. David Lebasi did not say that he harvested the 512kg himself. Given the evidence from Lassam Philip, Mickey Joseph and Roger Alby that one would be lucky harvest 10 – 20 kg of White Teat a day, it defies logic that David Lebasi could have harvested 512kg of assorted species of sea cucumber over the 4 days which they had been diving before they were apprehended, all by himself. The truth of the matter is that the other Plaintiffs had been hired by David Lebasi to dive for him.
     
134. Ultimately, I find that the other plaintiffs did not lose the amount of beche-de-mer they are claiming. Their claims are fraudulent and were obviously designed to fraudulently and unjustly benefit from the incident.
     
135. Their claims under this head are therefore dismissed. No award shall be granted to them.
     

Damage to Dinghies and Outboard Motor Engines

136. David Lebasi claimed that his two motorized dinghies were returned completely damaged and unserviceable when they were returned to him after 5 months when the Provincial Administration intervened on his behalf. Lendiken Tensy also made a similar claim.
     
137. I do accept that these properties were indeed returned to them after 5 months by which time the beche-de-mer season had closed. They, however, did not provide any evidence – corroborated or otherwise – as to what damage was done to the dinghies and engines. I accept that Klembassa released the properties to NFA after two weeks in good condition. There is, however, no evidence pertaining to their condition while in NFA custody. While NFA needs to negative any claim that these properties were damaged while in its custody, it equally behoves the plaintiffs to provide credible evidence to support their claim. If the engines were damaged beyond repair, where is the evidence from a reputable mechanic? That is the least one could expect and that was something that was well within the plaintiffs’ power to secure and produce in court.
     
138. Based on these observations, I am not satisfied on the balance of probabilities that David Lebasi and Lendiken Tensy’s dinghies and outboard motor engines were damaged let alone damaged beyond repair. No damages are therefore awarded under this head.
     

Refund of K20,000,00 Loan Incurred by David Lebasi

139. David Lebasi also claimed the refund of K20,000.00 he took out as a loan from RFI Enterprises Ltd to purchase two dinghies and two outboard motor engines from Ela Motors specifically for the 2005 Beche-de-mer season. While he deposed to this in his affidavit and made reference to an Annexure in which he purportedly annexed certain documents to prove the transactions, none was actually annexed. He did not produce a copy of his loan agreement with RFI Enterprises nor a copy of sales invoices from Ela Motors.
     
140. This head of damages therefore stands unproven and no damages shall therefore be awarded.
     

Loss of 4 ½ Drums of Zoom by David Lebasi

141. David Lebasi also claimed K3600.00 for 4 ½ drums of zoom. The defence did not lead any evidence to counter this, hence, I award him K3600.00. In any case it is reasonable to expect one to have a sufficient amount of zoom for motorized dinghies when fishing around reefs within the area fished by the plaintiffs.
     

Past Economic Loss

142. All plaintiffs claimed past economic loss of varying amounts. These represented the earnings they could have made had they not been apprehended and not prevented from leaving Alotau Town after they were released to await further action by the police and NFA up until the close of the season.
     
143. The principles guiding the awarding of past and future economic loss are well settled. As the Supreme Court said in Motor Vehicles Insurances Limited v Kol (supra) said, a plaintiff must establish his economic loss before the court can make such award. If he were engaged in an income generating activity at the relevant time, he must adduce evidence of both the income earning activity and its monetary value and the amount he lost or stands to lose as a result of injuries he sustained from the defendants the tortuous act. If he does not, then, the court will, as a matter of course, make such an award. But where no evidence is adduced, the court may either refuse to make an award or make a nominal award having regard to the plaintiff’s earning capacity.

In applying this to the case at hand, have the plaintiffs established by evidence that they were engaged in an income generating activity and how much they earned from such activity or stand to lose as a result of the actions of the defendants?

145. There is no doubt that the opening of the beche-de-mer season in 2005 (or any year for that matter) presented an opportunity for islanders and the plaintiffs to earn a handsome income. In the two weeks they were forced to wait around in Town while NFA and the police decided their fate, there is no doubt that they would have earned an income from beche-de-mer, notwithstanding that at the time when they were apprehended they were actually in the employ of David Lebasi. But could they have made the amounts that they each claimed? I think not because those amounts were obviously grossly inflated and not supported by credible evidence and were proved to be entirely fraudulent by the evidence of the defendants.
     
146. Of the Plaintiffs, only David Lebasi stood to have earned considerably more, given that the others were merely working for him at the time their activities were stopped. There is no doubt that for the period they were in Alotau he would have hauled in a harvest doubled or tripled the volume he had (512kg) when they were apprehended. There is no evidence of what arrangements the other plaintiffs had with Lebasi, particularly as to how long they were to have dived for him and what reward there was for them. I doubt, however, that they were to have worked for him for the whole 6 months.
     
147. I, however, find that absolutely nothing prevented the Paintiffs Leslie Abraham, Kuli Labana, Lendiken Labana, Lama Teddy, Jeffery Japhet, Moses Isikel, Kevin Labana and Dipole Simi from continuing to harvest beche-de-mer to the end of the season. They all returned home and if they chose not to earn an income, that was entirely up to them. There is no evidence that they were incapacitated or prevented in any way by the defendants.
     
148. And so, if we were to go by the evidence of Lassam Philip and Roger Alby that one could earn between K1,000 – K5,000 per season one could reasonably be expected to earn between K500 – K1,000 for two weeks period they were made to wait around in Alotau. However, they may very well would have been engaged for monetary reward, though there is no evidence to support that. Be that as it may, I am not satisfied that they were mere volunteers.
     
149. For each of the plaintiffs except David Lebasi I would award a reasonable sum of K1000 for past economic loss.
     
150. David Lebasi’s and Lendiken Tensy’s situations are somewhat different. Their dinghies and outboard motor engines were unnecessarily and unlawfully detained by NFA after they were released to NFA by Klembassa after he had detained them at Samarai for the initial two weeks. These properties were not released until after the season had closed.
     
151. For David Lebasi, I can reasonably infer that the 30 men (co-plaintiffs) he had engaged could easily have brought in a substantial harvest not only during the two weeks they were in Alotau but also for the whole season had they been engaged that long. But then his entire operations for the whole season were brought to nought by the continued detention of his motorized dinghies which no doubt were important and essential assets to his operations. That represents 4 months of lost earnings from 09^th February to June 2005. He deposed that he lost K500,000.00 as a result. I am, however, not willing to accept this given the inflated prices he and his co-plaintiffs have advanced in their evidence.
     
152. In spite of that there is, however, no doubt in my mind as I said earlier that he would have earned substantially had his season not been prematurely ended by the actions of the defendants. And so, despite assertions to the contrary that no one in the islands would make over K200,000.00 per season, I am of the considered view that given the nature of his operations, David Lebasi could have reasonably earned K100,000.00 or more. I therefore award him K150,000.00 for past economic loss.
     
153. Lendiken Tensy had his boat and engine also detained by NFA after it was released to them by Klembassa. These were also not returned to him until after the close of the season. Obviously, he also lost the use of his asset to earn an income during the beche-de-mer season. I note, however, that the evidence appears to suggest that at the time of his apprehension and confiscation of his properties he was engaged by David Lebasi together with the other plaintiffs. Again, there is no evidence what arrangement he had personally with David Lebasi. For all we know he could have been engaged for the whole season or only for a part of the season. It was incumbent on him to appraise the Court as to the exact terms of his engagement with David Lebasi.
     
154. There is, however, no doubt that he had been prevented from fully utilizing his boat and engine to earn an income for the relevant period. With the dinghy he would been a lot more mobile and would have covered a lot more area within which to dive and harvest beech-de-mer. He claimed K160,000.00 for past economic loss. However, I will award him K40,000.00 only as I do not believe that he could have made that much unless he hired others to dive for him.
     

Exemplary Damages

155. The Plaintiffs claim exemplary damages of K3000.00 each not as punishment but as a deterrent and a warning against Fisheries Enforcement officers and other State agents over the way they conducted themselves in this case.
     
156. The principle of exemplary damages is also settled. Woods J aptly summarized this in Salamon v The State [1994] PNGLR 265 at 265 in the following terms:
     

Exemplary damages are a matter of special consideration and have generally been regarded as a mark of public censure against excessive misconduct. They are not to unjustly enrich a party but, rather, are symbolic of the public's indignation.

157. In my judgment on liability, I found that there were no breaches of any constitutional rights as alluded to above. The Plaintiffs were apprehended under citizen arrest under the Arrest Act and were promptly handed over to Mr. Klembassa and the OIC of Police at Samarai, who, in turn immediately took them to Alotau where they were locked up but released 6 hours later. They were then made to wait around in town while the NFA and the police delayed and tarried with their decision whether to lay charges under the National Fisheries Management Act for breaches thereto. They finally decided not to proceed with prosecution but continued to detain David Lebasi’s and Lendiken Tensy’s motorized dinghies until the beche-de-mer season closed. That is conduct that must be condemned with exemplary damages.
     
158. The other Plaintiffs are simple villagers who were removed from their island villages and made to wait around in town for two weeks while the authorities took their time to decide what to do with them in a matter that was pretty straight forward. That too is deserving of the award of exemplary damages. I award the sum of K3000.00 to each plaintiff.
     
159. I tabulate below the amounts of damages awarded to each plaintiff.
     

ORDERS

160. In conclusion the orders of the Court are:

1. Judgment is entered against the Third and Fourth Defendants in the sum of K306,600.00 plus interest of 8% pursuant to Judicial Proceedings (Interest on Debts and Damages) Act 1962 from the date of filing to the date of judgment.

2. The third and Fourth Defendants shall pay the costs of these proceedings which, if not agreed upon, shall be taxed.

Ordered accordingly.
________________________________________________________________
M.S. Wagambie Lawyers: Lawyers for the Plaintiffs
Elemi Lawyers: Lawyers for the First, Second & Third Defendants
The Solicitor General: Lawyers for the Fourth Defendant