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Komba v Laurie [2021] PGNC 454; N9334 (27 October 2021)

N9268

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 967 OF 2012

BETWEEN

SYLVERSTER HARRY KOMBA

First Plaintiff

AND

KAPU SAP

Second Plaintiff

AND

MAJOR LARRY LAURIE,

Operation Commander, Security Force, National General Elections, PNG General Elections

First Defendant

AND

TOAMI KULUNGA,

Commissioner of PNG Constabulary and Commander of Security Forces, PNG National General Elections 20212

Second Defendant

AND

FRANCIS AGWI

Brigadier General, Commander of PNG Defence Force

Third Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Waigani: Tamade AJ

2021: 1^st & 27^th October

WRONGS (MISCELLANEOUS PROVISIONS) ACT 1975 – s1(1) and (4) – General Liability of the State in tort - State is subject to all liabilities in tort to which, if it were a private person of full age and capacity - State officer commits a tort while performing or purporting to perform the functions of the State – State is held liable.

TORT – unlawful assault - alleged PNGDF and Police brutality – trial on vicarious liability of the State – whether vicarious liability of the State requires plaintiff to prove that several PNGDF and police officers were acting within the scope of their lawful police functions.

Cases Cited:

In the Matter of an Application for Enforcement of Human Rights pursuant to Section 57 of The Constitution and In the Matter of an Application by Kunzi Waso [1996] PNGLR 218
More v The State [1998] PNGLR 290
Pinda v Inguba (2012) SC1181
Kewakali v Independent State of Papua New Guinea [2011] PGSC 1; SC1091
Koloma v Independent State of Papua New Guinea [2013] PGNC 233; N5423
Kuk Kuli v. The State (2004) N2592
Mali Pyali v. Chief Inspector Leo Kabilo and The Independent State of Papua New Guinea (2003) N2492

Legislation

Wrongs (Miscellaneous Provisions) Act 1975

Counsel:

Sylvester Harry Komba- First Plaintiff in Person

Ms Pricilla Ohuma, for the Defendants

27^th October, 2021

1. TAMADE AJ: This was a trial on liability heard on 1^st October 2021. The First Plaintiff prepared himself and appeared before me for the trial of this matter by way of Affidavit evidence and made submissions with Ms Ohuma from the Solicitor General’s Office and I reserved a decision on the matter. This is my decision on trial on liability.

2. The Plaintiff claims that on 1^st July 2012, he was a candidate running for the seat of the Governor of Southern Highlands Province when he and the Second Plaintiff were brutally assaulted by PNG Defence Force Soldiers and police stationed in Southern Highlands at the time who were providing security overseeing the national elections.

3. The Plaintiffs allege that they were severely assaulted and suffered injuries at the hands of the police and PNGDF soldiers and now seek recompense before the Court.

Brief Facts

4. The Plaintiff alleges that in 2012 whilst a student at the University of Papua New Guinea, the Plaintiff attempted to run for the 2012 National Elections by contesting the Southern Highlands Provincial seat thereby withdrawing from studies and attending at Mendi in the Southern Highlands Province for the elections.

5. On or about the afternoon of 1^st July 2012, the Plaintiff alleges that he was having a conversation with one Mr Epi Komal who is the brother of the then Member for Nipa Kutubu, Hon Jeffery Komal (as he was then) when a commotion ensured between the parties.

6. The Plaintiff alleges in his Amended Statement of Claim filed on 5^th October 2015 that the Plaintiffs were observing the counting at the Momei Oval in Mendi and afterwards when they were returning to their residence, they met Mr Epi Komal and had a discussion with him. Mr Epi Komal is alleged to be also a former soldier and a supporter of the incumbent then Honourable Mr William Powi who was also contesting the South Highlands Provincial seat.

7. A conversation happened between the Plaintiffs who were interested in the outcome of the counting of ballots as Mr Komal is a candidate and Mr Epi Komal however got upset and a commotion erupted between the parties.

8. The Plaintiffs allege that fearing for opportunists to seize the situation, they left for their residence about 300 meters from where the commotion ensued.

9. Mr Epi Komal however attended at the Mendi Police Station and sought the assistance of the Police regarding the commotion with the Plaintiffs in which two security force vehicles involved in the Security Operations of the elections belonging to the PNG Defence Force drove at a high speed to stop the Plaintiffs and severely assaulted the Plaintiffs who sustained injuries.

10. The Plaintiffs also state that the vehicles belonging to the PNGDF had eleven army personnel who were fully armed in combat uniform and were on duty to quell any tensions arising out of the elections and or contain any situations caused by criminal elements relating to the elections.

11. These army personal in the two vehicles belonging to the PNGDF after alighting from their vehicle therefore assaulted the Plaintiffs and a soldier in the company of others armed with a large piece of timber began to smash the right-hand side of the vehicle the First Plaintiff was driving.

.12. The Plaintiffs were dragged out of their vehicles and were severely beaten and assaulted by the soldiers. The First Plaintiff was taken to the police station but was later taken to the Hospital for treatment for the injuries he suffered.

13. The State however in its’ Defence denies all the allegations by the Plaintiffs and state that the Plaintiffs have not specifically named the tortfeasors who were involved in this matter and that there is no nexus between the Second, Third and Fourth Defendants and that the State is not vicariously liable for the conduct of the unidentified officers who are alleged to have committed the assault as these unidentified officers were acting outside the scope of their employment.

Issues

(1) Is the State vicariously liable for the unlawful acts of unidentified officers of the PNGDF and police personal who assaulted the Plaintiffs and caused them bodily injury and trauma?

14. The conduct of the Police and PNGDF personnel at the material time against the Plaintiffs is clearly an excessive use of force which resulted in the Plaintiff’s suffering from injury and trauma to say the least.

15. In the case of Koloma v Independent State of Papua New Guinea [2013] PGNC 233; N5423 (15 November 2013), the Court ordered exemplary damages against unidentified members of the police force who burnt houses and looted stores at a village outside Mt Hagen. The Court was satisfied on the evidence of the Plaintiffs that unidentified police officers were responsible for the raid and did not accept the evidence of the State that other persons committed the unlawful acts of arson and looting.

16. Section 1(1) and (4) of the Wrongs Act states that:

1. GENERAL LIABILITY OF THE STATE IN TORT.

(1) Subject to this Division, the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject–

(a) in respect of torts committed by its servants and agents; and
(b) in respect of any breach of the duties that a person owes to his servants or agents under the underlying law by reason of being their employer; and
(c) in respect of any breach of the duties attaching under the underlying law to the ownership, occupation, possession or control of property.

4) Where functions are conferred or imposed on an officer of the State as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government.

17. In the case of Kewakali v Independent State of Papua New Guinea [2011] PGSC 1; SC1091 (11 March 2011), the Supreme Court held that;

“Where vicarious liability is claimed, the plaintiff must name the servant or agent or alleged tortfeasor as defendant and must also plead in the Statement of Claim the nexus or connection between the principal tortfeasor and the nominal defendant.” [ Kuk Kuli v. The State (2004) N2592; Mali Pyali v. Chief Inspector Leo Kabilo and The Independent State of Papua New Guinea (2003) N2492 considered.]

18. The State has not rebutted in evidence whether the unlawful acts complained of against the Police and the PNGDF were committed by other persons. The State says that those acts were committed but were committed by servants and agents of the State but outside the course of their duty as the unlawful acts were not permitted and were not sanctioned by the State.

19. The State relies on the case of Pinda v Inguba (2012) SC 1181 which states that a Plaintiff must plead that policemen and woman were acting within the course of their duties and were performing their functions conferred on them by law when a tort was committed. The police personnel and the PNGDF officers must be seen to be committing the tort during the course and within the scope of their employment for the State to be liable. The State submitted that the act of the Police personnel hitting Mr Komba with a timber on the head and being hit by other soldiers whilst he was lying helpless on the ground was not an act within the course of their employment.

20. The State relies also on the case of More v The State [1998] PNGLR 290 wherein two policemen who were part of a group attended on a premises to conduct a search went out of their duties by raping a woman after tying up her boyfriend. The Court held that the policemen “went on a frolic of their own and committed a serious crime which was in no way associated with or related to the lawful instructions given to them. Therefore, even if the policemen involved were identified, the State can not be vicariously liable..”

21. The facts of the present case are far different to the case as referred to by the State in terms of raping of a woman by police officers. This is clearly where no right sane thinking person would do in the course of their employment. Rape is a calculated crime. In this case, police personnel and PNGDF officers were on duty to ensure safe and smooth elections in Southern Highlands when the Plaintiffs were brutally assaulted after leaving the counting area and after consulting with an officer who was related to one of the running candidates in the election.

22. There is no evidence by the State to counter or oppose the evidence by the Plaintiffs as to what happened on the day. I am left to accept the evidence by the Plaintiff’s that the police personal and the PNGDF officers were acting within the course of their employment to break off any riot and or quell any tensions and in the course of carrying out this function, the Plaintiffs were severely assaulted and sustained injuries. There is no evidence that the Plaintiffs were apprehended and brought to the police station to be questioned as to whether they have committed any lawful acts, the evidence says that they approached the Plaintiff’s at high speed, alighted from their vehicles and assaulted the Plaintiffs only to injure them and drop them off at the police station later.

23. The Officers of the PNGDF and the police personnel have discharged their duties in a manner contrary to the proper discharge of their duties and have used excessive force in this instance. This is too common an occurrence throughout this country where civilians suffer a great deal at the hands of the people who are vested by the State to protect them.

24. I therefore find that the unidentified police personnel and the PNGDF Officers were acting within the course of their employment and did assault the Plaintiffs thereby causing them bodily injury and trauma.

25. I accept that the First Plaintiff is a lay person, and he has represented himself and the Second Plaintiff and I accept their evidence and submissions and find for both of them against the Defendants.

26. The State has made submissions relying on the case of In the Matter of an Application for Enforcement of Human Rights pursuant to Section 57 of The Constitution and In the Matter of an Application by Kunzi Waso [1996] PNGLR 218, that the Court had held in that case that where unlawful acts are caused by servants and officers of the State in the discharge of their duties, these officers should be personally liable for their own unlawful acts as their unlawful acts are not sanctioned by the State. The individual tortfeasors therefore must be personally liable and not the State.

27. I digress from this view in this instance that as long as we hold individual tortfeasors liable and exclude the State from liability, we leave victims uncompensated and worse off especially where the unlawful acts are committed whilst carrying out their lawful functions. Cases where the officers of the State have clearly gone on a frolic of their own is a different scenario where they should be personally liable.

28. The State as any employer should bear the liability and ensure that its disciplined forces are trained in the highest order to effectively carry out their duties and to protect the very people they are there to protect. Times have evolved and disciplined forces are trained in human rights abuse etc and only necessary force should be used to disarm a situation etc however civilians should not be begging for their lives at the mercy of gun wielding, machete and timber wielding, trigger happy law enforcement officers.

29. I therefore make the following orders:

1. The Defendants are found liable for the unlawful assault and injuries caused to the Plaintiffs.
2. The matter shall proceed to a hearing on assessment of damages.
3. The Defendants shall meet the Plaintiffs costs of these proceedings.
   

Orders accordingly.
______________________________________________________________
Sylvester Harry Komba: First Plaintiff In Person
Solicitor General’s Office: Lawyers for the Defendants